Delano Renee Fuller v. Jim Gates ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11298
Non-Argument Calendar
________________________
D.C. Docket No. 6:13-cv-01766-RDP-SGC
DELANO RENEE FULLER,
Plaintiff - Appellant,
versus
JIM GATES,
Capt.,
JONATHAN STIDHAM,
Col.,
RONNIE HALL,
Col.,
RANDY BURNES,
Col.,
TERRY TUCKER,
Lt., et al.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama - Jasper
________________________
(July 11, 2016)
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Before WILSON, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.
PER CURIAM:
DeLano Renee Fuller, a federal prisoner, appeals pro se the dismissal of his
complaint about the violation of his civil rights by correctional officers at the
Hamilton Work Release Center, by Platinum Homes Trailer Plant and three of its
employees, and by Lamb Motors and its owner, Dwight Lamb. See 42 U.S.C.
§ 1983. The district court sua sponte dismissed Fuller’s complaint for failure to
state a claim. 28 U.S.C. § 1915A(b)(1). We affirm.
We review de novo the sua sponte dismissal of a prisoner’s complaint for
failure to state a claim. Leal v. Georgia Dep’t of Corr., 254 F.3d 1276, 1279 (11th
Cir. 2001).
The district court did not err by dismissing Fuller’s claims that the
correctional officers violated his right to equal protection by treating white
prisoners more favorably when assigning jobs and resolving disciplinary matters.
Fuller failed to establish that he was similarly situated to the white prisoners who
allegedly received more favorable treatment. See Sweet v. Sec’y, Dep’t of Corr.,
467 F.3d 1311, 1318–19 (11th Cir. 2006). Fuller alleged that white prisoners who
were transferred with him to the Center received jobs first, but Fuller failed to
describe the white prisoners’ skills to establish that he had similar qualifications.
Fuller also alleged that he lost his job at Platinum Homes for failing to maintain a
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specific pace of production while white prisoners who were less physically fit kept
their jobs, but Fuller did not contend that fitness was the only relevant qualification
for the jobs or that the white prisoners worked at a pace similar to or slower than
Fuller. In addition, Fuller complained about being removed from his position at
Lamb Motors for taking jewelry when cleaning up the scene of a car accident
while a white prisoner retained his job despite failing a drug test and possessing a
cellular telephone, but Fuller did not allege that the white prisoner took property
owned by another person or from his worksite. Although Fuller’s position was
given to a white prisoner, Fuller did not allege that the white prisoner had violated
prison rules. Fuller also complained about being disciplined for taking the jewelry
while two white prisoners were not disciplined for obtaining synthetic marijuana,
but the offenses committed by Fuller and the white prisoners are readily
distinguishable. Fuller argues, for the first time, that the officers’ actions
constituted unlawful employment practices, see 42 U.S.C. 2000e-2(a)(1), but we
will not consider a theory of liability that Fuller did not present to the district court.
See Fils v. City of Aventura, 647 F.3d 1272, 1284 (11th Cir. 2011).
The district court also did not err by dismissing Fuller’s claims that he was
denied due process during disciplinary proceedings. For an inmate to state a claim
that prison officials have deprived him of a liberty interest in violation of due
process, he must establish either that the “deprivation of [a] benefit ‘imposes
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atypical and significant hardship on the inmate in relation to the ordinary incidents
of prison life’” or that “a change in [his] conditions of confinement is so severe
that it essentially exceeds the sentence imposed by the court.” Kirby v. Siegelman,
195 F.3d 1285, 1291 (11th Cir. 1999) (quoting Sandin v. Conner, 515 U.S. 472,
484 (1995)). Fuller alleged that he was required daily to perform two additional
hours of work and he lost telephone and visitation privileges for 45 days after
being found guilty at a disciplinary hearing of “unauthorized possession of state
and/or another person’s” jewelry and that he incurred similar sanctions for a 30-
day period after being found guilty of creating a security or safety hazard by
opening the door of a bus while it was transporting prisoners to work. But these
sanctions did not impose an “atypical and significant hardship on” Fuller or affect
the duration of his sentence. See id.; see also Francis v. Fox, 838 F.2d 1147, 1149–
50 (11th Cir. 1988). And Fuller submitted disciplinary reports that established he
received all procedural protections afforded to prisoners, including notice of the
charges against him, a hearing during which he was permitted to question
witnesses and testify on his behalf, and a written statement describing the evidence
relied on by the hearing officer. See Wolff v. McDonnell, 418 U.S. 539, 563–67
(1974). Fuller also alleged that the correctional officers confiscated the jewelry
without due process, but Fuller did not establish that he had a legitimate interest in
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the property. See Cone v. State Bar of Fla., 819 F.2d 1002, 1004–05 (11th Cir.
1987).
Fuller has abandoned any challenge that he could have made to the dismissal
of his complaints against Platinum Homes and its employees and against Lamb
Motors and its owner or to the dismissal of his claim that correctional officers
bullied him based on his race. Fuller complained that Platinum Homes and its
employees and that Lamb Motors and its owner engaged in discriminatory hiring
and termination practices, but Fuller does not dispute that the companies and the
individuals did not act under color of state law. See 42 U.S.C. § 1983. Fuller also
complained that correctional officers slighted him by referring to him as “one of
those young punks with [his] pants falling off” and threatened to hit him, but he
does not contest the adverse ruling that the defamatory statements and threats did
not implicate any right protected by the Constitution or by federal law. See id.;
Emory v. Peeler, 756 F.2d 1547, 1554 (11th Cir. 1985). We deem abandoned any
disagreement that Fuller might have with the dismissal of his complaints against
Platinum Homes and its employees and against Lamb Motors and its owner or with
the dismissal of his claim about being bullied by correctional officers. See Timson
v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
We AFFIRM the dismissal of Fuller’s complaint.
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