SUSAN RUSS WALKER, Magistrate Judge.
This 42 U.S.C. § 1983 action is pending before the court on a complaint filed by Jermaine D. Oliver, a state inmate, challenging the constitutionality of a disciplinary imposed upon him while incarcerated at the Bullock Correctional Facility. Specifically, Oliver alleges that the defendants denied him due process during a disciplinary hearing on a charge for unauthorized possession of a phone. Doc. 1 at 4-5. Oliver names Elizabeth Laseter, the hearing officer, and Jimmy Thomas, the arresting officer, as defendants in this cause of action. He seeks monetary damages for the alleged violation of his constitutional rights. Doc. 1 at 7.
The defendants filed a special report and relevant evidentiary materials in support of this report, including affidavits and prison records, addressing the due process claim presented by Oliver. In their report, the defendants deny acting in violation of Oliver's constitutional rights.
After reviewing the special report filed by the defendants, the court issued an order on May 23, 2016, directing Oliver to file a response to each of the arguments set forth by the defendants in their report, supported by affidavits or statements made under penalty of perjury and other evidentiary materials. Doc. 13 at 2. The order specifically cautioned that "
Pursuant to the order entered on May 23, 2016, the court now treats the defendants' report as a motion for summary judgment and concludes that summary judgment is due to be granted in favor of the defendants.
"Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine [dispute] as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam) (citation to former rule omitted); Rule 56(a), Fed.R.Civ. P. ("The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.").
When the defendants meet their evidentiary burden, as they have in this case, the burden shifts to the plaintiff to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to his case exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(3) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact by [citing to materials in the record including affidavits, relevant documents or other materials] the court may . . . grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it."). Once the moving party meets its burden, "the non-moving party must then go beyond the pleadings, and by its own affidavits [or sworn statements], or by depositions, answers to interrogatories, and admissions on file," demonstrate that there is a genuine dispute of material fact. Jeffery, 64 F.3d at 593-94 (internal quotation marks omitted). This court will also consider "specific facts" pled in a plaintiff's sworn complaint when considering his opposition to summary judgment. Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014). A genuine dispute of material fact exists when the nonmoving party produces evidence that would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F.3d at 1263; Allen v. Bd. of Public Education for Bibb County, 495 F.3d 1306, 1313 (11th Cir. 2007). In civil actions filed by inmates, federal courts
Beard v. Banks, 548 U.S. 521, 530 (2006) (internal citation omitted).
To proceed beyond the summary judgment stage, an inmate-plaintiff is required to produce "sufficient [favorable] evidence" which would be admissible at trial supporting his claim of a constitutional violation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If the evidence [on which the nonmoving party relies] is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Anderson, 477 U.S. at 249-250. "A mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the [trier of fact] could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1576-77 (11th Cir. 1990) (internal citation omitted). Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine dispute of material fact and, therefore, do not suffice to oppose a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997); Harris v. Ostrout, 65 F.3d 912, 916 (11th Cir. 1995) (holding that grant of summary judgment is appropriate where inmate produces nothing beyond "his own conclusory allegations" challenging actions of the defendants); Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984) ("Mere verification of party's own conclusory allegations is not sufficient to oppose summary judgment."); Evers v. General Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) ("[C]onclusory allegations without specific supporting facts have no probative value."). Hence, when a plaintiff fails to set forth specific facts supported by requisite evidence sufficient to establish the existence of an element essential to his case and on which the plaintiff will bear the burden of proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex, 477 U.S. at 322 ("[F]ailure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."); Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11th Cir. 1987) (If on any part of the prima facie case the plaintiff presents insufficient evidence to require submission of the case to the trier of fact, granting of summary judgment is appropriate.); Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (holding that summary judgment is appropriate where no genuine dispute of material fact exists). At the summary judgment stage, this court must "consider all evidence in the record . . . [including] pleadings, depositions, interrogatories, affidavits, etc. — and can only grant summary judgment if everything in the record demonstrates that no genuine [dispute] of material fact exists." Strickland v. Norfolk Southern Railway Co., 692 F.3d 1151, 1154 (11th Cir. 2012).
For summary judgment purposes, only disputes involving material facts are relevant. United States v. One Piece of Real Property Located at 5800 SW 74th Avenue, Miami, Florida, 363 F.3d 1099, 1101 (11th Cir. 2004). What is material is determined by the substantive law applicable to the case. Anderson, 477 U.S. at 248. "Only factual disputes that are material under the substantive law governing the case will preclude entry of summary judgment." Lofton v. Secretary of the Department of Children and Family Services, 358 F.3d 804, 809 (11th Cir. 2004). "The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (citation omitted). "[T]here must exist a conflict in substantial evidence to pose a jury question." Hall v. Sunjoy Indus. Group, Inc., 764 F.Supp.2d 1297, 1301 (M.D. Fla. 2011) (citing Anderson, supra).
To demonstrate a genuine dispute of material fact, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine [dispute] for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the evidence before the court which is admissible on its face or which can be reduced to admissible form indicates there is no genuine dispute of material fact and the party moving for summary judgment is entitled to it as a matter of law, summary judgment is proper. Celotex, 477 U.S. at 323-24. A court may grant summary judgment where the pleadings, evidentiary materials and affidavits before the court show there is no genuine dispute as to a requisite material fact. Id. To establish a genuine dispute of material fact, the nonmoving party must produce evidence such that a reasonable trier of fact could return a verdict in his favor. Waddell v. Valley Forge Dental Associates, Inc., 276 F.3d 1275, 1279 (11th Cir. 2001). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007).
Although factual inferences must be viewed in a light most favorable to the nonmoving party and pro se complaints are entitled to liberal interpretation, a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine dispute of material fact. Beard, 548 U.S. at 525, 126 S.Ct. at 2576; Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Thus, Oliver's pro se status alone does not mandate this court's disregard of elementary principles of production and proof in a civil case.
The court has undertaken a thorough and exhaustive review of all the evidence contained in the record. After such review, the court finds that Oliver has failed to demonstrate a genuine dispute of material fact in order to preclude entry of summary judgment in favor of the defendants.
To the extent that Oliver lodges claims against the defendants in their official capacities and seeks monetary damages, the defendants are entitled to absolute immunity. Official capacity lawsuits are "in all respects other than name, . . . treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985).
Selensky v. Alabama, 619 F. App'x 846, 848-49 (11th Cir. 2015). Thus, a state official may not be sued in his official capacity unless the state has waived its Eleventh Amendment immunity, see Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100 (1984), or Congress has abrogated the State's immunity, see Seminole Tribe v. Florida, 517 U.S. 44, 59 (1996).
Selensky, 619 F. App'x at 849. "Alabama has not waived its Eleventh Amendment immunity in § 1983 cases, nor has Congress abated it." Holmes v. Hale, 701 F. App'x 751, 753 (11th Cir. 2017) (citing Carr v. City of Florence, Ala., 916 F.2d 1521, 1525 (11th Cir. 1990)). In light of the foregoing, the defendants are entitled to sovereign immunity under the Eleventh Amendment for claims seeking monetary damages from them in their official capacities. Selensky, 619 F. App'x at 849; Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1277 (11th Cir. 1998) (holding that state officials sued in their official capacities are protected from suit for damages under the Eleventh Amendment); Edwards v. Wallace Community College, 49 F.3d 1517, 1524 (11th Cir. 1995) (holding that damages are unavailable from state official sued in his official capacity).
On September 30, 2015, defendant Thomas initiated disciplinary action against Oliver for a violation of Rule 528 — unauthorized possession of a phone. Doc. 12-1 at 3, ¶3. Defendant Thomas charged that on this date "one (1) cellular telephone with no serial number . . . was found and confiscated by Officer Dejour Knight from under [Oliver's] mattress . . . during an Institutional Shakedown by the CERT Team Members." Doc. 12-1 at 3, ¶4. Officer Angela Foster served Oliver with notice of the disciplinary charge and the scheduled date for the disciplinary hearing related to this charge. Doc. 12-1 at 3, ¶5. Oliver refused to sign the document acknowledging receipt of service of the disciplinary but did identify three inmate witnesses to be called at the disciplinary hearing. Doc. 12-1 at 3, ¶¶5-7.
During the disciplinary hearing, defendant Laseter provided Oliver the opportunity to question defendant Thomas, call witnesses and provide testimony on his own behalf. Doc. 12-1 at 3-4. Oliver and two of his witnesses testified that Oliver did not own a cell phone. Doc. 12-1 at 3-4, ¶14 & ¶14(a). Oliver's final witness testified that he put the phone under the mattress. Doc. 12-1 at 4, ¶14(a). Defendant Thomas, however, testified that during a search of Oliver's living area Officer Knight retrieved a cell phone from underneath Oliver's bed. Doc. 12-1 at 3, ¶13.
Upon completion of the noticed disciplinary hearing and after considering all of the testimony, defendant Laseter adjudged Oliver guilty of the charged offense. Doc. 12-1 at 4, ¶17. Laseter found that on September 30, 2015 Oliver was in "unauthorized possession of a phone[.]" Doc. 12-1 at 4, ¶17. Defendant Laseter advised that she based her findings of fact on the sworn testimony of the arresting officer. Doc. 12-1 at 4, ¶18. The sanctions imposed upon Oliver for this disciplinary infraction consisted of confinement in disciplinary segregation for thirty days; loss of outside, canteen, telephone and visitation privileges for thirty days; and assessment of $25.00 in financial compensation. Doc. 12-1 at 4, ¶ 20.
Oliver contends that the disciplinary action violated his rights to due process because the arresting officer's testimony constituted "only `hearsay testimony' . . . and this failed to meet [the] `some evidence' standard and, therefore, [was] insufficient to support a determination of guilt." Doc. 1 at 5.
The State of Alabama, through its Board of Adjustment, provides a meaningful post-deprivation remedy for Oliver to seek redress of the defendants' allegedly improper taking of his funds. Ala. Code § 41-9-60 et seq. "Furthermore, the post-deprivation remedies available to the plaintiff under Alabama tort law [are] sufficient to satisfy due process." Radford v. Mitchem, et al., Civil Action No. 2:09-CV-02426-KOB-JEO (N.D. Ala. 2011) (Magistrate Judge's Report and Recommendation — Doc. No. 24 at 8), adopted as opinion of the court October 24, 2011. Thus, the assessment of compensation did not implicate Oliver's constitutional right to due process.
Bass, 170 F.3d at 1318.
The Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement. Sandin, 515 U.S. at 485-86. Specifically, the Court held that confinement of an inmate in disciplinary segregation for thirty days does not implicate a constitutionally protected liberty interest. Id.; Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir. 2005) ("The punishments [inmate] suffered because of his disciplinary conviction (demotion in status, segregation, and transfer) raise no due process concerns."); see also Meachum v. Fano, 427 U.S. 215, 225 (1976) (holding that there is no liberty interest arising from the Due Process Clause itself when an inmate is transferred from a low to maximum security prison because "[c]onfinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose."); Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983) (holding that a prisoner has no constitutional right to be confined in a particular institution). Moreover, an inmate in the Alabama prison system has no constitutionally protected interest in the privileges bestowed upon him or confinement in the least restrictive prison environment because the resulting restraints are not so severe that they exceed the sentence imposed upon him. Sandin, 515 U.S. at 485 ("Discipline by prison officials in response to a wide range of misconduct falls within the expected parameters of the sentence imposed by a court of law."). In addition, a temporary denial of privileges does not impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484. Thus, the deprivations imposed upon Oliver based on the challenged disciplinary did not "exceed the sentence [imposed by the trial court] in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force." Id. This court must therefore determine whether the actions about which Oliver complains involve the deprivation of a state-created liberty interest as defined by the standard set forth in Sandin.
As the Supreme Court indicated,
Wilkinson v. Austin, 545 U.S. 209, 222-23 (2005).
Oliver's confinement in disciplinary segregation for thirty days did not deprive him of any protected liberty interest. Sandin, 515 U.S. at 486; Rodgers v. Singletary, 142 F.3d 1252, 1253 (11th Cir. 1998) (holding that confinement in segregation for two months did not deprive inmate of a constitutionally protected liberty interest).
Bass v. Wilson, et al., 2015 WL 4742473, at *5-*6 (S.D. Ala. 2015).
Applying the Sandin inquiry, it is clear that confinement in segregation for thirty days and temporary loss of canteen, telephone and visitation privileges "though concededly punitive, do[] not represent a dramatic departure from the basic conditions" of the sentence imposed upon Oliver. Id. at 485. In light of the foregoing, the court concludes that the aforementioned sanctions fail to "impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484. Based on the foregoing, due process did not attach to the disciplinary proceeding as it relates to the sanctions imposed upon Oliver, and summary judgment is therefore due to be granted in favor of the defendants.
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:
1. The defendants' motion for summary judgment be GRANTED.
2. Judgment be GRANTED in favor of the defendants.
3. This case be DISMISSED with prejudice.
4. Costs be taxed against the plaintiff.
On or before
Failure to file written objections to the Magistrate Judge's findings and recommendations in accordance with the provisions of 28 U.S.C. § 636(b)(1) shall bar a party from a de novo determination by the District Court of legal and factual issues covered in the Recommendation and waives the right of the party to challenge on appeal the District Court's order based on unobjected-to factual and legal conclusions accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. 11TH Cir. R. 3-1; see Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).
