Jenkins v. O'Banner et al, No. 4:2009cv00018 - Document 6 (N.D. Miss. 2009)
Court Description: MEMORANDUM OPINION re 5 Final Judgment. Signed by W. Allen Pepper on 4/16/2009. (pbs, USDC)
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI GREENVILLE DIVISION ORLANDA JENKINS PLAINTIFF V. NO. 4:09CV018-P-D FRED O BANNER, et al. DEFENDANTS MEMORANDUM OPINION This matter is before the court, sua sponte, for consideration of dismissal in accordance with 28 U.S.C. §§ 1915(e)(2) and 1915(A). Plaintiff, an inmate in the custody of the Mississippi Department of Corrections, files this pro se complaint pursuant to 42 U.S.C. § 1983. Plaintiff complains of a Rule Violation Report ( RVR ) he received for assault on September 30, 2008. Plaintiff claims that the Defendants failed to follow MDOC disciplinary procedures with regard to issuing the RVR. Plaintiff asks for equitable relief in that he wants the RVR expunged and to be reclassified. After carefully considering the contents of the pro se complaint and giving it the liberal construction required by Haines v. Kerner, 404 U.S. 519 (1972), this court has come to the following conclusion. It is clear that whether claims are habeas corpus or civil rights in nature a plaintiff must be deprived of some right secured to him by the Constitution or the laws of the United States. Irving v. Thigpen, 732 F.2d 1215, 1216 (5th Cir. 1984) (citing 28 U.S.C. § 2254(a) (1982)); Trussell v. Estelle, 699 F.2d 256, 259 (5th Cir. 1983)). In the event there is no constitutional right, the plaintiff's complaint fails. Irving, 732 F.2d at 1216 (citing Thomas v. Torres, 717 F.2d 248, 249 (5th Cir. 1983)). Despite Plaintiff s insistence, the constitution has not been implicated by the facts of this case. Brown v. Felts, 128 Fed. Appx. 345, 2005 WL 719491 at *1 (5th Cir. Feb. 23, 2005) (placement in administrative detention does not raise a constitutional issue). Plaintiff was afforded a disciplinary hearing to challenge the RVR, thus meeting the due process requirements of Wolff v. McDonnell, 418 U.S. 539 (1974). Furthermore, a prison officials failure to follow the prison s own policies, procedures or regulations does not provide a basis for relief. Stanley v. Foster, 464 F.3d 565, 569 (5th Cir. 2006); see also Sharp v. Anderson, 220 F.3d 587, 2000 WL 960568 at *1 (5th Cir. Jun. 15, 2000) (placement in administrative segregation after being found not guilty of disciplinary charges did not implicate due process concerns). Furthermore, inmates have neither a protectable property or liberty interest to any particular housing assignment or custodial classification, either under the United States Constitution or under Mississippi law. Meachum v. Fano, 427 U.S. 215, 224 (1976); Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992); McCord v. Maggio, 910 F.2d 1248, 1250 (5th Cir. 1990) (citations omitted); Miss. Code Ann. §§ 47-5-99 to -103 (1993). Inmates have no right to a particular classification within the penal system. Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). Prisoner classification is a matter squarely within the broad discretion of prison officials, free from judicial intervention except in extreme circumstances. McCord, 910 F.2d at 1250 (citations omitted). Accordingly, Plaintiff has failed to state a claim upon which relief may be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The dismissal of Plaintiff s frivolous complaint shall count as a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Mr. Jenkins is cautioned that once he accumulates three strikes, he may not proceed in forma pauperis in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). A final judgment in accordance with this opinion will be entered. THIS the 16th day of April, 2009. /s/ W. Allen Pepper, Jr. W. ALLEN PEPPER, JR. UNITED STATES DISTRICT JUDGE 2
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