Blakeney v. Holman et al, No. 3:2012cv00416 - Document 11 (S.D. Miss. 2012)

Court Description: MEMORANDUM OPINION AND ORDER dismissing claims against defendant Donald Mitchell with prejudice. This dismissal counts as a strike. The remainder of this case shall proceed. Signed by District Judge Tom S. Lee on 8/10/12 (LWE)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION JOHN CHRISTOPHER PAUL BLAKENEY, # 132918 PLAINTIFF VERSUS CAUSE NO. 3:12cv416-TSL-MTP JAMES HOLMAN, DENISE BONE, and DONALD MITCHELL DEFENDANTS MEMORANDUM OPINION AND ORDER DISMISSING MITCHELL BEFORE THE COURT are pro se plaintiff John Christopher Paul Blakeney s pleadings. He is incarcerated with the Mississippi Department of Corrections and complains of an alleged wrongful Rule Violation Report ( RVR ). The court has considered and liberally construed the pleadings. As set forth below, defendant Donald Mitchell is dismissed. BACKGROUND Blakeney alleges that, on December 18, 2011, he was housed at the Central Mississippi Correctional Facility in Pearl, Mississippi. There, he contends he received a wrongful RVR. Among others, he sues Mitchell. As is relevant to him, Blakeney alleges that, while he was absent from his cell, Mitchell searched Blakeney s cell and discovered five cellular phones underneath his mat. He denies ownership of the phones and alleges that 89 other men had access to his mat. 4). RVR. (Compl. at Defendant Denise Bone nevertheless found him guilty of an DISCUSSION The Prison Litigation Reform Act of 1996, applies to prisoners proceeding in forma pauperis in this court. One of the provisions reads, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 1915(e)(2)(B). 28 U.S.C. § The statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Hernandez, 504 U.S. 25, 32 (1992). Denton v. [I]n an action proceeding under Section 1915(d), [a federal court] may consider, sua sponte, affirmative defenses that are apparent from the record even where they have not been addressed or raised. Higgs, 892 F.2d 438, 440 (5th Cir. 1990). Ali v. Significantly, the court is authorized to test the proceeding for frivolousness or maliciousness even before service of process or before the filing of the answer. Id. The court has permitted Blakeney to proceed in forma pauperis in this action. His Complaint is subject to sua sponte dismissal under Section 1915. Blakeney alleges that Mitchell violated Blakeney s Fourth 2 Amendment rights because Mitchell conducted the search outside of Blakeney s presence and the phones were not his. A prisoner does not have an expectation of privacy in his cell and accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. Hudson v. Palmer, 468 U.S. 517, 525-26 (1984). Additionally, Blakeney has no constitutional right to attend the search of his cell. Block v. Rutherford, 468 U.S. 576, 590 (1984) (holding detainees had no right to observe searches of their cells). Such a claim is properly dismissed as frivolous. Montana v. Comm r s Ct., 659 F.2d 19, 22 (5th Cir. 1981). As for Blakeney s professed innocence, there is no freestanding constitutional right to be free from false charges. Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir. 2003). On the other hand, the knowing use of fabricated evidence may violate procedural due process or other constitutional rights. 953-54, 958. Id. at He does not claim Mitchell fabricated evidence. Because Blakeney alleges violation of a right that does not exist, this claim is likewise frivolous. Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998). Mitchell is dismissed, and this dismissal counts as a strike pursuant to 28 U.S.C. 1915(g). IT IS THEREFORE ORDERED AND ADJUDGED that, for the reasons stated above, the claims against defendant Donald Mitchell should 3 be and are hereby DISMISSED WITH PREJUDICE as frivolous. This dismissal counts as a strike pursuant to 28 U.S.C. 1915(g). remainder of the case shall proceed. SO ORDERED, this the 10th day of August, 2012. /s/Tom S. Lee UNITED STATES DISTRICT JUDGE 4 The

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