Filed: Oct. 23, 2009
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-11294 ELEVENTH CIRCUIT OCTOBER 23, 2009 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 09-80040-CV-DTKH CARLOS SHAARBAY, Plaintiff-Appellant, versus PALM BEACH COUNTY JAIL, UNITED STATES GOVERNMENT, RHONDA CLARK, #8535, SGT. PATRICK S. WRIGHT, #5932, DESAI BAILEY, #4387, Defendants-Appellees. _ Appeal from the United States District Court for the Southern District o
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-11294 ELEVENTH CIRCUIT OCTOBER 23, 2009 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 09-80040-CV-DTKH CARLOS SHAARBAY, Plaintiff-Appellant, versus PALM BEACH COUNTY JAIL, UNITED STATES GOVERNMENT, RHONDA CLARK, #8535, SGT. PATRICK S. WRIGHT, #5932, DESAI BAILEY, #4387, Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11294 ELEVENTH CIRCUIT
OCTOBER 23, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 09-80040-CV-DTKH
CARLOS SHAARBAY,
Plaintiff-Appellant,
versus
PALM BEACH COUNTY JAIL,
UNITED STATES GOVERNMENT,
RHONDA CLARK,
#8535,
SGT. PATRICK S. WRIGHT,
#5932,
DESAI BAILEY,
#4387,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 23, 2009)
Before BIRCH, HULL and WILSON, Circuit Judges.
PER CURIAM:
Carlos Shaarbay, a Florida prisoner proceeding pro se, appeals the sua
sponte dismissal of his in forma pauperis (“IFP”) 42 U.S.C. § 1983 complaint
against defendants Palm Beach County Jail, the United States Government, Deputy
Rhonda Clark, Sergeant Patrick S. Wright, and Deputy Desai Bailey. Shaarbay
alleges that the defendants violated his right to procedural due process, violated his
right to be free from illegal search and seizure, and engaged in malicious
prosecution when they searched his cell and person, put him in segregated
confinement for 30 days, and initiated criminal charges against him without a
Miranda warning after finding a razor blade in his shirt pocket.
After a magistrate judge recommended that Shaarbay’s complaint be
dismissed for failure to state a claim, Shaarbay filed a motion for leave to file an
amended complaint and a motion for reconsideration which the district court
apparently treated as an objection to the magistrate judge’s report and
recommendation. On appeal, Shaarbay attempts to show that he sufficiently
alleged a cognizable claim under 42 U.S.C. § 1983.1 Shaarbay presents new
1
Shaarbay’s brief, however, appears to present further support for his original complaint
and resembles more of an amended complaint rather than an appeal stating why his original
complaint was sufficient to state a claim.
2
arguments in support of his original complaint that police seized him pursuant to a
process that was not supported by probable cause in violation of the Fourth
Amendment. He also argues that he sufficiently alleged that the officers acted with
reckless disregard for the truth in arresting him and failed to give him a Miranda
warning. Shaarbay explains that he was arrested for possession of contraband but
later acquitted by a jury. Finally, he notes that he was found not guilty after being
tried for possession of contraband but still had to serve 30 days in disciplinary
confinement, and he claims that the malicious prosecution that kept him confined
at the Palm Beach County Jail caused him to miss his opportunity to appeal his
underlying criminal conviction.2
As a preliminary matter, Shaarbay waived his right to appeal the dismissal of
the claims raised in his complaint regarding self-incrimination, freedom from
isolation, cruel and unusual punishment, and equal protection, as well as any tort
claims related to intentional infliction of emotional distress, civil conspiracy, or
negligent supervision by failing to raise them in his brief before this court. See
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989)
(stating that issues not raised on appeal are deemed waived). We note that
2
Because Shaarbay did not allege that he was prevented from appealing his underlying
criminal conviction in state court due to the officers’ alleged malicious prosecution in his
original complaint, we decline to address this new claim raised in his brief. See Walton v.
Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1283 n.10 (11th Cir. 2003) (per curiam) (stating
that this Court will not address an argument that was not raised before the district court).
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dismissal of Shaarbay’s complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure
to state a claim may not preclude Shaarbay from filing another complaint in district
court because the complaint was not dismissed with prejudice. See Hughes v. Lott,
350 F.3d 1157, 1161 (11th Cir. 2003) (stating that dismissals under 28 U.S.C.
§1915 “are not dismissals on the merits and, therefore, do not prejudice the later
filing of a paid complaint.”).
28 U.S.C. § 1915(e)(2)(B)(ii) mandates that the district court dismiss an IFP
action if it determines that the action “fails to state a claim on which relief may be
granted.” Dismissal of a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) is governed by
the same standard as a dismissal under Federal Rule of Civil Procedure 12(b)(6).
Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). A district court’s sua
sponte dismissal for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) is reviewed de novo, taking the allegations in the complaint as
true.
Hughes, 350 F.3d at 1159–60 (citing
Mitchell, 112 F.3d at 1490).
Additionally, “[p]ro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be liberally construed.”
Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam)
(citing Fernandez v. United States,
941 F.2d 1488, 1491 (11th Cir. 1991)). After
liberally construing Shaarbay’s pleadings, we find no reversible error and affirm.
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“Section 1983 creates no substantive rights; it merely provides a remedy for
deprivations of federal statutory and constitutional rights.” Almand v. DeKalb
County, Ga., 103 F.3d 1510, 1512 (11th Cir. 1997) (citing Whiting v. Traylor,
85
F.3d 581, 583 (11th Cir. 1996)). Therefore, “[i]n order to prevail on a civil rights
action under § 1983, a plaintiff must show that he or she was deprived of a federal
right by a person acting under color of state law.” Griffin v. City of Opa-Locka,
261 F.3d 1295, 1303 (11th Cir. 2001) (citing
Almand, 103 F.3d at 1513). It is
unclear whether Shaarbay’s brief argues that he was deprived of due process of
law, but assuming that it does, his argument is without merit. “[A] § 1983 claim
alleging a denial of procedural due process requires proof of three elements: (1) a
deprivation of a constitutionally-protected liberty or property interest; (2) state
action; and (3) constitutionally-inadequate process.” Grayden v. Rhodes,
345 F.3d
1225, 1232 (11th Cir. 2003) (citing Cryder v. Oxendine,
24 F.3d 175, 177 (11th
Cir. 1994)).
While there is no constitutional right not to be placed in disciplinary
segregation, the Supreme Court has recognized that states may create liberty
interests which are protected by the Due Process Clause. See Sandin v. R.D
Conner, 515 U.S. 472, 483–84,
115 S. Ct. 2293, 2300 (1995). However, in the
prison context, state action will not violate due process unless it imposes an
5
“atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life,” and “[d]iscipline by prison officials in response to a wide
range of misconduct falls within the expected perimeters of the sentence imposed
by a court of law.” Id. at 484, 485. In Sandin, the Supreme Court found that the
defendant’s being placed in disciplinary segregation for 30 days was neither a
“dramatic departure” from the ordinary conditions of confinement nor a “major
disruption in his environment.”
Id. at 485–86. Shaarbay’s procedural due process
claim is without merit because he has not shown that the state’s placing him in
disciplinary confinement for 30 days was either “atypical” or imposed a
“significant hardship.” See
id. at 484. Being handcuffed when out of his cell and
having his access to resources monitored by the guards are also not a significant
departure from general prison conditions. See
id. at 485–86. Accordingly,
Shaarbay did not allege facts showing that the defendants’ confining him for 30
days could result in a due process violation.
Shaarbay failed to state a sufficient § 1983 illegal search and seizure claim
based on a violation of the Fourth Amendment. The Supreme Court held that
“[p]risoners have no Fourth Amendment rights against searches of their prison
cells . . . .” Padgett v. Donald, 401 F.3d 1273, 1278 (11th Cir. 2005) (citing
Hudson v. Palmer,
468 U.S. 517, 525–26,
104 S. Ct. 3194, 3200 (1984)).
6
Therefore, it was not a constitutional violation for the defendants to search
Shaarbay’s cell and person, and it is undisputed that a razor blade was found in
Shaarbay’s shirt pocket.
Shaarbay’s complaint also does not sufficiently allege a § 1983 malicious
prosecution claim. In order to prove malicious prosecution under § 1983, a
plaintiff must establish “(1) the elements of the common law tort of malicious
prosecution, and (2) a violation of [his] Fourth Amendment right to be free from
unreasonable seizures.” Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th
Cir. 2004) (citing Wood v. Kesler,
323 F.3d 872, 881 (11th Cir. 2003)). To
establish the common law tort of malicious prosecution under Florida law, where
the alleged events took place, Shaarbay must show that (1) an original judicial
proceeding was commenced or continued against him; (2) the Palm Beach County
Jail and the officers involved were the legal cause of the original proceeding;
(3) the termination of the original proceeding constituted a bona fide termination of
that proceeding in Shaarbay’s favor; (4) there was an absence of probable cause for
the original proceeding; (5) there was malice on the part of the Palm Beach County
Jail and the officers; and (6) Shaarbay suffered damages as a result of the original
proceeding.
Id. (citing Durkin v. Davis,
814 So. 2d 1246, 1248 (Fla. 2d DCA
2002)). Additionally, a Fourth Amendment violation “requires an intentional
7
acquisition of physical control. A seizure occurs even when an unintended person
or thing is the object of the detention or taking, but the detention or taking itself
must be willful.” Brower v. County of Inyo, 489 U.S. 593, 596,
109 S. Ct. 1378,
1381 (1989) (internal citations omitted). Shaarbay alleges that the defendants
initiated proceedings against him, which were terminated in his favor, and that the
officers fabricated their testimony, which could show malice, but he does not
allege in his original complaint that the proceeding was without probable cause or
that he suffered any damages as a result. See
Kingsland, 382 F.3d at 1234.
The district court did not err in dismissing Shaarbay’s complaint because he
failed to state a claim upon which relief could be granted as he alleged neither a §
1983 due process violation, a §1983 Fourth Amendment search and seizure
violation, nor a § 1983 malicious prosecution claim. We affirm.
AFFIRMED.
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