Nyka O'Connor v. FDOC ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12071 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 21, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 08-00357-CV-3-LAC-WCS
NYKA O'CONNOR,
Plaintiff-Appellant,
versus
FDOC,
J. MOORE, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 21, 2010)
Before EDMONDSON, BIRCH, and BLACK, Circuit Judges.
PER CURIAM:
Nyka O’Connor, a Florida state prisoner, appeals the district court’s
dismissal of his pro se complaint, brought under 42 U.S.C. § 1983, for failure to
state a claim pursuant to the screening procedures of 28 U.S.C. § 1915(e)(2).
O’Connor raises several issues on appeal, which we address in turn. After review,
we affirm the district court’s dismissal of O’Connor’s complaint.
I.
O’Connor first contends prison officials violated his Fourteenth Amendment
due process rights by wrongfully considering several overturned or allegedly
invalid disciplinary reports when initially placing him in close management and
thereafter approving of his continued placement in close management. A district
court’s sua sponte dismissal for failure to state a claim under 28 U.S.C.
§ 1915A(b)(1) is reviewed de novo. Leal v. Ga. Dep’t of Corr., 254 F.3d 1276,
1279 (11th Cir. 2001).1
“In this circuit, a § 1983 claim alleging a denial of procedural due process
requires proof of three elements: (1) a deprivation of a constitutionally-protected
liberty or property interest; (2) state action; and (3) constitutionally-inadequate
1
We note that, since O’Connor was not proceeding in forma pauperis in the district court,
his complaint should have been dismissed under 28 U.S.C. § 1915A(b)(1) rather than the
companion statute 28 U.S.C. § 1915(e)(2)(B)(ii). Since O’Connor does not object on appeal,
and since any error resulting therefrom was harmless, we will consider the dismissal as occurring
pursuant to § 1915A(b)(1). See Leal, 254 F.3d at 1279.
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process.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003) (citing Cryder
v. Oxendine, 24 F.3d 175, 177 (11th Cir.1994)). “The minimum requirements of
due process for prisoners facing disciplinary action . . . are (1) advance written
notice of the charges; (2) a written statement of the reasons for the disciplinary
action taken; and (3) the opportunity to call witnesses and present evidence, when
consistent with institutional safety and correctional goals.” Bass v. Perrin, 170
F.3d 1312, 1318 (11th Cir. 1999). A prisoner placed in close management for non-
disciplinary reasons, however, is merely entitled to “some notice of the charges
against him and an opportunity to present his views.” Shelley v. Dugger, 833 F.2d
1420, 1426 (11th Cir. 1987) (quoting Hewitt v. Helms, 103 S. Ct. 864, 874 (1983)).
Due process also requires that prisoners held in close management be given “some
sort of periodic review of the[ir] confinement.” Id.Assuming O’Connor’s placement in close management deprived him of a
protected liberty interest and was disciplinary in nature, O’Connor’s complaint
fails to state a due process claim because it does not allege that he was afforded
constitutionally-inadequate process. O’Connor’s complaint does not allege that
prison officials have failed to provide him with adequate notice, a statement of
reasons for his placement in close management, an opportunity to present
evidence, or periodic review of his status. Moreover, although Florida’s prison
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regulations are not constitutional mandates, see Magluta v. Samples, 375 F.3d
1269, 1279 n.7 (11th Cir. 2004), O’Connor’s complaint does not even allege that
prison officials violated Florida’s detailed procedural requirements. See Fla.
Admin. Code R. 33-601.800. O’Connor has simply failed to allege he was denied
the ability to meaningfully present his arguments regarding the contested
disciplinary reports to prison officials. The district court therefore did not err by
dismissing O’Connor’s complaint as to his due process claim.
II.
O’Connor also argues the district court should not have dismissed as
frivolous his fraud claim, which consisted of allegations that certain prison
officials profited by selling bonds with inmates held as collateral. A district
court’s sua sponte dismissal of a complaint or part of a complaint for frivolity
under 28 U.S.C. § 1915A(b)(1) is reviewed for abuse of discretion. Miller v.
Donald, 541 F.3d 1091, 1100 (11th Cir. 2008). “A claim is frivolous if and only
if it lacks an arguable basis either in law or in fact.” Id. (quotation and citations
omitted). Since O’Connor’s fraud claim has no basis in law or fact, the district
court did not abuse its discretion in dismissing the claim as frivolous.
III.
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The district court did not err in dismissing O’Connor’s complaint as to his
claims of due process violations and fraud. We reject O’Connor’s remaining
claims and arguments without further discussion.2 Accordingly, we affirm.
AFFIRMED.
2
O’Connor’s remaining arguments on appeal are that the district court erred by:
(1) failing to address his claim for injunctive relief; (2) failing to conduct a de novo review;
(3) denying his motion for reconsideration; and (4) denying his motion to proceed in forma
pauperis on appeal and requiring the payment of the filing fee in the district court.
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