FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APR 9, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-14008

Non-Argument Calendar

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D. C. Docket No. 06-00019-CV-RLV-4

DEMETRIUS WALLACE, 

Plaintiff-Appellant, 

versus 

H. DWIGHT HAMRICK, Warden, 

JAMES DONALD, Commissioner, 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(April 9, 2007)

Before ANDERSON, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
 The defendants in this case were never served as Wallace’s claim was dismissed 1

pursuant to 28 U.S.C. § 1915A(b)(1). Therefore, the defendants did not file a brief. 

2

Demetrius Wallace (“Wallace”), a pro se litigant pursuing a complaint raised

under 42 U.S.C. § 1983, appeals the district court’s sua sponte order dismissing his

complaint for failure to state a claim. Wallace filed an amended complaint against

Warden H. Dwight Hamrick of Walker State Prison and Commissioner James

Donald of the Georgia Department of Corrections, in which he claimed that he was

denied adequate grievance procedures, deprived of due process when placed in

administrative segregation for twenty-eight days before receiving a disciplinary

hearing, and subjected to cruel and unusual punishment because of the conditions

of his confinement. Upon review of the record and Wallace’s brief, we affirm in 1

part and reverse in part the district court’s order dismissing Wallace’s amended

complaint for failing to state a claim. 

STANDARD OF REVIEW

We review de novo a district court’s sua sponte dismissal of a complaint

pursuant to § 1915A(b)(1). Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1278-79

(2001). A complaint may be dismissed for failure to state a claim when it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim that

would entitle him to relief. Conely v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99,

102, 2 L. Ed. 2d 80 (1957). “Pro se pleadings are held to a less stringent standard
 We assume that this violation refers to Wallace’s interference with a prison head count. 2

 In his amended complaint, Wallace claims that pursuant the Georgia Department of 3

Corrections policy a prisoner who is involuntarily assigned to administrative segregation must

have a formal hearing within ninety-six hours. 

3

than pleadings drafted by attorneys and will, therefore, be liberally construed.” 

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam).

BACKGROUND

In his amended complaint, Wallace alleges that Walker Prison has

inadequate grievance procedures. He also alleges that he was deprived of due

process when he was confined in administrative segregation for twenty-eight days,

and then, afterwards, found to have committed disciplinary violations by a

committee consisting of a sole individual. Wallace claims that he was placed in

administrative segregation pending a disciplinary hearing for the following

violations: (1) interference with count, (2) insubordination, and (3) failure to 2

follow instructions. Wallace requested a hearing after his confinement, in

accordance with prison regulations, but was not afforded a hearing until after his 3

release twenty-eight days later. He claims that his hearing was held the day after

his release and was before only one board member, who found him guilty of the

violations. He claims that the prison failed to maintain any recording of the

hearing, and he was not provided with any written basis of the committee

member’s factual findings. 
 We affirm the district court’s dismissal of Wallace’s claim of inadequate grievance 4

procedures. A prisoner is not entitled to grievance procedures under the Constitution. See

Wildberger v. Bracknell, 869 F.2d 1467, 1467-68 (11th Cir. 1989). 

4

Additionally, Wallace alleges that the conditions of his administrative

segregation constituted cruel and unusual punishment, because he was confined in

a small cell, with “no hot running water, no ventilation, no access to any

disinfectant at any time, and no opportunity for exercise,” in violation of prison

regulations. Wallace also alleges that he is a chronic care patient and was not seen

by a certified medical professional for his first twenty-two days in confinement. 

DISCUSSION

A. Violation of Due Process4

1. Liberty Interest

The district court found that Wallace failed to allege a violation of a

constitutionally protected liberty interest; therefore, he failed to state a claim for a

violation of due process. The Due Process Clause protects against deprivations of

“life, liberty, or property without due process of law.” U.S. Const. amend. XIV. 

Wallace did not claim to be deprived or life or property, so he was only entitled to

due process if he was deprived of a liberty interest within the meaning of the

Fourteenth Amendment. The Supreme Court has stated that there are two

circumstances in which a prisoner can be deprived of a liberty interest beyond the
5

deprivation associated with the prisoner’s confinement. See Sandin v. Conner, 515

U.S. 472, 484, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418 (1995). First, a liberty

interest may arise from the “Due Process Clause of its own face,” which extends

procedural safeguards to a prisoner when his liberty is restrained in a way that

exceeds the sentence imposed by the court. Id. Secondly, states may create liberty

interests by conferring certain benefits to prisoners, the deprivation of which

“impose[s] atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.” Id. Since Wallace alleges violations of liberty

interests connected with his administrative segregation, these interests arise from

the second situation. Therefore, “the touchstone of the inquiry into the existence of

a protected, state-created liberty interest in avoiding restrictive conditions of

confinement is not the language of the regulations regarding those conditions but

the nature of those conditions themselves ‘in relation to the ordinary incidents of

prison life.’” Wilkerson v. Austin, 545 U.S. 209, 223, 125 S. Ct. 2384, 2394, 162

L. Ed. 2d 174 (2005) (quoting Sandin, 515 U.S. at 484, 115 S. Ct. at 2300). 

Citing to Sandin, the district court found that Wallace’s “[twenty-eight]-day

administrative confinement did not impose an atypical and significant hardship

beyond the ordinary incidents of prison life.” In Sandin, the Supreme Court found

that the prisoner’s thirty-day disciplinary segregation did not present an atypical
6

and significant deprivation by the state. 515 U.S. at 485, 115 S. Ct. at 2301. 

However, in Sandin, which was decided on a motion for summary judgment, the

Supreme Court made this finding only after it compared the evidence of the

treatment of inmates in disciplinary and administrative segregation and found that

the conditions in the one “mirrored those conditions” in the other. Id. at 486, 115

S. Ct. at 2301. The Supreme Court also made a comparison between inmates

inside and outside disciplinary segregation before finding that the thirty-day

confinement “did not work a major disruption in his environment.” Id.

Wallace alleges that the prison placed him in administrative segregation for

twenty-eight days while awaiting a hearing on his disciplinary violations. He

alleges that he had no hot water, no ventilation, and no opportunity for exercise, all

in violation of Georgia Department of Corrections policy. Wallace also alleges

that he did not receive timely medical care. In Bass v. Perrin, 170 F.3d 1312, 1318

(11th Cir. 1999), we specifically found that the State of Florida created a protected

liberty interest in two hours per week of yard time. Therefore, we inquired

whether the plaintiffs, who were denied their two hours of yard time, were afforded

adequate due process. Id. The record before us does not contain adequate facts

with respect to the conditions of Wallace’s confinement as compared with the

conditions of confinement of his fellow inmates to determine whether Wallace’s
7

confinement imposed an atypical and significant hardship “in relation to the

ordinary incidents of prison life.” Sandin, 515 U.S. at 484, 115 S. Ct. at 2300. 

Accordingly, we conclude that Wallace has set forth sufficient facts at this

stage of the litigation which might create a protected liberty interest. Therefore,

we must next inquire whether Wallace set forth sufficient facts that he was denied

due process. 

2. Due Process

The district court did not discuss whether Wallace was deprived of due

process, because the court found that he had not been deprived of a constitutionally

protected liberty interest. The requirements of due process for prisoners facing

disciplinary actions are: “(1) advance written notice of the claimed violation; (2) a

written statement of the fact finders as to the evidence relied upon and the reasons

for the disciplinary action taken; and (3) an opportunity to call witnesses and

present documentary evidence in defense, when to do so would not be unduly

hazardous to institutional safety or correctional goals.” Young v. Jones, 37 F.3d

1457, 1459-60 (11th Cir. 1994). 

Wallace claims that Georgia Department of Corrections policy requires that

once an inmate is involuntarily assigned to administrative segregation that the

inmate is afforded a hearing within ninety-six hours after the confinement. 
8

Wallace alleges that he was in segregation for twenty-eight days and then released

into the general population without having appeared before the disciplinary

committee. He alleges that the day after he was released into the general

population, the prison conducted his disciplinary hearing before only one member,

who found him guilty of committing the violations. Wallace claims that no

recordings of the hearing were maintained, and he was not provided with a written

factual basis for the committee’s findings.

At this stage of the litigation, it is not clear beyond a doubt that Wallace has

failed to allege a due process violation. We have no record to indicate when

Wallace received notice of the alleged violations, or whether he had sufficient

opportunity to present evidence or call witnesses on his behalf. Accordingly, we

find that the district court prematurely dismissed Wallace’s claim for a due process

violation.

B. Cruel and Unusual Punishment

The Eighth Amendment prohibits only the infliction of “cruel and unusual

punishments.” U.S. Const. amend. VIII. Therefore, to state a claim for a violation

of the Eighth Amendment, a prisoner must first allege a condition that is an

objectively “cruel and unusual deprivation,” and second, that the officials

responsible for the condition had the subjective intent to punish. Taylor v. Adams,
9

221 F.3d 1254, 1257 (11th Cir. 2000). We have recognized “that administrative

segregation and solitary confinement do not, in and of themselves, constitute cruel

and unusual punishment.” Sheley v. Dugger, 833 F.2d 1420, 1428-29 (11th Cir.

1987). 

A prisoner can show an Eighth Amendment violation by proving that the

prison medical officials were deliberately indifferent to his serious medical needs. 

Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976). 

For a claim of deliberate indifference, a prisoner must first prove a serious medical

need, and second, that the prison official acted with deliberate indifference to his

need. Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004). While Wallace’s

amended complaint is inartfully drafted, it is not clear beyond a doubt that he has

failed to allege a serious medical need, and that the prison officials were

deliberately indifferent to his need. Wallace alleges that he “is a chronic care

patient and was not seen by a certified medical professional until approximately

twenty-two (22) days later subsequent to filing numerous grounds contrary to

Georgia Department of Corrections policy IIB02-0001 VI.” Liberally construed,

we can infer that the needs of a chronic care patient are serious. Furthermore, it is

reasonable to infer that prison officials would be aware that a chronic care inmate

would need frequent medical attention. Wallace’s amended complaint also appears
10

to allege that he was not seen by a medical professional for twenty-two days even

though he requested such care. While Wallace has not alleged that the individual

defendants personally participated in the failure to treat him, his allegations, if true,

may ultimately show that the defendants did nothing to prevent the violation of his

Eighth Amendment right against cruel and unusual punishment.

Furthermore, we have specifically recognized that “the Eighth Amendment

applies to prisoner claims of inadequate cooling and ventilation.” Chandler v.

Crosby, 379 F.3d 1278, 1294 (11th Cir. 2004). The district court stated that

Wallace did not allege that any of the inadequate conditions in his cell caused him

any personal injury or any unreasonable risk to his future health. Therefore, he

failed to state a claim. However, Wallace alleged that the cell he was placed in had

“no ventilation.” To state a claim for cruel and unusual punishment, the

challenged condition must be extreme and “pose an unreasonable risk of serious

damage to his future health” or safety. Helling v. McKinney, 509 U.S. 25, 35, 113

S. Ct. 2475, 2481, 125 L. Ed. 2d 22 (1993). An inmate “need not await a tragic

event” before seeking relief. Id. at 33, 113 S. Ct. at 2481. Therefore, Wallace need

not plead a specific physical injury if the conditions he complains of posed a

serious risk to his health. Liberally construing Wallace’s complaint, it is not

beyond a doubt that Wallace will be able to prove no set of facts that would entitle
11

him to relief. Therefore, we find that the district court erred in dismissing

Wallace’s claim for a violation of the Eighth Amendment.

Accordingly, we conclude that the district court properly dismissed

Wallace’s claim for inadequate grievance procedures. However, the district court

erred by prematurely dismissing Wallace’s claims for violations of due process and

the Eighth Amendment.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.