The opinion of the court was delivered by: Gary R. Jones United States Magistrate Judge
ORDER GRANTING LEAVE TO PROCEED AS A PAUPER AND REPORT AND RECOMMENDATION
This case is before the Court on Doc. 1, Plaintiff's pro se complaint filed pursuant to 42 U.S.C § 1983 ("complaint"); Doc. 4, Plaintiff's motion for leave to proceed as a pauper; and Doc. 5, Plaintiff's request for service. This case is also before the Court for screening pursuant to 28 U.S.C § 1915, which provides that the Court may dismiss a case at any time if the Court determines that the allegation of poverty is untrue, or the action is frivolous, 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). For the reasons discussed below, it is RECOMMENDED that the case be DISMISSED for failure to state a claim upon which relief may be granted.
Plaintiff's Motion to Proceed In Forma Pauperis
Plaintiff's motion to proceed as a pauper (Doc. 4) is GRANTED to the extent that the case may proceed without the prepayment of the entire filing fee. Plaintiff shall pay $44.83 as an initial partial filing fee as provided in 28 U.S.C. § 1915(b)(1)(A); however, Plaintiff is assessed the total $350.00 filing fee. The agency having custody of Plaintiff shall forward, WITHIN THIRTY (30) DAYS from the date of this Order, the initial partial filing fee of $44.83 to the Clerk of Court. A check from a penal institution, a cashier's check, or a money order should be made payable to "Clerk, U.S. District Court." The following information shall either be included on the face of the payment or attached thereto: (1) the full name of the prisoner; (2) the prisoner's inmate number and, (3) Northern District Florida Case Number 4:11-cv-171-MP-GRJ. Checks or money orders which do not have this information will be returned.
Plaintiff is required to make monthly payments of twenty percent of the preceding month's income (that is, all funds deposited into the account) credited to the account. Upon receipt of this Order, the agency having custody of Plaintiff shall forward payments from Plaintiff's account on a monthly basis to the Clerk of Court each time the amount in the account exceeds $10.00. These payments shall continue until the filing fee of $350.00 is paid in full. Accordingly, the Clerk shall mail a copy of this Order to: Inmate Accounts, Mayo Correctional Institution, 8784 West U.S. Highway 27, Mayo, FL 32066.
Plaintiff is warned that he is ultimately responsible for payment of the filing fee if the agency with custody over him/her lapses in its duty to make payments on his/her behalf. For this reason, if Plaintiff is transferred to another jail or institution, Plaintiff should ensure that the new institution is informed about this lawsuit and the required monthly payments as set out herein. Plaintiff is advised to retain a copy of this Order for this purpose.
Plaintiff's claims stem from an unspecified prison disciplinary conviction for which he was punished with the loss of visitation privileges for two years. Plaintiff does not assert that he was denied due process in connection with the underlying disciplinary proceeding. Rather, Plaintiff contends that he was entitled to additional procedural safeguards before the sanction chosen by prison officials -- loss of visitation -- was imposed. Plaintiff contends that he has a due-process liberty interest in child visitation, and that the sanction was chosen out of reprisal for Plaintiff's exercise of his rights by filing grievances against prison officials. Doc. 1.
Due Process In the Prison Disciplinary Setting
When a constitutionally protected liberty interest is implicated by a prison disciplinary proceeding, the inmate is entitled to: (1) written notice of the charges brought against him at least twenty-four hours before the hearing; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement of the factfinder as to the evidence relied upon and the reasons for the disciplinary action taken. Wolff v. McDonnell, 418 U.S. 539 564-66 (1974). The factfinder's decision need only be supported by "some evidence." Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 455-56 (1985).
Plaintiff does not challenge the procedures used to find him guilty of a prison disciplinary charge, and he points to no authority for the proposition that he was entitled to a second hearing before a sanction was imposed. The Court's review of Wolff and its progeny reveals no authority for the type of bifurcated disciplinary hearing advanced by Plaintiff.
Moreover, the sanction imposed in this case does not give rise to a constitutionally-protected liberty interest. In Sandin v. Connor, 515 U.S. 472, 484 (1995), the Supreme Court recognized only two instances in which a prisoner may claim a constitutionally protected liberty interest which implicates constitutional due process concerns: (1) when actions of prison officials have the effect of altering the inmate's term of imprisonment, and (2) where a prison restraint "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life."
In Overton v. Bazzetta, 539 U.S. 126, 131 (2003), the Supreme Court upheld prison regulations that placed significant restrictions on prisoners' visitation rights. The Court explained that:
The very object of imprisonment is confinement. Many of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner. An inmate does not retain rights inconsistent with proper incarceration. See Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125, 97 S.Ct. 2532, 53 L.Ed.2d ...