           Case: 13-13927   Date Filed: 08/21/2014   Page: 1 of 9


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-13927
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:13-cv-00006-RS-GRJ



PRESTON SHANE ALLEN,

                                                           Plaintiff-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                          Defendant-Appellee.

                      ________________________

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

                            (August 21, 2014)



Before ROSENBAUM, FAY, and EDMONDSON, Circuit Judges.
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PER CURIAM:



       In this prison conditions case that focuses on the conduct of correctional

officers, Preston Shane Allen, a state prisoner proceeding pro se, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 civil action for failure to state a

claim upon which relief can be granted under 28 U.S.C. § 1915(e)(2)(B)(ii). 1

Reversible error has been shown; we affirm the judgment in part and vacate in

part; and remand the case for further proceedings.

       We review de novo the district court’s dismissal under section

1915(e)(2)(B)(ii), accepting the allegations in the complaint as true. Douglas v.

Yates, 535 F.3d 1316, 1319-20 (11th Cir. 2008). “[A] complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. We construe liberally pro se pleadings. Tannenbaum v. United States, 148

F.3d 1262, 1263 (11th Cir. 1998).



1
  In addition to challenging the district court’s dismissal of his complaint for failure to state a
claim, Allen raises three other issues on appeal: (1) the district court failed to give proper
consideration to Allen’s pro se status; (2) the district court erred in denying Allen’s request for
class action certification; and (3) the magistrate judge and the district court erred in failing to
recuse themselves. These arguments are without merit.
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       Briefly stated, Allen alleges that Defendant correctional officers conspired

together and, on two specific occasions, retaliated against him for filing grievances

about the conditions of his confinement. In the first instance, Allen alleges that

Defendant Officer Spradley placed Allen in administrative confinement and that

Defendant Sgt. Cook issued Allen a fraudulent disciplinary report in retaliation for

Allen’s grievances against Defendants Sgt. Thompson and Officer Richardson.

Allen alleges that, at the resulting disciplinary hearing (“February disciplinary

hearing”), he was not permitted to call witnesses on his behalf. Following the

hearing, Allen was placed into administrative confinement. 2

       About the second occasion, Allen contends that Defendant Sgt. Eldridge

issued him a disciplinary report after Allen filed a grievance against Sgt. Lambert

(female). Following a disciplinary hearing (“June disciplinary hearing”), where

Allen was again denied the opportunity to call witnesses, Allen was found guilty of

the charged offense and was placed in disciplinary confinement. Allen alleges that

an officer later admitted to Allen that he, Sgt. Eldridge, Sgt. Lambert (male), and

Sgt. Lambert (female) had conspired to place Allen in confinement in retaliation

for Allen’s filing a grievance against Sgt. Lambert (female).




2
 The operative third amended complaint does not indicate the outcome of Allen’s February
disciplinary hearing, but in Allen’s second amended complaint, he alleges that he “won” the
hearing.
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       Construed liberally, Allen’s third amended complaint touches on two

constitutional assertions: (1) that Defendants violated his due process rights under

the Fourteenth Amendment; and (2) that Defendants retaliated against him for

exercising his First Amendment rights. 3



I. Due Process Claim:



       Allen alleges that Defendants violated his due process rights when they

failed to speak to or ensure the appearance of Allen’s witnesses at Allen’s two

disciplinary hearings.

       The Supreme Court has recognized two instances in which a prisoner may

be deprived of a constitutionally protected liberty interest, such that due process is

required: (1) “when a change in the prisoner’s conditions of confinement is so

severe that it essentially exceeds the sentence imposed by the court”; and (2)

“when the state has consistently bestowed a certain benefit to prisoners . . . and the


3
 Allen also alleges that, while he was in confinement, Defendants seized his personal property in
violation of the Fourth and Fourteenth Amendments. We reject this claim. Prisoners have no
reasonable expectation of privacy and, thus, no Fourth Amendment protection against
unreasonable searches of their prison cells. See Hudson v. Palmer, 104 S.Ct. 3194, 3200 (1984).
Moreover, “an unauthorized deprivation of property by a state employee does not constitute a
violation of procedural requirements of the Due Process Clause of the Fourteenth Amendment if
a meaningful postdeprivation remedy for the loss is available.” Id. at 3204. Because, under
Florida law, Defendants could be held liable for conversion for the alleged unlawful seizure of
Allen’s personal property, Allen has access to an adequate postdeprivation remedy and has
alleged no due process violation. See Case v. Eslinger, 555 F.3d 1317, 1331 (11th Cir. 2009).
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deprivation of that benefit ‘imposes atypical and significant hardship on the inmate

in relation to the ordinary incidents of prison life.’” Kirby v. Siegelman, 195 F.3d

1285, 1291 (11th Cir. 1999) (citing Sandin v. Conner, 115 S.Ct. 2293, 2300

(1995)). When a prisoner’s due process rights are triggered, he is entitled to,

among other things, an opportunity to call witnesses and present documentary

evidence at a disciplinary hearing. See Wolff v. McDonnell, 94 S.Ct. 2963, 2979-

80 (1974).

      Allen has alleged no deprivation of a constitutionally protected liberty

interest. Although Allen alleges that he was placed in administrative and

disciplinary confinement in connection with his two disciplinary hearings, he has

not alleged that the conditions of such confinement presented “the type of atypical,

significant deprivation” that creates a liberty interest. See Sandin, 115 S.Ct. at

2300-01 (30-days in segregated disciplinary confinement did not trigger due

process protection where the conditions of disciplinary segregation were not

significantly different from the conditions outside disciplinary segregation). Nor

has Allen alleged that he lost good time credits as a result of his disciplinary

proceedings. See Wolff, 94 S.Ct. at 2975 (prisoners have a constitutionally

protected liberty interest in state-created right to good time credits). And, to the

extent that Allen alleges that the mishandling of grievance procedures violated his

due process rights, prisoners have no constitutionally protected liberty interest in


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having access to prison grievance procedures. See Bingham v. Thomas, 654 F.3d

1171, 1177 (11th Cir. 2011). Because Allen has alleged no constitutionally

protected liberty interest, he has failed to state a claim for due process violation

under the Fourteenth Amendment.



II. First Amendment Retaliation Claim:



       Prison officials are forbidden by the First Amendment from retaliating

against prisoners for filing grievances complaining about the conditions of

confinement. O’Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011). To state a

claim for retaliation, a prisoner must allege that “(1) his speech was

constitutionally protected; (2) the inmate suffered adverse action such that the

[official’s] allegedly retaliatory conduct would likely deter a person of ordinary

firmness from engaging in such speech; and (3) there is a causal relationship

between the retaliatory action [the disciplinary punishment] and the protected

speech [the grievance].” 4 Id. (alterations in original). For the third element, a

prisoner must allege facts showing that the alleged retaliatory conduct would not

have occurred but for the retaliatory motive. Id. at 1217. We have said that a


4
 The parties do not dispute that Allen has satisfied the first two elements. The only issue on
appeal is whether Allen alleged sufficiently a causal relationship between Defendants’ retaliatory
acts and Allen’s protected speech.
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prisoner “cannot state a claim of retaliation for a disciplinary charge involving a

prison rule infraction when the inmate was found guilty of the actual behavior

underlying that charge after being afforded adequate due process.” Id. at 1215.

      In rejecting Allen’s retaliation claims, the district court concluded that Allen

failed to state a claim for retaliation because (1) he was in fact found guilty of a

disciplinary violation and (2) he failed to allege facts demonstrating a causal

connection between his grievances and Defendants’ disciplinary conduct.

      We agree that, because Allen failed to allege a due process violation at his

June disciplinary hearing, and because Allen concedes that he was found guilty of

the charged offense at his June disciplinary hearing, he cannot state a claim for

retaliation based on that incident. See id.

      The district court erred, however, in dismissing Allen’s retaliation claim

based on his February disciplinary hearing. First, Allen does not allege -- and

nothing evidences -- that he was found guilty of a disciplinary offense at his

February disciplinary hearing. Thus, Allen is not foreclosed from stating a

retaliation claim by our decision in O’Bryant. Second, construing the complaint

liberally and accepting Allen’s allegations as true, Allen has alleged sufficiently




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that Defendants conspired with one another to retaliate against Allen for filing

grievances.5

       To state a claim for conspiracy, a complaint must contain more than just

vague and conclusory accusations. See Bell Atl. Corp. v. Twombly, 127 S.Ct.

1955, 1964-65 (2007); Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir.

1984). “It is not enough to simply aver in the complaint that a conspiracy existed.”

Fullman, 739 F.2d at 557. Instead, the complaint must contain “enough factual

matter (taken as true) to suggest than an [illegal] agreement was made.” Twombly,

127 S.Ct. at 1965. “Asking for plausible grounds to infer an agreement does not

impose a probability requirement at the pleading stage; it simply calls for enough

facts to raise a reasonable expectation that discovery will reveal evidence of illegal

agreement.” Id. Moreover, “a well-pleaded complaint may proceed even if it

strikes a savvy judge that actual proof of those facts is improbable.” Id.

       In this case, Allen has not just alleged broadly that a conspiracy existed

between Defendants. Instead, Allen contends specifically that “[D]efendants are
5
 We construe Allen’s complaint -- which contends that Defendants engaged in a pattern of
conspiring against prisoners who file grievances -- as alleging facts sufficient to assert the
existence of a single conspiracy among all seven Defendants, involving two specific instances of
that conspiracy acting to retaliate against Allen. Thus, although we have determined that the
events surrounding Allen’s June disciplinary hearing are not actionable, we believe Allen has
stated a plausible claim for liability against all Defendants as participants in a single conspiracy
responsible for the February disciplinary hearing. We cannot say, at this early stage in the
proceedings, whether the evidence will demonstrate ultimately the existence of a single
conspiracy (responsible for both the February and June disciplinary hearings), multiple
conspiracies (one conspiracy, with its own members, involving just the February incident and a
separate conspiracy, with other members, involving just the June incident), or no conspiracy at
all.
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either family to one another, drinking buddies, hunting buddies, and all are

members of a Department of Corrections brotherhood [something like a gang] and

has pledged [for all to hear] that they will protect one another no matter what it

takes.” As further evidence of the alleged conspiracy among Defendants, Allen

contends that Officer Canon told Allen expressly that “Sgt. Lambert’s husband

asked Officer Canon and Sgt. Eldridge to do him a favor since they are friends and

hunting buddies” and to have Allen placed in confinement in retaliation for filing a

grievance against Sgt. Lambert (female). 6 Based on these fact-specific allegations,

we believe Allen’s complaint contains sufficient facts to suggest plausibly that

Defendants entered into an illegal agreement. Because Allen has stated a claim for

conspiracy among Defendants that is plausible on its face, he has alleged

sufficiently a causal connection between his protected speech and Defendants’

alleged retaliatory acts.

       To the extent that the district court dismissed, for failure to state a claim,

Allen’s retaliation claim based on the events surrounding Allen’s February

discipline hearing, we vacate the judgment and remand for further proceedings.

       AFFIRMED IN PART; VACATED IN PART; AND REMANDED.



6
 Although Allen cannot state a claim for retaliation based on the events surrounding his June
disciplinary hearing, Allen’s factual allegations about that alleged retaliatory incident are still
pertinent (showing intent, plan, motive) to his claim that Defendants participated in a single
conspiracy to retaliate against him for filing grievances against other members of the alleged
“brotherhood.”
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