# Nelson v. Brown

> District Court, S.D. Mississippi · May 25, 2021

URL: https://www.frixlaw.com/law-library/cases/10246629

## Case

- **Court:** District Court, S.D. Mississippi
- **Decided:** May 25, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10246629

## How later opinions describe it (automated extraction)

- holding that an inmate's 30 day commissary and cell phone restrictions as punishment do not present the type of atypical, significant deprivation in which a state might create a liberty interest

## Opinion text

IN THE UNITED STATES DISTRICT COURT
OF THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION

SIDNEY CHAPPEL NELSON PLAINTIFF

v. CIVIL ACTION NO.: 5:20-cv-46-TBM-MTP

UNIT MANAGER KAREN BROWN and
WARDEN SCOTT MIDDLEBROOKS DEFENDANTS

REPORT AND RECOMMENDATION

THIS MATTER is before the Court on the Motion for Summary Judgment [26] filed by
Defendants Unit Manager Karen Brown (“Brown”) and Warden Scott Middlebrooks
(“Middlebrooks”). Having considered the Motion [26], the record, and the applicable law, the
undersigned recommends that the Motion [26] be granted, that Plaintiff’s Complaint [1] be
dismissed with prejudice, and that a strike be issued against Plaintiff.
BACKGROUND
On February 21, 2020, Plaintiff Sidney Chappel Nelson, appearing pro se and in forma
pauperis, filed his Complaint [1] pursuant to 42 U.S.C. § 1983. At all relevant times Plaintiff
was a post-conviction inmate at Wilkinson County Correctional Facility. In his complaint and as
clarified at the Spears1 hearing, Plaintiff asserts that his due process rights under the Fourteenth
Amendment were violated by Brown and Middlebrooks.
Plaintiff alleges that on October 18, 2019, two unnamed officers entered his cell and
conducted a search. See [26-1] at 10. Plaintiff asserts that Brown later wrote a Rule Violation
Report (“RVR”) stating that she found contraband in Plaintiff’s cell, but that she never entered
his cell on that day. Id. at 11. Plaintiff appealed the RVR, and Middlebrooks ultimately expunged

1 Spears v. McCotter, 766 F. 2d 179 (5th Cir. 1985).
the RVR from his file based on an administrative error. See [26-3]. Plaintiff alleges that as a
result of this RVR, Plaintiff was downgraded in custody status, lost privileges, and lost his job as
a “pod orderly.”2 Id. at 12, 14. He asserts that even though the RVR was expunged, he did not
regain everything that had been taken away3 and seeks compensatory damages for mental and

emotional stress. Id. at 17.
On March 8, 2021, Defendants filed the instant Motion for Summary Judgment [26]
arguing that Plaintiff failed to state a constitutional claim against them, and that Plaintiff’s claim
for compensatory damages is barred under the Prison Litigation Reform Act (“PLRA”). Plaintiff
filed two Responses [30] [32], and the matter is now ripe for review.
STANDARD FOR SUMMARY JUDGMENT
A motion for summary judgement will be granted when “the record indicates that there is
no genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). “The moving party must show that if the

evidentiary material of record were reduced to admissible evidence in court, it would be
insufficient to permit the nonmoving party to carry its burden.” Beck v. Texas State Bd. of Dental
Examiners, 204 F.3d 629, 633 (5th Cir. 2000). The Court is not permitted to make credibility
determinations or weigh the evidence. See Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir.
2009) (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2001)). When

2 According to Plaintiff’s testimony from the Spears hearing, pod orderlies are tasked with
keeping an assigned area of the facility clean. See Omnibus Order [23] at 2 n.3.

3 Defendants indicate that the reason Plaintiff did not regain his custody status, privileges, or job
is because he further violated prison rules and received additional RVRs which impacted these
same items. See [27] at 6. As Plaintiff has not asserted deprivation of a constitutional right, this
clarification does not affect the undersigned’s recommendation.
deciding whether a genuine issue of fact exists, “the court must view the facts and the inferences
to be drawn therefrom in the light most favorable to the nonmoving party.” Sierra Club, Inc. v.
Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010).
However, the nonmoving party “cannot defeat summary judgment with conclusory

allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.’” Turner, 476 F.3d at 343
(quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)). In the absence of proof,
the Court does not “assume that the nonmoving party could or would prove the necessary facts.”
Little, 37 F.3d at 1075 (emphasis omitted). The nonmovant cannot survive a proper motion for
summary judgment by resting on the allegations in his pleadings. Isquith v. Middle South
Utilities, Inc., 847 F.2d 186, 199 (5th Cir. 1988); see also Celotex, 477 U.S. at 325-26. Instead,
the nonmovant must present evidence sufficient to support a resolution of the factual issues in his
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
ANALYSIS
Plaintiff's claims are before the Court pursuant to 42 U.S.C.§ 1983. Section 1983 “neither

provides a general remedy for the alleged torts of state officials nor opens the federal courthouse
doors to relieve the complaints of all who suffer injury at the hands of the state or its officers.”
White v. Thomas, 660 F.2d 680, 683 (5th Cir.1981). Rather, “[i]t affords a remedy only to those
who suffer, as a result of state action, deprivation of ‘rights, privileges, or immunities secured by
the Constitution and laws’ of the United States.” Id. (quoting 42 U.S.C. § 1983). Accordingly,
Plaintiff must demonstrate a genuine issue of material fact as to the following two elements: (1)
the deprivation of a right secured by the Constitution or laws of the United States and (2) the
deprivation was caused by a person acting under color of state law. See West v. Atkins, 487 U.S.
42, 48 (1988).
Protected liberty interests “are generally limited to state-created regulations or statutes
which affect the quantity of time rather than the quality of time served by a prisoner.” Madison v.
Parker, 104 F.3d 765, 767 (5th Cir.1997). A prisoner's liberty interest protected by the Due
Process Clause is “generally limited to freedom from restraint which ... imposes an atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 483–84 (1995). The protection afforded by the Due Process clause does
not extend to every adverse or unpleasant condition experienced by an inmate. Madison, 104
F.3d at 767 (holding that an inmate's 30 day commissary and cell phone restrictions as
punishment do not present the type of atypical, significant deprivation in which a state might
create a liberty interest); Moore v. Sawyer, 2010 WL 6004375, at *1 (E.D. Tex. July 26, 2010)
(determining that loss of telephone and visitation privileges did not rise to a level of
constitutional deprivation); Sharp v. Anderson, 2000 WL 960568, at *1 (5th Cir.2000)
(concluding inmate's claim that he was kept in administrative segregation for 112 days after he
was found guilty of a disciplinary charge did not implicate the protections of the due process

clause).
In the Motion for Summary Judgment [26], Defendants argue that Plaintiff’s alleged
deprivations of his job, custody status, and privileges are not protected liberty interests, and
therefore, no constitutional right has been violated or is implicated. The Court agrees.
Prisoners do not have a protected liberty interest in their job assignment, and the fact that
Plaintiff lost his prison job as a result of the issuance of the RVR is not an “atypical and
significant hardship” of prison life. See Bulger v. United States 65 F.3d 48, 50 (5th Cir.1995)
(holding that the loss of a prison job did not implicate the prisoner's liberty interest even though
the prisoner lost the ability to automatically accrue good-time credits). Plaintiff likewise does not
have a constitutionally-protected liberty interest in his custodial classification. See Neals v.
Norwood, 59 F. 3d 530, 533 (5th Cir. 1995)(“…[A] prison inmate does not have a protectable
liberty or property interest in his custodial classification and an inmate’s disagreement with a
classification is insufficient to establish a constitutional violation.”). Plaintiff also claims loss of

privileges, which he described as access to programs and recreation. See [26-1] at 15. None of
these alleged deprivations rise to the level of a constitutional violation and are merely ordinary
incidents of prison life. See King v. Sims, 2009 WL 2497154, at *5 (S.D. Miss. Aug. 14, 2009)
(finding that reclassification, reassignment, and loss of commissary, phone, and visitation
privileges did not constitute a violation of plaintiff's constitutional rights).
Additionally, Plaintiff’s sole request for relief—monetary damages—is not an available
remedy based on the facts alleged. See [26-1] at 17. As noted above, Plaintiff is not entitled to
relief based on his alleged deprivations. Even if Plaintiff were entitled to relief, the PLRA
provides: “No Federal civil action may be brought by a prisoner confined in a jail, prison, or
other correctional facility, for mental or emotional injury suffered while in custody without a

prior showing of physical injury or the commission of a sexual act.” 42 U.S.C. § 1997e(e).
Plaintiff has not alleged any physical injuries as a result of the emotional or mental distress and,
consequently, no recovery for mental or emotional injury is available to him.
The undersigned finds that Plaintiff has failed to assert the deprivation of a constitutional
right and, therefore, Defendants’ Motion for Summary Judgment [26] should be granted. This
action should be dismissed for failure to state a claim.
Under 28 U.S.C. § 1915(g), a strike may be imposed if a suit is “frivolous, malicious, or
fails to state a claim upon which relief may be granted.” As Plaintiff has not stated an actionable
claim under § 1983, the undersigned recommends that this action be dismissed with prejudice,
and that the dismissal count as a strike pursuant to 28 U.S.C. § 1915(g).
RECOMMENDATION

For the foregoing reasons, the undersigned recommends that:

1. Defendants’ Motion for Summary Judgment [26] be GRANTED;

2. Plaintiff’s Complaint [1] be dismissed with prejudice for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii);

3. The dismissal shall count as a strike pursuant to 28 U.S.C. § 1915(g).

RIGHT TO OBJECT

In accordance with the rule and 28 U.S.C. § 636(b)(1), any party within fourteen days
after being served a copy of this recommendation, may serve and file written objections to the
recommendations, with a copy to the district judge, the magistrate judge and the opposing party.
The district judge at the time may accept, reject, or modify in whole or in part, the
recommendations of the magistrate judge, or may receive further evidence, or recommit the
matter to this Court with instructions. The parties are hereby notified that failure to file written
objections to the proposed finding, conclusions, and recommendations contained within this
report and recommendation within fourteen days after being served with a copy shall bar that
party, except on grounds of plain error, from attacking on appeal the proposed factual findings
and legal conclusions accepted by the district court to which the party has not objected. Douglass
v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
THIS the 25th day of May, 2021.
s/Michael T. Parker
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10246629. Public record. Not legal advice.