IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60327

MERLIN DANCEY HILL, 

 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.

United States Court of Appeals

Fifth Circuit

FILED

January 19, 2018

Lyle W. Cayce

Clerk

 Case: 15-60327 Document: 00514314337 Page: 1 Date Filed: 01/19/2018
No. 15-60327

2

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).

 Case: 15-60327 Document: 00514314337 Page: 2 Date Filed: 01/19/2018
No. 15-60327

3

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 

 Case: 15-60327 Document: 00514314337 Page: 3 Date Filed: 01/19/2018
No. 15-60327

4

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-

 

2 766 F.2d 179 (5th Cir. 1985), abrogated on other grounds by Neitzke v. Williams, 490 

U.S. 319 (1989).

 Case: 15-60327 Document: 00514314337 Page: 4 Date Filed: 01/19/2018
No. 15-60327

5

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.

 Case: 15-60327 Document: 00514314337 Page: 5 Date Filed: 01/19/2018
No. 15-60327

6

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 

 Case: 15-60327 Document: 00514314337 Page: 6 Date Filed: 01/19/2018
No. 15-60327

7

“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 denialof-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.

 Case: 15-60327 Document: 00514314337 Page: 7 Date Filed: 01/19/2018
No. 15-60327

8

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.”).

 Case: 15-60327 Document: 00514314337 Page: 8 Date Filed: 01/19/2018
No. 15-60327

9

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-tocourts 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 context22 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.

 Case: 15-60327 Document: 00514314337 Page: 9 Date Filed: 01/19/2018
No. 15-60327

10

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 

Act24 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)).

 Case: 15-60327 Document: 00514314337 Page: 10 Date Filed: 01/19/2018
No. 15-60327

11

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).

 Case: 15-60327 Document: 00514314337 Page: 11 Date Filed: 01/19/2018