[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16521 ELEVENTH CIRCUIT
JAN 18, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00405-CV-HL-5
ELBERT S. WALKER, JR.,
Plaintiff-Appellant,
versus
GRABLE, Correctional
Officer, First Shift,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(January 18, 2011)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Elbert S. Walker appeals the district court’s sua sponte dismissal of his 42
U.S.C. § 1983 claim. A civil complaint filed by a prisoner seeking redress from a
governmental entity or an officer or employee of a governmental entity is reviewed
under § 1915A, and may be dismissed if the complaint is “frivolous, malicious, or
fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(a),
(b)(1). The district court dismissed Walker’s claim as frivolous under 28 U.S.C.
§ 1915A. On appeal, Walker argues that he had a right to enjoy the privileges due
to the general prison population, and that he had a right to not be placed on
administrative segregation without reason. Walker alleges that the defendant,
Correctional Officer Grable, failed to provide him with a disciplinary report and
violated Walker’s rights by placing him on administrative segregation without
cause.
A district court's sua sponte dismissal based on frivolity under 28 U.S.C.
§ 1915A is reviewed for an abuse of discretion. Miller v. Donald, 541 F.3d 1091,
1100 (11th Cir. 2008). A claim is frivolous if and only if it “lacks an arguable
basis either in law or in fact.” Id. (quoting Neitzke v. Williams, 490 U.S. 319, 327,
109 S. Ct. 1827, 1831–32, 104 L. Ed. 2d 338 (1989)). To survive a motion to
dismiss a complaint must contain “enough to facts state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.
1955, 1974, 167 L.Ed.2d 929 (2007). In reviewing such a complaint, we accept the
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allegations of the complaint as true and construe the pro se complaint liberally.
Miller, 541 F.3d at 1100.
States may create liberty interests by conferring benefits to prisoners such
that the deprivation of those benefits imposes an atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life. See Sandin v.
Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300, 132 L.Ed.2d 418 (1995).
Courts compare the conditions of prisoners inside and outside of segregated
confinement to determine if that confinement presented the type of atypical,
significant deprivation in which a state might conceivably create a liberty interest.
See id. at 2301 (prisoner had no liberty interest because the conditions in
disciplinary confinement mirrored conditions in non-disciplinary confinement);
Magluta v. Samples, 375 F.3d 1269, 1276 (11th Cir. 2004) (prisoner’s liberty
interest was violated when the prisoner was in solitary administrative confinement,
under conditions unlike other pretrial detainees or even convicted prisoners, locked
in an extremely small space, and with minimal contact with other human beings for
over 500 days).
The discipline Walker alleged–eleven days of administrative
segregation–does not involve a loss of a due process liberty interest. See Sandin,
515 U.S. at 486, 115 S. Ct. at 2301 (holding that prisoner’s thirty-day disciplinary
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segregation “did not present the type of atypical, significant deprivation in which a
State might conceivably create a liberty interest.”). Thus, even construing the
complaint liberally, Walker does not state a plausible claim for relief.
Walker’s complaint, construed liberally, stated allegations that were
sufficient such that it was not frivolous under 28 U.S.C. § 1915A(a). However,
Walker failed to state a claim upon which relief could be granted. 28 U.S.C. §
1915A(b)(1). Because the district court did not abuse its discretion in dismissing
Walker’s claim, we affirm.
AFFIRMED.
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