STOKES v. WETZEL et al

Filing 6

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 4/30/14. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s))(bs)

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Only the Westlaw citation is currently available.
United States District Court,
M.D. Pennsylvania.
Benjamin SMITH, Petitioner,
v.
D. Scott DODRILL, et al., Respondents.
No. 4:07–cv–2295.

atypical for inmates determined to pose security risks.
U.S.C.A. Const.Amend. 14; 28 U.S.C.A. § 2241.
Benjamin Smith, Cumberland, MD, pro se.
Dennis Pfannenschmidt, U.S.
Harrisburg, PA, for Respondents.

Attorney's

Office,

MEMORANDUM

JOHN E. JONES III, District Judge.
*1 This matter is before the Court on the Report and
Recommendation (“R & R”) of Magistrate Judge Thomas
Jan. 8, 2009.
M. Blewitt, which recommends that the petition of
West KeySummaryConstitutional Law 92
4826 Benjamin Smith (“Smith” or “Petitioner”), a pro se inmate
at the Federal Correctional Institution in Cumberland,
92 Constitutional Law
Maryland (“FCI–Cumberland”),FN1 for writ of habeas
corpus pursuant to 28 U.S.C. § 2241 be denied. (Rec.Doc.
92XXVII Due Process
4). Petitioner filed objections to the R & R (Rec.Doc.
92XXVII(H) Criminal Law
10),FN2 but the Respondents have not filed any
92XXVII(H)11 Imprisonment and Incidents
documentation in opposition to these objections.
Thereof
Nonetheless, the issue is ripe for disposition.FN3 For the
92k4826 k. Segregation. Most Cited Cases
reasons set forth below, the Court will deny the objections
Prisons 310
275
and adopt the R & R in its entirety.
FN1. Although Petitioner is currently an inmate
310 Prisons
at FCI–Cumberland, the instant matter concerns
alleged deprivations of federal rights endured
310II Prisoners and Inmates
while Petitioner was incarcerated at the United
310II(H) Proceedings
States Penitentiary–Canaan in Waymart,
310k271 Nature and Necessity of Proceedings;
Pennsylvania (“USP–Canaan”).
Right to Notice and Hearing
310k275 k. Placement and Classification.
FN2. Also before this Court is Petitioner's
Most Cited Cases
Motion for Extension of Time in Which to File
(Formerly 310k13(7.1))
Objections to the R & R (Rec.Doc. 9). Since the
An inmate's liberty interests were not violated by his
Petitioner has already filed objections, we shall
placement in a disciplinary segregated housing program
deny this motion as moot.
(DSP) without notice, a hearing, detention order, or
review. Neither the fact nor term of the inmate's
FN3. Also before this Court, and ripe for
imprisonment would have been altered by a declaration
disposition, is Petitioner's Motion to Proceed in
that his placement in the DSP was unconstitutional. While
Forma Pauperis (Rec.Doc. 3).
the inmate was not at fault in an incident that led to his
segregated confinement, the investigation of the incident
I. STANDARD OF REVIEW
revealed that the inmate's return to the general population
would pose a threat to the safe, secure, and orderly
When objections are filed to the report of a magistrate
operation of the prison. Thus, his confinement was not
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judge, the district court makes a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objections are made. 28
U.S.C. § 636(b) (1); United States v. Raddatz, 447 U.S.
667, 674–75, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). The
court may accept, reject, or modify, in whole or in part,
the magistrate judge's findings or recommendations. Id.
Although the standard of review is de novo, 28 U.S.C. §
636(b)(1) permits whatever reliance the district court, in
the exercise of sound discretion, chooses to place on a
magistrate judge's proposed findings and
recommendations. Raddatz, 447 U.S. at 674–75; see also
Mathews v. Weber, 423 U.S. 261, 275, 96 S.Ct. 549, 46
L.Ed.2d 483 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d
Cir.1984).
II. STATEMENT OF FACTS
Smith filed the instant § 2241 petition FN4 against the
named Respondents FN5 on December 20, 2007 (the
“Petition”). (Rec.Doc.1). In said Petition, Smith alleges
that on June 20, 2005, while incarcerated at USP–Canaan,
he was assaulted by a fellow inmate, subsequently
quarantined in a special housing unit (“SHU”) pending
investigation into the incident, and ultimately released
from SHU on June 30, 2005 after being cleared of any
wrongdoing. (Id. at 5). On August 8, 2005, Warden
Lindsay submitted to Respondent Dodrill a
recommendation that Petitioner be transferred from
USP–Canaan. (Id.). Pursuant to a memorandum authored
by John M. Vanyur (the “Vanyur Memo”), the Assistant
Director of the Bureau of Prisons, Dodrill denied transfer
until Petitioner was placed in a 10–month disciplinary
segregated housing program FN6 (“DSP”) and maintained
a clear record during that time. (Id.).
FN4. 28 U.S.C. § 2241 provides that a writ of
habeas corpus may issue to anyone whose
custody violates the federal Constitution, laws, or
treaties. See Zadvydas v. Davis, 533 U.S. 678,
687, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).
FN5. Smith specifically names as Respondents
D. Scott Dodrill (“Dodrill”), the Regional
Director of the Bureau of Prisoners; Cameron
Lindsay (“Lindsay”), Warden at USP–Canaan;
Frank Karam (“Karam”), Associate Warden at
USP–Canaan; and Frank Lara (“Lara”), Captain
of the Guard at USP–Canaan (collectively,

“Respondents”).
FN6. According to Petitioner, the DSP involved
readmittance into the SHU and confinement in a
cell for 23 hours per day. (Rec. Doc. 1 at 4).
Smith contends that his placement in the DSP was
unwarranted because the Vanyur Memo was intended to
prevent inmates from manipulating transfers for their own
purposes, whereas his transfer was requested by Warden
Lindsay as a result of the assault he sustained. FN7 (Id.).
Accordingly, the instant Petition requests habeas relief to
the extent that we reverse the judgment of Respondent
Dodrill and find that the placement of Petitioner in a 10
month DSP violated due process FN8 because he was never
given notice, an administrative detention order,FN9 a
hearing, or proper review regarding such placement. (Id.).
In addition to this declaratory relief, Petition requests that
$30,000 in monetary damages be awarded.
FN7. While Smith contends this was the purpose
of the Vanyur Memo, he has not attached a copy
of same, nor can we locate same through a search
of the Bureau of Prison's website. Therefore, we
cannot verify the contents or identify the purpose
of the Vanyur Memo. However, Smith's
complaint to Vanyur regarding the inapplicability
of the Vanyur Memorandum, accompanied by
the subsequent repeal of the dictates of that
memorandum, may indicate that Petitioner has
correctly identified its purpose.
FN8. We note that the instant Petition contains
due process allegations identical to those found
in a complaint filed by Petitioner on June 15,
2007. See July 15, 2007 Complaint, No.
4:07–1079, Rec. Doc. 1. Pursuant to our Order
of December 3, 2007, we adopted the Magistrate
Judge's R & R to the extent that it recommended
that Petitioner's due process claims be dismissed.
December 3, 2007 Memorandum and Order, No.
4:07–1079, Rec. Doc. 14, pp. 13–14. We did so
without prejudice, so that Petitioner could
incorporate such allegations into a habeas corpus
petition after exhausting administrative remedies.
Id. at p. 14 n. 12. By incorporating his due

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process claims as the foundation for the instant
Petition he has done just that. Since Petitioner
mentions his 23 hour per day confinement as a
condition of the DSP, we construe his due
process claim to allege a deprivation of liberty.
FN9. Smith insinuates that his overtures
requesting a detention order, made on or about
October 2, 2005, were ignored until
approximately December 6, 2005. (Id.). He
claims to have been discharged from the DSP in
January 2006. (Id.).
B. THE REPORT AND RECOMMENDATION
*2 Initially, we note that Petitioner's previous Fifth
Amendment Due Process claim was made pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
(1971),FN10 and was dismissed because it did not implicate
a liberty interest. However, we elected to dismiss without
prejudice not so that the Petitioner could reassert the
Bivens claim in a habeas corpus motion, but so that the
Petitioner could incorporate the averments as the basis for
the habeas corpus motion. Nonetheless, it appears to us, as
it evidently did to Magistrate Judge Blewitt, that Smith
used the instant Petition to advance both theories. FN11
Thus, Magistrate Judge Blewitt's February 13, 2008 R &
R recommends that both the habeas petition and the due
process claim be dismissed. We will address these
requests in turn, beginning with the habeas petition.
FN10. Generally, a plaintiff may bring a Bivens
claim in federal court when he or she experiences
a deprivation of federal constitutional rights at
the hands of a federal officer. See generally
Bivens, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d
619.
FN11. Since the document styled “Petition for
Habeas Corpus,” (Rec.Doc. 10), in fact contains
a petition for habeas corpus and an apparent due
process claim, to distinguish between the
document as a whole and the specific petition for
habeas relief contained therein, we will refer to
the former as the “Petition” and to the latter as
the “habeas petition.”

In quoting Third Circuit precedent, Magistrate Judge
Blewitt noted that when an inmate's complaint is to “a
condition of confinement such that a finding in [the
inmate's] favor would not alter his sentence or undo his
conviction,” that circumstance cannot support a petition
for habeas corpus. See Leamer v. Fauver, 288 F.3d 532,
542 (3d Cir.2002).FN12 Since a ruling in the Petitioner's
favor would not alter his sentence or undo his conviction,
FN13
and since the Magistrate Judge concluded that the
Petition was not challenging a disciplinary punishment or
seeking expungement of his prison record as to his
placement in DSP, he determined that the Petition was not
a proper habeas petition and therefore recommended its
dismissal.
FN12. Rather, the Leamer Court noted that a
habeas petition would be supported by attacking
“the validity of the continued conviction or the
fact or length of the sentence.” Leamer, 288 F.3d
at 542.
FN13. Indeed, a ruling in Petitioner's favor
would not result in a reduction of his prison
sentence, nor would it result in his discharge
from the DSP, which already occurred in January
2006.
Further, the Magistrate Judge opined that the
Petitioner's averments could not meet the standards of a
due process liberty claim. Quoting United States Supreme
Court precedent, he noted, “The Due Process clause
protects a prisoner's right to freedom from restraint [when
said restraint] ... imposes atypical and significant hardship
in relation to the ordinary incidents of prison life.” FN14
(Rec. Doc. 4, p. 15 (quoting Sandin v. Conner, 515 U.S.
472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995))). The
Magistrate Judge proceeded to cite Sandin for the
proposition that “discipline by prison officials in response
to a wide range of misconduct falls within the expected
perimeters of the sentence imposed by the court of law.”
Id. at 486. Indeed, Magistrate Judge Blewitt
acknowledged that inmates who are considered security
risks are often removed from the general prison population
and placed in a more restrictive custodial environment.
See Fraise v. Terhune, 283 F.2d 506 (3d Cir.2002).

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Cognizant that Petitioner had been in the DSP for
approximately seven months, the Magistrate Judge noted
that transfers of prisoners from the general population into
administrative or disciplinary segregation units for as long
as fifteen months were not uncommon when the inmate
was deemed a security risk. See Griffin v. Vaughn, 112
F.3d 703, 706 (3d Cir.1997).
FN14. The Magistrate Judge contrasted
conditions of administrative custody that were
found to be violative of the Due Process Clause
with those that were constitutional. For example,
administrative custody violates the Due Process
Clause when, inter alia, it virtually eliminates all
human contact, requires the lights be on 24 hours
a day, and is indefinite in duration. Wilkinson v.
Austin, 545 U.S. 209, 125 S.Ct. 2384, 2393, 162
L.Ed.2d 174 (2005). Conversely, administrative
custody is constitutional where, inter alia, it
promotes prosocial behavior, Francis v. Dodrill,
2005 WL 2216582 * 5 (M.D.Pa.2005), or
requires the inmate to live under restricted
conditions for a fixed duration without
behavioral incidents prior to being reintroduced
to the general prison population, see generally
Fraise v. Terhune, 283 F.2d 506 (3d Cir.2002).
Since the Petitioner's conditions of confinement were
more akin to the conditions in Francis and Fraise than
those in Wilkinson, and since the term of confinement in
the DSP was less than that in Griffin, the Magistrate Judge
concluded that the Petitioner's liberty interests were not
violated by his placement in DSP without a hearing,
detention order, or the like. Accordingly, Magistrate Judge
Blewitt determined not only that Petitioner could not
maintain a due process claim, but also that Petitioner's due
process assertions could not form the basis of a habeas
petition. Rather, instead of supporting a Bivens claim or a
habeas corpus petition, the Magistrate Judge noted that
Petitioner's allegations might better support a cause of
action under the Federal Torts Claims Act (“FTCA”), 28
U.S.C. § 2671, et seq. FN15 Thus, the Magistrate Judge
recommends dismissal of Petitioner's habeas petition and
due process claim without prejudice to file an FTCA
action after the Petitioner has exhausted his administrative
remedies.

FN15. The FTCA permits private parties to sue
the United States in a federal court for most torts
committed by persons acting on behalf of the
United States. See generally 28 U.S.C. § 2671, et
seq. In this instance, Magistrate Judge Blewitt
observed that Petitioner's claim that the Vanyur
Memo was erronesouly applied to him could
constitute a negligence claim cognizable under
the FTCA.
III. DISCUSSION
*3 On April 14, 2008, Petitioner filed objections to
the R & R, (Rec.Doc.10), which we will address and
analyze below.
Petitioner appears to assert that the Magistrate Judge
based his dismissal of the habeas petition solely on the
assumption that the Petition did not challenge a
disciplinary punishment in the DSP/SHU or seek
expungement of his prison record relating to his
participation in the DSP and attendant confinement in the
SHU. (Rec. Doc. 10, p. 4 (citing Rec. Doc. 4, p. 5)). Smith
then proceeds to assert that the Petition does challenge the
disciplinary punishment in the DSP/SHU, which would
necessarily result in an expungement of his prison record
in that regard. (Rec.Doc. 10, p. 4). Therefore, Petitioner
asserts that the R & R in incorrect and that he is entitled to
habeas relief. However, Petitioner conflates the Magistrate
Judge's reasoning.
As noted in our summary of the R & R, and in
contravention to Petitioner's point of view, Magistrate
Judge Blewitt's decision to dismiss the habeas petition
does not rest exclusively on the assumption that Petitioner
was not challenging his confinement nor seeking
expungement of his record. In fact, considering that that
statement encompasses half a paragraph in a twenty page
R & R, it seems like a mere afterthought rather than the
crux of the Magistrate Judge's reasoning. Indeed, noting
that the habeas petition challenged the conditions of
confinement, rather than the validity or execution of the
Petitioner's sentence, the bulk of the Magistrate Judge's
discussion of the habeas petition focuses on the Leamer
case, referenced above. To recapitulate, Leamer held that
when a challenge to the conditions of confinement would

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not, if successful, alter the petitioner's sentence or undo his
conviction, the challenge must be brought pursuant to
either § 1983 or Bivens, not through a habeas petition.
Leamer, 288 F.3d at 542. Indeed, the Third Circuit Court
of Appeals followed its Leamer decision with its decision
in Bronson v. Demming, 56 Fed. Appx. 551 (3d Cir.2002).
The Bronson Court concluded that where a petitioner
desired to be released from one type of confinement to
another (in that case from a restricted housing unit to the
general population) habeas relief was unavailable because
neither the fact nor length of petitioner's incarceration
would be altered by granting the petition. Id. at 553.
As was the case in Bronson, Petitioner in the instant
matter complains of confinement in a restrictive housing
unit, asserting that he should have been housed with the
general prison population. Similar to Bronson, neither the
fact nor term of Petitioner's imprisonment would be
altered in the instant matter by a declaration that his
placement in the DSP/SHU was unconstitutional or the
expungement of his prison record in that regard. Thus,
pursuant to the dictates of Leamer and Bronson, we agree
with the Magistrate Judge's conclusion that Smith's
petition for habeas corpus relief is improper and must be
dismissed.
*4 Even if, assuming arguendo, Smith's habeas
petition was proper, he would not be successful in
obtaining relief on the same because his confinement did
not violate the Constitution, laws, or treaties of the United
States. Petitioner's position is that his confinement in the
SHU violated the liberty interests secured by the Due
Process Clause of the Fifth Amendment. In his objections,
he opines that the authority cited by the Magistrate Judge
in the R & R is inapposite in the instant matter because his
case is factually distinguishable. Namely, he posits that the
cases cited by Magistrate Judge Blewitt involved the
“control of problematic prisoners or the proper discipline
of prisoners who committed ... misconducts,” and are
therefore inapplicable to the instant matter since his
confinement in SHU was spawned not by any misconduct
on his part, but by the assault he sustained at the hands of
a fellow inmate. (Rec.Doc. 10, p. 2). While this statement
is not altogether incorrect, Petitioner fails to take
cognizance of certain facts that make the instant matter
analogous to the authority cited by the Magistrate Judge.

To quickly restate that authority, Sandin stands for the
proposition that an inmate's liberty interest is infringed
only by an “atypical and significant hardship in relation to
the ordinary incidents of prison life.” Sandin, 515 U.S. at
484. Moreover, the Third Circuit has held that transfers of
prisoners from the general population into administrative
or disciplinary segregation units for as long as fifteen
months were not uncommon when the inmate was deemed
a security risk. See Griffin, 112 F.3d at 706. While the
Petitioner is correct that an investigation into the assault
that led to his confinement in SHU revealed that he was
not at fault in that particular incident, the investigation
also discovered that “his return to the general population
at [USP–Canaan] would pose a threat to the safe, secure,
and orderly operation of the prison.” (Rec.Doc.1, Ex.
2).FN16 Accordingly, since the Petitioner was determined to
pose a security risk, the dictates of Sandin and Griffin lead
us to believe that his confinement in a segregated housing
unit was not violative of the liberty interest secured by the
Fifth Amendment. Indeed, such confinement is not at all
atypical for inmates determined to pose threats to the
security and operation of a prison. See e.g., Sandin, 515
U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418; Fraise, 283
F.2d 506; Griffin, 112 F.3d 703; Francis, 2005 WL
2216582.
FN16. This statement was contained in a
document sent to Petitioner by Harrell Watts, the
Adminsitrator of National Inmate Appeals, in
response to Petitioner's complaint that his
confinement in the SHU violated his rights.
Notably, the Supreme Court of the United States
has held that deference should be given to the
determinations of prison officials who, in
“fine-tuning ... the ordinary incidents of prison
life,” must necessarily be afforded the ability to
appropriately control prison conditions in order
to manage a volatile environment. See Sandin,
515 U.S. 482–83. Thus, we pay special
deference to the determination that Petitioner's
release into the general prison population posed
a security threat.
Since Petitioner's claims are not sufficient in
supporting either a due process claim or a habeas corpus

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petition, these actions must be dismissed. However, like
the Magistrate Judge, we perceive that Petitioner's
allegations may state a viable claim for relief under the
FTCA. Thus, we believe that the habeas petition and due
process claim should be dismissed without prejudice to
file an FTCA claim after the exhaustion of administrative
remedies. We therefore adopt the R & R in this extent.FN17
FN17. Magistrate Judge Blewitt explicitly
recommends that the four Respondents be
dismissed from this action. We find it
unnecessary to expressly do so, since our
dismissal of Petitioner's claims for relief in their
entirety implies that those individuals are no
longer respondents in this action.
*5 Finally, the Magistrate Judge has recommended
that Petitioner's Motion to Proceed in Forma Pauperis be
granted with respect to the filing of the Petition. Since the
Petitioner has a mere $49.94 in his personal account, the
de minimus nature of his assets militates in favor of the
Magistrate Judge's determination. Therefore, we will
adopt the Magistrate Judge's R & R in this regard.

and 07–1079, M.D. Pa. For the most part,
Petitioner's claims in his present habeas petition
are that his Fifth Amendment due process rights
were violated due to his 10–month placement in
the USP–Canaan Disciplinary Segregated
Housing Unit (“SHU”) from June 20, 2005
through January 2006. Petitioner seeks
declaratory relief, as well as compensatory
damages.
In Petitioner's pending civil rights case #
07–1079, M.D. Pa., he raised the same due
process claim as he presently raises regarding
his challenge to his placement in the SHU on
June 20, 2005 at USP–Canaan. The District
Court, finding that Petitioner's placement in
the SHU did not implicate a liberty interest,
dismissed this due process claim raised in
Petitioner's No. 07–1079, M.D. Pa., Bivens
action without prejudice to assert it in a habeas
petition after he exhausted his BOP
Administrative remedies. December 3, 2007
Memorandum and Order, No. 07–1079, M.D.
Pa., Doc. 14, pp. 13–14, n. 12.

IV. CONCLUSION
For the foregoing reasons, the Court will adopt the
recommendation of the Magistrate Judge to dismiss
Petitioner's habeas petition and due process claim without
prejudice to file an FTCA claim after administrative
remedies have been exhausted. The Court will also adopt
Magistrate Judge Blewitt's recommendation that
Petitioner's Motion to Proceed in Forma Pauperis be
granted as it relates to this case. An appropriate order in
accordance with this memorandum will be entered.
REPORT AND RECOMMENDATION
THOMAS M. BLEWITT, United States Magistrate Judge.
I. Background.
Petitioner, Benjamin Smith, formerly an inmate at the
USP–Canaan, and now confined at FCI–Cumberland,
Maryland FN1, filed another action with this Court, this
time a writ of habeas corpus pursuant to 28 U.S.C. § 2241,
on December 20, 2007. (Doc. 1). Further, Petitioner
attached Exhibits 1–3 to his habeas petition.FN2
FN1. Petitioner has filed previous civil rights
action with this Court. See Civil Nos. 05–2663

FN2. Petitioner's Exhibits 1–3 in this case, are
Dodrill's, Watts' and Lindsay's responses to his
grievances about the decision to place him in the
SHU and DSP Program at USP–Canaan prior to
his transfer.
Petitioner names as Defendants D. Scott Dodrill, BOP
Regional Director; Cameron Lindsay, Warden at
USP–Canaan; Frank Karam, Associate Warden; and Frank
Lara, Captain of the Guard. (Doc. 1, p. 1). In a habeas
petition, the only proper Respondent is the person who has
custody over Petitioner. See 28 U.S.C. § 2242 and §
2243.FN3 Petitioner does not challenge either the validity
or the execution of his sentence.
FN3. We note that the Warden at
FCI–Cumberland is the proper Respondent with
custody over Petitioner since Petitioner is
confined at this prison. Petitioner is no longer an
inmate at USP–Canaan located in the M.D. Pa.,
and thus, this Court does not have jurisdiction

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over his Petition. See Rumsfeld v. Padilla, 542
U.S. 426, 124 S.Ct. 2711, 2718, 2722, 159
L.Ed.2d 513 (2004) (habeas jurisdiction rests in
the district of confinement). We also note, as
discussed below, that this case sounds more like
an FTCA action.

clear record prior to a transfer. Petitioner's placement in
the DSP was in accordance with a Memorandum of BOP
Assistant Director Vanyur which was aimed at preventing
inmates from manipulating transfers for their own
purposes. Exhibit 3 is a December 6, 2005 letter from
Defendant Lindsay to Petitioner. It states:

Petitioner is no longer in the custody of Warden
Lindsay since he is confined at FCICumberland. If this
was a proper habeas petition, then Petitioner has not
named any proper Respondent. Petitioner has also filed a
motion for leave to proceed in forma pauperis with
respect to his habeas petition, in which it is certified that
Petitioner has $49.94 in his prison account. (Doc. 3).FN4

On June 20, 2005, you were assaulted and
subsequently placed in the Special Housing Unit
pending the completion of an investigation. On August
8, 2005, a transfer request was submitted to the
Northeast Regional Office for review. On August 17,
2005, the transfer request was denied pending a
sustained period of clear conduct in accordance with
Assistant Director J. Vanyur's memorandum.

FN4. If this Report and Recommendation is not
adopted and this case is construed as a habeas
corpus petition, we recommend that Petitioner's
in forma pauperis application be denied, and that
he should be required to pay the full $5.00
habeas filing fee.
II. Claims of Habeas Petition.
In the present case, Petitioner states that on August
17, 2005, Defendant Dodrill denied his request for a
transfer after he was assaulted by another inmate and
placed him in a 10–month Disciplinary Segregated
Housing Program (“DSP”), where he was confined in the
SHU and he was locked down in his cell for 23 hours per
day. (Doc. 1, p. 3–4). According to Petitioner's claim
(Doc. 1, p. 4) and his Exhibits, Ex. 3, in June 2005, he was
assaulted by another inmate and was then placed in the
SHU pending an investigation. In August 2005, Defendant
Lindsay requested a transfer for Petitioner due to the
assault, and Defendant Dodrill denied the request pursuant
to a Memorandum of Assistant Bureau of Prisons (“BOP”)
Director Vanyur. Consequently, Petitioner was made to
adhere to the stated Memorandum and was placed into the
10–month DSP program, which was designed to make the
inmate sustain a clear conduct record to ensure that inmate
transfer requests were legitimate.
*6 Petitioner avers, and his Exhibits show, that
Lindsay made the first transfer request for Petitioner in
August 2005, and it was denied by Dodrill until Petitioner
was placed in a 10–month DSP program and sustained a

However, according to Assistant Director J. Vanyur's
memorandum, dated November 23, 2005, titled
“309/323 Transfer Procedures”, the procedures
previously issued through his May 11, 2005
memorandum are canceled. Therefore, your unit team
will resubmit a transfer request to the Northeast
Regional Office for review.
(Doc. 1, Ex. 3).
It appears as though the Vanyur Memorandum and its
stated requirement of placing an inmate in the 10–month
DSP program prior to granting a transfer request may have
been erroneously applied to Petitioner since the request for
his transfer was due to the assault on him by another
inmate in June 2005, and it was not initiated by Smith for
any purpose of his own. (Doc. 1, Ex. 3).
Petitioner claims that after he was placed in the DSP
program and housed in the SHU, he addressed
Respondents Lindsay, Karam and Lara during their weekly
rounds to the SHU about the error of placing him in the
SHU since he did not commit any disciplinary infraction
that warranted being kept “in the hole.” (Id., p. 5).
Petitioner states that on September 5, 2005, Respondent
Karam responded to his request for release and stated that
he could not do anything for him. Petitioner states that in
October 2005, he requested a detention order from
Respondent Lara to explain why he was in the SHU, and
his request was ignored until December 2005, when he

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was given a SHU placement review. At this time,
Petitioner was offered a return to general population or he
was told he would be resubmitted for a transfer. (Id.).
Petitioner's Exhibit 3 indicates that he was resubmitted for
a transfer and he was approved for a transfer in December
2005.
As indicated above, Petitioner's initial August 2005
transfer request made by Lindsay was denied pursuant to
Assistant Director Vanyur's Memorandum and Petitioner
claims the guidelines required by the Memorandum did
not apply to him since he was not trying to manipulate a
transfer, but was the victim of an assault. Petitioner states
that he wrote a letter to Vanyur in November 2005, and
that after this letter, he was discharged from the DSP
program in January 2006. Petitioner concludes that he was
denied due process before placement into the SHU and
DSP program since he was not given notice, an
administrative detention order, and a hearing or proper
reviews. (Id.).
*7 As relief, Petitioner requests:
I would like the Court to reverse the judgment of Mr.
D. Scott Dodrill and find that the 10 month disciplinary
placement of petitioner in the Disciplinary Segregated
Housing Program [DSP] was done in violation of Due
Process and established process for prison disciplinary
proceedings. If damages may be awarded petitioner
requests monetary damages of $30,000.
Insofar as Petitioner seeks this Court to retroactively
reverse the August 2005 decision of Respondent Dodrill
and to find that his 10–month placement into the DSP
violated his due process rights, Petitioner seeks
declaratory relief that this was unconstitutional. Petitioner
also seeks monetary damages for his 10–month placement
in the DSP.
Petitioner states that he was directed to amend a civil
rights action he filed in June of 2007, Civil No. 07–1079,
M.D. Pa., and that he was instructed to file a habeas
corpus petition. (Doc. 1, p. 3).
As noted, the District Court dismissed without prejudice
Smith's due process claim regarding his placement in the

SHU at USP–Canaan raised in his Case No. 07–1079, to
re-assert it in a habeas corpus petition. However, based on
Smith's present Petition, it is clear that he is not
challenging a disciplinary punishment in the SHU or
seeking expungement of his prison record as to his
confinement in the SHU. Rather, Smith is seeking money
damages for his past placement in the SHU and DSP
program as a result of alleged negligence by BOP
officials, who may have erroneously applied the Vanyur
Memorandum to Smith's case and to the transfer request
made by Lindsay for Smith. It appears as though Smith
may have been erroneously placed in the 10–month DSP
program as required by the Memorandum, when the
Memorandum may not have applied to him. We find that
this claim is a tort action against the BOP, and not a
proper habeas corpus claim.FN5
FN5. In Smith's 07–1079 Complaint, his due
process claim was not fully stated as it is in his
Habeas Corpus Petition.
Thus, Petitioner states that prior to his placement in
the SHU and the 10–month disciplinary housing program
(“DSP”), he was not given any disciplinary report or
Administrative detention order, and that he was not given
any hearing, or allowed to present evidence as to why he
should not have been placed in the SHU for 10 months.
(Doc. 1, p. 4). Petitioner states that being a victim of an
assault was not a basis to place him in the SHU and the
DSP program.
Petitioner's claims in present habeas petition are that
his Fifth Amendment due process rights were violated due
to his previous 10–month placement in the USP–Canaan
Disciplinary Segregated Housing Program from June 20,
2005 through January 2006. Petitioner seeks declaratory
relief as well as compensatory damages. Petitioner does
not request any relief that would necessarily imply that his
duration in prison would be lessened or that he should be
released from prison. Nor does Petitioner seek release
from the SHU and the DSP, since this occurred over two
years ago. Further, Petitioner does not challenge the
execution of his sentence.
III. Discussion.

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*8 Petitioner essentially claims that his due process
rights were violated with respect to his transfer from
general population into the SHU after he claimed to have
been assaulted by another inmate and with respect to his
subsequent placement into the DSP Program for 10
months.FN6
FN6. Petitioner's present case thus challenges,
for the most part, his past placement in the DSP
Program and his past confinement in the SHU.
As discussed below, we find Petitioner's claim is
a tort claim against the BOP for negligent
application of the Vanyur Memorandum and its
requirements to him.
Initially, we find Petitioner's due process claim should
be dismissed. Further, to the extent that Petitioner is
deemed as claiming that his original transfer requested by
Lindsay was erroneously denied in August 2005 by
Dodrill, and that he was erroneously made to comply with
Vanyur's Memorandum requiring a sustained period of
clear conduct prior to a transfer, since he was not trying to
manipulate a transfer, and he required a transfer due to the
alleged assault on him, this amounts to a tort claim against
federal officials that must be filed via a Federal Tort
Claim Act (“FTCA”) action. Indeed, Dodrill advised
Petitioner of this tort claim in his January 11, 2006
Response to Petitioner, Doc. 1, Ex. 1.
The law is clear that negligence is not a basis for a
civil rights action. It is well-settled that mere negligence is
not an actionable civil rights claim. See Davidsen v.
O'Lone, 752 F.2d 817 (3d Cir.1984); Daniels v. Williams,
474 U.S. 327, 106 S.Ct. 677, 88 L.Ed.2d 662 (1986).
Thus, insofar as Petitioner claims that his August 2005
transfer request was erroneously denied and that he was
erroneously placed in the 10–month DSP Program to show
sustained good conduct prior to being granted a transfer,
Petitioner must file an FTCA action.
The FTCA, and not a Bivens action, is for negligence
claims against employees of the United States. See Federal
Tort Claims Act (“FTCA”), 28 U.S.C. § 1346 and § 2680.
See also Roberts v. Banks, slip op. p. 6, n. 4 FN7 , 2007 WL
3096585 (3d Cir.2007) (Non–Precedential). Further,
Petitioner must exhaust his Administrative remedies with
the BOP by filing a tort claim (SF–95) prior to filing an

FTCA action in District Court.FN8 Id., slip op. p. 5, 2007
WL 3096585, * 2. Thus, we shall recommend that
Petitioner's Habeas Corpus Petition be dismissed without
prejudice to file his claim for negligence against BOP staff
in an FTCA action after he exhausts his administrative
remedies. We also find that the erroneous placement of
Petitioner in the DSP program does not amount to a due
process claim and does not rise to the level of a
Constitutional violation.
FN7. The Banks Court noted, “The District
Court correctly construed Banks' negligence
claim under the FTCA, noting that it could not
consider his negligence claim under Bivens,
because negligence is not the basis of a
constitutional claim. See Bivens, 403 U.S. at 392
(recognizing an implied private action for
damages against federal officers alleged to have
violated a citizen's constitutional rights).” 2007
WL 3096585, * 2, n. 4.
FN8. The provisions of the FTCA govern all
claims against the United States for money
damages for injury or loss of property or
personal injury or death caused by the negligent
or wrongful act or omission of any employee of
the government while acting within the scope of
his office or employment. 28 U.S.C. § 2675(a).
Petitioner here is seeking damages for his 7
month erroneous placement in the DSP program.
Thus, Petitioner is seeking to sue the United
States for negligent conduct of federal employees
occurring during his incarceration in federal
prison. With respect to any FTCA claim, the only
proper party Defendant is the United States, and
not the individually named employees of the
BOP. See 28 U.S.C. § 2679(b) and (d)(1). Thus,
no individual employee of the BOP can be
included in an FTCA action, and only the United
States can be named as Defendant. See Banks,
supra, slip op. p. 6, 2007 WL 3096586, * 2.
To the extent that Petitioner is seeking money
damages for his alleged erroneous placement into the DSP
for 10 months and claims that it violated his due process
rights, this claim sounds more like a civil rights action

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rather than a habeas petition, since the grant of relief will
not shorten Petitioner's term of confinement. Nor will
Petitioner's success on his claim cause him to be released
from SHU confinement since he was released from the
SHU in January 2006. (Id., p. 5). Insofar as Petitioner is
raising a due process claim, as discussed below, we find
that it should be dismissed.
*9 To the extent that Petitioner is challenging his
prior erroneous placement into the DSP Program and
seeks money damages for this negligent conduct, this is an
FTCA claim. Petitioner is not challenging the duration of
his confinement in prison, and he does not seek an order
directing the BOP to release him from prison or from the
SHU. (Doc. 1, p. 4). Thus, Petitioner is not raising a
habeas claim, and his petition should be dismissed without
prejudice to file his negligence claim via an FTCA
action.FN9
FN9. Of course, Smith must exhaust his
Administrative remedies with the BOP by filing
an SF–95 tort claim as Dodrill directed him to do
in January 2006. (Doc. 1, Ex. 1).
The Third Circuit in Leamer v. Fauver, 288 F.3d 532,
542 (3d Cir.2002), stated:
whenever the challenge ultimately attacks the ‘core of
habeas'—the validity of the continued conviction or the
fact or length of the sentence—a challenge, however
denominated and regardless of the relief sought, must
be brought by way of a habeas corpus petition.
Conversely, when the challenge is to a condition of
confinement such that a finding in plaintiff's favor
would not alter his sentence or undo his conviction, an
action under § 1983 is appropriate. (Emphasis added).
Thus, Petitioner's challenge to the duration of his past
confinement in the SHU and erroneous placement into the
DSP program, and his request for money damages, would
not result in a release from confinement. This is not a
claim to be raised a habeas corpus petition. Nor does it
amount to a due process Constitutional claim to be raised
in a civil rights action since no liberty interest of Petitioner
was implicated. Rather, it must be raised in an FTCA
action. A ruling in the Petitioner's favor on this claim

would certainly not alter his confinement, i.e., would not
cause his immediate release from incarceration. Nor would
it cause his release from the SHU since he was discharged
from the DSP program in January 2006.
Further, as in our Report and Recommendation screening
Smith's 07–1079 Complaint, we again do not find that
Petitioner has stated a viable due process claim with
respect to his 10–month placement in the DSP.
Petitioner states that on August 6, 2005, Lindsay directed
that he be transferred from USP–Canaan after the assault
on Petitioner, and that Dodrill denied this request on
August 17, 2005. Petitioner states that he was then placed
in the 10–month DSP pursuant to Vanyur's Memorandum.
Petitioner claims that his 10–month placement into the
DSP without receiving written notice of the reasons, a
hearing, an opportunity to present evidence, a written
decision, and an opportunity to appeal the decision to
place him in the program violated his due process rights
and he seeks compensatory damages for this disciplinary
confinement. Petitioner was released from the program in
January 2006, and subsequently transferred out of
USP–Canaan.
Petitioner claims that the three USP–Canaan Respondents,
Lindsay, Karam, and Lara, are liable since they failed to
address the error of his placement in the DSP program
when he told them about it. Petitioner states that then in
November 2005, he wrote Vanyur and explained to him
why Vanyur's Memorandum did not apply to him, and
how he was erroneously placed in the 10–month DSP
program prior to granting him a transfer. Petitioner states
that Vanyur then rescinded his placement in the 10–month
DSP program. Petitioner claims that prior to his placement
in the 10–month DSP program he was denied due process.
(Id., p. 5).
*10 Since we again find no Constitutional due process
claim is stated by Petitioner with respect to his 10–month
DSP program placement, we shall recommend that the
stated due process claim against the four Respondents be
dismissed. See Meekins v. Beard, 2007 WL 675358
(M.D.Pa.). Further, Petitioner had no Constitutional right
with respect to any particular custody classification in
prison, i.e. general population as opposed to SHU

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confinement while he was placed in the DSP program. See
Wilson v. Horn, 971 F.Supp. 943, 947 (E.D.Pa.1997).
It is now well-settled by this Court that a prisoner's
placement into a program similar to the DSP program,
namely, the SMU program, without procedural due
process safeguards does not state a Constitutional claim.
As this Court recently stated in Meekins, supra at * 3:
“This court has repeatedly found no liberty interest
with respect to claims that due process rights have been
violated by not giving an inmate a hearing prior to
placement in the SMU upon transfer to SCI–Camp Hill.
See Spencer v. Kelchner, Civ. No. 3:06–1099, 2007 WL
88084 slip op. at * 10–* 12 (M.D.Pa. Jan. 9, 2007)
(Kosik, J.); Francis v. Dodrill, 2005 WL 2216582
(M.D.Pa., Sept.12, 2005); Stotts v. Dodrill, Civil No.
04–0043 (M.D.Pa., Feb. 7, 2005). In these cases, the
court has found that an inmate's placement in the SMU
does not implicate his due process rights. In their
motion to dismiss, Defendants also argue that Plaintiff's
due process rights were not implicated as his
confinement in the SMU does not constitute an atypical
and significant hardship.”
Petitioner describes the restrictive conditions in the
SHU he had to endure, i.e. 23 hour per day lock down.
(Doc. 1, p. 4). Petitioner claims that the process in which
he was placed into the DSP program violated his Fifth
Amendment due process rights. As discussed below, we
again find no Fifth Amendment due process claim is
stated.
Specifically, Petitioner alleges that his transfer from
general population and 7–month placement (from June 20,
2005 through January 2006) by Respondents into the DSP
program violated his Fifth Amendment due process rights
because he did not receive advance written notice, a
Administrative order, did not receive a hearing, was not
allowed to present evidence, and had no appeal rights to
challenge this restrictive confinement. Petitioner seeks
monetary damages (i.e., compensatory) of $30,000 for his
placement in the DSP program. As his request for
injunctive relief, Petitioner seeks the Court to retroactively
reverse Dodrill's August 2005 decision regarding his
placement in the DSP program. (Id., p. 4).FN10 Again, we

fail to see how this case is a habeas case since even if the
court granted Petitioner's relief request to retroactively
reverse Dodrill's August 2005 decision regarding his
placement in the DSP program, Petitioner would not be
released from prison any sooner, he would not be released
from the SHU, and his term of confinement would not be
shortened. Further, there is no disciplinary hearing
decision to reverse or expungement of any disciplinary
sentence requested.
FN10. We again note that the decision to place
Petitioner in the DSP program seems to have
been in error. Thus, the appropriate action is an
FTCA suit.
*11 We give preliminary consideration to the Petition
pursuant to Rule 4 of the Rules Governing Section 2254
Cases in the U.S. District Courts, 28 U.S.C. foll. § 2254
(1977) (applicable to § 2241 petitions under Rule 1(b)).
See Patton v. Fenton, 491 F.Supp. 156, 158–59
(M.D.Pa.1979).FN11
FN11. Rule 4 provides in relevant part: “If it
plainly appears from the face of the petition and
any exhibits annexed to it that the petitioner is
not entitled to relief in the district court, the
judge shall make an order for its summary
dismissal and cause the petitioner to be notified.”
Specifically, we find that Petitioner's Fifth
Amendment Due Process claim fails to state a cognizable
§ 1331 claim. We also find that, insofar as Petitioner
claims that he was negligently placed in the DSP program
by erroneous application of the Vanyur Memorandum to
him and his situation as an assault victim, Petitioner must
file an Administrative remedy SF–95 with the BOP, and
then an FTCA action.
As discussed, we do not find any Constitutional due
process claim that the Petitioner has asserted against the
Respondents. Simply because these Respondents were
alleged to be involved in Petitioner's transfer and
placement into the SHU and DSP program, and they
ignored his requests to be released from it does not state
a due process violation, since Petitioner had no liberty
interest implicated with respect to his DSP placement.

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As discussed, we do not find any cognizable Fifth
Amendment Due Process Constitutional claims asserted
against any of the Respondents. This Court has recently
decided two very similar cases to Petitioner's. As stated,
Meekins, 2007 WL 675358, is one such case. Spencer v.
Ravana, 2007 WL 88084 (M.D.Pa.), is the other.
Petitioner alleges that Respondents, through their various
positions with the prison and the BOP, were responsible
for his transfer to the SHU and placement in the DSP
program, and that they were involved in ignoring his
requests for discharge from his placement in the DSP
program. Petitioner alleges that his placement into the
DSP program occurred without affording his due process
rights. Further, to the extent that Petitioner claims that
Respondents violated his due process rights by not giving
him notice and a hearing prior to transferring him to the
DSP program when he was at USP–Canaan, and their
approval or acquiescence in placing him in the DSP, we
find that this Court has repeatedly found no liberty interest
with respect to such claims.
We conclude that, based on this Court's stated recent
cases, as well as Francis v. Dodrill, 2005 WL 2216582
(M.D.Pa.) and Stotts v. Dodrill, Civil No. 04–0043
(M.D.Pa.), Petitioner's placement in the DSP did not
implicate a protected liberty interest and his due process
rights. Therefore, we shall recommend that Petitioner's
Fifth Amendment Due Process claim be dismissed as
against all Respondents.
Petitioner alleges that the stated Respondents violated
his due process rights by placing him in the DSP without
first being given notice, a hearing, and the right to appeal.
This Court has consistently held that placement in a
Special Management Unit does not give rise to atypical
and significant hardships, and that it does not implicate
due process of law. Thus, placement in the DSP program
likewise does not implicate due process of law.
*12 Petitioner claims that he has been made to suffer
atypical hardship without due process due to his
immediate placement in the DSP program after his transfer
directed by Lindsay was denied in August 2005, and that
he was deprived of his liberty in the DSP without a

hearing. Petitioner claims that the Vanyur Memorandum
was erroneously applied to him which required his
10–month placement in the DSP program to show he
could remain infraction free prior to his transfer request
being considered. Petitioner claims that the Memorandum
was erroneously applied to him since his transfer was
requested by Lindsay due to the assault on him by another
inmate, and not due to any attempt by him to manipulate
the BOP's transfer rules. Petitioner seems to claim that the
procedural safeguards of Wolff v. McDonnell, 418 U.S.
539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), were not
followed in his case. Petitioner claims that his placement
in the DSP constitutes an atypical and significant hardship
and implicates his due process rights.
We find that this Court, in the stated cases, has considered
similar claims and has found that an inmate's placement in
the similar SMU program did not implicate an inmate's
due process rights. See Francis, supra at * 3.
Based on this Court's decisions in Francis v. Dodrill,
2005 WL 2216582 (M.D.Pa.), and Stotts v. Dodrill, Civ.
No. 04–0043, M.D. Pa.,FN12 as well as Meekins, supra, and
Spencer, supra, we find that our Petitioner's placement in
the DSP does not implicate his due process rights.
FN12. In Stotts, this Court found that federal
inmates' placement in the SMU following a riot
incident did not violate their due process rights,
that inmates' placement in the SMU was not
punitive in nature, and that inmates were not
entitled to the procedural safeguards.
As this Court in Francis stated:
The defendants also argue that Francis' placement in the
SMU does not implicate his due process rights. We
agree. A due process liberty interest “in avoiding
particular conditions of confinement may arise from
state policies or regulations.” Wilkinson v. Austin, 545
U.S. 209, ––––, 125 S.Ct. 2384, 2393, 162 L.Ed.2d 174
(2005). The Due Process Clause protects a prisoner's
right to “freedom from restraint, which, while not
exceeding the sentence in such an unexpected manner as
to give rise to protection by the Due Process Clause of
its own force, nonetheless imposes atypical and

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significant hardship in relation to the ordinary incidents
of prison life.” Id. at 2394 (quoting Sandin v. Connor,
515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418
(1995)).
The proper focus for determining whether prison
conditions give rise to a due process liberty interest is
the nature of the conditions, not mandatory language in
prison regulations. Sandin, 515 U.S. at 484. In Sandin,
an inmate was charged with violating prison regulations.
Id. at 475. At a hearing, the hearing committee refused
the inmate's request to present witnesses. Id. The
committee found the inmate guilty and sentenced him to
disciplinary segregation. Id. The inmate sought review,
and a deputy administrator found some of the charges
unfounded and expunged his disciplinary record. Id. at
476. Thereafter, the inmate filed suit pursuant to 42
U.S.C. § 1983 for a deprivation of procedural due
process during the disciplinary hearing. Id. The Tenth
Circuit found that he had a protected liberty interest
because it interpreted the prison regulations to require
that the committee find substantial evidence of
misconduct before imposing segregation. Id. at 477. The
Supreme Court reversed, finding no liberty interest. Id.
at 484. In doing so, it rejected an approach that focused
on whether the prison regulations “went beyond issuing
mere procedural guidelines and has used ‘language of
an unmistakably mandatory character’ such that the
incursion on liberty would not occur ‘absent specified
substantive predicates.’ “ Id. at 480 (quoting Hewitt v.
Helms, 459 U.S. 460, 471–72, 103 S.Ct. 864, 74
L.Ed.2d 675 (1983)). The Court found this approach
undesirable because it created a disincentive for prison
administrators to codify prison management procedures
and because it “led to the involvement of federal courts
in the day-to-day management of prisons, often
squandering judicial resources with little offsetting
benefit to anyone.” Id. at 482. Thus, the Court held
liberty interests “will be generally limited to freedom
from restraint which, while not exceeding the sentence
in such an unexpected manner as to give rise to
protection by the Due Process Clause of its own force ...
nonetheless imposes atypical and significant hardship
on the inmate in relation to the ordinary incidents of
prison life.” Id. at 484. In applying this test, the Court
observed, “[discipline by prison officials in response to

a wide range of misconduct falls within the expected
perimeters of the sentence imposed by a court of law.”
Id. at 485. The Court then found that the inmate's
disciplinary segregation “did not present a dramatic
departure from the basic conditions of Conner's
indeterminate sentence” because the conditions of
disciplinary segregation were similar to those faced in
administrative and protective custody. Id. at 486.
*13 In Wilkinson v. Austin, 545 U.S. 209, ––––, 125
S.Ct. 2384, 2393, 162 L.Ed.2d 174,
162 L.Ed.2d 174 (2005), the Court applied the Sandin
test and found that the plaintiff's due process rights were
implicated when he was placed in a program where:
almost all human contact is prohibited, even to the point
that conversation is not permitted from cell to cell; the
light, though it may be dimmed, is on for 24 hours;
exercise is for 1 hour per day, but only in a small indoor
room ... [P]lacement ... is indefinite and, after an initial
30 day review, is reviewed just annually.... [P]lacement
disqualifies an otherwise eligible inmate for parole
consideration.
Id. at 2394–95.
The court found that these harsh conditions “give rise to
a liberty interest in their avoidance.”
Id. at 2395.
Fraise v. Terhune, 283 F.2d 506 (3d Cir.2002) applied
the Sandin test and found that avoiding placement in the
Security Threat Group Management Unit (STGMU) in
the New Jersey prison system is not a protected liberty
interest. Inmates who the prison deemed members of
groups that posed a security threat were placed in the
STGMU. Id. at 509. “An inmate assigned to the
STGMU remains in maximum custody until the inmate
successfully completes a three-phase behavior
modification program.” Id. at 511. The Court found that
despite the additional restrictions, prisoners have no
liberty interest in avoiding placement in the STGMU.
Id.; see also Griffin v. Vaughn, 112 F.3d 703, 706 (3d
Cir.1997) (finding that additional restrictions in
administrative custody for a period of fifteen months

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does not deprive prisoners of protected liberty
interests).
We find that the conditions in the [USP–Lewisburg]
SMU do not remotely approach the severity of the
conditions Wilkinson found to give rise to a protected
liberty interest, and are comparable to the conditions in
cases such as Sandin, Fraise, and Griffin, which found
no protected liberty interest.
Id., pp. *3–*4.
The Francis Court concluded that the restrictions in
the SMU in federal prison were no greater than the
restrictions placed on the inmate in Griffin. Id. * 5. In our
case, Petitioner Smith does not allege any greater
restrictions in the DSP program at USP–Canaan than were
placed on the inmates in Francis.
The Francis Court then stated:
Inmates have no due process right to a facility of their
choosing. Young v. Quinlan, 960 F.2d 351, 358 n. 16
(3d Cir.1992). The Bureau of Prisons retains sole
discretion over where to place an inmate. 18 U.S.C. §
3621. Inmates do, however, have a liberty interest in
avoiding transfer to facilities where the conditions
impose “atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.”
Sandin, 515 U.S. at 484. This is not such a transfer. We
find that these conditions and the conditions overall in
the SMU are reasonable and proportionate to those in
other prisons in the federal system and across the
country and do not impose an atypical and significant
hardship in relation to the ordinary incidents of prison
life. Using restrictions to promote prosocial behavior
falls within the parameters of a sentence imposed by a
court of law. While Francis clearly would prefer not to
be housed in the SMU, his preference is not a liberty
interest protected by the Due Process Clause.
*14 Id.
Further, the Court in Griffin v. Vaughn, 112 F.3d 703,
706 (3d Cir.1997), stated:

Applying the precepts of Sandin to the circumstances
before us, we conclude that the conditions experienced
by Griffin in administrative custody did not impose on
him “atypical and significant hardship,” that he was thus
deprived of no state created liberty interest, and that he
failure to give him a hearing prior to his transfer to
administrative custody was not a violation of the
procedural due process guaranteed by the United States
Constitution.
The Griffin Court concluded that, considering the
reasons to transfer inmates from general population to
administrative custody, such as inmates deemed to be
security risks, stays in administrative custody for many
months (i.e. as long as 15 months) are not uncommon. Id.
at p. 708. Thus, the Griffin Court held that the inmate
Griffin's transfer to and confinement in administrative
custody “did not deprive him of a liberty interest, and that
he was not entitled to procedural due process protection.”
Id.
Moreover, this Court in Francis, supra at * 2, stated
that “A violation of the Due Process Clause involves the
following three elements: ‘1) the claimant must be
‘deprived of a protectable interest; 2) that deprivation
must be due to some governmental action; and 3) the
deprivation must be without due process.’ ” (citation
omitted). The Francis Court, as stated, found that
placement of its Plaintiff, a federal inmate at
USP–Lewisburg, in the SMU did not implicate his due
process rights. Id. * 3. Based on Griffin and Francis, as
well as Meekins and Spencer, Petitioner Smith's placement
in the SHU and DSP program from June 2005 through
January 2006, about 7 months, does not give rise to a
protected liberty interest. See Keys v. Commonwealth of
Pennsylvania Department of Corrections, et al.,
3:CV–07–0338, M.D. Pa. Therefore, we will recommend
that Petitioner Smith's Fifth Amendment Due Process
claim be dismissed as against all Respondents.
Thus, we shall recommend that the stated four
Respondents be dismissed. We shall recommend that
Petitioner's Habeas Corpus Petition be dismissed without
prejudice to re-file his negligence claim in an FTCA
action after Petitioner exhausts his BOP administrative
remedies. Additionally, we will recommend that

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Page 15
Not Reported in F.Supp.2d, 2009 WL 62175 (M.D.Pa.)
(Cite as: 2009 WL 62175 (M.D.Pa.))

Petitioner's Fifth Amendment Due Process claim be
dismissed.FN13
FN13. Notwithstanding Smith's pro se status, we
do not recommend that he be permitted to amend
his Complaint regarding his due process claim
for which we recommend dismissal, since we
find that, based on well-settled case law, he fails
to state such a claim. Thus, we find futility of any
amendment of this claim, and we shall not
recommend Petitioner be granted leave to amend
his action with respect to the due process claim
that is found subject to dismissal. See Forman v.
Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9
L.Ed.2d 222 (1982); Shane v. Fauver, 213 F.3d
113, 115 (3d Cir.2000) (The futility exception
means that a complaint, as amended, would fail
to state a claim upon which relief can be
granted); Alston v. Parker, 363 F.3d 229, 236
(3d Cir.2004).
IV. Recommendation.
Based on the foregoing, it is respectfully
recommended that Smith's Habeas Corpus Petition be
dismissed and that the stated four Respondents be
dismissed. It is also recommended that Petitioner's
negligence claim raised in his Habeas Corpus Petition be
dismissed without prejudice to file it in an FTCA action
after Petitioner exhausts his Administrative remedies.
Additionally, it is recommended that Petitioner's Fifth
Amendment Due Process claim be dismissed. Further, we
recommend that Petitioner's in forma pauperis motion be
granted solely with respect to the filing of this action.
M.D.Pa.,2009.
Smith v. Dodrill
Not Reported in F.Supp.2d, 2009 WL 62175 (M.D.Pa.)
END OF DOCUMENT

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