               Case: 14-10016     Date Filed: 01/11/2016   Page: 1 of 8


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 14-10016
                              Non-Argument Calendar
                            ________________________

                    D.C. Docket No. 8:13-cv-02148-SDM-TGW

GLENN C. SMITH,

                                                                 Plaintiff-Appellant,

                                        versus

SGT. T. DEEMER,
in his individual capacity,
C. GARRETT SANCHEZ,
in her individual and official capacities,
V. KING,
in his individual and official capacities,
G. WELLHAUSEN,
in his individual and official capacities,
GLENN R. MORRIS,
in his individual and official capacities,

                                                              Defendants-Appellees.

                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                  (January 11, 2016)
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Before WILLIAM PRYOR, MARTIN and FAY, Circuit Judges.

PER CURIAM:

       Glenn Smith, a state prisoner proceeding pro se, appeals the district court’s

sua sponte dismissal of his 42 U.S.C. § 1983 claim alleging procedural and

substantive due process violations. He argues that the district court improperly

analyzed his claims. After careful consideration, we affirm.

                                               I.

       We review de novo a 28 U.S.C. § 1915A(b)(1) sua sponte dismissal for

failure to state a claim, 1 taking the allegations in the complaint as true. Leal v. Ga.

Dep’t of Corr., 254 F.3d 1276, 1279 (11th Cir. 2001) (per curiam). To avoid

dismissal for failure to state a claim, a complaint must contain sufficient factual

matter, accepted as true, “to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007).

However, pro se pleadings are held to a less stringent standard. Tannenbaum v.

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

       To prevail on a § 1983 claim, “a plaintiff must demonstrate both (1) that the

defendant deprived [him] of a right secured under the Constitution or federal law

and (2) that such a deprivation occurred under color of state law.” Bingham v.


1
 The Prison Litigation Reform Act requires courts to screen in forma pauperis prisoner litigation
and dismiss any action that “is frivolous, malicious, or fails to state a claim upon which relief
may be granted.” 28 U.S.C. § 1915(A)(b).

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Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (per curiam) (quotation omitted)

(alteration adopted). In turn, a claim brought under the Fourteenth Amendment’s

Due Process Clause must concern a protected interest, such as the deprivation of

liberty. See Bass v. Perrin, 170 F.3d 1312, 1317–18 (11th Cir. 1999). This is a

threshold inquiry in considering a due process claim.

      A prisoner’s liberty interest under the Due Process Clause is necessarily

circumscribed “by the nature of the regime to which they have been lawfully

committed.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2975 (1974).

Thus, an inmate validly claims the violation of a protected liberty interest when he

identifies state actions that unexpectedly alter his term of imprisonment or impose

an atypical and significant hardship relative to ordinary prison life. See Sandin v.

Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300 (1995).

      A hallmark example of action that unexpectedly alters an inmate’s term of

imprisonment is the revocation of good-time credit. See Wolff, 418 U.S. at 555–

58, 94 S. Ct. at 2974–76 (holding that loss of good-time credit implicates a

protected liberty interest). Atypical and significant hardship exists when the

confinement at issue presents a dramatic departure from the ordinary conditions of

prison life. See Sandin, 515 U.S. at 485–86, 115 S. Ct. at 2301.




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                                               II.

       Smith claimed procedural and substantive due process violations related to a

prison disciplinary hearing for “disorderly conduct” and a resulting fifteen-day

period of disciplinary confinement. 2 He alleged that both (1) Florida

Administrative Code Rule 33-601.307(3), which restricts the presentation of live

witness testimony in prison disciplinary hearings, and (2) Florida Administrative

Code Rule 33-601.314, 9-17, which outlines the acceptable punishment for

“disorderly conduct” by prisoners, are facially unconstitutional, and their

application violated his substantive due process rights. In addition, Smith alleged

the following procedural due process claims: (1) he was denied live witness

testimony at the disciplinary hearing without a valid explanation; (2) he was not

allowed to introduce testimony developed after the hearing; (3) the written finding

of guilt from the hearing was legally inadequate; and (4) insufficient evidence

supported the guilty finding.

       After the hearing, Smith was sentenced to 15 days of disciplinary

confinement. Though a Florida inmate may lose up to 60 days of good-time credit

for “disorderly conduct,” see Fla. Admin. Code R. 33-601.314, 9-17 (2015), Smith

did not lose any credit. Thus, in order to show that a protected liberty interest was


2
  Smith mixes a period of administrative confinement just before his disciplinary hearing into his
claims. His combined stay in both administrative and disciplinary confinement lasted
approximately thirty days.

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threatened, Smith alleged various hardships associated with his confinement. He

asserted that he was confined to a relatively small cell with a cellmate who had not

been screened for compatibility; the cell felt cold, partly because he is “particularly

cold sensitive”; cell lighting generally remained on from early morning until late at

night; he was deprived of some personal property, including medicated shampoo;

he had fewer changes of clothing and opportunities to shower than the regular

prison population; he was not provided a toothbrush and toothpaste; the meals

were mostly no longer hot when they arrived; he could not lock a storage area in

the cell; out-of-cell time was limited; library access was restricted; he had no

telephone or television access; and he had no writing surface in his cell.

      The district court sua sponte dismissed Smith’s complaint for failure to state

a claim. The court applied the liberty-interest analysis prescribed by Sandin—

rather than the Wolff requirements—because Smith had not lost any good-time

credit. It concluded that the conditions alleged by Smith did not rise to the sort of

“atypical, significant deprivation” of liberty outlined by Sandin, and that no liberty

interest protected by the Due Process Clause was therefore implicated.

      Smith moved for reconsideration, which the district court denied on the

same reasoning. Smith timely appealed.




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                                         III.

      As to the legal standard, the district court properly applied the Sandin

analysis rather than using the procedures described in Wolff. Wolff states that a

set of procedures must accompany disciplinary hearings when they result in a loss

of good-time credit. Wolff, 418 U.S. at 556–58, 563–71, 94 S. Ct. at 2975–76,

2978–82. However, when a prisoner has not lost any good-time credit (as here),

Wolff does not apply. Instead, a liberty interest protected by the Due Process

Clause may be alleged as described in Sandin. See Sandin, 515 U.S. at 484, 115 S.

Ct. at 2300. But the Due Process Clause “does not protect every change in the

conditions of confinement having a substantial adverse impact on the prisoner.”

Id. at 478, 115 S. Ct. at 2297.

      Smith has failed to allege conditions that impose an “atypical and significant

hardship” relative to ordinary prison life. Id. at 484, 115 S. Ct. at 2300. His

complaints, though numerous, are neither severe enough nor of such duration as to

constitute violations of a protected liberty interest. Most amount to mere

inconveniences, especially viewed in light of their short duration. See Hutto v.

Finney, 437 U.S. 678, 686, 98 S. Ct. 2565, 2571 (1978) (“[T]he length of

confinement cannot be ignored in deciding whether the confinement meets

constitutional standards.”).




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       Generally, atypical and significant hardships must exist for a significant

period of time. Compare Sandin, 515 U.S. at 486, 115 S. Ct. at 2301 (30 days of

administrative confinement was not an atypical and significant hardship), and

Rodgers v. Singletary, 142 F.3d 1252, 1253 (11th Cir. 1998) (per curiam) (60 days

of administrative confinement was not an atypical and significant hardship), with

Magluta v. Samples, 375 F.3d 1269, 1282 (11th Cir. 2004) (500 days of solitary

confinement was sufficient), and Williams v. Fountain, 77 F.3d 372, 374 n.3 (11th

Cir. 1996) (one year of solitary confinement was sufficient). The conditions

alleged by Smith continued for, at most, approximately 30 days. Indeed, his

disciplinary confinement lasted for only 15 days.

      Atypical and significant hardships must also be severe relative to regular

prison. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 223–24, 125 S. Ct. 2384,

2394 (2005) (prisoner was confined indefinitely in a cell illuminated twenty-four

hours per day, deprived of almost all human contact, allowed to exercise for only

one hour per day in a small indoor room, and disqualified from parole

consideration); Magluta, 375 F.3d at 1282 (prisoner was kept in “an extremely

small, closet-sized space” and deprived of almost any human contact). Smith’s

alleged deprivations—of things like a writing surface, a lock for his storage bin,

and a television—do not represent such “dramatic departure[s]” from ordinary

prison life. Sandin, 515 U.S. at 485, 115 S. Ct. at 2301.


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      Smith’s complaint did not allege facts sufficient to state a plausible claim for

relief. His disciplinary hearing resulted in no loss of good-time credit, and the

conditions he alleged do not constitute an atypical and severe hardship. Thus,

Smith’s substantive and procedural due process claims fail to implicate a

constitutionally protected liberty interest. We AFFIRM the district court’s ruling.

      AFFIRMED.




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