                                                     [DO NOT PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS

                FOR THE ELEVENTH CIRCUIT
                  ________________________                  FILED
                                                   U.S. COURT OF APPEALS
                         No. 09-11294                ELEVENTH CIRCUIT
                                                       OCTOBER 23, 2009
                     Non-Argument Calendar
                                                      THOMAS K. KAHN
                   ________________________
                                                           CLERK

              D. C. Docket No. 09-80040-CV-DTKH

CARLOS SHAARBAY,


                                                       Plaintiff-Appellant,

                              versus

PALM BEACH COUNTY JAIL,
UNITED STATES GOVERNMENT,
RHONDA CLARK,
#8535,
SGT. PATRICK S. WRIGHT,
#5932,
DESAI BAILEY,
#4387,


                                                    Defendants-Appellees.


                   ________________________

            Appeal from the United States District Court
                for the Southern District of Florida
                  _________________________
                         (October 23, 2009)
Before BIRCH, HULL and WILSON, Circuit Judges.

PER CURIAM:

       Carlos Shaarbay, a Florida prisoner proceeding pro se, appeals the sua

sponte dismissal of his in forma pauperis (“IFP”) 42 U.S.C. § 1983 complaint

against defendants Palm Beach County Jail, the United States Government, Deputy

Rhonda Clark, Sergeant Patrick S. Wright, and Deputy Desai Bailey. Shaarbay

alleges that the defendants violated his right to procedural due process, violated his

right to be free from illegal search and seizure, and engaged in malicious

prosecution when they searched his cell and person, put him in segregated

confinement for 30 days, and initiated criminal charges against him without a

Miranda warning after finding a razor blade in his shirt pocket.

       After a magistrate judge recommended that Shaarbay’s complaint be

dismissed for failure to state a claim, Shaarbay filed a motion for leave to file an

amended complaint and a motion for reconsideration which the district court

apparently treated as an objection to the magistrate judge’s report and

recommendation. On appeal, Shaarbay attempts to show that he sufficiently

alleged a cognizable claim under 42 U.S.C. § 1983.1 Shaarbay presents new



       1
        Shaarbay’s brief, however, appears to present further support for his original complaint
and resembles more of an amended complaint rather than an appeal stating why his original
complaint was sufficient to state a claim.

                                                2
arguments in support of his original complaint that police seized him pursuant to a

process that was not supported by probable cause in violation of the Fourth

Amendment. He also argues that he sufficiently alleged that the officers acted with

reckless disregard for the truth in arresting him and failed to give him a Miranda

warning. Shaarbay explains that he was arrested for possession of contraband but

later acquitted by a jury. Finally, he notes that he was found not guilty after being

tried for possession of contraband but still had to serve 30 days in disciplinary

confinement, and he claims that the malicious prosecution that kept him confined

at the Palm Beach County Jail caused him to miss his opportunity to appeal his

underlying criminal conviction.2

       As a preliminary matter, Shaarbay waived his right to appeal the dismissal of

the claims raised in his complaint regarding self-incrimination, freedom from

isolation, cruel and unusual punishment, and equal protection, as well as any tort

claims related to intentional infliction of emotional distress, civil conspiracy, or

negligent supervision by failing to raise them in his brief before this court. See

Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989)

(stating that issues not raised on appeal are deemed waived). We note that

       2
         Because Shaarbay did not allege that he was prevented from appealing his underlying
criminal conviction in state court due to the officers’ alleged malicious prosecution in his
original complaint, we decline to address this new claim raised in his brief. See Walton v.
Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1283 n.10 (11th Cir. 2003) (per curiam) (stating
that this Court will not address an argument that was not raised before the district court).

                                               3
dismissal of Shaarbay’s complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure

to state a claim may not preclude Shaarbay from filing another complaint in district

court because the complaint was not dismissed with prejudice. See Hughes v. Lott,

350 F.3d 1157, 1161 (11th Cir. 2003) (stating that dismissals under 28 U.S.C.

§1915 “are not dismissals on the merits and, therefore, do not prejudice the later

filing of a paid complaint.”).

      28 U.S.C. § 1915(e)(2)(B)(ii) mandates that the district court dismiss an IFP

action if it determines that the action “fails to state a claim on which relief may be

granted.” Dismissal of a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) is governed by

the same standard as a dismissal under Federal Rule of Civil Procedure 12(b)(6).

Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). A district court’s sua

sponte dismissal for failure to state a claim pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii) is reviewed de novo, taking the allegations in the complaint as

true. Hughes, 350 F.3d at 1159–60 (citing Mitchell, 112 F.3d at 1490).

Additionally, “[p]ro se pleadings are held to a less stringent standard than

pleadings drafted by attorneys and will, therefore, be liberally construed.”

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam)

(citing Fernandez v. United States, 941 F.2d 1488, 1491 (11th Cir. 1991)). After

liberally construing Shaarbay’s pleadings, we find no reversible error and affirm.



                                           4
      “Section 1983 creates no substantive rights; it merely provides a remedy for

deprivations of federal statutory and constitutional rights.” Almand v. DeKalb

County, Ga., 103 F.3d 1510, 1512 (11th Cir. 1997) (citing Whiting v. Traylor, 85

F.3d 581, 583 (11th Cir. 1996)). Therefore, “[i]n order to prevail on a civil rights

action under § 1983, a plaintiff must show that he or she was deprived of a federal

right by a person acting under color of state law.” Griffin v. City of Opa-Locka,

261 F.3d 1295, 1303 (11th Cir. 2001) (citing Almand, 103 F.3d at 1513). It is

unclear whether Shaarbay’s brief argues that he was deprived of due process of

law, but assuming that it does, his argument is without merit. “[A] § 1983 claim

alleging a denial of procedural due process requires proof of three elements: (1) a

deprivation of a constitutionally-protected liberty or property interest; (2) state

action; and (3) constitutionally-inadequate process.” Grayden v. Rhodes, 345 F.3d

1225, 1232 (11th Cir. 2003) (citing Cryder v. Oxendine, 24 F.3d 175, 177 (11th

Cir. 1994)).

      While there is no constitutional right not to be placed in disciplinary

segregation, the Supreme Court has recognized that states may create liberty

interests which are protected by the Due Process Clause. See Sandin v. R.D

Conner, 515 U.S. 472, 483–84, 115 S. Ct. 2293, 2300 (1995). However, in the

prison context, state action will not violate due process unless it imposes an



                                            5
“atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life,” and “[d]iscipline by prison officials in response to a wide

range of misconduct falls within the expected perimeters of the sentence imposed

by a court of law.” Id. at 484, 485. In Sandin, the Supreme Court found that the

defendant’s being placed in disciplinary segregation for 30 days was neither a

“dramatic departure” from the ordinary conditions of confinement nor a “major

disruption in his environment.” Id. at 485–86. Shaarbay’s procedural due process

claim is without merit because he has not shown that the state’s placing him in

disciplinary confinement for 30 days was either “atypical” or imposed a

“significant hardship.” See id. at 484. Being handcuffed when out of his cell and

having his access to resources monitored by the guards are also not a significant

departure from general prison conditions. See id. at 485–86. Accordingly,

Shaarbay did not allege facts showing that the defendants’ confining him for 30

days could result in a due process violation.

      Shaarbay failed to state a sufficient § 1983 illegal search and seizure claim

based on a violation of the Fourth Amendment. The Supreme Court held that

“[p]risoners have no Fourth Amendment rights against searches of their prison

cells . . . .” Padgett v. Donald, 401 F.3d 1273, 1278 (11th Cir. 2005) (citing

Hudson v. Palmer, 468 U.S. 517, 525–26, 104 S. Ct. 3194, 3200 (1984)).



                                           6
Therefore, it was not a constitutional violation for the defendants to search

Shaarbay’s cell and person, and it is undisputed that a razor blade was found in

Shaarbay’s shirt pocket.

      Shaarbay’s complaint also does not sufficiently allege a § 1983 malicious

prosecution claim. In order to prove malicious prosecution under § 1983, a

plaintiff must establish “(1) the elements of the common law tort of malicious

prosecution, and (2) a violation of [his] Fourth Amendment right to be free from

unreasonable seizures.” Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th

Cir. 2004) (citing Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003)). To

establish the common law tort of malicious prosecution under Florida law, where

the alleged events took place, Shaarbay must show that (1) an original judicial

proceeding was commenced or continued against him; (2) the Palm Beach County

Jail and the officers involved were the legal cause of the original proceeding;

(3) the termination of the original proceeding constituted a bona fide termination of

that proceeding in Shaarbay’s favor; (4) there was an absence of probable cause for

the original proceeding; (5) there was malice on the part of the Palm Beach County

Jail and the officers; and (6) Shaarbay suffered damages as a result of the original

proceeding. Id. (citing Durkin v. Davis, 814 So. 2d 1246, 1248 (Fla. 2d DCA

2002)). Additionally, a Fourth Amendment violation “requires an intentional



                                           7
acquisition of physical control. A seizure occurs even when an unintended person

or thing is the object of the detention or taking, but the detention or taking itself

must be willful.” Brower v. County of Inyo, 489 U.S. 593, 596, 109 S. Ct. 1378,

1381 (1989) (internal citations omitted). Shaarbay alleges that the defendants

initiated proceedings against him, which were terminated in his favor, and that the

officers fabricated their testimony, which could show malice, but he does not

allege in his original complaint that the proceeding was without probable cause or

that he suffered any damages as a result. See Kingsland, 382 F.3d at 1234.

      The district court did not err in dismissing Shaarbay’s complaint because he

failed to state a claim upon which relief could be granted as he alleged neither a §

1983 due process violation, a §1983 Fourth Amendment search and seizure

violation, nor a § 1983 malicious prosecution claim. We affirm.

      AFFIRMED.




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