Charles Robert Baker v. Everett Rexroad ( 2005 )


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                 IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                              OCTOBER 20, 2005
                                 No. 04-16594                 THOMAS K. KAHN
                             Non-Argument Calendar                CLERK
                           ________________________
    
                      D. C. Docket No. 00-14337-CV-KMM
    
    CHARLES ROBERT BAKER,
    
    
                                                           Plaintiff-Appellant,
    
                                      versus
    
    EVERETT REXROAD,
    STEVE PARKER,
    RAYMOND SNELL,
    
    
                                                           Defendants-Appellees.
    
    
                           ________________________
    
                    Appeal from the United States District Court
                        for the Southern District of Florida
                          _________________________
    
                                (October 20, 2005)
    
    Before TJOFLAT, DUBINA and WILSON, Circuit Judges.
    
    PER CURIAM:
           Charles R. Baker, a prisoner proceeding pro se, appeals the district court’s
    
    order granting defendants Steve Parker’s and Raymond Snell’s motion to dismiss
    
    Baker’s civil rights action, filed pursuant to 42 U.S.C. § 1983, because it failed to
    
    state a claim. Additionally, Baker appeals the district court’s order granting
    
    defendant Everett Rexroad’s motion for summary judgment. Baker alleged in his §
    
    1983 complaint that (1) Rexroad, working as a hearing officer in the detention
    
    facility where Baker was confined, violated his due process rights by denying his
    
    request to call a witness at a prison disciplinary hearing and by finding him guilty
    
    of disobeying an order to clean his prison cell; and that (2) Parker, a corrections
    
    officer, and Snell, the prison’s assistant superintendent, violated his due process
    
    rights by failing to take corrective action during the administrative appeals process.
    
           On appeal, Baker argues that the failure of both Parker and Snell to
    
    investigate and review his claims during the administrative appeals process
    
    deprived him of his constitutional rights, giving rise to an actionable claim under
    
    42 U.S.C. § 1983.1 Baker therefore contends that his complaint was sufficient to
    
    state a claim alleging a denial of due process and that the district court improperly
    
    dismissed his claim with respect to Parker and Snell.
    
    
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            Baker was sentenced to 30 days in disciplinary confinement and lost 60 days of gain
    time as a result of his conviction of the charge in the disciplinary report. Although the
    conviction was subsequently overturned and Baker’s gain time restored, he had already served
    30 days in disciplinary confinement.
    
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          We review a grant of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) de
    
    novo, applying the same standard as the district court. Hoffman-Pugh v. Ramsey,
    
    
    312 F.3d 1222
    , 1225 (11th Cir. 2002). In reviewing the complaint, we “must
    
    accept the well pleaded facts as true and resolve them in the light most favorable to
    
    the plaintiff.” Beck v. Deloitte & Touche, 
    144 F.3d 732
    , 735 (11th Cir. 1998)
    
    (quotation omitted). “[A] complaint should not be dismissed [pursuant to Rule
    
    12(b)(6)] for failure to state a claim unless it appears beyond doubt that the
    
    plaintiff can prove no set of facts in support of his claim which would entitle him
    
    to relief.” Conley v. Gibson, 
    355 U.S. 41
    , 45-46 (1957).
    
          Here, Baker claims that Parker and Snell denied him due process by failing
    
    to take corrective action during the appeal of his disciplinary conviction. In order
    
    to prevail, however, Baker must first demonstrate that the inmate grievance
    
    procedure provided him with a constitutionally protected interest. Although we
    
    have not yet considered this issue, we agree with other circuits that have held that
    
    these proceedings are not constitutionally mandated. See Adams v. Rice, 
    40 F.3d 72
    , 75 (4th Cir. 1994) (holding that “the Constitution creates no entitlement to
    
    grievance procedures or access to any such procedure voluntarily established by a
    
    state”); Buckley v. Barlow, 
    997 F.2d 494
    , 495 (8th Cir. 1993) (per curiam) (holding
    
    that a state-created prison grievance procedure is simply a procedural right and
    
    
    
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    does not confer any substantive right upon an inmate); Flick v. Alba, 
    932 F.2d 728
    ,
    
    729 (8th Cir. 1991) (per curiam) (holding that federal prison administrative remedy
    
    procedures “do not in and of themselves create a liberty interest in access to that
    
    procedure,” and that “the prisoner’s right to petition the government for redress is
    
    the right of access to the courts, which is not compromised by the prison’s refusal
    
    to entertain his grievance”); Mann v. Adams, 
    855 F.2d 639
    , 640 (9th Cir. 1988)
    
    (holding that “[t]here is no legitimate claim of entitlement to a grievance
    
    procedure”).
    
          Because the failure of Parker and Snell to take corrective action upon the
    
    filing of Baker’s administrative appeal at the institutional level did not amount to a
    
    violation of due process, the district court properly determined that Baker failed to
    
    state a claim under § 1983 with respect to Parker and Snell.
    
          Baker next argues that the district court erred in granting defendant
    
    Rexroad’s motion for summary judgment. We review the district court’s grant of
    
    summary judgment de novo, applying the same standard as the district court and
    
    viewing all evidence and factual inferences reasonably drawn from the evidence in
    
    the light most favorable to the non-moving party. See Burton v. Tampa Housing
    
    Auth., 
    271 F.3d 1274
    , 1276-77 (11th Cir. 2001) (citations omitted). “A grant of
    
    summary judgment may be upheld on any basis supported by the record.” Id. at
    
    
    
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    1277. Summary judgment is appropriate “if the pleadings, depositions, answers to
    
    interrogatories, and admissions on file, together with the affidavits, if any, show
    
    that there is no genuine issue as to any material fact and that the moving party is
    
    entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
    
          We have identified two situations in which a prisoner, who has already been
    
    deprived of liberty in the traditional sense, can be further deprived of his liberty
    
    such that due process is required. “The first is when a change in the prisoner’s
    
    conditions of confinement is so severe that it essentially exceeds the sentence
    
    imposed by the court. The second situation is when the state has consistently
    
    bestowed a certain benefit to prisoners, usually through statute or administrative
    
    policy, and the deprivation of that benefit imposes atypical and significant hardship
    
    on the inmate in relation to the ordinary incidents of prison life.” Kirby v.
    
    Siegelman, 
    195 F.3d 1285
    , 1290-91 (11th Cir. 1999) (per curiam) (internal
    
    citations and quotations omitted). However, even if a prisoner is further deprived
    
    of his liberty, thus requiring due process, it is well established that “the state may
    
    cure a procedural deprivation by providing a later procedural remedy; only when
    
    the state refuses to provide a process sufficient to remedy the procedural
    
    deprivation does a constitutional violation actionable under section 1983 arise.”
    
    McKinney v. Pate, 
    20 F.3d 1550
    , 1557 (11th Cir. 1994) (en banc).
    
    
    
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          Here, Baker was given written notice of the charges and a written statement
    
    of the reasons for the disciplinary action. He was not afforded the opportunity to
    
    call a witness during the disciplinary hearing, but this is irrelevant. The record
    
    shows that Baker had the benefit of a full appeals process, which he repeatedly
    
    used. Moreover, his conviction was subsequently overturned, his disciplinary
    
    record expunged, and his 60 days of gain time restored. Therefore, if in fact there
    
    was a procedural deprivation, the error was cured by the institutional appeals
    
    process. See McKinney, 20 F.3d at 1557.
    
          Based on a careful review of the record, as well as the parties’ respective
    
    briefs, we discern no reversible error. Because the district court did not err in
    
    dismissing Baker’s claim against defendants Snell and Parker or in granting
    
    defendant Rexroad’s motion for summary judgment, we affirm.
    
          AFFIRMED.
    
    
    
    
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