REPORT AND RECOMMENDATION

William H. STEELE, U.S.M.J.

Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983. This action has been referred to the undersigned for recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B), Local Rule 72.2(c)(4), and the standing order of general reference. It is recommended that this action be dismissed with prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i) as frivolous.

I. Nature of Proceedings.

A. Complaint as Amended. (Docs. 1 9)

Plaintiff named as Defendants Officer Donald S. Odom, Officer Kelvin Bishop, and Warden Charlie Jones. Plaintiff alleges that on December 25, 1999, when Plaintiff was going to the Masjid to participate in Ramadan, inmate Otto Mayes and inmate Lashurn Moore began to fight. Plaintiff claims that several inmates and he tried to stop the fight. Plaintiff maintains that Defendant Bishop and several other officers stopped the fight. Plaintiff alleges that on December 27, 1999, Defendant Odom served him with a disciplinary that accused Plaintiff and several other inmates of assaulting inmate Moore and charged Plaintiff with fighting without a weapon. Plaintiff avers that he was found guilty of the charge on December 28, 1999, in a disciplinary hearing conducted by Defendant Odom and received a sentence of 45 days in disciplinary segregation; 45 days loss of store, visitation, and phone privileges; and a change in custody.

Plaintiff claims that Defendant Odom refused to allow him to call some of his witnesses, to advise him of the victim's statement, to inspect the incident report, and to give him the written statement made by the hearing body regarding the evidence relied on and the reasons for the decision. Plaintiff contends that Defendant Odom based the decision solely on the testimony of Defendant Bishop, which was insufficient to find Plaintiff guilty, and disregarded inmates John Horn's, Robert Allen's, and Jerome Eiland's sworn affidavits stating that Plaintiff never threw any punches, but was only trying to stop the fight. Plaintiff asserts that Defendant Bishop testified falsely that he saw Plaintiff strike inmate Moore because inmate Moore gave a sworn affidavit that Plaintiff never touched him. Plaintiff also claims that Defendant Bishop testified falsely due to a mistake in identity when he stated that he hit Plaintiff on the left leg with his baton in an effort to pull Plaintiff back because he testified at inmate Hermon's hearing that he hit inmate Hermon's left leg. Plaintiff maintains that he complained to Defendant Jones about the erroneous decision of Defendant Odom and that Defendant Jones has failed to correct the decision.

For relief, Plaintiff seeks to have his disciplinary conviction expunged from his 12-year, clear disciplinary record, to have the privileges of honor dorm and leather shop restored, to receive compensatory damages for emotional injuries and punitive damages, and to have a declaratory judgment entered that each Defendant violated his rights under the Fifth, Sixth, and Fourteenth Amendments.

B. Disciplinary Report. (Doc. 10)

Upon review of Plaintiffs amended complaint, the Court ordered Plaintiff to file a copy of the disciplinary report (Doc. 8). The disciplinary report (Doc. 10) reflects that Defendant Bishop, the arresting officer, observed Plaintiff hitting inmate Moore and pulled Plaintiff away, but Plaintiff broke loose and started hitting inmate Moore again until Defendant Bishop struck Plaintiffs left leg with his baton. The affidavits of Plaintiff and of inmates John Horn, Jerome Eiland, Robert Allen, Meron Harmon, Otto Mayes, Eric Jones, and Lashurn Moore are attached to the report. The report indicates that inmates Jones and May were not called as witnesses because their information was repetitive. The hearing officer, Donald Odom, found Plaintiff guilty based on the arresting officer's statement that he saw Plaintiff striking inmate Moore with his fist, and sentenced Plaintiff to 45 days in disciplinary segregation and referred Plaintiff to classification for a possible custody change. The disciplinary action was approved by the warden.

II. Discussion.

A. Standard for Dismissal Under 28 U.S.C. § 1915 (e)(2)(B)(i) .

Because Plaintiff is proceeding in forma pauperis, the Court has reviewed Plaintiffs complaint for frivolity under 28 U.S.C. § 1915 (e)(2)(B)(i). "[A] complaint . . . is frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit,id. at 327, 109 S.Ct. at 1833, the claim seeks to enforce a right which clearly does not exist, id., or there is an affirmative defense that would defeat the claim, such as the statute of limitations, Clark v. Georgia Pardons Paroles Bd., 915 F.2d 636, 640 n. 2 (11th Cir. 1990). Judges are accorded "not only the authority to dismiss [as frivolous] a claim based on indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless."Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833.

B. Failure to State a Claim Arising Under the Constitution.

In order to state a claim under § 1983, there must be a violation of the Constitution. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986). In view of the nature of Plaintiffs action, the Court is construing Plaintiffs claims as due process violations. For Plaintiff to have suffered a due process violation, Plaintiff must be deprived of life, liberty, or property. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974); U.S. Const. amend. XIV, § 1 (providing, in part: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law. . . ."). The deprivation that Plaintiff suffered, according to the disciplinary report, is temporary confinement to disciplinary segregation for 45 days and referral to classification for a custody change. Plaintiff also contends that he suffered additional deprivations: loss of store, visitation, and phone privileges for 45 days, and the removal from the honor dorm and from participation in the leather shop. These additional deprivations, however, are not reflected in the disciplinary report.

There is no right inherent in the Constitution not to be placed in disciplinary segregation. Sandin v. Conner, 515 U.S. 472, 476, 487, 115 S.Ct. 2293, 2296, 2302, 132 L.Ed.2d 418 (1995). Moreover, based on a plain reading of the Constitution, the Court finds that there is no right inherent in the Constitution entitling a prisoner to privileges. Accord Id. (finding no right inherent in the Due Process Clause to be free from disciplinary segregation); Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 279 n. 9, 50 L.Ed.2d 236 (1976) (finding that eligibility for rehabilitation programs is not a sufficient interest to invoke due process); Meachum v. Fano, 427 U.S. 215, 216, 224-25, 96 S.Ct. 2532, 2534, 2538, 49 L.Ed.2d 451 (1976) (finding the Due Process Clause itself does not protect a prisoner from being transferred to an institution with less favorable conditions); Wolff, 418 U.S. at 557, 94 S.Ct. at 2975 (finding no right in the Constitution to receive good-time credits for satisfactory behavior). Therefore, because Plaintiffs allegations do not concern a right inherent in the Constitution, Plaintiff must establish that he has a state-created liberty interest not to be confined to disciplinary segregation and not to have his privileges restricted without being accorded due process. However, he has failed to do so.

C. Lack of a State-Created Liberty Interest.

1. Disciplinary Segregation Sentence.

The United States Supreme Court in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), altered the analysis for determining if a prisoner has a state-created liberty interest that is protected by the Due Process Clause. In Sandin, the Supreme Court found that there was not a state-created liberty interest to be free from disciplinary segregation. Id. at 467, 487, 115 S.Ct. at 2296, 2302. The Sandin Court, in reviewing an action in which a Hawaiian prisoner sued prison officials under § 1983 for allegedly being denied due process during a disciplinary hearing before he was confined to disciplinary segregation for 30 days, concluded that segregation as a form of punishment was not a dramatic departure from the ordinary conditions of incarceration. Id. at 485, 115 S.Ct. at 2301. The Court ruled that confinement to disciplinary segregation "did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." Id. at 485, 115 S.Ct. at 2301. As such, the Court found that confinement to disciplinary segregation did not amount to a grievous loss. Id. at 480, 115 S.Ct. at 2298. Unlike the loss of good-time credits at issue in Wolff, 418 U.S. at 557, 94 S.Ct. at 2975, the Court determined that mere confinement to disciplinary segregation was a type of discipline that should expected by an inmate as an incident to his criminal sentence. Sandin, 515 U.S. at 485, 115 S.Ct. at 2301.

In concluding that confinement to disciplinary segregation does not implicate due process, the Court held that,

neither the Hawaii prison regulation in question, nor the Due Process Clause itself, afforded Conner a protected liberty interest that would entitle him to the procedural protections set forth in Wolff. The regime to which he was subjected as a result of the misconduct hearing was within the range of confinement to be normally expected for one serving an indeterminate term of 30 years to life.

In contrast, the Eleventh Circuit in applying the Sandin analysis determined that twelve months of solitary confinement "represent[s] substantially more "atypical and significant hardship[s] . . . in relation to the ordinary incidents of prison life,' [and] we assume that [a prisoner suffering such] a liberty deprivation and [is] entitled to due process." Williams v. Fountain, 77 F.3d 372, 374 n. 3 (11th Cir. 1996), cert. denied, 519 U.S. 952, 117 S.Ct. 367, 136 L.Ed.2d 257 (1996). However, the Eleventh Circuit has subsequently concluded that confinement to administrative segregation for a shorter period of time, two months, was not a deprivation of a constitutionally protected interest. Rodgers, 142 F.3d at 1253.

As a result of the Court's decision in Sandin, no longer does the prospect of temporary confinement in disciplinary segregation alone mandate the due process procedures delineated in Wolff. Disciplinary segregation is not a "dramatic departure" from the ordinary conditions of confinement, nor is it a "major disruption in [a prisoner's] environment." Sandin, 515 U.S. at 486, 115 S.Ct. at 2301. Thus, under the authority of Sandin, a prisoner sentenced to a short term of disciplinary segregation has no protected liberty interest to which the due process protections of Wolff apply. Because there is no right to procedural due process before the imposition of disciplinary segregation, neither the lack of due process nor any deficiency in procedure actually used is actionable under § 1983.

In the present action, the disciplinary report reflects that Plaintiff was sentenced to 45 days in disciplinary segregation and was referred to classification for a custody change with no loss of good-time credits. The disciplinary segregation punishment imposed is neither "atypical" nor a "significant hardship" under the Sandin analysis and is comparable with the 30-day punishment received by Conner, rather than the 12-month punishment experienced by Williams. See Sandin, 515 U.S. at 475, 115 S.Ct. at 2296; Williams, 77 F.3d at 374. Confinement to disciplinary segregation is not a dramatic departure from the ordinary conditions of confinement, nor is it a major disruption in Plaintiffs environment. Accordingly, the Court finds that Plaintiff did not suffer a deprivation of a state-created liberty interest by his confinement to disciplinary segregation.

2. Restriction of Privileges.

In addition to Plaintiffs confinement to disciplinary segregation, Plaintiff alleges that he received a 45-day restriction of his store, phone, and visiting privileges. Because the disciplinary report does not reflect this restriction, the Court finds that this restriction in privileges occurred as an incident of Plaintiffs disciplinary segregation incarceration. Furthermore, Plaintiff complains that he was removed from the honor dorm and from participation in leather shop. The undersigned finds that the loss of these privileges is not a part of Plaintiff's disciplinary sentence, but is a consequence of having received a disciplinary conviction. These consequences of the disciplinary conviction do not invoke the protection of the Due Process Clause. See Meachum, 427 U.S. at 224, 96 S.Ct. at 2538 (holding that not every state action carrying adverse consequences for a prisoner automatically activates a due process right, such as the transfer to a facility with harsher conditions); accord Sandin, 515 U.S. at 487, 115 S.Ct. at 2302 (holding that "the chance that a finding of misconduct will alter the balance [of being granted parole in the future] is simply to attenuated to invoke the procedural guarantees of the Due Process Clause.").

Notwithstanding, if Plaintiff had received the restriction of privileges as a part of his disciplinary sentence, the restriction of privileges is a much less severe form of discipline than placement in disciplinary segregation. By virtue of being in prison, a prisoner's life is heavily restricted. See Id. at 485, 115 S.Ct. at 2301. Therefore, the increased restriction of privileges is neither "atypical" nor a "significant hardship" under the Sandin analysis and is a type of discipline that should be expected by a prisoner as an incident to his criminal sentence. See Id. at 475, 485, 115 S.Ct. at 2296, 2301.

Furthermore, the Supreme Court in Sandin envisioned that state-created liberty interests in the future will be "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, (citations omitted), nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484, 115 S.Ct. at 2300. The restriction of Plaintiffs privileges is not of this nature. The restriction of privileges is not a dramatic departure from the ordinary conditions of confinement, nor is it a major disruption in Plaintiffs environment. Thus, pursuant to the analysis dictated by Sandin, the Court finds that the restriction of privileges is neither "atypical" nor a "significant hardship." Therefore, the Court concludes that Plaintiff did not suffer a deprivation of a state-created liberty interest when, as a result of his disciplinary conviction, his privileges were restricted.

III. Conclusion.

Based upon the foregoing reasons, it is recommended that Plaintiffs action be dismissed with prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i) as frivolous