Gregory Maurice Smith v. Warden, 519 F. App'x 673

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Gregory Maurice SMITH, Plaintiff-Appellant, v. WARDEN, Jim Fultz, Unit Manager, Stanley Tyson, Case Manager, Unknown Bureau of Prisons Staff, Defendants-Appellees.

No. 12-13232

United States Court of Appeals, Eleventh Circuit.

May 21, 2013.

673

Non-Argument Calendar.

only aggregated cocaine from incidents involving Yabrough‘s “own dealings” prior to his 2002 incarceration and the time he says he withdrew from the conspiracy. For this reason, there is not a reasonable probability that evidence of his withdrawal from the conspiracy would have changed the sentence. Thus, Yarbrough cannot meet the prejudice prong of his ineffective-assistance at sentencing claim.

Because the record contradicts Yarbrough‘s contention that he was prejudiced by his trial counsel‘s failure to investigate and present evidence of withdrawal from the charged conspiracy, we affirm.

AFFIRMED.

Gregory Maurice Smith, Miami, FL, pro se.

Pam Bondi, Attorney General‘s Office, Miami, FL, for Defendants-Appellees.

Before HULL, MARTIN, and BLACK, Circuit Judges.

PER CURIAM:

Gregory Smith, a federal prisoner, appeals pro se the district court‘s sua sponte dismissal of his Bivens¹ action against his prison warden and other prison employees for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). We affirm.²

Smith‘s suit alleged prison officials deprived him of a constitutionally-protected liberty interest in failing to comply with Bureau of Prisons (“BOP“) policy when he challenged information in his administrative prison file. Specifically, Smith‘s Bivens claim is premised on the following theory. First, Smith claims BOP Program Statement 5800.11(15)(c) (Sept. 8, 1997) confers a liberty interest in providing that when an inmate challenges information in his file, prison officials “shall” — which is to say must — “take reasonable steps to ensure the accuracy of challenged information.” In Smith‘s view, the mandatory nature of this procedural scheme confers a liberty interest for purposes of procedural due process. Second, Smith alleges prison officials deprived him of 5800.11(15)(c)‘s liberty interest by failing to “take any reasonable steps to ensure the accuracy” of information in his file “before using such information against [him].” According to Smith, prison officials used inaccurate information against him when they deemed him unsuitable “for placement at a Minimum facility.” (Id.).

The district court did not err in dismissing Smith‘s complaint for failure to state a claim, under 28 U.S.C. § 1915(e)(2)(B)(ii). Smith‘s due process Bivens theory requires alleging not only the deprivation of a liberty interest, but also that such deprivation “impose[d] atypical and significant hardship” relative “to the ordinary incidents of prison life.” See Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995). As pleaded, however, Smith‘s complaint alleges only that he was denied placement in a less-secure prison as a result of the purported deprivation. Absent extraordinary circumstances, such a denial does not amount to an “atypical” or “significant hardship.” See id.; cf. Vitek v. Jones, 445 U.S. 480, 494, 100 S.Ct. 1254, 1264, 63 L.Ed.2d 552 (1980) (concluding that “the stigmatizing consequences of a transfer to a mental hospital for involuntary psychiatric treatment” and “mandatory behavior modification as a treatment for mental illness, constitute the kind of deprivations of liberty that requires procedural protections“). Accordingly, Smith‘s complaint fails to state a cognizable Bivens claim.

The district court‘s order dismissing Smith‘s complaint is AFFIRMED.³

Notes

1

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

2

Although pro se pleadings are construed liberally, Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.1998), we review de novo a district court‘s sua sponte dismissal for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2) using the same standards that govern Fed.R.Civ.P. 12(b)(6) dismissals, Farese v. Scherer, 342 F.3d 1223, 1230 (11th Cir.2003).

3

Because oral argument is unnecessary to affirm the district court‘s dismissal, we deny as moot Smith‘s motion for appointment of counsel for oral argument.

Case Details

Case Name: Gregory Maurice Smith v. Warden

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: May 21, 2013

Citations: 519 F. App'x 673; 12-13232

Docket Number: 12-13232

Court Abbreviation: 11th Cir.