Marvin D. Mobley v. S. L. Hicks , 291 F. App'x 217 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 12, 2008
No. 08-11378 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-01132-CV-J-16-JRK
MARVIN D. MOBLEY,
Plaintiff-Appellant,
versus
S. L. HICKS,
in an individual capacity,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 12, 2008)
Before BIRCH, CANES and PRYOR, Circuit Judges.
PER CURIAM:
Marvin D. Mobley, proceeding pro se, appeals the sua sponte dismissal of
his 42 U.S.C. § 1983 complaint alleging violations of his right to procedural due
process as well as his right to equal protection under the law. The district court
dismissed Mobley’s complaint for failure to state a claim on which relief may be
granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Upon careful review of the
complaint, the pleadings, and the district court order, and upon consideration of
Mobley’s brief, we discern no reversible error and therefore AFFIRM.
I. BACKGROUND
Marvin Mobley is a resident of Florida and, he has been receiving disability
benefits and medicare insurance. On 2 November 2007, Mobley received a Notice
of Continuing Disability Review and several Authorizations to Disclose
Information to the Social Security Administration (SSA). R1-8 at 1. After
completing the forms, he hand delivered them to the local SSA office. While
there, Mobley asked for his medical records and a document indicating that the
SSA had received his completed forms. His request was denied. Id. at 1-2.
A few days later, S.L. Hicks, a Medical Disability Adjudicator working
Mobley’s review, left a message for Mobley instructing him to call her back as
soon as possible. Id. Mobley called Hicks several times but did not succeed in
reaching her as she was out of the office. Id. When Hicks called Mobley back, she
was hostile, indicating that Mobley was a diagnosed schizophrenic, which was
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untrue. Id. Hicks also indicated that an appointment would be set for Mobley to
see a doctor, to which he objected because he was afraid of doctors. Mobley
described Hicks as “wanting to argue from the beginning of our conversation” and
as laughing after he disclosed his fear of doctors. Id. at 3. Later, Mobley received
a letter from Hicks informing him that if he failed to provide the SSA with the
necessary information, the SSA could terminate his benefits. Id.
In his complaint, Mobley alleged that Hicks’s behavior during their phone
conversation, her premature decision to order a doctor’s examination, and her
threats to stop his benefits amounted to hostile, unfair, and unequal treatment that
violated his right to procedural due process and equal protection of the law. Id. at
5, 7-8. He added that Hicks violated his right to procedural due process and equal
protection by failing to send him a Letter of Due Process Determination Notice, in
violation of SSA policies. Id. at 9-10.
The magistrate judge issued a Report and Recommendation (“R & R”)
finding that Mobley (1) failed to allege that Hicks has deprived him of a
constitutionally-protected liberty or property interest; and (2) failed to provide
evidence that Hicks acted with a discriminatory motive or purpose. R1-9 at 7-8.
The magistrate judge recommended that his complaint be dismissed for failure to
state a claim on which relief may be granted pursuant to 28 U.S.C.
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§ 1915(e)(2)(B)(ii). Id. at 5, 9. Mobley objected to the magistrate judge’s R & R,
arguing that the magistrate was unlawfully trying to represent Hicks, and he
subsequently requested an evidentiary hearing. R1-10 at 2, 4. After review, the
district court found that Mobley’s objections to the R & R failed to cure any of the
deficiencies in his complaint. Therefore, the district court adopted, confirmed, and
ratified the magistrate judge’s R & R. R1-11. Mobley filed a timely notice of
appeal. R1-12.
II. DISCUSSION
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 and facts
in the complaint as true. Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003).
On appeal, Mobley argues that the district court should not have dismissed his
complaint because it contained sufficient allegations to support his due process and
equal protection claims. Additionally, he argues that by improperly dismissing his
complaint, the district court violated his due process rights by depriving him of the
evidentiary hearing he requested and the right to receive an answer from the
defendant.
A. Due Process
A successful § 1983 claim “alleging a denial of procedural due process
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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). In order to
satisfy the first element of the Grayden test, a plaintiff must “allege a deprivation
of a constitutionally-protected interest, not merely a risk of deprivation.”
Arrington v. Helms, 438 F.3d 1336, 1348 n.12 (11th Cir. 2006). Moreover, there
is no due process violation when, prior to dismissal under §1915(e)(2)(B)(ii), the
district court conducts a de novo review of the magistrate judge’s report, and the
plaintiff is given the opportunity to object to the magistrate judge’s report, even if
the plaintiff is not afforded a formal hearing. Vanderberg v. Donaldson, 259 F.3d
1321, 1324 (11th Cir. 2001).
Mobley alleges that Hicks was argumentative and hostile on the phone, that
Hicks sent a letter saying that Mobley was in jeopardy of losing his benefits, that
Hicks ordered a doctor’s exam, and that Hicks did not send Mobley a Letter of Due
Process Predetermination Notice. However, these allegations do not amount to a
deprivation of any constitutionally-protected liberty or property interest. R1-8 at
2-3, 10. These averments cannot satisfy the first prong of the Grayden test because
Mobley’s disability benefits were never terminated. Therefore, he has failed to
state a due process claim on which relief may be granted.
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In his appellate brief, Mobley argued that the district court’s improper
dismissal of his case constituted a violation of his due process rights to receive an
answer and have a hearing. The district court’s dismissal of Mobley’s complaint
under §1915(e)(2)(B)(ii), without an evidentiary hearing , did not violate his due
process rights. Prior to dismissing Mobley’s complaint, the district court
conducted an independent review of the record, and Mobley was given the
opportunity to object to the magistrate’s report. Vanderberg, 259 F.3d at 1324;
R1-10, 11. The dismissal was proper, and thus the defendant has no obligation to
answer under Rule 12 of the Federal Rules of Civil Procedure.
B. Equal Protection
The Supreme Court has interpreted the Equal Protection Clause of the
Fourteenth Amendment as “a direction that all persons similarly situated should be
treated alike.” City of Cleburne, Tex. V. Cleburne Living Ctr., 473 U.S. 432, 439
(1985). One must show that they were treated differently and that such treatment
was the result of a discriminatory motive or purpose. Cross v. Dept. of Mental
Health & Mental Retardation, 49 F.3d 1490, 1507 (11th Cir. 1995). While Mobley
alleges that Hick’s actions were unfair and unequal, he did not offer any facts
showing that he was treated differently from others in a similar situation or that
there was a discriminatory motive or purpose on Hicks’s part. Id. At 6, 9.
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Allegations of unequal treatment and discriminatory motive or purpose are
essential to an equal protection claim, and without them, Mobley’s complaint was
properly dismissed.
III. CONCLUSION
The district court did not err in dismissing Mobley’s complaint for failure to
state a claim under §1915(e)(2)(B)(ii). Mobley failed to allege facts sufficient to
show he was deprived of a constitutionally-protected liberty or property interest.
Moreover, the district court’s lawful dismissal of Mobley’s claim, without
affording him an evidentiary hearing, did not violate his right to due process
because the district court conducted an independent review of the record, and
Mobley was given the opportunity to object to the magistrate’s report before the
district court dismissed his complaint. Mobley’s equal protection claim is not
properly stated because he did not allege facts sufficient to show unequal treatment
and discriminatory motive. We discern no reversible error and for the above
reasons, we affirm the district court’s dismissal of Mobley’s 42 U.S.C. § 1983
action pursuant to 28 U.S.C. §1915(e)(2)(B)(ii).
AFFIRMED.
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