     Case: 15-60327      Document: 00514314337         Page: 1    Date Filed: 01/19/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals

                                      No. 15-60327
                                                                                Fifth Circuit

                                                                              FILED
                                                                       January 19, 2018

MERLIN DANCEY HILL,                                                      Lyle W. Cayce
                                                                              Clerk
              Plaintiff–Appellant,

v.

MICHAEL WALKER, Case Manager at East Mississippi Correctional
Facility; J. BUSCHER, Warden at East Mississippi Correctional Facility; D.
SMITH, Major at East Mississippi Correctional Facility; O. LITTLE, Medical
Director at East Mississippi Correctional Facility; MANAGEMENT AND
TRAINING CORPORATION (MTC), private company that operates East
Mississippi Correctional Facility; PELICIA HALL, COMMISSIONER,
MISSISSIPPI DEPARTMENT OF CORRECTIONS,

              Defendants–Appellees.



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 3:14-CV-62


Before STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
       Merlin Dancey Hill brought suit under 42 U.S.C. § 1983, and the district
court rendered judgment dismissing the suit. We affirm.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                                  I
       The district court dismissed Hill’s § 1983 claims for failure to state a
cognizable claim. Hill alleges the following facts, which, at the motion to
dismiss stage, we assume to be true. 1 Hill is a United States Air Force veteran
serving a life sentence at the East Mississippi Correctional Facility (EMCF).
In 2011, Hill filed from prison a request for disability benefits with the
Department of Veterans Affairs (VA). Hill’s application claimed that he has
five medical conditions caused by his service in the military, including severe
headaches, hearing loss from working in proximity to jet engines, and paranoid
schizoaffective disorder from an alleged sexual assault by a superior officer.
       In order to evaluate these disability claims fully, the Jackson VA Medical
Center was to schedule an examination of Hill at its facility. The VA informed
Hill that “[w]hen a claimant, without good cause, fails to report for an
examination or reexamination, the claim shall be rated based on the evidence
of record, or even denied.” A contractor that operated EMCF scheduled Hill’s
appointments with the VA, and Hill filed a request for transportation to the
VA Medical Center with the warden, the case manager, and the medical
department. The case manager called the VA and informed it that Hill would
not be transported for his scheduled appointments. After this cancellation,
Hill learned that under MDOC policy 25-11-E, only medical personnel are
authorized to control the scheduling of inmate medical appointments.
       Hill wrote the VA requesting that it reschedule his appointments with
the medical department of Management and Training Corporation (MTC), a
new    private       contractor     that    had       recently   begun    operating    EMCF.
Unbeknownst to Hill, an MTC policy created by Medical Director Ollie Little
gave case managers, not medical staff, the power to decide if prisoners would


       1   See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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be transported to medical examinations. In accordance with this policy, when
the VA contacted MTC they were referred to Hill’s new case manager, Marcell
Walker. Walker informed the VA that Hill would not be transported to any
examinations.
      Tina Naylor, a mental health counselor at EMCF, told Hill that MTC’s
policy violated MDOC policy 25-11-E. It also differed from the policy of the
previous EMCF contractor, which transported inmates to the VA Medical
Center weekly. Because Hill was not allowed to go to the VA Medical Center,
he asked Warden Jerry Buscher if a VA physician could examine him at EMCF.
The VA sends physicians to other Mississippi prisons, but Buscher rejected
this request.
      Soon after Walker spoke with the VA, Hill received a Rating Decision
from the VA denying all five service-related disability claims. The denials for
severe headaches, loss of hearing, and paranoid schizoaffective disorder were
based on a lack of corroborating medical evidence that could have been
provided at a medical examination. The VA denial letter confirmed that no
examination occurred because it “received notification that [Hill’s] facility
would be unable to transport [him] to the examination.” Additionally, for the
denial of benefits related to paranoid schizoaffective disorder, the VA identified
circumstantial evidence that Hill may have had “an in-service military sexual
trauma-related stressor.”    However, without an examination of Hill this
evidence was insufficient to confirm a diagnosis or a link between current
symptoms and the reported sexual assault.
      Hill filed a grievance through the MDOC Administrative Remedy
Program (ARP) to challenge EMCF’s refusal to transport him to his
examination. Relief was denied at the first step by Major Derek Smith because
Hill did not have approval by court order and the MDOC to be transported to
another facility. Hill appealed and Warden Buscher denied relief for the same
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reason. Having exhausted his administrative remedies, Hill then initiated the
instant suit.
       Hill filed a § 1983 civil rights complaint against Walker, Buscher, Smith,
and Little—all employees at EMCF—as well as MTC, the MDOC, and the
Commissioner of MDOC who was originally Christopher Epps but is now
Pelicia Hall (collectively, Appellees). Hill’s § 1983 claim alleged violations of
his First Amendment right to petition the government for a redress of
grievances, his Fifth, Eighth, and Fourteenth Amendment rights, Mississippi
Code § 47-3-3, and MDOC Policy 25-11-E. Hill further alleged that Smith and
Buscher failed to investigate these grievances properly through the ARP.
       Hill was granted permission to proceed in forma pauperis (IFP).
Appellees then filed answers and alleged that Hill’s complaint should be
dismissed for failure to state a claim upon which relief may be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6). Pursuant to Spears v.
McCotter, 2 the magistrate judge held an omnibus hearing to define the issues
to be litigated and determine if dismissal was appropriate.
       At the Spears hearing, Hill clarified the reason each party was sued, the
facts underlying his claim, and the extent of the alleged damages. Two months
later the magistrate judge, with consent from the parties to issue a final
decision, dismissed all claims with prejudice. The magistrate judge held that
Hill’s disability-benefits application to the VA was not a petition for redress of
grievances, and made a secondary conclusion that even if it was a petition, the
defendants did not interfere with Hill’s VA correspondence. The magistrate
judge also determined there was no cognizable violation of the Fifth, Eighth,
or Fourteenth Amendment, that alleged violations of Mississippi Code § 47-3-



       2766 F.2d 179 (5th Cir. 1985), abrogated on other grounds by Neitzke v. Williams, 490
U.S. 319 (1989).
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3 and MDOC policy 25-11-E were not cognizable under § 1983, and that the
ARP process does not implicate a federally protected liberty interest. Hill
appealed.
                                              II
       Section 1983 is not a general tort remedy available to “all who suffer
injury at the hands of the state or its officers.” 3 A § 1983 plaintiff must show
that “he or she has been deprived of some right secured to him or her by the
United States Constitution or the laws of the United States.” 4 Failure to state
a cognizable claim requires dismissal of IFP claims under 28 U.S.C.
§ 1915(e)(2)(B)(ii). 5      “This court reviews dismissals based on section
1915(e)(2)(B)(ii) under the same de novo standard of review applicable to
dismissals made pursuant to Federal Rule of Civil Procedure 12(b)(6).” 6
       “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’ A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” 7 The complaint “does not need
detailed     factual     allegations . . . [but]   requires   more    than    labels    and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” 8




       3 White v. Thomas, 660 F.2d 680, 683 (5th Cir. Nov. 1981).
       4 Irving v. Thigpen, 732 F.2d 1215, 1216 (5th Cir. 1984) (per curiam).
       5 28 U.S.C. § 1915(e)(2)(B)(ii).
       6 Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999) (per curiam).
       7 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)) (citation omitted).
       8 Twombly, 550 U.S. at 555.

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                                              III
       The first issue on appeal is whether Appellees’ refusal to transport Hill
to the VA Medical Center violated Hill’s constitutional right to access the
courts.    Hill’s § 1983 complaint primarily characterizes these actions as a
violation of his First Amendment right to access the courts guaranteed by the
Petition Clause. However, Hill relies on cases that analyze access to courts
from a due process perspective and pertain to criminal appeals and habeas
petitions. 9 This court will assume that Hill also challenged his denial of access
to the VA as a violation of his due process rights under the Fourteenth
Amendment. 10 While Hill also asserts an ambiguous Fifth Amendment claim,
the Fifth Amendment “applies only to violations of constitutional rights by the
United States or a federal actor.” 11 Hill’s § 1983 claim is only against state
actors so his due process claims can only proceed under the Fourteenth
Amendment.
       The First Amendment Petition Clause guarantees the right to access the
courts of the United States. 12 The Fourteenth Amendment Due Process Clause
also confers a right to meaningful access to the courts. 13 The First Amendment



       9  See Griffin v. Illinois, 351 U.S. 12 (1956) (discussing the due process and equal
protection guarantees of access to the courts for a criminal defendant); Johnson v. Avery, 393
U.S. 483 (1968) (holding that prisoners must be provided a reasonable method for filing
habeas corpus petitions); id. at 493 (Douglas, J., concurring) (suggesting that this due process
guarantee may also allow prisoners to access courts for civil grievances including “veterans’
claims”).
        10 See Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993) (per curiam) (“A pro se

complaint is to be construed liberally.”).
        11 Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000).
        12 See Driggers v. Cruz, 740 F.3d 333, 336-37 (5th Cir. 2014); see also Bill Johnson’s

Rests., Inc. v. N.L.R.B., 461 U.S. 731, 741 (1983) (“[T]he right of access to the courts is an
aspect of the First Amendment right to petition the Government for redress of grievances.”).
        13 Bayou Fleet, Inc. v. Alexander, 234 F.3d 852, 857 (5th Cir. 2000) (“Access to the

courts is a constitutionally protected fundamental right and one of the privileges and
immunities awarded citizens under Article IV and the Fourteenth Amendment.”); see also

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“right of the people . . . to petition the Government for a redress of
grievances” 14 is “really inseparable” from due process claims. 15 Claims under
both Amendments turn on whether the aggrieved party has “been denied
‘meaningful access to the courts’ to present [its] claims.” 16 Accordingly, we
analyze Hill’s § 1983 First and Fourteenth Amendment denial-of-access claims
together. Hill has failed to state a claim upon which relief may be granted
because neither the First nor Fourteenth Amendment requires penitentiaries
to transport inmates to non-emergency disability appointments without a
court order.     We pretermit consideration of whether the constitutional
guarantee of access to courts extends to access to administrative agency
adjudications because even if such a right exists, prisons are not required to
transport inmates to an off-premises, non-emergency medical examination.
      Assuming arguendo that the First and Fourteenth Amendments
mandate inmate access to the VA administrative system, EMCF’s refusal to
transport Hill to the VA Medical Center for a disability benefits examination
nevertheless does not state a § 1983 claim upon which relief can be granted.
Hill concedes—and the VA’s denial letter confirms—that Appellees “allowed
[Hill] to file his claims” and otherwise correspond with the agency. The denial-
of-access claim instead hinges solely on Appellees’ refusal to transport Hill to
his off-premises medical examinations.
      Correctional facilities do not have an affirmative duty to assist
incarcerated veterans who apply for disability benefits.          While “prisoners
retain the constitutional right to petition the government for the redress of



Griffin, 351 U.S. at 18 (“[A]t all stages of the proceedings the Due Process and Equal
Protection Clauses protect persons like petitioners from invidious discriminations.”).
       14 U.S. CONST. amend. I.
       15 Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 335 (1985).
       16 Id.



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grievances,” to the extent “a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests.” 17
       The MDOC policy requires a court order before an inmate must be
transported to a non-emergency medical appointment, and Hill did not seek
such an order. This policy is reasonably related to a legitimate penological
interest in the efficient and safe operation of a penitentiary. To hold otherwise
would transform federal courts into “the primary arbiters of what constitutes
the best solution to every administrative problem, thereby ‘unnecessarily
perpetuat[ing] the involvement of the federal courts in affairs of prison
administration.’” 18 Hill had adequate, effective, and meaningful access to the
courts because he was able to apply for VA-funded government benefits and
appeal his denial of benefits.
                                               IV
       Hill also asserts other constitutional violations with varying degrees of
specificity. Pro se § 1983 claims are entitled to liberal construction, 19 therefore
we will also address Hill’s (1) alternative Petition Clause claims based on
EMCF mail restrictions; (2) additional Fourteenth Amendment due process
claims based on Appellees’ actions and the ARP; (3) Eighth Amendment
claims; and (4) alleged violations of state law and prison policy.
                                                A
       Hill contends that his constitutional rights were violated when Appellees
“refused to allow [him], and all other inmates to send appeals to the [VA] . . . as
Legal Mail.”         This policy subjected the VA correspondence to additional


       17    Turner v. Safley, 482 U.S. 78, 84, 89 (1987).
       18    Id. at 89 (quoting Procunier v. Martinez, 416 U.S. 396, 407 (1974)) (alteration in
original).
       19 Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993) (per curiam) (“A pro se complaint
is to be construed liberally.”).
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regulations required for non-legal mail, but Hill does not allege that this
prevented him from communicating with the VA. Therefore Hill’s ability to
petition the government for redress of grievances was not restricted and the
magistrate judge’s dismissal of this claim was no error.
      Hill’s supplemental brief alleges an additional restriction on his ability
to correspond with the VA via mail. However, “[a]n appellate court may not
consider new evidence furnished for the first time on appeal and may not
consider facts which were not before the district court at the time of the
challenged ruling.” 20 Therefore, we will not consider this new claim on appeal.
                                              B
      Hill alleges additional violations of the Due Process Clause related to the
Appellees’ refusal to transport him to the VA Medical Center and the
administrative grievance process.             Refusal to transport a prisoner to a
disability benefits examination not only fails to raise due process access-to-
courts concerns, it also fails to allege any other liberty interest. Due process
rights “will be generally limited to freedom from restraint which . . . imposes
atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” 21       No legislative or judicial authority supports
extending existing due process rights afforded in the criminal context 22 to VA
disability applications. Additionally, Mississippi law forbids prisoners from
being removed from the place of their confinement absent a court order, “except
for trial, or in case of fire or infection, or other necessity.” 23 No Mississippi
court has held that transportation to a disability benefits interview is an “other




      20 Theriot v. Par. of Jefferson, 185 F.3d 477, 491 n. 26 (5th Cir. 1999).
      21 Sandin v. Conner, 515 U.S. 472, 484 (1995).
      22 See, e.g., Griffin v. Illinois, 351 U.S. 12 (1956).
      23 MISS. CODE. ANN. § 47-3-3.

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necessity” under the statute, and inmate transportation regulations are a
routine part of prison management.
      Smith’s     and    Buscher’s     alleged    failures     to    investigate    Hill’s
administrative grievance adequately are also not bases on which relief can be
granted. Hill puts forth a convoluted theory that the Prison Litigation Reform
Act 24 creates a constitutional right to pursue an administrative grievance with
prison officials. This theory is contrary to this court’s case law, which holds
that an alleged violation of a prisoner’s due process rights resulting from prison
grievance procedures is a “legally nonexistent interest.” 25 Prisoners do “not
have a federally protected liberty interest in having these grievances resolved
to [their] satisfaction,” and an alleged § 1983 due process violation for failure
to investigate grievances is “indisputably meritless.” 26
                                           C
      In his complaint, Hill also made a nebulous allegation that his Eighth
Amendment rights were violated. Hill fails to reference any alleged Eighth
Amendment violations on appeal. Even though pro se briefs are liberally
construed, “pro se parties must still brief the issues.” 27 As a result, Hill has
waived appellate review of this claim. 28
                                          D
      On appeal, Hill only mentions the alleged violation of MDOC Policy
25-11-E in the statement of the case and does not mention the alleged violation
of Mississippi Code § 47-3-3 at all. These issues may also be waived for failure



      24  42 U.S.C. § 1997e.
      25  Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005) (per curiam).
       26 Id. at 374.
       27 Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (per curiam).
       28 See Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

1987) (citing Davis v. Maggio, 706 F.2d 568, 571 (5th Cir. 1983)).

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to brief, 29 but in any event the magistrate judge properly dismissed these
claims. This court has held that “a violation of a state statute alone is not
cognizable under § 1983 because § 1983 is only a remedy for violations of
federal statutory and constitutional rights.” 30 We have also dismissed § 1983
claims for alleged violations of prison policy because “a prison official’s failure
to follow the prison’s own . . . regulations does not constitute a [constitutional]
violation.” 31 Even if Appellees violated Mississippi Code § 47-3-3 or MDOC
Policy 25-11-E, Hill cannot seek relief for such wrongdoings through a § 1983
claim.
                                    *        *         *
      For the foregoing reasons, we AFFIRM the judgment of the district court
and Hill’s motion to supplement is DENIED.




      29 See id.
      30 Woodard v. Andrus, 419 F.3d 348, 353 (5th Cir. 2005).
      31 Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (per curiam).

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