FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

November 23, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-14933

Non-Argument Calendar

________________________

D. C. Docket No. 04-01119-CV-JTC-1

ALBERT NELSON, 

Plaintiff-Appellant, 

versus 

LEE H. GREEN, Discipline 

Hearing Officer, 

FEDERAL BUREAU OF PRISONS, 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(November 23, 2005)

Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:
2

Albert Nelson, a pro se federal prisoner, appeals the denial of his motion to

amend the district court’s judgment dismissing his Bivens complaint for failure to

state a claim. He argues that a liberal construction of his complaint and motion to

amend indicates that he sufficiently raised a due process claim that the disciplinary

hearing officer’s guilty finding and consequent punishment violated his procedural

and substantive due process rights. He argues that he has a constitutional right to

have his correctional file free from false information and that the evidence was

insufficient to support the decision of the disciplinary hearing officer that he was

guilty of fighting with another inmate. He argues that the standard of review when

a prisoner challenges a disciplinary board or hearing officer’s finding of guilt is the

more lenient “some evidence” standard, and not a “pre-atypical and significant

hardship test.” He argues for the first time on appeal that the fighting incident may

prevent him from obtaining a favorable transfer to another prison and that he

received seven days disciplinary time for the incident. He also raises the issue of

whether a disciplinary hearing officer can find an inmate guilty of violating a

federal regulation on something less than a preponderance of the evidence, and

argues that under the current regulation providing for a standard of proof lower

than a preponderance of the evidence, an inmate can be punished for an act he

probably did not commit, which happened in his case. 
3

We review the denial of a Rule 59(e) motion to alter or amend judgment for

abuse of discretion. Lockard v. Equifax, Inc., 163 F.3d 1259, 1267 (11th Cir.

1998). We do not review claims not raised in the district court except in limited

circumstances. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324,

1331-32 (11th Cir. 2004). 

Pursuant to 28 U.S.C § 1915, the district court may dismiss a case filed in

forma pauperis at any time if it is frivolous or malicious, fails to state a claim upon

which relief may be granted, or seeks monetary relief against a defendant who is

immune from such relief. 28 U.S.C § 1915(e)(2)(B)(i-iii). “A claim is frivolous if

it is without arguable merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346,

1349 (11th Cir. 2001). 

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388, 395-397, 91 S.Ct. 1999, 2004-05, 29 L.Ed.2d 619 (1971), the

Supreme Court held that injured plaintiffs can bring a cause of action for damages

against federal officers based on violations of their constitutional rights. Bivens

involved alleged violations of the Fourth Amendment, but the Supreme Court has

also allowed Bivens actions for violations of the Due Process Clause of the Fifth

Amendment. Davis v. Passman, 442 U.S. 228, 233-248, 99 S.Ct. 2264, 2271-

2279, 60 L.Ed.2d 846 (1979).
 Nelson’s request for oral argument is denied. 1

4

An inmate, one who has already been deprived of liberty, can be deprived

further of his liberty, such that due process is required, when (1) a change in the

prisoner’s conditions of confinement is so severe that it essentially exceeds the

sentence imposed by the court, or (2) when the government has consistently

bestowed a certain benefit to prisoners, usually through statute or administrative

policy, and the deprivation of that benefit “imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life.” Kirby v.

Siegelman, 195 F.3d 1285, 1290-91 (11th Cir. 1999) (citing Sandin v. Conner,

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

Nelson failed to allege in his complaint that he suffered any disciplinary

action that was in excess of the sentence he was serving or was an atypical and

significant hardship, and thus, his complaint failed to state an actionable claim

under the standard set forth in Sandin. Because the district court correctly relied

on Sandin in finding that Nelson had failed to allege the deprivation of a protected

liberty interest, the court did not abuse its discretion in denying Nelson’s motion to

amend judgment on the basis that the court applied the wrong law. 

AFFIRMED1