[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 23, 2005
No. 04-14933 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-01119-CV-JTC-1
ALBERT NELSON,
Plaintiff-Appellant,
versus
LEE H. GREEN, Discipline
Hearing Officer,
FEDERAL BUREAU OF PRISONS,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 23, 2005)
Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
Albert Nelson, a pro se federal prisoner, appeals the denial of his motion to
amend the district court’s judgment dismissing his Bivens complaint for failure to
state a claim. He argues that a liberal construction of his complaint and motion to
amend indicates that he sufficiently raised a due process claim that the disciplinary
hearing officer’s guilty finding and consequent punishment violated his procedural
and substantive due process rights. He argues that he has a constitutional right to
have his correctional file free from false information and that the evidence was
insufficient to support the decision of the disciplinary hearing officer that he was
guilty of fighting with another inmate. He argues that the standard of review when
a prisoner challenges a disciplinary board or hearing officer’s finding of guilt is the
more lenient “some evidence” standard, and not a “pre-atypical and significant
hardship test.” He argues for the first time on appeal that the fighting incident may
prevent him from obtaining a favorable transfer to another prison and that he
received seven days disciplinary time for the incident. He also raises the issue of
whether a disciplinary hearing officer can find an inmate guilty of violating a
federal regulation on something less than a preponderance of the evidence, and
argues that under the current regulation providing for a standard of proof lower
than a preponderance of the evidence, an inmate can be punished for an act he
probably did not commit, which happened in his case.
2
We review the denial of a Rule 59(e) motion to alter or amend judgment for
abuse of discretion. Lockard v. Equifax, Inc., 163 F.3d 1259, 1267 (11th Cir.
1998). We do not review claims not raised in the district court except in limited
circumstances. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324,
1331-32 (11th Cir. 2004).
Pursuant to 28 U.S.C § 1915, the district court may dismiss a case filed in
forma pauperis at any time if it is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief against a defendant who is
immune from such relief. 28 U.S.C § 1915(e)(2)(B)(i-iii). “A claim is frivolous if
it is without arguable merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346,
1349 (11th Cir. 2001).
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388, 395-397, 91 S.Ct. 1999, 2004-05, 29 L.Ed.2d 619 (1971), the
Supreme Court held that injured plaintiffs can bring a cause of action for damages
against federal officers based on violations of their constitutional rights. Bivens
involved alleged violations of the Fourth Amendment, but the Supreme Court has
also allowed Bivens actions for violations of the Due Process Clause of the Fifth
Amendment. Davis v. Passman, 442 U.S. 228, 233-248, 99 S.Ct. 2264, 2271-
2279, 60 L.Ed.2d 846 (1979).
3
An inmate, one who has already been deprived of liberty, can be deprived
further of his liberty, such that due process is required, when (1) a change in the
prisoner’s conditions of confinement is so severe that it essentially exceeds the
sentence imposed by the court, or (2) when the government 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) (citing Sandin v. Conner,
515 U.S. 472, 484 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995)).
Nelson failed to allege in his complaint that he suffered any disciplinary
action that was in excess of the sentence he was serving or was an atypical and
significant hardship, and thus, his complaint failed to state an actionable claim
under the standard set forth in Sandin. Because the district court correctly relied
on Sandin in finding that Nelson had failed to allege the deprivation of a protected
liberty interest, the court did not abuse its discretion in denying Nelson’s motion to
amend judgment on the basis that the court applied the wrong law.
AFFIRMED 1
1
Nelson’s request for oral argument is denied.
4