                    Case: 11-14616          Date Filed: 09/27/2012   Page: 1 of 5



                                                                         [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                     FOR THE ELEVENTH CIRCUIT
                                      ________________________

                                            No. 11-14616
                                        Non-Argument Calendar
                                      ________________________

                            D.C. Docket No. 2:09-cv-00067-MHT-WC



DAVID LAMAR JOHNSON,

llllllllllllllllllllllllllllllllll                                     llllllPlaintiff-Appellant,

                                                    versus

WARDEN,
LEWIS HULETT,
Lt.,
SGT. CROSS,
MATTHEW DAVIDSON,
Officer,

llllllllllllllllllllllllllllllllllllllll                                Defendants-Appellees.

                                      ________________________

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

                                           (September 27, 2012)
                Case: 11-14616       Date Filed: 09/27/2012       Page: 2 of 5
Before CARNES, WILSON and BLACK, Circuit Judges.

PER CURIAM:

       David Lamar Johnson, an Alabama state prisoner, appeals pro se from the

district court’s grant of summary judgment in his civil rights action against four

defendants, all prison officials, brought pursuant to 42 U.S.C. § 1983. Johnson

filed a complaint alleging the prison officials: (1) violated his due process rights;

(2) violated his First Amendment right to be free from retaliation for engaging in

protected speech; (3) violated his equal protection rights; (4) conspired amongst

themselves to violate his constitutional rights; (5) unlawfully searched his cell and

destroyed his personal and legal property; and (6) exposed him, with deliberate

indifference, to unreasonable levels of environmental tobacco smoke (ETS) in

violation of the Eighth Amendment.1 The district court granted the prison

officials’ motion for summary judgment on all claims. Johnson argues on appeal

that he presented enough evidence on all of his claims to defeat a summary

judgment motion.

       We review a district court’s grant of summary judgment de novo,

considering all evidence in the light most favorable to the non-moving party.



       1
        To the extent Johnson seeks injunctive or declaratory relief, these claims are moot
because Johnson is no longer housed in the place in which his complaint arose. See Zatler v.
Wainwright, 802 F.2d 397, 399 (11th Cir. 1986).

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O’Bryant v. Finch, 637 F.3d 1207, 1212 n.9 (11th Cir. 2011). Summary judgment

is appropriate when “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Pro se

litigants are not excused from the burden of establishing that there exists a genuine

issue of material fact. Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990).

      As an initial matter, the district court was correct to conclude the Eleventh

Amendment barred the claims brought against the prison officials in their official

capacities. Lancaster v. Monroe County, Ala., 116 F.3d 1419, 1429 (11th Cir.

1997). Like the district court, we need not decide whether qualified immunity also

applies because there is insufficient evidence that any cause of action existed, as

discussed below.

      With respect to his due process claim, Johnson failed to present any

evidence beyond conclusory allegations suggesting the prison did not provide him

with due process protections when they disciplined him. Johnson received all

procedural protections afforded to prisoners, including notice, a copy of the

disciplinary report, and an opportunity to call witnesses and present evidence.

O’Bryant, 637 F.3d at 1213-14. Moreover, there is no evidence the prison

officials relied on information they knew was false in finding Johnson guilty. See

Monroe v. Thigpen, 932 F.2d 1437, 1441-42 (11th Cir. 1991). Because Johnson


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was found guilty of the disciplinary charges, evidence supported the finding, and

Johnson was afforded adequate due process, he is barred from bringing a First

Amendment retaliation claim. See O’Bryant, 637 F.3d at 1215. Thus, Johnson’s

due process and First Amendment claims fail.

      With respect to his equal protection claim, Johnson failed to present any

significant evidence that the prison officials discriminated against him on the basis

of his race. Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001). Likewise, with

respect to his conspiracy claims, Johnson failed to present any non-conclusory and

meaningful evidence that the prison officials reached an agreement to violate his

constitutional rights. Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1283-84

(11th Cir. 2002). Johnson has failed to show a triable issue of fact on both of

these claims.

      Johnson’s claims regarding the search of his prison cell must also fail

because Johnson does not have a reasonable expectation of privacy in his cell.

Hudson v. Palmer, 104 S.Ct. 3194, 3200 (1984). As a result, a search of his cell

did not violate his Fourth Amendment rights, and he has no § 1983 cause of action

arising from the search. See id. at 3202. Further, Alabama provides Johnson with

an adequate state remedy for the destruction of his property. See id. at 3204.

      Finally, with respect to his ETS claims, Johnson failed to present evidence


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that he was exposed to an unreasonable amount of smoke while at Ventress

Correctional Facility. Kelley v. Hicks, 400 F.3d 1282, 1284 (11th Cir. 2005). He

also presented no evidence beyond his own conclusory allegations that the

ventilation in the prison was inadequate. Id. at 1285. Evidence that some

smoking occurs at Ventress despite the presence of a non-smoking policy is not

sufficient to overcome a summary judgment motion. Moreover, Johnson failed to

demonstrate that the prison officials were more than negligent in carrying out the

prison’s no-smoking policy. Id. Thus, Johnson’s ETS claim fails.

      AFFIRMED.




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