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 IN T H E U N IT E D STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

DONALD R. MCCISKILL,

Plaintiff,

vs. Case No. 3:10cv56/LC/MD

MS. DEIDRICH, et al.,

Defendants.

ORDER and 

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se, has filed a civil rights complaint pursuant to 42

U.S.C. § 1983 (doc. 1) and a motion for leave to proceed in forma pauperis (doc. 2). 

For the limited purpose of dismissal of this action, leave to proceed in forma

pauperis will be granted.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is an inmate of the Florida penal system currently confined at Santa

Rosa Correctional Institution (“Santa Rosa CI”). His complaint names two

defendants, both prison officials at Santa Rosa CI: Classification Officer Deidrich

and Lieutenant Creel. In this § 1983 proceeding, plaintiff challenges a prison

disciplinary conviction he received at Santa Rosa CI for engaging in an obscene

profane act. Specifically, he claims he was denied procedural due process because 1

he was never informed of the disciplinary hearing team’s decision or the evidence

The disciplinary report was written on September 25, 2009. Plaintiff was convicted after a hearing

1

held on October 1, 2009. (Doc. 1, p. 7 in ECF).
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upon which it was based. As a result of the conviction, plaintiff spent 30 days in 2

disciplinary confinement. As relief, plaintiff seeks punitive damages, costs, and any

other relief to which he is entitled. (Doc. 1). 

DISCUSSION

Because plaintiff is proceeding in forma pauperis, the court may dismiss the

case if satisfied that the action is “(i) frivolous or malicious; (ii) fails to state a claim

on which relief may be granted; or (iii) seeks monetary relief against a defendant

who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The court must read

plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 92

S.Ct. 594, 30 L.Ed.2d 652 (1972). A complaint is frivolous under section 1915(e)

“where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490

U.S. 319, 325, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). Dismissals on this

ground should only be ordered when the legal theories are “indisputably meritless,”

Id. at 327, 109 S.Ct. at 1833, or when the claims rely on factual allegations that are

“clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 31, 112 S.Ct. 1728, 1733, 118

L.Ed.2d 340 (1992). Dismissals for failure to state a claim are governed by the same

standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d

1483, 1485 (11 Cir. 1997). In determining whether the complaint states a claim upon th

which relief may be granted, the court accepts all the factual allegations in the

complaint as true and evaluates all inferences derived from those facts in the light

most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11 Cir. th

1994). The complaint may be dismissed if the facts as pleaded do not state a claim

to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,

127 S.Ct. 1955, 1968-69, 1974, 167 L.Ed.2d 929 (2007) (retiring the negatively-glossed

“no set of facts” language previously used to describe the motion to dismiss

standard and determining that because plaintiffs had “not nudged their claims

Plaintiff waived his right to appear at the hearing.

2

Case No: 3:10cv56/LC/MD
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across the line from conceivable to plausible, their complaint must be dismissed”

for failure to state a claim). A complaint is also subject to dismissal under Rule

12(b)(6) when its allegations--on their face--show that an affirmative defense bars

recovery on the claim. Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11 Cir. th

2001). 

Taking the allegations of the complaint as true and construing them in the

light most favorable to the plaintiff, they fail to state a plausible due process claim. 

The Due Process Clause prohibits state action that deprives a United States citizen

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

person alleging a violation of his right to due process must establish that he was

deprived of an interest cognizable under the Due Process Clause, and that the

procedures attendant upon that deprivation were not constitutionally sufficient. 

Kentucky v. Dep’t of Corrections v. Thompson, 490 U.S. 454. 459-60, 109 S.Ct. 1904,

104 L.Ed 2d 506 (1989); Board of Regents v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701,

33 L.Ed.2d 548 (1972). 

The Supreme Court has held that “the Constitution itself does not give rise to

a liberty interest in avoiding transfer to more adverse conditions of confinement,”

but that “a liberty interest in avoiding particular conditions of confinement may arise

from state policies or regulations, subject to the important limitations set forth in

Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).” Wilkinson

v. Austin, 545 U.S. 209, 221-22, 125 S.Ct. 2384, 2393, 162 L.Ed.2d 174 (2005). In

Sandin, the Supreme Court redefined the circumstances in which a liberty interest

will arise in the prison context for purposes of due process protections. Id., 515 U.S.

at 484, 115 S.Ct. 2293. Rejecting the prior manner of searching state statutes and

prison regulations for mandatory language, the Supreme Court held that due

process liberty interests “will generally be limited to freedom from restraint which,

while not exceeding the sentence in such an unexpected manner as to give rise to

protection by the Due Process Clause of its own force, . . . nonetheless imposes

Case No: 3:10cv56/LC/MD
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“atypical and significant hardship on the inmate in relation to the ordinary incidents

of prison life.” Id., 515 U.S. at 484, 115 S.Ct. at 2300. The Sandin Court concluded

that the inmate’s disciplinary conviction did not present a case where the State’s

action was so severe that it essentially exceeded the sentence imposed by the court,

thereby triggering the Clause of its own force. Nor did the inmate’s discipline (30-

day placement in disciplinary segregation) present the type of “atypical, significant

deprivation in which a State might conceivably create a liberty interest.” Sandin, 515

U.S. at 485-86, 115 S.Ct. at 2301-02. As a result, the Court held that neither the

prison regulation at issue nor the Due Process Clause itself afforded the inmate a

constitutionally protected liberty interest. “After Sandin, . . . 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 regulations regarding

those conditions but the nature of those conditions themselves in relation to the

ordinary incidents of prison life.” Wilkinson, at 223, 125 S.Ct. at 2394 (quotations

omitted).

Under the guidance of Sandin, the Eleventh Circuit has held that a Florida

prisoner’s confinement in administrative segregation for two months did not impose

an atypical and significant hardship on the prisoner. Rodgers v. Singeltary, 142 F.3d

1252, 1253 (11 Cir. 1998). In recent unpublished opinions, the court has held that th

a Florida prisoner’s short sentences of disciplinary confinement did not trigger due

process protections. Smith v. Regional Director of Florida Dep’t of Corrections, No.

09-11443, 2010 WL 447014, at *3 (11 Cir. Feb. 10, 2010) (affirming dismissal of th

prisoner’s § 1983 claims challenging 15- and 30-day disciplinary confinements on

due process grounds; plaintiff failed to allege any facts which could be liberally

construed to show that the disciplinary confinements were a major disruption to his

environment as compared to placement in the general population); Shaarbay v. Palm

Beach County Jail, No. 09-11294, 2009 WL 3401423, at *2 (11 Cir. Oct. 23, 2009) th

(holding that State’s placement of prisoner in disciplinary confinement for 30 days

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was neither “atypical” nor imposed a “significant hardship,” and therefore did not

constitute a due process violation; being handcuffed when out of his cell and having

his access to resources monitored by guards were not a significant departure from

general prison conditions); Van Taylor v. McSwain, No. 08-12238, 2009 WL 1636808,

at *2 (11 Cir. June 12, 2009) (“Short sentences of disciplinary confinement do not th

tend to present the kind of ‘atypical’ and ‘significant deprivation’ to implicate the Due

Process Clause absent a showing that the prisoner’s isolation worked a major

disruption in the inmate’s environment when compared to his placement in the

general population.”). 

District courts of this circuit have likewise held that a Florida prisoner’s

placement in disciplinary confinement for 30 days does not invoke due process

protections. See, e.g., Hartley v. McNeil, No. 5:07cv101/RS/EMT, 2008 WL 1844416 

(N.D. Fla. Apr. 23, 2008) (rejecting prisoner’s due process challenge to disciplinary

conviction that resulted in 30 days disciplinary confinement on the grounds that that

penalty was not an “atypical, significant” deprivation invoking constitutional

protection under Sandin), mot. for certificate of appealability denied, No. 08-14493

(11 Cir. Oct. 24, 2008); Adamson v. McNeil, No. 3:08cv231/RV/EMT, 2008 WL th

5231869 (N.D. Fla. Dec. 12, 2008) (same), mot. for certificate of appealability denied,

No. 09-10206 (11 Cir. Mar. 25, 2009); Hartley v. McNeil, No. 1:07cv22683, 2008 WL th

3200213 (S.D. Fla. Aug. 6, 2008) (same), mot. for certificate of appealability granted

on other grounds, No. 08-15292 (11 Cir. Jan. 20, 2009); Hollingsworth v. Crosby,

th

4:02cv402/RH/WCS (N.D. Fla. Oct. 14, 2003) (same), mot. for certificate of

appealability denied, No. 04-11328 (11 Cir. June 24, 2004). th

Here, although plaintiff alleges that he was improperly segregated, he fails to 

allege facts which could be liberally construed to show that his 30-day disciplinary

confinement was a major disruption to his environment as compared to placement

in the general population. Sandin, 515 U.S. at 485-86, 115 S.Ct. at 2301-02. 

Therefore, his complaint fails to state a plausible due process claim.

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Accordingly, it is ORDERED:

Plaintiff’s motion to proceed in forma pauperis (doc. 2) is GRANTED for the

limited purpose of dismissing this action. 

And it is respectfully RECOMMENDED:

That this cause be DISMISSED WITH PREJUDICE under 28 U.S.C. §

1915(e)(2)(B)(ii), and the clerk be directed to close the file.

At Pensacola, Florida this 24 day of February, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 3:10cv56/LC/MD