              Case: 13-11737     Date Filed: 12/11/2013   Page: 1 of 6


                                                             [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-11737
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 9:12-cv-81317-KLR



MICHAEL D. HILDERBRANDT,

                                                                Plaintiff-Appellant,

                                         versus

L. T. BUTTS,
GEO,
MS. SLAUGHTER,
GEO, in their individual and official capacities,

                                                             Defendants-Appellees.

                           ________________________

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

                                (December 11, 2013)

Before CARNES, Chief Judge, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
                Case: 13-11737       Date Filed: 12/11/2013       Page: 2 of 6


       Michael Hilderbrandt is a state prisoner at Southbay Correctional Facility in

Florida. He sued two Southbay employees –– Lieutenant Butts and Classification

Officer Slaughter –– for violations of his Eighth and Fourteenth Amendment

rights, seeking damages under 42 U.S.C. § 1983. The district court dismissed his

complaint sua sponte for failure to state a claim without granting him leave to

amend. Hilderbrandt appeals that dismissal, arguing that the district court erred in

(1) dismissing his Fourteenth Amendment claim, and (2) not giving him an

opportunity to amend his complaint. 1

                                               I.

       On February 3, 2012, officers at Southbay searched Hilderbrandt’s cell for

contraband. The officers found some contraband, and Hilderbrandt was placed in

administrative confinement that same day “for 3-12 possession of any other

contraband.”     A disciplinary hearing occurred on February 9, 2012, in which

Lieutenant Butts and Officer Slaughter reviewed the evidence of Hilderbrandt’s

infraction.    Hilderbrandt alleged the following occurred at the hearing: “[He]

pointed out to Defendants Butts and Slaughter that a procedural error ha[d]

occurred because the [disciplinary report] ha[d] two d[e]scriptions (3-7) D.R. was

(3-12) with the d[e]scription crossed out and the charge changed to 3-7 possession

       1
          Hilderbrandt’s brief also contends that a jury trial was necessary to determine whether
Butts and Slaughter were entitled to qualified immunity. Our determination that the complaint
failed to state a claim under § 1983 renders that contention academic.


                                               2
                Case: 13-11737        Date Filed: 12/11/2013      Page: 3 of 6


of stimulant.”       Hilderbrandt contends that this was a violation of Florida

Administrative Code Rule 33-601.307(4)(b), which he claims required Butts and

Slaughter to rewrite the entire disciplinary report. At the end of the hearing, Butts

and Slaughter found Hilderbrandt guilty of the charged infraction and sentenced

him to sixty days of disciplinary confinement and 180 days of forfeited gain time.

       Hilderbrandt appealed that decision to the warden three days later. On

February 23, 2012, the warden sided with Hilderbrandt, expunged the disciplinary

report from his record, and restored his gain time. Hilderbrandt had spent a total of

twenty days in administrative and disciplinary confinement by the time of that

decision. Hilderbrandt alleged that for the first seventeen of those days he was

denied a change of clothes and was not given shampoo, deodorant, soap, glasses,

or writing paper.

       Based on those events, Hilderbrandt brought suit in forma pauperis under 42

U.S.C. § 1983 against Butts and Slaughter for violating his Eighth and Fourteenth

Amendment rights. 2 The case was assigned to a magistrate judge, who reviewed

the complaint and recommended that the district court dismiss the due process




       2
          After reviewing Hilderbrandt’s complaint and initial brief, we construe Hilderbrandt’s
Fourteenth Amendment claim as one asserting a violation of procedural due process. See
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (“Pro se pleadings are held
to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally
construed.”).
                                                3
                Case: 13-11737        Date Filed: 12/11/2013       Page: 4 of 6


claim for failure to state a claim and close the case. 3 The district court adopted the

magistrate judge’s report and recommendation, dismissing Hilderbrandt’s suit with

prejudice.4

                                                II.

       Federal courts must dismiss complaints brought by prisoners in forma

pauperis if they fail to state a claim upon which relief can be granted. 28 U.S.C.

§ 1915(e)(2)(B)(ii).      A complaint states a claim if it contains enough factual

allegations to raise a right to relief “above the speculative level.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965 (2007). We keep in mind,

however, that pleadings from pro se litigants must be “liberally construed.”

Tannenbaum, 148 F.3d at 1263.

       If a more carefully drafted complaint might state a claim, a pro se plaintiff

must get at least one chance to amend his complaint before a district court

dismisses his suit with prejudice. Silva v. Bieluch, 351 F.3d 1045, 1048–49 (11th

Cir. 2003). Dismissal with prejudice may still be appropriate, however, if granting

leave to amend would be futile. Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th


       3
         The report and recommendation did not discuss whether Hilderbrandt had stated a claim
for an Eighth Amendment violation; however, Hilderbrandt did not mention that omission in his
objections to the report and recommendation.
       4
         The district court also failed to address Hilderbrandt’s Eighth Amendment claim.
However, Hilderbrandt does not argue on appeal that the district court erred in dismissing his suit
without evaluating his claim under the Eighth Amendment. Accordingly, he has abandoned that
issue. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
                                                4
                Case: 13-11737        Date Filed: 12/11/2013       Page: 5 of 6


Cir. 2007). “Leave to amend a complaint is futile when the complaint as amended

would still be properly dismissed or be immediately subject to summary judgment

for the defendant.” Id.

       We review de novo claims dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii),

taking the allegations in the complaint as true. Douglas v. Yates, 535 F.3d 1316,

1319–20 (11th Cir. 2008). We also review de novo whether amending a complaint

would be futile. Harris v. Ivax Corp., 182 F.3d 799, 802 (11th Cir. 1999).

       The district court properly dismissed Hilderbrandt’s due process claim with

prejudice because amendment would have been futile. A valid claim under § 1983

for a procedural due process violation must show three elements: “a deprivation of

a constitutionally-protected liberty or property interest; state action; and

constitutionally inadequate process.” Cryder v. Oxendine, 24 F.3d 175, 177 (11th

Cir. 1994). Amendment would have been futile because Hilderbrandt has not

alleged or even suggested any facts that, taken as true, would satisfy the third

required element. 5

       The complaint claims that Butts and Slaughter violated Hilderbrandt’s due

process rights at the disciplinary hearing by not following procedural requirements

set out in Florida Administrative Code Rule 33-601.307(4), which allegedly
       5
          Because it is not necessary for the disposition of this case, we express no opinion on
whether the length and conditions of Hilderbrandt’s confinement imposed an “atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life” that would
qualify as a liberty deprivation implicating due process. Sandin v. Conner, 515 U.S. 472, 484–
85, 115 S.Ct. 2293, 2300–01 (1995).
                                                5
              Case: 13-11737    Date Filed: 12/11/2013   Page: 6 of 6


required that his entire disciplinary report be rewritten when one of the listed

charges was removed. However, Hilderbrandt’s due process claim misses the

mark by equating state-law administrative procedure with constitutional due

process. Federal due process does not require that state prison officials strictly

comply with administrative regulations governing disciplinary hearings in the

prison setting. See O’Bryant v. Finch, 637 F.3d 1207, 1213 (11th Cir. 2011).

Instead, due process merely requires that prisoners receive: (1) “advance written

notice of the charges against them”; (2) “an opportunity . . . to call witnesses and

present documentary evidence, so long as doing so is consistent with institutional

safety and correctional goals”; and (3) “a written statement by the factfinder

outlining the evidence relied on and the reasons for the disciplinary action.” Id.

(citing Wolff v. McDonnell, 418 U.S. 539, 563–67, 94 S.Ct. 2963, 2978–80

(1974)). Hilderbrandt does not suggest that he could truthfully allege that any of

those requirements were not satisfied. Thus he did not, and cannot, show that he

received constitutionally inadequate process, and amendment of his complaint

would have been futile. Accordingly, the district court properly dismissed his

complaint with prejudice.

      AFFIRMED.




                                         6
