Smith v. Deemer et al
Filing
5
ORDER dismissing the case; directing the Clerk to ENTER A JUDGMENT against Smith and to CLOSE the case. Signed by Judge Steven D. Merryday on 12/5/2013. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GLENN SMITH,
Plaintiff,
v.
Case No. 8:13-cv-2148-T-23TGW
SGT. T. DEEMER, et al.,
Defendants.
/
ORDER
Smith’s complaint alleges that the defendants violated his civil rights during a
prison disciplinary proceeding. Smith paid the filing fee.1 Nevertheless, the Prisoner
Litigation Reform Act requires dismissal of a prisoner’s action if the action “is
frivolous, malicious, or fails to state a claim upon which relief may be granted[,] or
seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C.
§ 1915A(b).
Although his complaint receives a lenient construction, see, e.g., Haines v.
Kerner, 404 U.S. 519 (1972) (per curiam), and Kirby v. Siegleman, 195 F.3d 1285, 1289
(11th Cir. 1999), Smith’s pro se complaint lacks merit.
The “three-strike” provision in 28 U.S.C. § 1915(g) precludes Smith from proceeding in
forma pauperis.
1
Smith alleges that, as a result of an altercation with another inmate in the
“chow line” in the Hardee Correctional Institution, he was found guilty of
“disorderly conduct” and sentenced to fifteen days of disciplinary confinement.
Smith lost no credit toward an early release. Smith contends that, contrary to Wolff v.
McDonnell, 418 U.S. 539 (1974), the defendants violated his substantive and
procedural due process rights in a prison disciplinary proceeding.
Wolff, 418 U.S. at 563-67, establishes five requirements an inmate is due in a
prison disciplinary proceeding if an inmate loses credit toward early release. First,
the inmate must receive an adequate, written notice of the charges. Second, he must
receive the written notice at least twenty-four hours before the hearing. Third, he
must have an opportunity, in accord with safety and correctional goals, to call
witnesses and present documentary evidence in his defense. Fourth, the fact-finder
must preserve a record of both the evidence and the reason for any disciplinary
action.2 Fifth, if circumstances warrant, an inmate should receive the help of another
inmate or a staff member. Smith’s allegation that he was denied procedural due
process is erroneous because his reliance on Wolff is misplaced.
Sandin v. Conner, 515 U.S. 472, 484 (1995), explains (1) that Wolff’s due process
protection applies only if an inmate loses credit toward an early release and (2) that
“[a]dmittedly, prisoners do not shed all constitutional rights at the prison gate, but
Superintendent v. Hill, 472 U.S. 445, 454 (1985), requires that this written record show that
the disciplinary committee’s findings were based on “some evidence.”
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[l]awful incarceration brings about the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the considerations underlying our penal
system.” Sandin recognizes an exception to the “loss of early release credit”
requirement if the condition of confinement “imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” 515 U.S.
at 484. See Overton v. Bazzetta, 539 U.S. 126, 136–37 (2003) (providing that the
temporary withdrawal of the visitation privilege for a disciplinary purpose is “not a
dramatic departure from accepted standards for conditions of confinement”). See also
Moulds v. Bullard, 452 Fed. App’x 851, 854-55 (11th Cir. 2011)3 (recognizing that,
under Sandin, a prisoner is “constitutionally entitled to procedural due process” only
if deprived of a protected liberty interest, such as early release credit that shortens his
confinement and that “Moulds was not entitled to procedural due process during his
disciplinary hearing” because he lost no credit toward an early release); Rodgers v.
Singletary, 142 F.3d 1252, 1252–53 (11th Cir. 1998) (holding that two months of
administrative confinement implicates no protected liberty interest).
Recognizing his failure to meet the “loss of early release credit” requirement,
Smith attempts to qualify for Sandin’s “atypical and significant hardship” exception.
(Doc. 1 at 8) Smith was confined in disciplinary confinement during December,
2011. Smith complains that while he was in disciplinary confinement the
“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. Rule 36-2.
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temperature inside the cell never exceeded sixty degrees. Smith admits that he
possessed both a state-issued “thin jacket” and his personal clothing, “which included
long underwear and 2 sweatshirts and 3 so-called
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