[DO NOT PUBLISH]
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.
1
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.
2
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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