CHARLES S. COODY, Magistrate Judge.
This 42 U.S.C. § 1983 action is pending before the court on a complaint filed by Jeffrey Scott Clegg, a former state inmate, challenging the constitutionality of a disciplinary imposed upon him during a prior term of incarceration at the Bullock Correctional Facility. Specifically, Clegg alleges defendant Carlton, the disciplinary hearing officer, denied him due process in a disciplinary hearing conducted on a charge for failure to obey a direct order. Doc. 1 at 4. Clegg also asserts Carlton relied on false information in finding him guilty of the aforementioned charge. Doc. 1 at 4. Clegg seeks a declaratory judgment, injunctive relief and monetary damages for the alleged violations of his constitutional rights. Doc. 1 at 5; Doc. 30 at 1.
The defendant filed a special report, supplemental special report and relevant evidentiary materials in support of these reports addressing the claims presented by Clegg. In these reports, the defendant denies acting in violation of Clegg's constitutional rights.
After reviewing the special reports filed by the defendant, the court issued an order on March 7, 2016 directing Clegg to file a response, supported by affidavits or statements made under penalty of perjury and other evidentiary materials, to each of the arguments set forth by the defendant in her reports. Doc. 18 at 2. The order specifically cautioned that "
Pursuant to the directives of the order entered on March 7, 2016, the court now treats the defendant's reports as a motion for summary judgment and concludes that summary judgment is due to be granted in favor of the defendant.
"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); 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."). The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine issue [dispute] of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Beard v. Banks, 548 U.S. 521, 529 (2006) (holding that a court "must examine the record to see whether the [party moving for summary judgment], in depositions, answers to interrogatories, admissions, affidavits and the like, has demonstrated the absence of a genuine [dispute] of material fact, and his entitlement to judgment as a matter of law.") (internal citations and quotation marks omitted); Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593 (11th Cir. 1995) (holding that moving party has initial burden of showing there is no genuine dispute of material fact for trial). The movant may meet this burden by presenting evidence indicating there is no dispute of material fact or by showing that the nonmoving party has failed to present appropriate evidence in support of some element of its case on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322-24; Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011) (holding that moving party discharges his burden by showing that the record lacks evidence to support the nonmoving party's case or that the nonmoving party would be unable to prove his case at trial).
When the moving party meets its evidentiary burden, the burden shifts to the plaintiff to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to his case exists. At this juncture, the court "must determine whether [the plaintiff], who bears the burden of persuasion, has by affidavits or as otherwise provided in Rule 56 . . . set forth specific facts showing that there is a genuine [dispute of material fact] for trial." Beard, 521 U.S. at 529 (internal citations and quotation marks omitted); Jeffery, 64 F.3d at 593-94 (holding that, once a moving party meets its burden, "the non-moving party must then go beyond the pleadings, and by its own affidavits [or statements made under penalty of perjury], or by depositions, answers to interrogatories, and admissions on file," demonstrate that there is a genuine dispute of material fact.). 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 a party produces evidence that would allow a reasonable fact-finder to return a verdict in its favor such that summary judgment is not warranted. Greenberg, 498 F.3d at 1263; Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1313 (11th Cir. 2007). "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).
Beard, 548 U.S. at 530.
Although factual inferences must be viewed in a light most favorable to the plaintiff 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. See Beard, 548 U.S. at 525; McKeithen v. Jackson, 606 F. App'x 937, 938 (11th Cir. 2015); Ivory v. Warden, 600 F. App'x 670, 675 (2015). Thus, Clegg's pro se status alone does not compel this court to disregard elementary principles of production and proof in a civil case.
To the extent Clegg lodges claims against defendant Carlton in her official capacity and seeks monetary damages, Carlton is 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 her 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 defendant is entitled to sovereign immunity under the Eleventh Amendment for claims seeking monetary damages from her in her official capacity. 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 December 9, 2015, Officer Kelvin Maloy initiated disciplinary action against Clegg for a violation of Rule #925 — failure to comply with a direct order. Doc. 9-1 at 2, ¶3. Officer Maloy charged that on this date "inmate Jeffrey Clegg . . . [was] given several direct orders from [myself] to stop talking aggressively to DON [Director of Nursing] Dorothy Price. [Clegg] failed to comply with the orders given." Doc. 9-1 at 2, ¶4. Officer Emmitt L. Martin served Clegg with notice of the disciplinary charge and the scheduled date for the disciplinary hearing related to this charge. Doc. 9-1 at 2, ¶5. Clegg refused to sign the document acknowledging receipt of service of the disciplinary and did not identify any witnesses at this time. Doc. 9-1 at 2, ¶¶5-7. Defendant Carlton did not call witnesses on Clegg's behalf because Clegg failed to identify any witness at the time of service of the disciplinary and, due to this failure, Carlton deemed calling witnesses not applicable. Doc. 9-1 at 2, ¶¶6-7; Doc. 9-1 at 3 ¶16.
During the disciplinary hearing, Carlton provided Clegg the opportunity to question Officer Maloy and allowed him to present testimony on his own behalf. Doc. 9-1 at 2-3. Clegg testified to the general circumstances surrounding the incident but did not mention receiving or refusing an order from Officer Maloy. Doc. 9-1 at 2 ¶14. Officer Maloy, however, testified that he gave Clegg "several orders . . . to stop talking aggressively towards DON Dorothy Price and [Clegg] failed to comply with the orders that [were] given." Doc. 9-1 at 2, ¶13.
Upon completion of the noticed disciplinary hearing and after considering all of the testimony, Carlton adjudged Clegg guilty of the charged offense. Doc. 9-1 at 3, ¶17. Carlton found that "[o]n December 9, 2015, at approximately 9:15 am, inmate Jeffrey Clegg . . . did not comply with several direct orders from Officer Kelvin Maloy to stop talking aggressively to DON Dorothy Price[.]" Doc. 9-1 at 3, ¶17. Carlton advised that she based her findings of fact on the sworn testimony of the arresting officer. Doc. 9-1 at 3, ¶18. The sanctions imposed upon Clegg for this disciplinary infraction consisted of confinement in disciplinary segregation for forty-five days and loss of canteen, telephone and visitation privileges for the same period of time. Doc. 9-1 at 3, ¶ 20.
Clegg contends the disciplinary hearing violated his rights to due process because the hearing officer did not call Nurse Price as a witness per his verbal request made immediately prior to the start of the hearing despite the arresting officer identifying Nurse Price as the victim of Clegg's aggressive comments. Doc. 9-1 at 2, ¶3. However, at the time of service of the disciplinary charge Clegg was fully aware of Nurse Price's potential to serve as witness but chose not to list her as a witness. Clegg also asserts Officer Maloy provided false information in charging him with failing to obey a direct order and when providing his testimony which the hearing officer relied on to find him guilty. Doc. 1 at 4.
As explained by the Eleventh Circuit, the Supreme Court has identified two circumstances in which a prisoner, an individual already deprived of his liberty in the ordinary sense, can be further deprived of his liberty such that due process is required.
Bass v. Perrin, 170 F.3d 1312, 1318 (11th Cir. 1999).
"Generally, atypical and significant hardships must exist for a significant period of time [to give rise to a liberty interest]." Smith v. Deemer, 641 F. App'x 865, 868 (11th Cir. 2016). Thus, temporary confinement of an inmate in disciplinary segregation does not implicate a constitutionally protected liberty interest. Sandin, 515 U.S. at 485-86; (concluding that thirty days of disciplinary segregation does not give rise to a protected liberty interest); 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); Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir. 2005) ("The punishments [inmate] suffered because of his disciplinary conviction (demotion in status, [two months in] segregation, and transfer) raise no due process concerns."). 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."). 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 Clegg 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 Clegg complains involve the deprivation of a state-created liberty interest as defined by the standard set forth in Sandin.
As the Supreme Court opined,
Wilkinson v. Austin, 545 U.S. 209, 222-23 (2005).
Clegg's confinement in disciplinary segregation for forty-five days did not deprive him of any protected liberty interest. Sandin, 515 U.S. at 486; Rodgers, 142 F.3d at 1253; Hoskins, 395 F.3d at 375.
Bass v. Wilson, et al., 2015 WL 4742473, at *5-*6 (S.D. Ala. Aug. 10, 2015).
Applying the Sandin inquiry, short-term confinement in segregation and temporary loss of canteen, telephone and visitation privileges for forty-five days "though concededly punitive, do[] not represent a dramatic departure from the basic conditions" of the sentence imposed upon Clegg. Id. at 485. In light of the foregoing, the court concludes that the sanctions fail to "impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484. Thus, due process did not attach to the disciplinary proceeding imposed upon Clegg, and summary judgment is therefore due to be granted in favor of the defendant on this claim.
Clegg contends that defendant Carlton relied on false information in finding him guilty of the disciplinary charge. Doc. 1 at 4. Defendant Carlton denies reliance on false information and, instead, avers "she believed Officer Maloy's testimony which was taken under oath to be true." Doc. 17-1 at 2.
In Monroe v. Thigpen, 932 F.2d 1437 (11th Cir. 1991), the Court held that reliance on
Monroe, 932 F.2d at 1442. Slocum controls the disposition of the instant false information claim.
Defendant Carlton maintains that the testimony of the arresting officer on which she relied to adjudge Clegg guilty of the disciplinary charge is true and that reliance on this information did not infringe on any of Clegg's constitutional rights. Of specific importance, there is no admission by the defendant that the information utilized in the determination of guilt is false. Clegg has failed to come forward with any evidence which indicates the defendant knowingly relied on false information during the disciplinary process. Moreover, Clegg's conclusory assertion regarding the potential use of false information does nothing more than raise the possibility that information in his records may be false and this mere possibility fails to provide a basis for relief. Monroe, 932 F.2d at 1142; Jones v. Ray, 279 F.3d 944, 946 (11th Cir. 2001) (holding that "prisoners cannot make a conclusory allegation regarding the use of [false] information as the basis of a due process claim.").
The record before the court establishes that the defendant did not rely on admittedly false information in finding Clegg guilty of failing to obey a direct order. Consequently, Clegg is entitled to no relief as a matter of law and entry of summary judgment in favor of the defendant is therefore appropriate.
Insofar as Clegg alleges the defendant violated the internal administrative regulation governing disciplinary hearings, he is entitled to no relief. The law is well-settled that infringements of agency rules, regulations or procedures do not, without more, amount to constitutional violations. Sandin, 515 U.S. at 484-486; Magluta v. Samples, 375 F.3d 1269, 1279 n.7 (11th Cir. 2004) (holding mere fact governmental agency's regulations or procedures may have been violated does not, standing alone, raise a constitutional issue). For these reasons, the defendant is entitled to summary judgment on Clegg's claim alleging violation of an administrative regulation.
Clegg complains that two disciplinary charges, i.e., failure to obey a direct order and assault on correctional personnel, arose from the incident with officer Maloy on December 9, 2015. Doc. 1 at 4. To the extent Clegg raises a double jeopardy claim, he is entitled to no relief.
The Supreme Court has consistently held that "the Double Jeopardy Clause provides three related protections with respect to criminal proceedings: `It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.'" United States v. Wilson, 420 U.S. 332, 343 (1975) (internal citation omitted).
Hudson v. United States, 522 U.S. 93, 98-99 (1997) (emphasis in original). The Double Jeopardy Clause does not apply to proceedings that are not "essentially criminal." Breed, 421 U.S. at 528.
Prison disciplinary hearings are not criminal proceedings to which the protection against double jeopardy applies. Tedesco v. Secretary for Dept. Of Corrections, 190 Fed.Appx. 752, 757 (11th Cir. 2006).; Butler v. McDonough, 2007 WL 2071530, *8 (M.D. Fla. 2007) (finding that protections afforded by the Double Jeopardy Clause "apply to criminal trials, not disciplinary hearings[.]"); see United States v. Mayes, 158 F.3d 1215, 1224 (11th Cir. 1998) (In a double jeopardy challenge by federal prisoners to criminal charges based on the same offense conduct underlying prior prison disciplinary sanctions, the Eleventh Circuit held that when "[p]rison officials merely implement disciplinary proceedings that. . . at most, change the conditions of the inmates' confinement for purposes of maintaining institutional order and encouraging compliance with prison rules[,]" the disciplinary proceedings are not "criminal" and, therefore, prisoners' double jeopardy challenges to their subsequent criminal prosecutions provide no basis for relief.). Moreover, although the disciplinary charges for failure to obey a direct order and assault on correctional officials may have arisen from the same set of facts and circumstances, these charges constitute two separate offenses requiring completely different elements of proof and, as such, do not implicate double jeopardy. Blockburger v. United States, 284 U.S. 299, 304 (1932). Consequently, Clegg has failed to state a cognizable claim with respect to a violation of the Fifth Amendment's protection against double jeopardy and this claim therefore provides no basis for relief in this cause of action.
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:
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).
