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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

THOMAS C. O'BRYANT, 

Plaintiff,

v. CASE NO. 1:10cv76-MP-GRJ

E.T. WILSON, et al.,

Defendants.

 /

O R D E R

This matter is before the court on the Report and Recommendation of magistrate

judge (doc. 53), recommending that this case be dismissed. The plaintiff filed objections

and the court has conducted a de novo review of the objected to portions of the Report and

Recommendation. Upon consideration, the court disagrees with the rationale in the Report

and Recommendation in two respects, as outlined below, but agrees with the ultimate

recommendation for dismissal and, therefore, will adopt that recommendation with the

following explanation.

The plaintiff, a prisoner, claims that prison officials concocted a disciplinary report

("DR") out of whole cloth and then denied him due process before and during his

disciplinary hearing. The DR claimed that plaintiff refused to go to chow hall when directed

to do so, that he recruited other inmates to join him in the refusal, that the names of these

inmates were "verified," and that he hurled profanities at prison staff during the incident.

Plaintiff alleges that before his hearing, he requested production of the videotape

of the incident, a polygraph examination, the "verified" names of his accomplices and how

they were "verified", and the exact profanities he was allegedly yelling during the incident. 

Plaintiff claims he never received the requested items. After the hearing, plaintiff received

60 days of disciplinary confinement and the loss of 100 days of gain time.

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Plaintiff filed suit under 42 U.S.C. § 1983 claiming that the defendants’ failure to

provide the above items constituted a denial of his due process rights. He also claims that

his due process rights were violated because the disciplinary hearing officers were biased;

because the Secretary of the FDOC failed to properly supervise and train the officials to

provide an unbiased and impartial disciplinary panel; because he was kept in disciplinary

confinement for longer than directed by the panel; and because he was not given credit

towards his disciplinary confinement for his time in administrative confinement before the

hearing.

The magistrate judge recommended that the complaint be dismissed for three

reasons. First, according to the magistrate judge, since plaintiff is essentially attacking the

validity of his disciplinary conviction, this case is barred under Heck v. Humphrey, 512 U.S.

477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) and Edwards v. Balisok, 520 U.S. 641

(1997), which require a plaintiff to first overturn the finding through habeas corpus if

necessary, before bringing a § 1983 action. Second, the magistrate judge concluded that

even if plaintiff were allowed to bring his § 1983 action, he is not entitled to any due

process because he has no liberty interest at stake. In cases like Wolff v. McDonnell, 418

U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1978), the prisoner lost gain time and was also

placed in disciplinary confinement. It was the loss of gain time, which increases the total

time in jail, that gave rise to the liberty interest and concomitant due process requirements. 

However, in this case, the magistrate judge opines, petitioner is serving a life sentence,

and Florida prisoners under a life sentence cannot earn gain time no matter how exemplary

their behavior. Thus, the gain time he lost "on paper" would not affect the duration of his

sentence, and he has no liberty interest regarding them. The magistrate judge also

reasoned that, under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418

(1995), a prisoner has no liberty interest in staying in general population because a brief

detention in administrative or disciplinary confinement is not an "atypical and significant

hardship" compared to general prison life. Third, the magistrate judge concluded that even

if plaintiff had a liberty interest in avoiding disciplinary confinement and thus enjoyed due

process protections, the process that was provided was all that was due.

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In his objections, plaintiff asserts that the prison officials are lying, and argues their

responses to his grievances should be ignored. He also questions the magistrate judge’s

conclusion that life-sentenced prisoners will never have due process rights in disciplinary

hearings because they cannot lose gain time and only a loss of gain time can lead to a

liberty interest. Plaintiff argues that such reasoning "defies logic" and "draws the proverbial

'Iron Curtain' between an entire class of prisoners and the Constitution....This, in effect,

turns all life-sentenced inmates into 'disciplinary punching bags' for prison officials." (Doc.

54, p. 3).

Upon consideration, the court concludes that the magistrate judge erred in his first

and third recommended grounds for dismissal. First, Heck and Balisok do not apply to this

case. The theory behind those cases and their progeny stems from Preiser v. Rodriguez,

411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). In Preiser, the Court held "that when

a state prisoner is challenging the very fact or duration of his physical imprisonment, and

the relief he seeks is a determination that he is entitled to immediate release or a speedier

release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Id.

at 500. The Preiser Court further instructed that

[s]uch a challenge is just as close to the core of habeas corpus as an attack

on the prisoner's conviction, for it goes directly to the constitutionality of his

physical confinement itself and seeks either immediate release from that

confinement or the shortening of its duration.

Id. at 489. Here, because plaintiff is serving a life sentence, he cannot receive a

determination that he is entitled to a speedier release from imprisonment or a shortening

of the duration of his sentence if the disciplinary finding is found to be invalid. In a similar

situation, the district court in McKines v. Norwood, 2008 WL 4808641 (C.D. Cal. 2008),

found that a prisoner's challenge to a disciplinary conviction was not properly raised as a

habeas action. The court in McKines discussed the rule from Preiser and then concluded

[I]n petitioner's case, granting petitioner the relief he ultimately

seeks-dismissal of the charges and sanctions against him and expungement

of the discipline from his prison record-would not necessarily, or even

potentially, shorten his life sentence. Petitioner's grounds, therefore, are not

cognizable on habeas review. 

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Id. at *3. See also Osterback v. Crosby, 2003 WL 21976145, *20-21 (N.D. Fla.

2003)(holding that plaintiff was not required to seek habeas relief to challenge his

disciplinary conviction because he was serving a life sentence and success on his

challenge would therefore not alter the length of his incarceration). Since success on

plaintiff's claims in the instant case would not alter the length of his incarceration, Heck and

its progeny are not triggered by the instant case.

The magistrate judge also erred by taking the prison officials at their word and

simply dismissing the plaintiff's allegations to find that the process given was all that was

due. At the motion-to-dismiss stage, the court must accept as true the plaintiff’s allegations

that the disciplinary report was fabricated, that there was a camera in the prison room, that

no "verified" names of inmates were actually given during the hearing, and that the method

of verification was never described. The magistrate judge’s conclusion was based on his

belief in and acceptance of the statements of the prison officials in the responses to

plaintiff’s grievances. For example, the Report and Recommendation finds that their was

no videotape because the Warden of Mayo CI said there was no tape in a grievance

response. These types of credibility determinations and factual findings are inappropriate 1

at this stage. 

Despite these two errors, however, the magistrate judge still reaches the correct

conclusion on the dispositive issue in this case, i.e. whether life-sentenced prisoners have

a liberty interest at stake in disciplinary hearings that could lead to disciplinary confinement. 

Courts have routinely held that prisoners have no liberty interest in remaining in general

population versus more restrictive confinement. See, e.g., Hewitt v. Helms, 459 U.S. 460,

466, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983) (an inmate has no liberty interest in being

confined in the general population rather than in the more restrictive atmosphere of

administrative or disciplinary confinement). Indeed, this court has ruled in this manner in

one of plaintiff's previous cases:

Plaintiff's punishment was only a period of disciplinary confinement and as

Regarding the other items of evidence the plaintiff requested, the magistrate judge did not discuss

1

them.

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such even the limited Wolff due process protections were not available to

him. 

O'Bryant v. Finch, 2008 WL 691689 (citing Rodgers v. Singletary, 142 F.3d 1252, 1253

(11th Cir.1998)). In that previous case, the court expressly rejected O'Bryant's right to

receive various pieces of evidence, such as the surveillance videotape. Senior District

Judge Lacey Collier, adopting and incorporating the Report and Recommendation of

Magistrate Judge Miles Davis, ruled as follows:

A critical difference between this case and Howard is whether the inmates

had a liberty interest in the “deprivation” resulting from the DR proceedings.

As a result of the charges from inmate Howard's DR the disciplinary hearing

officer disallowed previously accumulated good-time credit, as well as

recommended disciplinary segregation and a disciplinary transfer,

suspended various privileges, and impounded Mr. Howard's personal

property. Therefore, because Howard lost gain time and his sentence was

thus “extended,” a liberty interest was clearly implicated. In the case at bar,

however, plaintiff was sentenced only to a term of disciplinary confinement

of 30 days on this charge; thus, his discipline “did not present the type of

atypical, significant deprivation in which a State might conceivably create a

liberty interest,” and due process concerns were not implicated.

Id. at 15. The undersigned agrees with the magistrate judge that O’Bryant’s liberty 2

interests were not implicated in this case.

Accordingly, it is now ORDERED as follows:

1. The Report and Recommendation of the magistrate judge is adopted in part and

rejected in part as outlined above.

W hile this language settles the legal question, the practical consequences are more troubling

2

because, as plaintiff suggests in his Objections, this reasoning could promote, rather than discourage, the

conduct of prison guards continuously fabricating DR's against prisoners they did not like. However, prisoners

are not entirely without recourse. First, in many cases, the prisoner will be able to allege that the DR was in

retaliation for first amendment expression in the form of grievances. As Judge Collier recognized in O'Bryant

v. Finch, a prisoner has a First and Eighth Amendment right to be free from retaliatory DR's or searches. Id.

at *5-6; see also Sandin, 515 U.S. at 487 n.11. Second, a plaintiff will still be able to allege that prison officials

have engaged in so extensive a campaign of false disciplinary reports that his time in more restrictive

confinement rises to the level of an atypical and significant hardship under Sandin. See,e.g., Hatch v. District

of Columbia, 184 F.3d 846 (D.C. Cir. 1999)(stating that "[w]hen we compare [the prisoner's] confinement to

administrative segregation, we must therefore look not only to the nature of the deprivation (e.g., loss of

privileges, loss of out-of-cell time) but also to its length in evaluating its 'atypicality' and 'significance.'”) Short

of those allegations, however, Sandin and its progeny compel the conclusion that a plaintiff does not have a

liberty interest at stake.

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2. The Motion to Dismiss (doc. 44) is GRANTED, and this case is DISMISSED

WITH PREJUDICE.

DONE and ORDERED this 10th day of August, 2012.

 s/ M. Casey Rodgers 

M. CASEY RODGERS

CHIEF UNITED STATES DISTRICT JUDGE

Case No: 1:10cv76-MP-GRJ

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