                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________
                                                          FILED
                              No. 09-11443       U.S. COURT  OF APPEALS
                          Non-Argument Calendar    ELEVENTH CIRCUIT
                                                   FEBRUARY 10, 2010
                        ________________________
                                                        JOHN LEY
                                                      ACTING CLERK
                  D. C. Docket No. 08-22486-CV-KMM

ROBERT J. SMITH, JR.,

                                                           Plaintiff-Appellant,

                                  versus

REGIONAL DIRECTOR OF FLORIDA DEPARTMENT OF
CORRECTIONS,
Martha Vilicarta,
JOHN DOE,
Warden,
LT. FURGESON,
JOHN DOE,
Officer,
MARTHA VILLACORTA, et al.,

                                                        Defendants-Appellees.
                        ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (February 10, 2010)

Before BLACK, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:

      Robert J. Smith, Jr., a Florida state prisoner proceeding pro se and in forma

pauperis (“IFP”), appeals the district court’s sua sponte dismissal, under 28 U.S.C.

§1915(e)(2)(B), of his 42 U.S.C. § 1983 civil rights action. On appeal, Smith

argues that: (1) his compliance with Fed.R.Civ.P. 8 precluded a dismissal for

failure to state a claim; (2) the district court failed to accept the facts in his

complaint as true; (3) the district court failed to apply the appropriate rational

relationship standard; (4) the district court improperly “offered a defense” for the

defendants by sua sponte dismissing his case; (5) racial harassment by government

officials can violate the Equal Protection Clause; (6) his disciplinary confinements

violated his due process rights; and (7) the defendants were deliberately indifferent

in violation of the Eighth Amendment, because his grievances gave them notice of

the harm he faced and they failed to protect him from an attack by another inmate.

After careful review, we affirm.

      We review a district court’s sua sponte dismissal for failure to state a claim

under § 1915(e)(2)(B)(ii) de novo, using the same standards that govern

Fed.R.Civ.P. 12(b)(6) dismissals.      Mitchell v. Farcass, 112 F.3d 1483, 1490

(11th Cir. 1997). “A complaint is subject to dismissal for failure to state a claim if

the allegations, taken as true, show the plaintiff is not entitled to relief.” Jones v.



                                           2
Bock, 549 U.S. 199, 215 (2007). However, “[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).

      First, we find no merit to Smith’s claim that his compliance with

Fed.R.Civ.P. 8 precluded a dismissal for failure to state a claim.               Section

1915(e)(2)(B) of the Prison Litigation Reform Act provides that “the court shall

dismiss the case at any time if the court determines that -- . . . (B) the action or

appeal -- (i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief

may be granted.” 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). Rule 8(a) of the Federal Rules

of Civil Procedure requires a plaintiff to set forth a “short and plain” statement of

his claim. Fed.R.Civ.P. 8(a).

      Construing Smith’s argument liberally, see Tannenbaum, 148 F.3d at 1263,

we interpret his claim to be that where a complaint complies with Rule 8, it

necessarily is not frivolous and states a claim for which relief can be granted.

However, as the rules clearly provide, Rule 8 concerns a petitioner’s obligation to

provide a clear explanation of his case, while § 1915(e)(2)(B) concerns the

availability of a judicial remedy. There is thus no merit to Smith’s argument.




                                            3
       Second, we reject Smith’s argument that the district court failed to accept his

allegations as true. As the record shows, the magistrate judge recognized the

court’s obligation to accept the facts in the complaint as true and to view them in

the light most favorable to Smith, the magistrate judge’s recommendation was

based only on the facts alleged in Smith’s complaint, and the district court adopted

the magistrate judge’s report. The district court therefore accepted Smith’s factual

allegations as true and viewed them in the light most favorable to Smith, and Smith

has not shown that the district court erred, much less plainly erred, on this ground.1

       Third, we are unpersuaded by Smith’s claim that the district court failed to

apply the appropriate rational relationship standard. Indeed, it is unclear which

claims Smith believes should have been analyzed under a rational relationship

standard. His equal protection claims were based on race, and distinctions based

on race are subject to strict scrutiny. Johnson v. California, 543 U.S. 499, 509

(2005).      Moreover, the district court dismissed those claims because the

harassment Smith suffered resulted in no actionable injury, not because the alleged

racial distinctions were sufficiently related to a governmental interest.




       1
         Smith did not file any objections to the magistrate judge’s report, including his
treatment of the facts, so we review this challenge only for plain error. See Resolution Trust
Corp. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).

                                                4
       Fourth, we disagree with Smith’s argument that the district court improperly

“offered a defense” for the defendants by sua sponte dismissing his case. Federal

law clearly provides that a district court may dismiss an IFP action at any time for

frivolity or failure to state a claim. 28 U.S.C. §1915(e)(2)(B). The Supreme Court

has recognized that, where an affirmative defense appears on the face of a

complaint, it may be dismissed for failure to state a claim. See Jones, 549 U.S. at

215-16. Because the district court was authorized to sua sponte dismiss Smith’s

case, Smith’s argument on this point is baseless.

       Fifth, we find no merit in Smith’s Equal Protection claims. To establish a

claim under the Equal Protection Clause, a prisoner can allege that “(1) he is

similarly situated with other prisoners who received more favorable treatment; and

(2) his discriminatory treatment was based on some constitutionally protected

interest such as race.”   Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001)

(quotation omitted) (hereinafter Ray). Where the protected interest is race, strict

scrutiny applies. Johnson, 543 U.S. at 509. A policy withstands strict scrutiny

only if the government shows that it is “narrowly tailored to serve a compelling

state interest.” Id.

       “In civil rights actions, . . . a complaint will be dismissed as insufficient

where the allegations it contains are vague and conclusory.” Fullman v. Graddick,



                                          5
739 F.2d 553, 556-57 (11th Cir. 1984). Thus, a complaint alleging a conspiracy

may be dismissed if it contains only conclusory, vague, and general allegations of a

conspiracy. Id. at 557.

      Here, contrary to Smith’s apparent belief otherwise, there is no dispute that

racial harassment by government employees can violate the Equal Protection

Clause. The district court’s dismissal of Smith’s equal protection claims was based

on its conclusion that the facts alleged by Smith did not give rise to a valid claim,

and this conclusion was correct. For starters, to the extent Smith contends that

Department officials had a racially-motivated conspiracy against him, his claim

fails because he has not alleged any facts demonstrating the existence of such a

conspiracy. See id. at 556-57. In addition, Smith’s apparent claim that the lunch

table, denial of breakfast, mailroom, and gate incidents were racial harassment also

fails because Smith has offered nothing more than conclusory allegations that

officials treated Smith differently than other similarly-situated prisoners because of

his race. See Ray, 279 F.3d at 946-47. And, Smith’s claim that the defendants

falsified documents and wrongfully segregated him as a form of racial harassment

likewise fails because, even assuming the defendants acted wrongfully, there is no

indication that their actions were motivated by race. See id. Accordingly, the

district court did not err by dismissing Smith’s equal protection claims.



                                          6
      Sixth, we also reject Smith’s claim that his disciplinary confinements

violated his due process rights.      The Due Process Clause protects against

deprivations of “life, liberty, or property, without due process of law.” U.S. Const.

Amend. XIV. The Supreme Court has held that “the Constitution itself does not

give rise to a liberty interest in avoiding transfer to more adverse conditions of

confinement,” but “a liberty interest in avoiding particular conditions of

confinement may arise from state policies or regulations, subject to the important

limitations set forth in Sandin v. Conner, 515 U.S. 472 . . . (1995).” Wilkinson v.

Austin, 545 U.S. 209, 221-22 (2005). Pursuant to Sandin, due process is required

before an inmate may be deprived of a state-created benefit if the deprivation of

that benefit “imposes atypical and significant hardship on [him] in relation to the

ordinary incidents of prison life.” Sandin, 515 U.S. at 484.

      The Florida Administrative Code provides that inmates are subject to

administrative and disciplinary confinement only in certain circumstances.       See

Fla.Adm.C. 33-602.220, 33-602.222. “After Sandin, . . . the touchstone of the

inquiry into the existence of a protected, state-created liberty interest in avoiding

restrictive conditions of confinement is not the language of regulations regarding

those conditions but the nature of those conditions themselves in relation to the

ordinary incidents of prison life.” Wilkinson, 545 U.S. at 223 (quotation omitted).



                                          7
In Sandin, the Supreme Court conducted a fact-intensive comparison between the

conditions of a prisoner’s 30-day disciplinary segregation with the “conditions

imposed upon inmates in administrative segregation and protective custody,” as

well as with conditions imposed upon inmates in the prison’s general population,

and concluded that 30 days of segregation was not an atypical or significant

hardship. 515 U.S. at 485-86.

      Here, although Smith alleged that he was improperly segregated, he did not

allege any facts which could be liberally construed to show that his 15- and 30-day

confinements were a major disruption to his environment as compared to

placement in the general population.     See id.   Thus, the district court properly

dismissed these claims.

      Finally, we are unpersuaded by Smith’s claim that the defendants violated

the Eighth Amendment by failing to protect him from another inmate’s attack.

Under the Eighth Amendment, “[p]rison officials have a duty to protect prisoners

from violence at the hands of other prisoners. It is not, however, every injury

suffered by one prisoner at the hands of another that translates into a constitutional

liability.” Purcell ex rel. Estate of Morgan v. Toombs County, Ga., 400 F.3d 1313,

1319 (11th Cir. 2005) (quotation and alterations omitted). “To show a violation of

[his] Eighth Amendment rights, Plaintiff must produce sufficient evidence of (1) a



                                          8
substantial risk of serious harm; (2) the defendants’ deliberate indifference to that

risk; and (3) causation.” Id. (quotation omitted). “To be deliberately indifferent a

prison official must know of and disregard an excessive risk to inmate health or

safety; the official must both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he must also draw the

inference.” Id. at 1319-20 (quotations omitted). Thus, simple negligence is not

actionable under § 1983, and a plaintiff must allege “a conscious or callous

indifference to a prisoner’s rights.” Williams v. Bennett, 689 F.2d 1370, 1380

(11th Cir. 1982). “We will not allow the advantage of hindsight to determine

whether conditions of confinement amounted to cruel and unusual punishment.”

Purcell, 400 F.3d at 1320.

      Here, Smith failed to allege facts tending to show that prison officials

exhibited deliberate indifference sufficient to constitute a constitutional violation.

Smith was attacked by a fellow inmate, but there is no indication that the

defendants foresaw that attack, or that they caused that attack, and both elements

are required for them to violate the Eighth Amendment. See id. at 1319-20. On

appeal, Smith argues, generally, that his grievances put the defendants on notice

and that their failure to protect him from the other inmate amounted to deliberate

indifference.   However, his pre-attack grievances concerned allegations that



                                          9
Department officials had wrongfully segregated him, not that he was at risk for an

attack. Accordingly, Smith did not allege facts showing that the defendants were

consciously or callously indifferent, and we affirm as to this issue as well.

      AFFIRMED.




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