[DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                             No. 10-14866                        OCTOBER 13, 2011
                         Non-Argument Calendar                      JOHN LEY
                       ________________________                      CLERK


                D.C. Docket No. 2:04-cv-03443-SLB-TMP

DANNY EUGENE MOULDS,

                               llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,

                                   versus

STEPHEN BULLARD,
DONAL CAMPBELL,
JOHN ARTHUR,
SGT. RONALD CARTER,
ALPHONSO BARBER, et al.,

                            llllllllllllllllllllllllllllllllllllllllDefendants-Appellees.

                      ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                            (October 13, 2011)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      Danny Eugene Moulds appeals pro se from the district court’s grant of

summary judgment in favor of Alabama prison officials in a civil rights case brought

under 42 U.S.C. § 1983. In a prior appeal, this Court had affirmed the district court’s

grant of summary judgment, except as to Moulds’s due process claim arising out of

the denial of witnesses at a disciplinary hearing, for which the Court had reversed the

district court and remanded for further proceedings. Moulds v. Bullard, 345 F. App’x

387 (11th Cir. 2009) (unpublished) (“Moulds I”). On remand, the defendants filed

a second motion for summary judgment, arguing that this Court had misapplied the

law to Moulds’s claim, and the district court granted the motion. In so doing, the

district court discussed the law-of-the-case doctrine, and held that the mandate in

Moulds I on the issue of whether Moulds was denied procedural due process in

violation of the Fourteenth Amendment was clearly erroneous and would work a

manifest injustice. On appeal, Moulds argues that the district court erred on remand

by disregarding the previously issued mandate. After thorough review, we affirm.

      We review a district court’s ruling on summary judgment, and a district court’s

application of the law-of-the-case doctrine, de novo. Rojas v. Florida, 

,

1341 (11th Cir. 2002); United States v. Bobo, 

, 1267 (11th Cir. 2005).

      “Summary judgment is appropriate ‘if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

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there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.’” Eberhardt v. Waters, 

, 1580 (11th

Cir. 1990). In making this determination, “all evidence and reasonable factual

inferences drawn therefrom are reviewed in a light most favorable to the non-moving

party.” 

.

      “Under the law of the case doctrine, both district courts and appellate courts

are generally bound by a prior appellate decision in the same case.” Alphamed, Inc.

v. B. Braun Medical, Inc., 

, 1285-86 (11th Cir. 2004). “The law of the

case doctrine, self-imposed by the courts, operates to create efficiency, finality and

obedience within the judicial system.” Litman v. Mass. Mut. Life Ins. Co., 

, 1511 (11th Cir. 1987). We have described the mandate rule as:

      simply an application of the law of the case doctrine to a specific set of
      facts. Accordingly, when acting under an appellate court’s mandate, a
      district court cannot vary it, or examine it for any other purpose than
      execution; or give any other or further relief; or review it, even for
      apparent error, upon a matter decided on appeal; or intermeddle with it,
      further than to settle so much as has been remanded.

United States v. Amedeo, 

, 830 (11th Cir. 2007) (quotation and citation

omitted); see also 

(applying the mandate rule in the civil

context).




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      We have recognized narrow exceptions to the law-of-the-case doctrine, and,

by implication, the mandate rule, see 

, where: “(1) a

subsequent trial produces substantially different evidence, (2) controlling authority

has since made a contrary decision of law applicable to that issue, or (3) the prior

decision was clearly erroneous and would work manifest injustice.” Joshi v. Fla.

State Univ. Health Ctr., 

, 1231 (11th Cir. 1985) (quotation omitted).

The clearly erroneous standard is met when “the legal error is beyond the scope of

reasonable debate . . .” Jenkins Brick Co. v. Bremer, 

, 1370-71 (11th

Cir. 2003). In addition, in Jenkins, we found a manifest injustice where an Alabama

district court made a clearly erroneous finding that venue was proper in Alabama, and

thus Alabama law would likely have been used to uphold a non-compete agreement

that was contrary to the fundamental public policy of Georgia, where venue would

have been proper. See 

Thus, clear error presents a manifest injustice

where the error would likely change the outcome of a case; and public policy

concerns are relevant to a determination of manifest injustice. See 

Amendment prohibits any state from depriving a person of life,

liberty, or property without due process of law. See U.S. Const. amend. XIV, sec. 1.

“[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;

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(2) state action; and (3) constitutionally-inadequate process.” Grayden v. Rhodes,

, 1232 (11th Cir. 2003). The first question a court must answer with

any procedural due process claim is whether the injury claimed by the plaintiff is

within the scope of the Due Process Clause. See Bass v. Perrin, 

, 1318

(11th Cir. 1999). In Sandin v. Conner, the plaintiff claimed a deprivation of

procedural due process in connection with a prison disciplinary hearing. 

, 476 (1995). The Supreme Court in Sandin recognized that:

      States may under certain circumstances create liberty interests which are
      protected by the Due Process Clause. But these interests 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.

(citations omitted); see also Magluta v. Samples, 

, 1282

(11th Cir. 2004) (recognizing a “new Sandin standard,” under which there is “no

liberty interest and no constitutional violation . . . if the Sandin ‘atypical and

significant hardship’ standard [is] not met.”). The Supreme Court ultimately held that

the plaintiff’s disciplinary confinement for 30 days was not an atypical or significant

hardship in comparison to ordinary conditions in the Hawaii prison system, and did

not inevitably increase the duration of the plaintiff’s sentence, so the confinement did

not give rise to a protected liberty interest. 

. Because

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there was no liberty interest at stake, procedural due process was not implicated. See

(“We hold, therefore, that neither the Hawaii prison regulation in question,

nor the Due Process Clause itself, afforded [the plaintiff] a protected liberty interest

that would entitle him to the procedural protections set forth in Wolff.”).

       In Wolff v. McDonnell, the Supreme Court held that a prisoner had a protected

liberty interest in statutory good-time credits, and thus had a constitutional right to

procedural due process in a disciplinary hearing that threatened that interest. 

, 555-58 (1974). Under Wolff, a prisoner facing a disciplinary hearing that

may result in the loss of a liberty interest must receive: (1) advance written notice of

the charges against them; (2) an opportunity for the inmate to call witnesses and

present documentary evidence, so long as doing so is consistent with institutional

safety and correctional goals; and (3) a written statement by the factfinder outlining

the evidence relied on and the reasons for the disciplinary action. 

In

Ponte v. Real, the Supreme Court expanded on what was required, under the Due

Process Clause, if prison officials refused to call an inmate’s requested witnesses at

a disciplinary hearing. See 

, 492 (1985). In Ponte, it was undisputed

that the plaintiff possessed a liberty interest in good-time credits, such that the interest

could not be taken from him without procedural due process. 

                                             6
      In this case, the district court did not err in granting the defendants’ motion for

summary judgment. Indeed, Moulds I held that Moulds’s punishment -- temporary

loss of privileges and disciplinary confinement -- did not constitute the deprivation

of a constitutionally protected liberty interest, yet also held that Moulds’s procedural

due process rights may have been violated by the disciplinary hearing that led to the

imposition of that punishment. 345 F. App’x 387, at *7. However, Moulds would

only be constitutionally entitled to procedural due process if he were deprived of a

protected liberty interest, see, e.g., 

; see also 

; see also Wilkinson v. Austin, 

, 221 (2005) (noting that it “need

reach the question of what process is due only if the inmates establish a

constitutionally protected liberty interest . . .”), and we are precluded, by the

law-of-the-case established in Moulds I, from finding that Moulds’s disciplinary

confinement deprived Moulds of a constitutionally protected liberty interest, unless

one of the Joshi exceptions to the law-of-the-case doctrine applies. See 

. Because no new trial was held after Moulds I, and because Moulds has

failed to show that subsequent precedent contradicts Moulds I or that its holding --

that his disciplinary confinement was not the deprivation of a protected liberty

interest -- was clearly erroneous, none of the Joshi exceptions apply. See 

(holding that 30 days of disciplinary segregation did not give rise to

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a protected liberty interest); Overton v. Bazzetta, 

, 136-37 (2003)

(providing that temporary withdrawal of visitation privileges for disciplinary

purposes was “not a dramatic departure from accepted standards for conditions of

confinement”); Rodgers v. Singletary, 

, 1252-53 (11th Cir. 1998)

(holding that two months of administrative confinement did not implicate a protected

liberty interest). Thus, there was no protected liberty interest at stake, and as a result,

Moulds was not entitled to procedural due process during his disciplinary hearing.

See, e.g., 

; 

; 

.1 Accordingly, Moulds I was clearly erroneous in remanding the case for further

proceedings on the issue of whether Moulds was deprived of procedural due process

when his witnesses were not called at his disciplinary hearing.

       Moreover, this case presents a situation where following the mandate in

Moulds I would result in manifest injustice. As discussed above, because the

defendants did not deprive Moulds of a protected liberty interest, they could not



       1
          Moulds I did not identify any other potential liberty interest that might have been at
stake at Moulds’s disciplinary hearing, and Moulds was required to show not just a violation of a
state statute or regulation, but a violation of a protected liberty interest. See 

(“States may . . . create liberty interests which are protected by the Due Process Clause . .
. But these interests will generally be limited to freedom from restraint which . . . imposes
atypical and significant hardship on the inmate . . .”); see also 

(“There
would be no liberty interest and no constitutional violation . . . if the Sandin ‘atypical and
significant hardship’ standard were not met.”). Additionally, Moulds never alleged that he was
deprived of good-time credits. Compare 

; 

.

                                                  8
violate his procedural due process rights. Accordingly, they should have been

granted summary judgment on Moulds’s claim that they violated his due process

rights by denying him witnesses. However, if Moulds I is followed, the defendants

could be found liable for violating Moulds’s due process rights, despite the fact that

they did not deprive Moulds of a protected liberty interest. Thus, the clear error in

Moulds I could affect the case’s outcome. See 

. At the

least, the defendants here will have to defend against litigation for which they legally

should not be held liable. Additionally, other potential defendants, such as the

Alabama Department of Corrections, would be put in the position of needing to

guarantee procedural due process rights for prisoners, even in situations where those

prisoners are not deprived of protected liberty interests. See 

clear error in Moulds I would work a manifest injustice, the district

court properly found that an exception to the mandate rule applied, and that it was

therefore not bound to follow the mandate. See 

; 

. Accordingly, we affirm.

      AFFIRMED.




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