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

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

CARLOS CAMACHO,

Plaintiff,

vs. Case No. 3:10cv254/WS/CJK

J DEMORET, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se and in forma pauperis, has filed a civil rights

complaint pursuant to 42 U.S.C. § 1983 (doc. 1). Although plaintiff sought and was

granted leave to amend his complaint (docs. 13, 14), he has notified the court (doc.

26) that he chooses to proceed on the original complaint. Upon review of the

complaint, the court concludes plaintiff has not presented and cannot present an

actionable claim under § 1983. Therefore, dismissal of this case is warranted. 

BACKGROUND AND PROCEDURAL HISTORY

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

Suwannee Correctional Institution. He was confined at Santa Rosa Correctional

Institution (“Santa Rosa CI”) at the time of the events giving rise to his complaint. 

Named as defendants are six prison officials at Santa Rosa CI: R. Tifft, G. Davis, S.

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L. Fennimore, R. W. Romine, J. Demoret and L. Hood. Plaintiff claims the

defendants violated his right to due process under the Fourteenth Amendment when

they charged and convicted him of a disciplinary infraction for fraud or attempted

fraud. Specifically, plaintiff claims he was “wrongfully found guilty” because the

evidence upon which his conviction was based – the charging officer’s statement and

the investigator’s recommendation – failed to provide sufficient evidence of his guilt. 

(Doc. 1). As a result of the conviction, plaintiff spent 30 days in disciplinary

confinement. (Id. and Attach.). The conviction was eventually overturned “based on

technical errors made in the processing.” Plaintiff was advised that “any necessary

adjustments” would be made to his inmate file. (Id. and Attach.). As relief in this

lawsuit, plaintiffseeks punitive damages, costs, attorneys fees and “emotional distress

damages.” (Id.).

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). Dismissalsfor 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 th

states a claim upon which relief may be granted, the court accepts all factual

allegations in the complaint as true and evaluates all reasonable inferences derived

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from those facts in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc.,

29 F.3d 1480, 1483 (11 Cir. 1994). The complaint may be dismissed if the facts as th

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 offacts” language previously used to describe

the motion to dismiss standard and determining that because plaintiffs had “not

nudged their claims 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 barsrecovery on the claim. Marsh v. Butler Cnty., Ala., 268 F.3d

1014, 1022 (11 Cir. 2001). th

Taking the allegations of the complaint astrue and construing them in the light

most favorable to 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 Corr. v. Thompson, 490 U.S. 454. 459-60, 109 S.Ct. 1904, 104 L.Ed 2d 506

(1989); Bd. 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;”

however, “a liberty interest in avoiding particular conditions of confinement may

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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 asto give rise

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

“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

protected liberty interest that would entitle himto the procedural protectionsset forth

in Wolff v. McDonnell, 418 U.S. 539, 564-55, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935

(1974)(holding that where a prison disciplinary hearing may result in the loss of good

time credits, the inmate must receive: (1) written notice of the charges brought

against him at least twenty-four hours before the hearing; (2) an opportunity, when

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consistent with institutional safety and correctional goals, to call witnesses and

present documentary evidence in his defense; and (3) a written statement of the

factfinder as to the evidence relied upon and the reasons for the disciplinary action

taken); see also Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 2774, 86

L.Ed.2d 356 (1985) (holding that to sustain a disciplinary conviction, there must be

“some evidence from which the conclusion of the administrative tribunal could be

deduced. . . .”) (internal quotation marks omitted). 

“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. th

1998). In recent unpublished opinions, the court has held that a Florida prisoner’s

short sentences of disciplinary confinement do not trigger due process protections. 

McCiskill v. Deidrich, No. 10-11431 (11 Cir. Aug. 4, 2010) (dismissing asfrivolous th

appeal challenging dismissal of prisoner’s § 1983 suit raising due process challenge

to disciplinary conviction resulting in 30-day disciplinary confinement; plaintiff did

not allege he lost gain time, and failed to allege any facts which could be liberally

construed to show that the disciplinary confinement was a major disruption to his

environment as compared to placement in the general population); Smith v. Reg’l Dir.

of Fla. Dep’t of Corr., No. 09-11443, 2010 WL 447014, at *3 (11 Cir. Feb. 10,

th

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2010) (same); Shaarbay v. Palm Beach Cnty. Jail, No. 09-11294, 2009 WL 3401423,

at *2 (11 Cir. Oct. 23, 2009) (holding that State’s placement of prisoner in th

disciplinary confinement for 30 days 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

th

sentences of disciplinary confinement do not 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.”). 

Here, even liberally construing plaintiff’s allegations, they fail to establish

plaintiff had a constitutionally protected liberty interest that would entitle him to the

procedural protections set forth in Wolff. The allegations of and attachments to the

complaint establish he did not lose gain time as a result ofthe disciplinary conviction. 

Although plaintiff asserts he was improperly segregated, he fails to allege any facts

which could be liberally construed as showing that his 30-day disciplinary

confinement was so severe that it essentially exceeded the sentence imposed by the

court, that the overturned conviction inevitably affected the duration of his sentence,

or that it worked 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. Because

the complaint fails to state a plausible due process claim, this suit must be dismissed.

“Ordinarily, a party must be given at least one opportunity to amend before the

district court dismisses the complaint.” Corsello v. Lincare, Inc., 428 F.3d 1008,

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1014 (11 Cir. 2005). Here, plaintiff was provided that opportunity and declined. 

th

Further, “[a] district court need not . . . allow an amendment (1) where there has been

undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by

amendments previously allowed; (2) where allowing amendment would cause undue

prejudice to the opposing party; or (3) where amendment would be futile.” Bryant

v. Dupree, 252 F.3d 1161, 1163 (11 Cir. 2001). In this case, amendment would be th

futile.

Accordingly, it is respectfully RECOMMENDED:

That this case be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §

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

At Pensacola, Florida this 18th day of May, 2011.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) 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

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