IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ZAKKAWUNDA MOSS, #524910,1 :

Plaintiff, :

vs. : CIVIL ACTION 15-00310-CG-B

SERGEANT ASHELY KIDD, et al., :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se and 

in forma pauperis, filed a complaint under 42 U.S.C. § 1983

during his incarceration at Holman Correctional Facility 

(“Holman”) in the Southern District of Alabama. This action has 

been referred to the undersigned for appropriate action pursuant 

to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). 

After careful review, it is recommended that this action be 

dismissed without prejudice, prior to service of process, 

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a 

claim upon which relief can be stated. 

 1 The Clerk is DIRECTED to change the spelling of Moss’ first 

name to Zakkawunda, changing the “o” to “u.” See Doc. 4 at 6. 

In addition, the Court notes Moss’s ADOC inmate number is the 

same inmate number Moss gave for his incarceration at the 

Tennessee prison. (Doc. 7).

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I. Complaint. (Doc. 1).

Plaintiff Moss names as Defendants officials at the Holman

facility, namely, Sergeant Ashley Kidd, Captain Darryl Fails, 

and Warden Gwendolyn Givens. (Doc. 1 at 5-6). The following is 

a description of the pertinent allegations in Moss’ complaint. 

While incarcerated at the Holman facility on April 28, 

2015, Moss “was detained and placed in seg[regation] and served 

with a R-9 form (incident report)” after inmate Daniels was 

stabbed outside. (Id. at 4) (parenthesis in original). Moss 

maintains that the R-9 form “clearly stated” due process must be 

initiated within 72 hours, excluding weekends and holidays, 

which meant no later than May 1, 2015 at 4:45 p.m. (Id.). Not 

withstanding, nothing occurred until May 6, 2015, when Defendant 

Fails issued a write-up (disciplinary) after the 72-hour period. 

Moss alleges this violated his due process rights. (Id. at 5). 

Moss sent Defendant Fails several request slips inquiring about 

the proceedings, but Fails did not respond to them. (Id.). 

On May 20, 2015, Defendant Kidd held Moss’s disciplinary 

hearing during which Moss told her that his due process rights 

had been violated and showed her the R-9 form. (Id.). She told 

Moss that “the [lieutenant] said that the write-up was good so 

she didn’t need to read it.” (Id.).

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On May 21, 2015, Defendant Givens approved the disciplinary 

even though Moss had informed her of the due process violation 

that had occurred prior to the hearing. (Id. at 6). Defendant 

Givens told Moss that she “would look into it, but she approved 

the [disciplinary] as though no violation occurred.” (Id.).

For relief, Moss requests all Defendants be demoted and 

“compensation” for a violation of his constitutional rights. 

(Id. at 7).

II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).

Because Plaintiff is proceeding in forma pauperis, the 

Court is reviewing his Complaint (Doc. 1) under 28 U.S.C. 

§ 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be 

dismissed as “frivolous where it lacks an arguable basis in law 

or fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 

1827, 1831-32, 104 L.Ed.2d 338 (1989).2 A claim is frivolous as 

a matter of law where, inter alia, the defendants are immune 

from suit, id. at 327, 109 S.Ct. at 1833, or the claim seeks to 

enforce a right that clearly does not exist. Id.

Moreover, a complaint may be dismissed under 28 U.S.C.

§ 1915(e)(2)(B)(ii) for failure to state a claim upon which 

relief may be granted. Mitchell v. Farcass, 112 F.3d 1483, 1490 

 2 The frivolity and the failure-to-state-a-claim analysis 

contained in Neitzke was unaltered when Congress enacted 28 

U.S.C. § 1915(e)(2)(B) in 1996. Bilal v. Driver, 251 F.3d 1346, 

1349 (11th Cir.), cert. denied, 534 U.S. 1044 (2001). 

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(11th Cir. 1997). To avoid dismissal for failure to state a 

claim upon which relief can be granted, the allegations must 

show plausibility. Bell Atlantic Corp. v. Twombly, 550 U.S. 

544, 557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007). “A 

claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 

L.Ed.2d 868 (2009). That is, “[f]actual allegations must be 

enough to raise a right to relief above the speculative level” 

and must be a “‘plain statement’ possess[ing] enough heft to 

‘sho[w] that the pleader is entitled to relief.’” Twombly, 550 

U.S. at 555, 557, 127 S.Ct. at 1965, 1966 (second brackets in 

original). But “[t]hreadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements, do not 

suffice.” Id.

When considering a pro se litigant’s allegations, a court 

gives them a liberal construction holding them to a more lenient 

standard than those of an attorney, Haines v. Kerner, 404 U.S. 

519, 520, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652 (1972), but it 

does not have “license . . . to rewrite an otherwise deficient 

pleading in order to sustain an action.” GJR Investments v. 

County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), 

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overruled on other grounds by Randall v. Scott, 610 F.3d 791, 

710 (11th Cir. 2010) (relying on Iqbal, 556 U.S. 662, 129 S.Ct. 

1937). Furthermore, a court treats as true factual allegations, 

but it does not treat as true conclusory assertions or a 

recitation of a cause of action’s elements. Iqbal, 566 U.S. at 

681, 129 S.Ct. at 1951. In addition, a pro se litigant “is 

subject to the relevant law and rules of court including the 

Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 

835, 837 (11th Cir.), cert. denied, 493 U.S. 863 (1989).

III. Discussion.

In order to state a claim for a violation of due process, a 

deprivation of “life, liberty, or property” must have occurred 

(and be alleged) in order for due process to attach. Wolff v. 

McDonnell, 418 U.S. 539, 556-58, 94 S.Ct. 2963, 2974-75, 41 

L.Ed.2d 935 (1974); cf. Zinermon v. Burch, 494 U.S. 113, 125, 

110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990)(“In procedural due 

process claims, the deprivation by state action of a 

constitutionally protected interest in ‘life, liberty, or 

property’ is not in itself unconstitutional; what is 

unconstitutional is the deprivation of such an interest without 

due process of law.” (emphasis in original and citations 

omitted)).

In the prison disciplinary context, the determination of 

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whether a liberty interest is present is governed by the Supreme 

Court’s decision in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 

2293, 132 L.Ed.2d 318 (1995). In Sandin, the Court determined 

that no longer would a violation of the mandatory language of a 

state’s regulation governing disciplinaries give rise to a 

protected liberty interest. Id. at 480-84, 115 S.Ct. at 2298-

2300. The Court decided to return to prior, due-process 

principles that required a liberty interest of real substance, 

that is, a grievous loss, be present in order for due process to 

attach. Id. at 478-80, 115 S.Ct. at 2297-98. 

Addressing the case before it, the Supreme Court held that 

there is no right inherent in the Constitution to be free from 

disciplinary segregation. Id. at 487, 115 S.Ct. at 2302. 

Furthermore, the Court determined that in the future a protected 

liberty interest created by the state in the prison disciplinary 

context “will be generally 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 atypical 

and significant hardship on the inmate in relation to the 

ordinary incidents of prison life.” Id. at 484, 115 S.Ct. 2300. 

The Court concluded that mere confinement to disciplinary 

segregation was a type of discipline that should be expected by 

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an inmate as an incident to his criminal sentence. Id. at 485, 

115 S.Ct. at 2301. 

In applying this reasoning, the Sandin Court found that the 

prisoner did not have a liberty interest based on his thirty-day 

confinement to disciplinary segregation, as his confinement to 

disciplinary segregation was not a dramatic departure from his 

criminal sentence and “did not present the type of atypical, 

significant deprivation in which a State might conceivably 

create a liberty interest.” Id. at 474, 486-87, 115 S.Ct. at 

2296, 2301-02.

In the present action, Moss’ only complaint is that his 

disciplinary hearing was not commenced within the 72 hours noted

on the form charging him with a disciplinary infraction. This 

alleged delay serves as the basis for his claims that his 

disciplinary and its appeal are defective. Moss’ allegations, 

however, do not inform the Court of the disciplinary infraction 

with which he was charged or the conviction and sentence that 

resulted after having been found guilty of the charge. And,

Moss did not file a copy of the disciplinary proceeding in this 

action. Thus, the information before the Court is scarce and 

does not reflect that Moss sustained “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. 

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Consequently, Moss has failed to establish that he has a 

protected liberty interest. See Id. at 474, 486-87, 115 S.Ct. 

at 2296, 2301-02 (Sandin’s thirty-day confinement to 

disciplinary segregation was found not to constitute a liberty 

interest); Rodgers v. Singletary, 142 F.3d 1252, 1253 (11th Cir. 

1998) (affirming that two months’ confinement to administrative 

segregation was not a deprivation of constitutionally protected 

liberty interest); Mathews v. Moss, 506 F. App’x 981, at **1 

(11th Cir. 2013) (finding that confinement to administrative 

segregation for short periods of time, 24 days and 18 days, did 

not constitute a liberty interest to which due process 

attached);3 Allen v. Secretary Dep’t of Corr., 578 F. App’x 836, 

839 (11th Cir. 2014) (finding the plaintiff did not allege a 

deprivation of a liberty interest despite alleging as a result 

of two disciplinaries, he was placed in administrative and 

disciplinary segregation). 

Because Moss has not established that he has a liberty 

interest, he is not entitled to receive due process. Sandin,

515 U.S. at 487, 115 S.Ct. at 2302. Therefore, a violation of 

the state’s rules governing the administration of disciplinary 

proceedings does not provide a basis for a violation of a 

 

3 “Unpublished opinions are not considered binding precedent, 

but they may be cited as persuasive authority.” 11TH CIR. R. 36-2

(2005).

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constitutional right. See Harris v. Birmingham Bd. of Educ., 

817 F.2d 1525, 1527 (11th Cir. 1987) (“[E]ven if the state 

statute has been violated, that does not prove a violation of a 

federal constitutional right.”); Smith v. Georgia, 684 F.2d 729, 

732 n.6 (11th Cir. 1982) (“not every violation by a state agency 

of its own rules rises to the level of a due process 

infringement”).

Furthermore, the Eleventh Circuit has “never held that 

prisoners have a constitutional right to an administrative 

appeal from a disciplinary proceeding.” Moulds v. Bullard, 345 

F. App'x 387, 389 n.1 (11th Cir. 2009), rev'd on other grounds, 

452 F. App'x 851 (11th Cir.2011); see Johnson v. Patterson, CA 

No. 13-00221-KD-B, 2014 WL 4771738, at *9 (S.D. Ala. 2014)

(unpublished) (same).

Accordingly, Moss has failed to state a claim upon which 

relief can be granted.

IV. Conclusion.

Based upon the foregoing reasons, it is recommended that 

this action be dismissed without prejudice, prior to service of 

process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure

to state a claim upon which relief may be granted. 

NOTICE OF RIGHT TO FILE OBJECTIONS 

A copy of this report and recommendation shall be served on 

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all parties in the manner provided by law. Any party who objects 

to this recommendation or anything in it must, within fourteen 

(14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 

636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. L.R. 72.4. The parties 

should note that under Eleventh Circuit Rule 3-1, “[a] party 

failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th 

Cir. R. 3-1. In order to be specific, an objection must 

identify the specific finding or recommendation to which 

objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the 

briefing before the Magistrate Judge is not specific. 

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DONE this the 7th day of January, 2016.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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