FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 12, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-11378

Non-Argument Calendar

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D. C. Docket No. 07-01132-CV-J-16-JRK

MARVIN D. MOBLEY, 

Plaintiff-Appellant, 

versus 

S. L. HICKS, 

in an individual capacity, 

Defendant-Appellee. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(August 12, 2008)

Before BIRCH, CANES and PRYOR, Circuit Judges. 

PER CURIAM:

Marvin D. Mobley, proceeding pro se, appeals the sua sponte dismissal of
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his 42 U.S.C. § 1983 complaint alleging violations of his right to procedural due

process as well as his right to equal protection under the law. The district court

dismissed Mobley’s complaint for failure to state a claim on which relief may be

granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Upon careful review of the

complaint, the pleadings, and the district court order, and upon consideration of

Mobley’s brief, we discern no reversible error and therefore AFFIRM. 

I. BACKGROUND

Marvin Mobley is a resident of Florida and, he has been receiving disability

benefits and medicare insurance. On 2 November 2007, Mobley received a Notice

of Continuing Disability Review and several Authorizations to Disclose

Information to the Social Security Administration (SSA). R1-8 at 1. After

completing the forms, he hand delivered them to the local SSA office. While

there, Mobley asked for his medical records and a document indicating that the

SSA had received his completed forms. His request was denied. Id. at 1-2. 

A few days later, S.L. Hicks, a Medical Disability Adjudicator working

Mobley’s review, left a message for Mobley instructing him to call her back as

soon as possible. Id. Mobley called Hicks several times but did not succeed in

reaching her as she was out of the office. Id. When Hicks called Mobley back, she

was hostile, indicating that Mobley was a diagnosed schizophrenic, which was
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untrue. Id. Hicks also indicated that an appointment would be set for Mobley to

see a doctor, to which he objected because he was afraid of doctors. Mobley

described Hicks as “wanting to argue from the beginning of our conversation” and

as laughing after he disclosed his fear of doctors. Id. at 3. Later, Mobley received

a letter from Hicks informing him that if he failed to provide the SSA with the

necessary information, the SSA could terminate his benefits. Id. 

In his complaint, Mobley alleged that Hicks’s behavior during their phone

conversation, her premature decision to order a doctor’s examination, and her

threats to stop his benefits amounted to hostile, unfair, and unequal treatment that

violated his right to procedural due process and equal protection of the law. Id. at

5, 7-8. He added that Hicks violated his right to procedural due process and equal

protection by failing to send him a Letter of Due Process Determination Notice, in

violation of SSA policies. Id. at 9-10. 

The magistrate judge issued a Report and Recommendation (“R & R”)

finding that Mobley (1) failed to allege that Hicks has deprived him of a

constitutionally-protected liberty or property interest; and (2) failed to provide

evidence that Hicks acted with a discriminatory motive or purpose. R1-9 at 7-8. 

The magistrate judge recommended that his complaint be dismissed for failure to

state a claim on which relief may be granted pursuant to 28 U.S.C.
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§ 1915(e)(2)(B)(ii). Id. at 5, 9. Mobley objected to the magistrate judge’s R & R,

arguing that the magistrate was unlawfully trying to represent Hicks, and he

subsequently requested an evidentiary hearing. R1-10 at 2, 4. After review, the

district court found that Mobley’s objections to the R & R failed to cure any of the

deficiencies in his complaint. Therefore, the district court adopted, confirmed, and

ratified the magistrate judge’s R & R. R1-11. Mobley filed a timely notice of

appeal. R1-12. 

II. DISCUSSION

A district court’s sua sponte dismissal for failure to state a claim pursuant to

28 U.S.C. § 1915(e)(2)(B)(ii) is reviewed de novo, taking the allegations and facts

in the complaint as true. Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). 

On appeal, Mobley argues that the district court should not have dismissed his

complaint because it contained sufficient allegations to support his due process and

equal protection claims. Additionally, he argues that by improperly dismissing his

complaint, the district court violated his due process rights by depriving him of the

evidentiary hearing he requested and the right to receive an answer from the

defendant. 

A. Due Process 

A successful § 1983 claim “alleging a denial of procedural due process
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requires proof of three elements: (1) a deprivation of a constitutionally-protected

liberty or property interest; (2) state action; and (3) constitutionally-inadequate

process.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003). In order to

satisfy the first element of the Grayden test, a plaintiff must “allege a deprivation

of a constitutionally-protected interest, not merely a risk of deprivation.” 

Arrington v. Helms, 438 F.3d 1336, 1348 n.12 (11th Cir. 2006). Moreover, there

is no due process violation when, prior to dismissal under §1915(e)(2)(B)(ii), the

district court conducts a de novo review of the magistrate judge’s report, and the

plaintiff is given the opportunity to object to the magistrate judge’s report, even if

the plaintiff is not afforded a formal hearing. Vanderberg v. Donaldson, 259 F.3d

1321, 1324 (11th Cir. 2001).

Mobley alleges that Hicks was argumentative and hostile on the phone, that

Hicks sent a letter saying that Mobley was in jeopardy of losing his benefits, that

Hicks ordered a doctor’s exam, and that Hicks did not send Mobley a Letter of Due

Process Predetermination Notice. However, these allegations do not amount to a

deprivation of any constitutionally-protected liberty or property interest. R1-8 at

2-3, 10. These averments cannot satisfy the first prong of the Grayden test because

Mobley’s disability benefits were never terminated. Therefore, he has failed to

state a due process claim on which relief may be granted. 
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In his appellate brief, Mobley argued that the district court’s improper

dismissal of his case constituted a violation of his due process rights to receive an

answer and have a hearing. The district court’s dismissal of Mobley’s complaint

under §1915(e)(2)(B)(ii), without an evidentiary hearing , did not violate his due

process rights. Prior to dismissing Mobley’s complaint, the district court

conducted an independent review of the record, and Mobley was given the

opportunity to object to the magistrate’s report. Vanderberg, 259 F.3d at 1324;

R1-10, 11. The dismissal was proper, and thus the defendant has no obligation to

answer under Rule 12 of the Federal Rules of Civil Procedure. 

B. Equal Protection

The Supreme Court has interpreted the Equal Protection Clause of the

Fourteenth Amendment as “a direction that all persons similarly situated should be

treated alike.” City of Cleburne, Tex. V. Cleburne Living Ctr., 473 U.S. 432, 439

(1985). One must show that they were treated differently and that such treatment

was the result of a discriminatory motive or purpose. Cross v. Dept. of Mental

Health & Mental Retardation, 49 F.3d 1490, 1507 (11th Cir. 1995). While Mobley

alleges that Hick’s actions were unfair and unequal, he did not offer any facts

showing that he was treated differently from others in a similar situation or that

there was a discriminatory motive or purpose on Hicks’s part. Id. At 6, 9. 
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Allegations of unequal treatment and discriminatory motive or purpose are

essential to an equal protection claim, and without them, Mobley’s complaint was

properly dismissed. 

III. CONCLUSION

The district court did not err in dismissing Mobley’s complaint for failure to

state a claim under §1915(e)(2)(B)(ii). Mobley failed to allege facts sufficient to

show he was deprived of a constitutionally-protected liberty or property interest. 

Moreover, the district court’s lawful dismissal of Mobley’s claim, without

affording him an evidentiary hearing, did not violate his right to due process

because the district court conducted an independent review of the record, and

Mobley was given the opportunity to object to the magistrate’s report before the

district court dismissed his complaint. Mobley’s equal protection claim is not

properly stated because he did not allege facts sufficient to show unequal treatment

and discriminatory motive. We discern no reversible error and for the above

reasons, we affirm the district court’s dismissal of Mobley’s 42 U.S.C. § 1983

action pursuant to 28 U.S.C. §1915(e)(2)(B)(ii). 

AFFIRMED.