Alford v. Laquise et al

Filing 45

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 7/9/14. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CRAIG ALFORD,
Plaintiff

:
No. 3:14cv13
:
:
(Judge Munley)
v.
:
:
HEARING EXAMINER
:(Magistrate Judge Mehalchick)
LAQUISE, et al.,
:
Defendants
:
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court for disposition is Magistrate Judge Karoline
Mehalchick’s report and recommendation (hereinafter “R&R”) that
suggests dismissing as frivolous the instant prisoner civil rights complaint.
Plaintiff Craig Alford has filed objections to the R&R, and it is ripe for
disposition.
Background
Plaintiff is a state prisoner incarcerated at the Pennsylvania State
Correctional Institution - Mahanoy (hereinafter “SCI-Mahanoy”). Although
plaintiff’s complaint is not a model of clarity, it appears that while
incarcerated at SCI-Mahanoy, prison authorities charged him with a
misconduct. The prison held a hearing on the misconduct, over which
Defendant Hearing Examiner Laquise presided. (Doc. 1, Compl. at 2).
Plaintiff alleges that at the hearing, Defendant Laquise deprived him of his
right to call certain witnesses and to produce certain relevant documentary

evidence. (Id.) Plaintiff appealed the decision to various other officials all
of whom concurred in the result reached by Defendant Laquise - except for
the secretary of the Pennsylvania Department of Corrections, who the
plaintiff claims did not respond at all. (Id. at 2-3).
He now alleges that all of these individuals violated his civil rights
with respect to the hearing and his alleged inability to call witnesses and
produce evidence. He brings his suit pursuant to 42 U.S.C. § 1983. (Id.
at 1). The R&R recommends dismissing the case as frivolous pursuant to
28 U.S.C. § 1915A. Plaintiff objects to the R&R bringing the case to its
present posture.
Jurisdiction
As this case is brought pursuant to 42 U.S.C. § 1983 for
constitutional violations we have jurisdiction under 28 U.S.C. § 1331 (“The
district courts shall have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States.”)
Standard of review
In disposing of objections to a magistrate judge’s report and
recommendation, the district court must make a de novo determination of
those portions of the report against which objections are made. 28 U.S.C.
§ 636(b)(1)(c); see also Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir.

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1983). The court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. Henderson v.
Carlson, 812 F.2d 874, 877 (3d Cir. 1987). The district court judge may
also receive further evidence or recommit the matter to the magistrate
judge with instructions. Id.
When a case is filed by a prisoner seeking redress from a
governmental entity or officer or employee of a governmental entity, as this
case was, we perform an initial screening of the complaint to determine if it
sets forth a viable cause of action. 28 U.S.C. § 1915A. We will dismiss
the complaint if it is frivolous, malicious or fails to state a claim upon which
relief can be granted. 28 U.S.C. § 1915A(b)(1). Additionally, because the
plaintiff proceeds pro se “the court shall dismiss the case at any time”
when the case fails to state a claim on which relief may be granted. 28
U.S.C. § 1915(e)(2)(B)(ii).
The standard for dismissal of a complaint under § 1915A or §
1915(e)(2)(B), is the same standard provided for in Federal Rule of Civil
Procedure 12(b)(6). See Courteau v. United States, 287 F. App’x 159, 162
(3d Cir. 2008) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)).
Federal Rule of Civil Procedure 12(b)(6) authorizes a court to dismiss a
complaint that fails “to state a claim upon which relief can be granted.”

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FED. R. CIV. P. 12(b) (6). The 12(b)(6) standard requires the court to
accept as true all factual allegations and give the pleader the benefit of all
reasonable inferences that can be fairly drawn therefrom, and view them in
the light most favorable to the plaintiff. Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009); Morse v. Lower Merion Sch. Dist., 132 F.3d
902, 906 (3d Cir. 1997). However, the court is “not bound to accept as true
a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
We then determine whether the facts alleged in the complaint “are
sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Fowler,
578 F.3d at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A plaintiff
survives review for dismissal if the asserted facts have “nudged [his or her]
claims across the line from conceivable to plausible.” Twombly, 550 U.S.
at 570. Specifically, a plaintiff must describe “enough facts to raise a
reasonable expectation that the discovery will reveal evidence of” each
necessary element of the claims alleged in the complaint. Phillips v.
County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly,
550 U.S. at 556). Thus, the plaintiff must allege facts that “justify moving
the case beyond the pleadings to the next stage of litigation.” Id. at 23435. In general, the determination of “plausibility . . . will be a

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context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Fowler, 578 F.3d at 211 (quoting Iqbal,
129 S.Ct. at 1949).
Discussion
Plaintiff’s complaint indicates that he has not filed any other lawsuits
in federal court while a prisoner. (Id.) We take judicial notice of the fact,
however, that he filed an action pursuant to 28 U.S.C. § 2254, raising the
exact same issues as he now raises pursuant to section 1983. See Alford
v. Pa. Bd. of Probation & Parole, No. 3:13cv435 (M.D. Pa). As we
explained in our memorandum denying this habeas corpus case, he does
not state a claim upon which relief can be granted. (Id., Doc. 54, Memo. of
Jan. 28, 2014). Regardless, we shall briefly discuss plaintiff’s complaint.
Petitioner bases his claims on the Civil Rights Act of 1963, 42 U.S.C.
§ 1983 (hereinafter “section 1983”). In pertinent part, section 1983
provides as follows:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity or
other proper proceeding for redress . . . .

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42 U.S.C. § 1983.
Thus, to establish a claim under section 1983, two criteria must be
met. First, the conduct complained of must have been committed by a
person acting under color of state law. Second, the conduct must deprive
the complainant of rights secured under the Constitution or federal law.
Sameric Corp. of Del., Inc. v. City of Phila., 142 F.3d 582, 590 (3d Cir.
1998).
Here, no question exists as to whether the respondent is a state
actor. Thus, the issue is whether respondent’s alleged actions deprived
petitioner of rights secured under the Constitution or federal law. The
petitioner asserts that his Fourteenth Amendment right to Due Process
was violated by the prison in the misconduct hearing when they refused to
allow him to call witnesses or present a video tape as evidence.
The Fourteenth Amendment provides that a State may not “deprive
any person of life, liberty, or property without due process of law.” U.S.
CONST. AMEND. XIV. An examination of a procedural Due Process claim
under the Fourteenth Amendment proceeds in two steps. See Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564 (1972). Initially, the court
must determine whether there exists a liberty or property interest which has
been interfered with by the state. Ky. Dept. of Corrs. v. Thompson, 490

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U.S. 454, 460 (1989)(citing Bd. of Regents, 408 U.S. at 571). Secondly, if
a petitioner establishes the existence of a protected interest, the court
must examine whether the procedures attendant upon that deprivation
were constitutionally sufficient. Id. (citing Hewitt v. Helms, 459 U.S. 460,
472 (1983)).
Here plaintiff asserts that the misconduct hearing violated his Due
Process rights and the result of the misconduct hearing adversely affected
various interests he has in the incidents of prison life. For example, the
finding of guilt regarding his misconduct was used to deny him parole.
Additionally, he argues that as a result of the finding of guilt, he: lost a high
paying job in the prison kitchen; got expelled from the “Batterers Group”;
lost his custody level, moving from custody level 3 to custody level 5; and
was placed in disciplinary housing for ninety days.

First, we must

determine whether petitioner’s claim presents a liberty or property claim.
None of these interests, however, rises to the level of interest protected by
the Due Process Clause.
In support of his position that he has a valid liberty interest and Due
Process claim, petitioner relies upon the United States Supreme Court
case Wolff v. McDonnell, 418 U.S. 539 (1974). Among other things, Wolff
dealt with the issue of whether the disciplinary proceedings at a state

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prison complied with the Due Process Clause of the Fourteenth
Amendment to the Federal Constitution. Id. at 543. The Court explained
that the prison system’s regulations provided for two different types of
punishment for flagrant or serious misconduct, that is, either forfeiture or
withholding of good-time credits or confinement in a disciplinary cell. Id. at
547. The Court made a distinction between the change in the “terms of
confinement” versus a change in the “conditions of confinement.” The
forfeiture or withholding of good-time credits affects the terms of
confinement, whereas confinement in a disciplinary cell involves a change
in the conditions of confinement. Id. The Court further explained that
“[p]rison disciplinary proceedings are not part of a criminal prosecution,
and the full panoply of rights due a defendant in such proceedings does
not apply.” Id. at 556.
The issue in that case was whether the revocation of good time credit
for a serious misconduct affected a liberty interest such that the Due
Process Clause applied. The Court indicated that the state itself provided
a statutory right to good time credit and it could be taken away for a
serious misconduct. Id. at 557. Thus, “the prisoner’s interest has real
substance and is sufficiently embraced within Fourteenth Amendment
‘liberty’ to entitle him to those minimum procedures appropriate under the

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circumstances and required by the Due Process Clause to insure that the
state-created right is not arbitrarily abrogated.” Id.
While, the Wolff principles apply to the instant case, the facts are
distinguishable. As noted, in Wolff, the prisoner’s punishment for
committing a misconduct was removal of good time credit. In the present
case, the petitioner’s punishment for committing a misconduct was
placement in disciplinary housing for ninety (90) days. Since the Wolff
decision, the Supreme Court has addressed the issue of whether
placement in restricted or segregated housing impinges a liberty interest so
as to make the Due Process Clause applicable. In Sandin v. Conner, the
Court held that “segregated confinement did not present the type of
atypical, significant deprivation in which a State might conceivably create a
liberty interest.” 515 U.S. 472, 486 (1995).
Accordingly, to invoke the protections of the Due Process Clause, a
disciplinary proceeding must result in “atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.” Id. at 483.
Placement in restrictive confinement for periods of up to one year have
been held to not trigger a constitutionally protected liberty interest because
such confinement is not atypical and a significant hardship in relation to the
ordinary incidents of prison life. See, e.g., Smith v. Mensinger, 293 F.3d

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641 (3d Cir. 2002)(upholding a district court’s dismissal of a prisoner’s Due
Process claim concerning seven months disciplinary detention). In the
instant case, the petitioner was placed in disciplinary custody for ninety
(90) days. (Doc. 1, Pet. at ¶ 12). A ninety-day placement in disciplinary
custody is not a sufficient hardship to give rise to a Due Process claim.
Thus, petitioner’s arguments with respect to the misconduct hearing are
without merit.
Petitioner’s argument continues in that due to the violation of his Due
Process rights with regard to the misconduct, the Board should not have
used the misconduct to justify revoking the unexecuted grant of parole.
This argument is without merit as we have found above that petitioner has
no valid Due Process claim with respect to the misconduct hearing. Even
if we found, however, that petitioner had a valid Due Process claim with
regard to the misconduct, the parole claim would fail.
The law does not recognize a “constitutional or inherent right of a
convicted person to be conditionally released before the expiration of a
valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr. Complex,
442 U.S. 1, 7 (1979). Thus, absent the creation of a liberty interest in
parole, a state’s decision to deny parole does not impinge on any
procedural Due Process interests. See, e.g., Stephens v. Chairman of Pa.

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Bd. of Prob. & Parole, 173 F. App’x 963, 965 (3d Cir. 2006) (explaining that
the United States Supreme Court has held that “an expectation of release
on parole is not a constitutionally protected liberty interest” quoting Jago v.
Van Curen, 454 U.S. 14 (1981)).
Both the federal and Pennsylvania state courts have held that parole
is not a constitutionally protected liberty interest under Pennsylvania law.
Burkett v. Love, 89 F.3d 135, 139 (3d Cir. 1996); Rogers v. Pa. Bd. of
Prob. & Parole, 724 A.2d 319, 323 (Pa. 1999). Thus, petitioner cannot
establish that he possesses a liberty interest in parole, and he has not
demonstrated a violation of a protected constitutional right which would
allow him to present a procedural Due Process claim. Accordingly, the
Board’s decision did not violate his right to procedural Due Process.1
Likewise, the other issues raised by the plaintiff fail rise to a
protected Due Process interest. For example, “the Due Process Clause
alone does not create a liberty or property interest in prison employment.”

1

In addition to its procedural component, Due Process can also have
a substantive component. Under a substantive Due Process analysis the
law forbids “totally arbitrary parole decisions founded on impermissible
criteria,” such as race, religion or political belief. Burkett v. Love, 89 F.3d
135, 139-40 (3d Cir. 1996)(quoting Block v. Potter, 631 F.2d 233, 236 (3d
Cir. 1980)). Petitioner does not allege such a “totally arbitrary parole
decision” in the instant case. In fact, he alleges that the parole decision
was based upon his conviction of a misconduct.
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James v. Quinlan, 866 F.2d 627, 629 (3d 1989); see also, Schoolfield v.
Deloy, 2001WL 34368380 (2001) (holding that “[p]laintiff has no liberty
interest arising from the Due Process Clause in a prison job.”). He also
has no Due Process interest in a certain custody level. Wesson v. Atl.
Cnty. Jail Facility, 2008 WL 5062028, at *6 (D.N.J. Nov. 26, 2008) (noting
that it is well established that an inmate has no liberty interest in a
particular custody level or place of confinement). These issues raised by
the plaintiff are not the type of atypical, significant deprivation that is
protected by the Due Process Clause.
Because plaintiff has not asserted a proper Due Process violation, he
has failed to state a cause of action upon which relief may be granted.
Accordingly, the complaint will be dismissed.
As noted above, plaintiff raised the same issues in a previous action
before this court. A plaintiff continually filing cases with no legal merit can
have a detrimental effect on their ability to file future actions. The Prison
Litigation Reform Act, (hereinafter “PLRA”) provides that where a prisoner
has had on three occasions an action or appeal “dismissed on the grounds
that it is frivolous, malicious, or fails to state a claim upon which relief may
be granted,” he may not bring any other civil action or appeal a judgment in
a civil action or proceeding, unless he is under imminent danger of serious

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physical injury. 28 U.S.C. § 1915(g).
Here, plaintiff fails to state a claim upon which relief may be granted
and, his case is also frivolous. A claim is “frivolous” where it is based on
an indisputably meritless legal theory. Ball v. Famiglio, 726 F.3d 448, 462
n.18 (3d Cir. 2013). Plaintiff’s legal theory is indisputably meritless. We
have previously explained to him that the theory is meritless in Alford v. Pa.
Bd. of Probation & Parole, No. 3:13cv435 (M.D. Pa). Because the instant
complaint is frivolous and fails to state a claim upon which relief may be
granted, it will constitute a “strike” under 28 U.S.C. § 1915(g) and the
accumulation of additional strikes may preclude plaintiff from proceeding in
forma pauperis absent a showing of imminent danger.
Conclusion
For the reasons set forth above, plaintiff’s complaint will be dismissed
for failure to state a claim and for frivolousness. This dismissal shall count
as one strike against the plaintiff under 28 U.S.C. § 1915(g). An
appropriate order follows.
Date: July 9, 2014

s/ James M. Munley
JUDGE JAMES M. MUNLEY
Untied States District Court

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