Tinsley v. Bittenbender

Filing 4

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 1/31/17. (Attachments: # 1 Unpublished Opinion(s))(bs)

2007 WL 1650579
Only the Westlaw citation is currently available.
United States District Court,
M.D. Pennsylvania.
Richard VIEUX, Plaintiff,
v.
Joseph SMITH, Warden, et al., Defendants.
Civil No. 4:07-CV-299.
|
June 5, 2007.
Attorneys and Law Firms
Richard Vieux, USP-Lewisburg, Lewisburg, PA, pro se.

MEMORANDUM

JOHN E. JONES, III, United States District Judge.

THE BACKGROUND OF THIS MEMORANDUM IS AS
FOLLOWS:
*1 Pending before this Court is a Report (doc. 8) issued by
Magistrate Judge Thomas M. Blewitt (“the Magistrate Judge”
or “Magistrate Judge Blewitt”), on April 2, 2007, that
recommends: 1) Plaintiff Richard Vieux's action be dismissed
for failure to state a claim; and 2) Plaintiff's Motion for
Temporary/Permanent Injunction (“the Motion”) (doc. 2),
filed on February 15, 2007, be dismissed as moot. For the
reasons that follow, we will adopt the learned Magistrate
Judge's Report in its entirety and dismiss Plaintiff's Motion as
moot.

PROCEDURAL HISTORY:
On or about February 15, 2007, Plaintiff Richard Vieux
(“Plaintiff or “Vieux”) filed this pro se Bivens action in the
United States District Court for the Middle District of
Pennsylvania.1 Plaintiff named as Defendants three (3)
specific individuals employed by the Bureau of Prisons
(“BOP”) at the United States Penitentiary at Lewisburg
(“USP-Lewisburg”),2 as well as unknown John Doe
Defendants. (Rec.Doc.1). On February 15, 2007, Plaintiff
filed the instant Motion. (Rec.Doc.2).

Pursuant to the screening procedure required by 28 U.S.C. §
1915A for Complaints filed by inmates such as Plaintiff, and
after review of Plaintiff's Complaint, on April 2, 2007,
Magistrate Judge Blewitt issued a Report recommending: 1)
Plaintiff's claims be dismissed for failure to state a claim; and
2) Plaintiff's Motion (doc. 2) be dismissed as moot.
(Rec.Doc.8). On April 16, 2007, Plaintiff filed his Objections
to Magistrate Judge Blewitt's Report, and his supporting brief.
(Rec.Docs.9-10). Thus, this matter is ripe for disposition.

STANDARD OF REVIEW:
When objections are filed to a report of a magistrate judge,
we make a de novo determination of those portions of the
report or specified proposed findings or recommendations
made by the magistrate judge to which there are objections.
See United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406,
65 L.Ed.2d 424 (1980); see also 28 U.S.C. § 636(b)(l); Local
Rule 72.31. Furthermore, district judges have wide discretion
as to how they treat recommendations of a magistrate judge.
See id. Indeed, in providing for a de novo review
determination rather than a de novo hearing, Congress
intended to permit whatever reliance a district judge, in the
exercise of sound discretion, chooses to place on a magistrate
judge's proposed findings and recommendations. See id., 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).

FACTUAL BACKGROUND:
In his Report and Recommendation (“Report”), Magistrate
Judge Blewitt summarizes the relevant factual background of
the instant action based on his reading of the parties'
submissions. (Rec.Doc.8). Although we agree with the
Magistrate Judge's factual summary, taken in large part from
Plaintiff's Complaint (doc. 1), we will review briefly the most
pertinent portions thereof.3

On December 7, 2003, an Incident Report was issued
charging Plaintiff with attempting to bring contraband,
namely unauthorized eyeglasses, into USP-Lewisburg's
visiting room. Plaintiff admitted the violation, and as a result,
on December 14, 2003, an Administrative Detention Order
issued detailing: 1) the Incident Report; 2) the decision to find
Plaintiff guilty; and 3) the sanctions to be imposed upon
Plaintiff.

*2 In June 2004, Plaintiff's name was submitted by Defendant
Hoekman for security clearance to become a photographer in
USP-Lewisburg's visiting room. On July 8, 2004, a security
clearance memorandum regarding Plaintiff's photographer
work assignment was approved. Thus, on July 14, 2004,

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Plaintiff began his work detail as a visiting room
photographer.

In February 2005, after working as a visiting room
photographer for eight (8) months, Defendant Eddenger
advised Plaintiff that he was losing said work detail because
of his 2003 Incident Report Conviction. Plaintiff was also
advised that the decision was made by Defendant Smith.

Plaintiff claims that he attempted to speak with his supervisor,
Defendant Hoekman, and Defendant Smith regarding his
removal from the visiting room photographer work detail in
February 2005, but Defendant Hoekman was not available.
Subsequently, on March 5, 2005, Plaintiff discussed his 2003
Incident Report Conviction with Defendants Hoekman and
Smith. Plaintiff was told by Defendant Smith that he would
not get said work detail back due to the 2003 Incident Report
Conviction.

Plaintiff further contends that he performed well his work
detail during the approximately eight (8) months between his
commencement thereof and Defendants' removal of him
therefrom. Plaintiff also claims that he had a legitimate
expectation to be allowed to continue his work assignment,
and that his arbitrary removal from such by the Warden
violated his due process and equal protection rights.4

Thus, as alluded to above, in the instant action, Plaintiff
asserts two (2) types of claims: Count I alleges Due Process
claims, and Count II alleges Equal Protection claims.
(Rec.Doc.1). With respect to Count I, Plaintiff claims that
Defendants arbitrarily removed him from his photographer
work assignment despite him being approved for it, and given
security clearance, while still under sanctions for the 2003
Incident Report Conviction. Plaintiff further claims that he
had a reasonable and legitimate expectation of continued
participation in the photographer job in the visiting room, and
that he was punished a second time by Defendants for the
2003 Incident Report Conviction when he was removed from
his photographer job. With respect to Count II, Plaintiff
claims that Defendants violated his equal protection rights
“when they arbitrarily and capriciously removed Plaintiff
from his legitimate entitlement of continual participation in
the visiting room work detail.” (Rec.Doc.1).

Accordingly, in his Complaint, Plaintiff seeks compensatory
damages in the amount of $800 against each Defendant with
respect to Count I and $500 against each Defendant with
respect to Count II. (Rec.Doc.1). Plaintiff also seeks punitive
damages in the amount of $8,500 against each Defendant. 5

(Rec.Doc.1).

Simultaneous with his filing of the Complaint, Plaintiff also
filed the instant Motion (doc. 2) seeking an Order from this
Court enjoining, until this action is resolved, Defendants from
transferring him to another prison as retaliation for his filing
his civil rights action.

DISCUSSION:
*3 Plaintiff objects to the Magistrate Judge's
recommendations that Plaintiff's due process and equal
protection claims be dismissed. (Rec.Doc.10). Further,
Plaintiff objects to the Magistrate Judge's recommendation
that Plaintiff's Motion (doc.2) be dismissed as moot. In his
support of said Objections, Plaintiff argues that the Magistrate
Judge misapprehended the nature and circumstances of the
events that led to these proceedings. (Rec.Doc.9). Thus,
Plaintiff essentially argues that Defendants created
circumstances that deprived Plaintiff of his Constitutional
rights. (Rec.Doc.10). We will consider in turn the learned
Magistrate Judge's recommendations, as well as Plaintiff's
Objections, regarding Plaintiff's claims.

A. Plaintiffs Due Process Claims
In Count I, Plaintiff alleges that his Due Process rights were
violated by Defendants when they arbitrarily removed him
from his job as a photographer in USP-Lewisburg's visiting
room without just cause, and without charging him with any
BOP violation. Plaintiff claims that he had a “legitimate
entitlement of continual participation in the visiting room
work detail,” and that the deprivation of his job is a violation
of his liberty and property interests under the Due Process
Clause of the Fifth Amendment. (Rec .Doc. 1).

We find Plaintiff's arguments unavailing for several reasons.
First, an inmate's assignment to a work detail does not
implicate either a liberty or a property interest. Indeed, an
inmate has no recognizable Constitutional right to a particular
prison job.6 See Wright v. O'Hara, 2002 WL 1870479, at *5
(E.D.Pa.2002) (‘ “We do not believe that an inmate's
expectation of keeping a particular prison job amounts to
either a property or liberty interest entitled to protection under
the due process clause.’ “ (internal citations omitted))
(quoting Bryan v. Werner, 516 F.2d 233, 240 (3d Cir.1975)).
Moreover, “it is uniformly well established throughout the
federal circuits that an inmate's expectation of keeping a
specific prison job, or any job, does not implicate a property
interest.” See Cummings v. Banner, 1991 WL 238140, at *5
(E.D.Pa.1991) (citing James v. Quinlan, 866 F.2d 627, 630
(3d Cir.1989); Brian v. Werner, 516 F.2d 233, 240 (3d
Cir.1975); Gibson v. McEvers, 631 F.2d 95, 98 (7th

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Cir.1980)). Thus, Plaintiff's removal from his visiting room
photographer work detail based on his conviction for a prior
incident in which he introduced contraband into the visiting
room does not implicate any protected Constitutional right.

Second, BOP policy neither affords a property or liberty
interest to Plaintiff nor confers any Constitutional right to any
inmate. Recently the Third Circuit clearly stated that “agency
interpretative guidelines do not give rise to the level of a
regulation and do not have the effect of law.” Mercy Catholic
Med. Ctr. v. Thompson, 380 F.3d 142, 154 (3d Cir.2004).
Thus, despite Plaintiff's alleged compliance with BOP rules
during the eight (8) months that he was the photographer in
USP-Lewisburg's visiting room, BOP policy can not and does
not confer a Constitutional right upon Plaintiff.

*4 Third, affording relief to Plaintiff based upon the instant
action would essentially require this Court to find that
Plaintiff was not a security risk while working as visiting
room photographer, and we simply are not willing to do so.
Courts give significant deference to the judgments of prison
officials regarding prison regulations and administration, and
generally do not interfere with prison administration matters,
such as a prison's decision to place or not to place a plaintiff
in a particular prison job. See Fraise v. Terhune, 283 F.3d
506, 515 (3d Cir.2002). Here, we find deference to
USP-Lewisburg's decision to terminate Plaintiff's employment
as a visiting room photographer particularly warranted given
Plaintiff's previous conviction for trying to bring contraband
into the visiting room.

either direct or circumstantial evidence. See Pennsylvania v.
Flaherty, 983 F.2d 1267 (3d Cir.1993); Williams v.
Pennsylvania State Police, 108 F.Supp.2d 460, 471
(E.D.Pa.2000). Here, Plaintiff has not alleged that Defendants
treated him differently than other similarly situated inmates
based on his race, gender, or nationality. (See Rec. Doc. 1).
Further, Plaintiff has not alleged that Defendants were
motivated by a discriminatory intent with respect to Plaintiff's
allegations. Indeed, Plaintiff himself states his removal was
due to the 2003 Incident Report Conviction, and not because
of race, gender, or nationality. (Rec.Doc.1). Thus, Plaintiff
has not alleged any facts from which it can be concluded that
Defendants engaged in intentional or purposeful
discrimination, or that Plaintiff was treated any differently by
Defendants than similarly situated persons on the basis of
race, gender, or nationality. Therefore, Plaintiff does not state
cognizable Equal Protection claims.

Accordingly, we accept that portion of the Magistrate Judge's
Report that recommends dismissal of the Equal Protection
claims as against all Defendants, including the unnamed John
Doe Defendant(s).8

In conclusion, we will adopt the Magistrate Judge's Report in
its entirety, and dismiss the instant action.9 In addition,
because Plaintiff cannot show any likelihood of success on
the merits of either of his claims, we will also dismiss
Plaintiff's Motion (doc. 2) as moot.

*5 An appropriate Order shall issue.
Accordingly, we accept that portion of the Magistrate Judge's
Report that recommends dismissal of the Due Process claims
as against all Defendants, including the unnamed John Doe
Defendant(s).7

REPORT AND RECOMMENDATION

THOMAS M. BLEWITT, United States Magistrate Judge.
B. Plaintiffs Equal Protection Claims
In Count II, Plaintiff alleges that his equal protection rights
were violated by Defendants “when they arbitrarily and
capriciously removed Plaintiff from his legitimate entitlement
of continual participation in the visiting room work detail” as
photographer. (Rec.Doc.1). Plaintiff alleges that Defendants
violated the Equal Protection Clause because they approved
him for said job despite his 2003 Incident Report Conviction.
(Rec.Doc.8).

Once again, we find Plaintiff's arguments unpersuasive. As
Magistrate Judge Blewitt notes, the elements of Equal
Protection claims require plaintiffs to state that defendants
intended to discriminate against them, and later prove this by

I. Background.
The Plaintiff, Richard Vieux, an inmate at the United States
Penitentiary at Lewisburg (“USPLewisburg”), Lewisburg,
Pennsylvania, filed, pro se, this Bivens1 action pursuant to 28
U.S.C. § 1331, on February 15, 2007. Plaintiff names as
Defendants with respect to his Bivens action three (3)
individuals employed by the Federal Bureau of Prisons
(“BOP”) at USP-Lewisburg, namely Warden Joseph Smith,
Ray Hoekeman, Special Investigator Administrator, and
Matthew Eddenger, Special Investigation Supervisor. Plaintiff

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also names unknown John Doe Defendants. (Doc. 1, pp. 1-3).
Plaintiff sues all Defendants in their individual capacities.
(Id., p. 3, ¶ 7.). Plaintiff has paid the filing fee. (Docs. 6 & 7).

Plaintiff claims that the individual Defendants violated his
due process and equal protection rights when they arbitrarily
discontinued his participation in his legitimate entitlement to
a prison work assignment as a photographer with the visiting
room work detail to take photos of inmates and their visitors.
(Id., p. 2).

II. Allegations of Complaint.
Specifically, Plaintiff alleges that in June 2004, while he was
still under sanctions from a December 2003 incident report
for which he was convicted of attempting to have
unauthorized eyeglasses brought into the prison's visitation
room, which violation he admits he committed, his name was
submitted by Defendant Hoekman for security clearance to
become a photographer in the prison's visiting room.
Plaintiff's Exhibit A attached to his pleading is a copy of the
Administrative Detention Order dated December 14, 2003
issued as a result of the incident report charging Plaintiff with
attempting to bring in contraband to the visiting room and the
December 7, 2003 Incident Report. Exhibit B is a copy of the
DHO's Report regarding the stated incident report and
decision finding him guilty and sanctioning him. Plaintiff
states that the security clearance memo, with respect to his
photographer work assignment, was approved in July 2004.
Plaintiff attaches to his Complaint as Exhibit C a copy of the
July 8, 2004 Memo approved by Defendant Hoekman.
Plaintiff then received photography training, as well as
security clearance, and began his visiting room photographer
work detail on July 14, 2004. (Id., pp. 3-5). Plaintiff states
that he was later allowed to also become a photographer for
the general population, and that he then became the lead
photographer. (Id.).

After about eight months (July 2004-February 2005), Plaintiff
avers that Defendant Eddenger advised him that he was losing
his photographer job with the visitation work detail because
of Defendant Warden Smith's decision, which was based on
Plaintiff's 2003 incident report conviction. (Id., p. 5). Plaintiff
states that he was already sanctioned for the 2003 incident
report, which he admittedly committed. Plaintiff concedes
that his due process rights were afforded to him with respect
to the 2003 incident report and conviction. Plaintiff states
that, despite still being on sanctions for the 2003 incident
report, he was nonetheless cleared for the visiting room
photographer job. (Id., pp. 3-5). Plaintiff states that he tried
to speak with his supervisor, Defendant Hoekman, and
Warden Smith about his removal from the photographer job
in February 2005, but Hoekman was not available. (Id., p. 5).

Plaintiff avers that on March 2, 2005, he went back to speak
with Defendant Smith and Defendant Hoekman, and his 2003
Incident Report was discussed. Defendant Smith told Plaintiff
that he would never get the photography work detail back due
to the 2003 incident. (Id., p. 6, ¶ 21.). Plaintiff claims that his
due process and equal protection rights were violated by
Defendants for removing him from the photographer job.

*6 Plaintiff states that he exhausted his BOP Administrative
remedies with respect to his present claim. (Id., pp. 6-7).
Plaintiff's Exhibit D consists of copies of his Administrative
remedy request and responses from the BOP.

Plaintiff asserts two claims, Count I for Due Process
violations, and Count II for Equal Protection violations. With
respect to Count I, Plaintiff avers that Defendants arbitrarily
removed him from his photographer work assignment even
though he was approved for it and given security clearance
despite being on sanctions for the 2003 Incident Report
conviction. (Id., p. 8). Plaintiff avers that he had a reasonable
and legitimate expectation of continued participation in the
photographer job in the visiting room, especially since he was
promoted due to his good performance for 8 months. Plaintiff
claims that he was punished again by Defendants for the 2003
Incident Report when they removed him from the
photographer job. (Id., pp. 8-9). Plaintiff claims that this
amounted to disciplinary action that was arbitrary and
capricious.

In Count II, Plaintiff claims that Defendants violated his equal
protection rights “when they arbitrarily and capriciously
removed Plaintiff from his legitimate entitlement of continual
participation in the visiting room work detail.” (Id., p. 10, ¶
35.). Plaintiff also states:
In other words, the approval and authorization by the
Defendants for Plaintiff to work in the visiting room when
they known (sic) or should have known about the 2003
Incident and or Plaintiff being on sanctions at the time of the
approval and authorization is substantive evidence of the
manufactured “security issue: and thus being partial and
inconsistent (arbitrary and capricious), that is, violating
Plaintiff's Equal Protection rights as prescribed under the
Federal Constitution.
(Id., ¶ 36.).

As relief, Plaintiff seeks compensatory damages in the amount
of $800 against each Defendant with respect to Count I and
$500 against each Defendant with respect to Count II. (Id., p.

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11). Plaintiff also seeks punitive damages of $8,500 against
each Defendant. Plaintiff's relief requests for specific amounts
of monetary damages should be stricken from the Complaint.
Since Plaintiff seeks unliquidated damages, he cannot claim
a specific sum of relief. Pursuant to Local Rule 8.1, M.D. Pa.,
Plaintiff's requests for specific monetary damages (Doc. 1, p.
1, ¶ 's 39.-40.) should be stricken from his Complaint. See
Stuckey v. Ross, Civil No. 05-2354, M.D. Pa., 1-9-06 Order,
J. McClure.

Plaintiff has also filed a Motion for Temporary/Permanent
Injunction seeking the Court to enjoin Defendants from
transferring him to anther prison as retaliation for his filing
his civil rights action, until his case is resolved. (Doc. 2). In
his Injunction Motion, Plaintiff avers, without any
substantiation, that Defendants will try to win this case “by
any means necessary” and “will strive to transfer Plaintiff to
another federal facility to deprive Plaintiff of the benefits of
being in this Court's jurisdiction....” (Doc. 2, p. 6).

*7 In July 2004, Plaintiff states that he commenced
performing his work assignment in the visiting room as
photographer and that he continued to do this job well for
about 8 months until Defendants arbitrarily decided to remove
him form this job. Plaintiff claims that he had a legitimate
expectation to be allowed to continue to have his work
assignment and that his arbitrary removal by the Warden of
his prison work detail violated his due process and equal
protection rights. Plaintiff also states that he exhausted his
administrative remedies regarding his present claims and his
exhibits indicated that he received a final denial from the
Bureau of Prisons (“BOP”) on August 31, 2005. (Doc. 1, Ex.
D last page).2

This case is construed as a Fifth Amendment due process
claim of arbitrary removal from prison job without
justification, and an Equal Protection claim for arbitrarily
removing Plaintiff from his prison job and depriving him of
his legitimate entitlement of continued participation in the
photographer job in the visiting room. Plaintiff also claims
that Defendants manufactured a security issue when they
knew about the 2003 incident report and cleared him for the
job. (Doc. 1, p. 10).

III. PLRA.
Notwithstanding Plaintiff's payment of the filing fee, the
Prison Litigation Reform Act of 1995 (the “PLRA”) 3
obligates the Court to engage in a screening process.4
Specifically, even though Plaintiff paid the filing fee for a
civil rights action, we must still screen his complaint pursuant
to 28 U.S.C. § 1915A. See Vega v. Kyler, C.A. No. 03-1936

(3d Cir.2004) 2004 WL 229073 (Nonprecedential) (If
prisoner pays filing fee, civil rights complaint is subject to
review under 28 U.S.C. § 1915A(b) and not 28 U.S.C. §
1915(e)(2)(B)).

Section 1915A provides:
(a) Screening.-The court shall review, before docketing if
feasible or, in any event, as soon as practicable after
docketing, a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or
employee of a governmental entity.
(b) Grounds for dismissal.-On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of
the complaint, if the complaint-

(1) is frivolous, malicious, or fails to state a claim upon which
relief may be granted; or

(2) seeks monetary relief against a defendant who is immune
from such relief.

In reviewing the complaint under 28 U.S.C. § 1915A(b), we
have determined that the Plaintiff does not state the personal
involvement of any John Doe Defendant with respect to either
of his claims. We also find that Plaintiff's due process claim
regarding his removal from his photographer job without any
basis as against all Defendants should be dismissed since
Plaintiff has not implicated a property or liberty interest with
respect to his prison job. Thus, we find that Plaintiff's Bivens
action, based on the face of his pleading, fails to state a Fifth
Amendment claim. We find that Plaintiff has failed to state an
equal protection claim as well. We also find that under §
1915A(b)(2), the Plaintiff cannot proceed as against the John
Doe Defendants since such Defendants cannot be served, and
since there is no personal involvement in Plaintiff's removal
from his prison job alleged with respect to any unnamed
Defendant or Defendants. Thus, we shall recommend that the
John Doe Defendant(s) be dismissed. Further, we find no
personal involvement of any Defendants is alleged with
respect to Plaintiff's speculative Injunction Motion and his
retaliatory transfer claim. We also find that Plaintiff has failed
to state any constitutional claim and that he cannot show
likelihood of success on the merits of his claims. Therefore,
we shall recommend that Plaintiff's Injunction Motion be
dismissed as moot. (Doc. 2).

IV. Motion to Dismiss Standard.

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*8 In considering whether a pleading states an actionable
claim, the court must accept all material allegations of the
complaint as true and construe all inferences in the light most
favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). A complaint
should not be dismissed 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, 44-46, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957); Ransom v. Marrazzo, 848 F.2d 398, 401
(3d Cir.1988). A complaint that sets out facts which
affirmatively demonstrate that the plaintiff has no right to
recover is properly dismissed without leave to amend. Estelle
v. Gamble, 429 U.S. 97, 107-108, 97 S.Ct. 285, 50 L.Ed.2d
251 (1976).

V. Bivens.
Under Bivens, the District Court has federal question
jurisdiction pursuant to 28 U.S.C. § 1331 to entertain an
action brought to redress alleged federal constitutional or
statutory violations by a federal actor under Bivens, supra.
Pursuant to Bivens, “a citizen suffering a compensable injury
to a constitutionally protected interest could invoke the
general federal question jurisdiction of the district court to
obtain an award of monetary damages against the responsible
federal official.” Butz v. Economou, 438 U.S. 478, 504, 98
S.Ct. 2894, 57 L.Ed.2d 895 (1978). A Bivens-style civil rights
claim is the federal equivalent of an action brought pursuant
to 42 U.S.C. § 1983 and the same legal principles have been
held to apply. See, Paton v. LaPrade, 524 F.2d 862, 871 (3d
Cir.1975); Veteto v. Miller, 829 F.Supp. 1486, 1492
(M.D.Pa.1992); Young v. Keohane, 809 F.Supp. 1185, 1200
n. 16 (M.D.Pa.1992). In order to state an actionable Bivens
claim, a plaintiff must allege that a person has deprived him
of a federal right, and that the person who caused the
deprivation acted under color of federal law. See West v.
Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40
(1988); Young v. Keohane, 809 F.Supp. 1185, 1199
(M.D.Pa.1992).

VI. Discussion.
1. Fifth Amendment Due Process Claim
As discussed, Plaintiff alleges that the individual Defendants
arbitrarily removed him from his prison job as a photographer
without any just cause or without charging him with any BOP
violation. Plaintiff also indicated that he was approved for the
visitation work detail as a photographer and that Defendant
Eddenger informed Plaintiff of this and agreed to place him
in this position despite still being under sanctions with respect
to his 2003 incident report conviction. Plaintiff states that this
Defendant told him not to “screw him over” after he was
approved for the prison job. (Doc. 1, pp. 4-5, ¶ 15.). Plaintiff

claims that Defendants placed him in the visitation work
detail as a photographer and were aware of his 2003 incident
report conviction, and that after about 8 months of
successfully performing the job and after promotion to lead
photographer, they removed him from this position without a
hearing and without just cause.

*9 Plaintiff indicates that after he met with Defendants Smith
and Hoekman about his removal, the Warden told him he
would never get the work detail back due to the 2003
incident. (Id., pp. 5-6).

Plaintiff fails to implicate any property interest or liberty
interest with respect to his claim that the Defendants
arbitrarily removed him from his job with the visitation detail
as a photographer even though he claims it was a second
sanction for the 2003 incident report. Plaintiff claims that
Defendants could not simply remove him from the
photographer job as a result of a prior incident for which he
had been convicted and sanctioned, and of which Defendants
were aware when they approved him for the work detail.
Plaintiff claims that Defendants violated his due process
rights by removing him from his photographer job following
his 8-month successful participation in the work detail due to
the December 2003 incident for which he had already been
sanctioned. Plaintiff states that after being advised of his
removal he met with the Warden and Defendant Hoekman
regarding the authorization for his removal, and he was told
by the Warden that he would never get the job detail back due
to the 2003 incident. (Id., p. 6). Plaintiff seems to claim that
he could not have been removed from his prison job without
charging him with an offense and without giving him any
hearings. The Plaintiff states that the Defendants violated his
rights by arbitrarily causing him to lose his prison job. An
inmate's assignment to a work detail, does not implicate a
liberty interest.

The Plaintiff has not alleged that he had a “protected liberty
interest” that was infringed by the Defendants' actions.
“[T]hese interests will generally be limited to freedom from
restraint which, while not exceeding the sentence in such an
unexpected manner as to give rise to 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.”Sandin v. Conner, 515 U.S. 472, 484,
115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). “[T]he baseline for
determining what is ‘atypical and significant’-the ‘ordinary
incidents of prison life’-is ascertained by what a sentenced
inmate may reasonably expect to encounter as a result of his
conviction in accordance with due process of law.'' Griffin v.
Vaughan, 112 F.3d 703, 706 (3d Cir.1997) quoting Sandin,
515 U.S. at 486. In Griffin, the Court found that confinement

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of a prisoner in restrictive housing for fifteen (15) months did
not implicate a constitutionally protected liberty interest.

inmate's behavior. However, he states that disciplinary action
may not be arbitrary and capricious. (Id., pp. 8-9).

Based on Sandin and Griffin, the Plaintiff's Complaint as
against Defendants fails to state a claim, since the removal of
Plaintiff from his visiting room photographer job, which was
based on his conviction from a prior incident report in which
he was convicted of introducing contraband in the visiting
room, did not give rise to a protected liberty interest. Further,
no liberty interest is implicated by the Plaintiff because he
had no right to a particular prison job. It is well-settled that an
inmate has no recognizable constitutional right to a particular
prison job. See Wright v. O'Hara, 2002 WL 1870479, *5
(E.D.Pa.).

We find the BOP policy does not provide a property interest
to Plaintiff and does not confer any constitutional right to an
inmate.5

*10 We also find that the Plaintiff is requesting relief in the
form of Court intervention and management while he is in
prison, i.e. a finding that Plaintiff was not a security risk for
being the visiting room photographer when he was previously
convicted of an incident in which he tried to bring contraband
into the visiting room. The Court will not generally interfere
with prison administration matters such as the prison's
decision to place or not to place Plaintiff in a particular prison
job. The Court should give significant deference to judgments
of prison officials regarding prison regulations and prison
administration. See Fraise v. Terhune, 283 F.3d 506 (3d
Cir.2002).

The Plaintiff avers that the Defendants' conduct caused him
to be removed from his prison job without cause and to lose
his position as photographer with the visitation work detail.

Plaintiff states that deprivation of his prison photographer job
is a violation of his liberty and property interests under the
due process clause of the Fifth Amendment. As mentioned,
Plaintiff avers that he had a “legitimate entitlement of
continual participation in the visiting room work detail.” (Id.,
p. 10, ¶ 35.). “To have a property interest in a benefit, a
person clearly must have more than an abstract need or desire
for it. He must have more than a unilateral expectation of it.
He must, instead have a legitimate claim of entitlement to it.”
Quinlan v. James, 866 F.2d 627, 630 (3d Cir.1989)(quoting
Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701,
33 L.Ed.2d 548 (1972)). Property interests are not created by
the Constitution. “Rather, they are created and their
dimensions are defined by existing rules or understanding that
stem from an independent source such as state law rules or
understanding that secure certain benefits and that support
claims of entitlement to those benefits.” Id. Plaintiff argues
that the BOP Policy mandates that staff take disciplinary
action against inmates at such time and degree to regulate

A policy manual does not have the force of law and does not
rise to the level of a regulation. Mercy Catholic Med. Ctr. v.
Thompson, 380 F.3d 142, 154 (3d Cir.2004). Recently, the
Third Circuit clearly stated “that the agency interpretive
guidelines do not give rise to the level of a regulation and do
not have the effect of law.” Id. Further, a violation of an
internal policy does not automatically rise to the level of a
Constitutional violation. Whitcraft v. Township of Cherry
Hill, 974 F.Supp. 392, 398 (D.N.J.1996)(citing Daniels v.
Williams, 474 U.S. 327, 332-33, 106 S.Ct. 662, 665-66, 88
L.Ed.2d 662 (1986); Edwards v. Baer, 863 F.2d 606, 608
(8th Cir.1988); Jones v. Chieffo, 833 F.Supp. 498, 505-506
(E.D.Pa.1993)).

*11 Plaintiff states that he followed all BOP rules while he
was on the work assignment and that he was promoted due to
his performance. Thus, Plaintiff states that he was “given the
reasonable and legitimate entitlement (expectation) of
continual participation....” (Id., p. 8). We find the BOP policy
does not afford an inmate Constitutional rights. Plaintiff's
contention that the BOP policy creates a property interest is
unfounded. The Plaintiff has no constitutional right to a
prison job. See Padilla v. Beard, 2006 WL 1410079
(M.D.Pa.).

With respect to Plaintiff's claim that he is being deprived of
a prison job by being removed arbitrarily due to his 2003
incident report conviction, of which Defendants were aware
and nonetheless approved him to obtain the job, he has failed
to claim a deprivation of a protected property interest. As the
Court in Cummings v. Banner, 1991 WL 238140 *5,
E.D.Pa.1991, stated:
It is uniformly well established throughout the
federal circuits that an inmate's expectation of
keeping a specific prison job, or any job, does
not implicate a property interest under the
fourteenth amendment. James v. Quinlan, 866
F.2d 627, 630 (3d Cir.1989). See also Brian v.
Werner, 516 F.2d 233, 240 (3d Cir.1975)
(inmates expectation of keeping job is not a
property interest entitled to due process
protection); Gibson v. McEvers, 631 F.2d 95,

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7

98 (7th Cir.1980) (prisoner's expectation of
keeping prison job does not amount to a
property interest entitled to due process
protection); Adams v. James, 784 F.2d 1077,
1079 (11th Cir.1986) (assignment to job as
law clerk does not invest inmate with a
property interest in continuation as such);
Ingram v. Papalia, 804 F.2d 595, 596 (10th
Cir.1986) (Constitution does not create a
property interest in prison employment);
Coakley v. Murphy, 884 F.2d 1218, 1221 (9th
Cir.1989) (no constitutional right to
continuation in work release program to
implicate property interest under fourteenth
amendment); Flittie v. Solem, 827 F.2d 276,
279 (8th Cir.1987) (inmates have no
constitutional right to be assigned a particular
job).

Therefore, the Plaintiff's claim that the decision to
remove him from the photographer job due to his
2003 incident report conviction and the decision that
he was ineligible for the prison job, violated his
Constitutional rights, should be dismissed as to all
Defendants. See Burns v. Pa DOC, 2007 WL
442386, * 3 (E.D.Pa.), citing Wright v. O'Hara,
2002 WL 1870479, *5 (E.D.Pa.)(“no liberty or
property interest in prison job”); Wilkins v.
Bittenbender, 2006 WL 860140, *9 (M.D.Pa.)(“An
inmate does not have a protected liberty or property
interest in continued prison employment.”).

2. Equal Protection Claim
Plaintiff alleges in Count II that his equal protection
rights were violated by Defendants “when they
arbitrarily and capriciously removed Plaintiff from
his legitimate entitlement of continual participation
in the visiting room work detail” as photographer.
Plaintiff alleges that Defendants violated the equal
protection clause because they approved him for the
stated job even though they knew about his 2003
incident report conviction and his being on sanctions
at the time of his approval. Plaintiff claims that this
shows Defendants manufactured a security issue just
to arbitrarily remove him from the job. (Id., p. 10, ¶
36.). Plaintiff does not claim that Defendants treated
him differently than other similarly situated inmates
based on his race, gender, or nationality.

Plaintiff asserts that his right to equal protection was
violated by Defendants since they approved of his
work detail when they knew of the 2003 incident
report, but then arbitrarily removed him from this
position claiming a security concern with respect to
the already known incident report. Specifically,
Plaintiff does not claim that he was being treated
differently than other similar inmates. Plaintiff does
not aver that Defendants treated him differently than
similarly situated inmates based on his race, gender,
or nationality.

Furthermore, although Sandin “did not instruct on
the correct methodology for determining when
prison regulations create a protected property
interest [,]” as opposed to a liberty interest, the “law
is well established ... that an inmate's expectation of
keeping a specific prison job, or any job, does not
implicate a protected property interest.” Bulger v.
United States Bureau of Prisons, 65 F.3d 48, 50 (5th
Cir.1995). See also Coakley v. Murphy, 884 F.2d
1218, 1221 (9th Cir.1989) (holding inmates have no
property interest in continuing in work-release
program); Ingram v. Papalia, 804 F.2d 595, 596
(10th Cir.1986)

We find that the Plaintiff's Equal Protection claim
against Defendants should not proceed because the
Plaintiff has not alleged that Defendants purposely
discriminated against him on the basis of his race,
gender, or nationality. Plaintiff does not claim that
Defendants were motivated by a discriminatory
intent with respect to Plaintiff's allegations. In fact,
Plaintiff does not allege that he was removed from
the photographer job because of his race or
nationality. Rather, he states that his was removed
due to the 2003 incident report and alleged security
concerns. Such claims do not allege any form of
racial discrimination by Defendants. Plaintiff fails to
claim a discriminatory motive for Defendants'
alleged conduct. Additionally, we find that Plaintiff
has not properly stated that he and other inmates
were similarly situated for purposes of an equal
protection claim.

*12 (finding Constitution does not create a property
interest in prison employment). Wilkins, supra., * 9.

In the case of Jefferson v. Wolfe, 2006 WL 1947721,
* 15 (W.D.Pa.), the Court stated:

This Court in Wilkins also stated:

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8

“as a threshold matter, in order to establish an
equal protection violation, the plaintiff must ‘
... demonstrate that [he has] been treated
differently by a state actor than others who are
similarly situated simply because [he] belongs
to a particular protected class.’ “ (Citing
Keevan v. Smith, 100 F.3d 644, 648 (8th
Cir.1996).

The elements of an Equal Protection claim require
Plaintiff to state Defendants intended to discriminate
against him, and later to prove this by either direct or
circumstantial evidence. See Pa. v. Flaherty, 983
F.2d 1267 (3d Cir.1993) (Intent is a prima facie
element of a § 1983 equal protection claim of
discrimination) (citing Washington v. Davis, 426
U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). See
also Williams v. Pa. State Police, 108 F.Supp.2d
460, 471 (E.D.Pa.2000) (“to prevail on a § 1983
claim, a plaintiff must prove that the Defendant
intended to discriminate”) (citation omitted).

*13 The Equal Protection Clause does not require
that all persons be treated alike, but instead, a
plaintiff must show that the differential treatment to
those similarly situated was unreasonable, or
involved a fundamental interest or individual
discrimination. Tigner v. Texas, 310 U.S. 141, 147,
60 S.Ct. 879, 84 L.Ed. 1124 (1940); Price v. Cohen,
715 F.2d 87, 91 (3d Cir.1983), cert. denied, 465
U.S. 1032, 104 S.Ct. 1300, 79 L.Ed.2d 700 (1984).
It is well-settled that a litigant, in order to establish
a viable equal protection claim, must show an
intentional or purposeful discrimination. Snowden v.
Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497
(1944); Wilson v. Schillinger, 761 F.2d 921, 929 (3d
Cir.1985), cert. denied, 475 U.S. 1096, 106 S.Ct.
1494, 89 L.Ed.2d 895 (1986); E & T Realty v.
Strickland, 830 F.2d 1107, 1113-14 (11th Cir.1987),
cert. denied 485 U.S. 961, 108 S.Ct. 1225, 99
L.Ed.2d 425 (1988). This “state of mind”
requirement applies equally to claims involving (1)
discrimination on the basis of race, religion, gender,
alienage or national origin, (2) the violation of
fundamental rights, and (3) classifications based on
social or economic factors. See, e.g., Britton v. City
of Erie, 933 F.Supp. 1261, 1266 (W.D.Pa.1995),
aff'd, 100 F.3d 946 (3d Cir.1996); Adams v.
McAllister, 798 F.Supp. 242, 245 (M.D.Pa.), aff'd.
972 F.2d 1330 (3d Cir.1992).

Lower Merion, 942 F.Supp. 970, 983 (E.D.Pa.1997),
stated:
The Equal Protection Clause of the Fourteenth
Amendment of the United States Constitution
provides that “[n]o State shall ... deny to any person
within its jurisdiction the equal protection of the
laws.” U.S. Const. Amend. XIV, § 1. The Equal
Protection Clause announces the “fundamental
principle” that “the State must govern impartially,”
New York City Transit Auth. v. Beazer, 440 U.S.
568, 587, 99 S.Ct. 1355, 1367, 59 L.Ed.2d 587
(1979), and “is essentially a direction that all persons
similarly situated should be treated alike.” City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985).

As the Wilkins Court stated:
A litigant seeking to establish a viable equal
protection claim must show an intentional or
purposeful discrimination. Wilson v. Schillinger, 761
F.2d 921, 929 (3d Cir.1985), cert. denied, 475 U.S.
1096, 106 S.Ct. 1494, 89 L.Ed.2d 895 (1986).
However, the Equal Protection Clause “does not
deny to States the power to treat different classes of
persons in different ways.” Reed v. Reed, 404 U.S.
71, 75, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). The
Court of Appeals for the Third Circuit has observed
that d that all persons be treated alike but, rather, ‘a
direction that all persons similarly situated should be
treated alike.” ‘ Artway v. Attorney Gen., 81 F.3d
1235, 1267 (3d Cir.1996) (quoting City of Cleburne
v. Cleburne Living Center, 473 U.S. 432, 439, 105
S.Ct. 3249, 87 L.Ed.2d 313 (1985)); see also Kuhar
v. Greensburg-Salem Sch. Dist., 616 F.2d 676, 677
n. 1 (3d Cir.1980) (“An equal protection claim arises
when an individual contends that he or she is
receiving different treatment from that received by
other individuals similarly situated.”).
*14 Based upon the undisputed facts, it cannot be
concluded that the Defendants engaged in intentional
or purposeful discrimination or that they treated
Wilkins differently from similarly situated
individuals on the basis of his race (Wilkins is
Black) or some other impermissible reason. There
are simply no factual averments which could support
a claim that the Defendants engaged in actions which
intentionally discriminated against the prisoner.

2006 WL 860140, * 11.
As the Court in Barnes Foundation v. Township of
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9

Plaintiff has not alleged facts from which it can be
concluded that our Defendants engaged in
intentional or purposeful discrimination, or that he
was treated differently by Defendants than similarly
situated persons on the basis of his race, nationality
or gender. In short, Plaintiff fails to allege
discrimination with respect to his treatment he
received from Defendants. There is not a cognizable
equal protection claim stated.

Therefore, we shall recommend that Plaintiff's equal
protection claim against Defendants be dismissed.6

made and may accept, reject, or modify, in whole or
in part, the findings or recommendations made by
the magistrate judge. The judge, however, need
conduct a new hearing only in his or her discretion
or where required by law, and may consider the
record developed before the magistrate judge,
making his or her own determination on the basis of
that record. The judge may also receive further
evidence, recall witnesses or recommit the matter to
the magistrate judge with instructions.

All Citations
Not Reported in F.Supp.2d, 2007 WL 1650579

VII. Recommendation.
Based on the foregoing, it is respectfully
recommended that Plaintiff's Bivens action be
dismissed as against all Defendants for failure to
state a claim. It is further recommended that
Plaintiff's Injunction Motion be dismissed as moot.
(Doc. 2).7

NOTICE
NOTICE IS HEREBY GIVEN that the undersigned
has entered the foregoing Report and
Recommendation dated April 2, 2007.

Any party may obtain a review of the Report and
Recommendation pursuant to Rule 72.3, which
provides:

Any party may object to a magistrate judge's
proposed findings, recommendations or report
addressing a motion or matter described in 28 U.S.C.
§ 636(b)(1)(B) or making a recommendation for the
disposition of a prisoner case or a habeas corpus
petition within ten (10) days after being served with
a copy thereof. Such party shall file with the clerk of
court, and serve on the magistrate judge and all
parties, written objections which shall specifically
identify the portions of the proposed findings,
recommendations or report to which objection is
made and the basis for such objections. The briefing
requirements set forth in Local Rule 72.2 shall
apply. A judge shall make a de novo determination
of those portions of the report or specified proposed
findings or recommendations to which objection is
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10

Footnotes

1

To state a Bivens claim, a plaintiff must allege that a person deprived him of a federal right, and that person who caused the
deprivation acted under color of federal law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Young v.
Keohane, 809 F.Supp. 1185, 1199 (M.D.Pa.1992). Here, Plaintiff correctly indicates that this is a Bivens action, as he seeks monetary
damages from federal officials for alleged violations of his Constitutional rights. See Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, (1971). (Rec. Doc. 1 at 1 n. 1).

2

Identified Defendants to this action are Joseph Smith, Former Warden at USP-Lewisburg (“Defendant Smith” or “the Warden”); Ray
Hoekman, Special Investigator Administrator (“Defendant Hoekman”); and Matthew Eddenger, Special Investigation Supervisor
(“Defendant Eddenger”).

3

Unless otherwise noted, our factual summary is taken from Magistrate Judge's Report. (Rec.Doc.8).

4

Plaintiff claims that he has exhausted his administrative remedies regarding his present claim and indicates that he received a final
denial from the BOP on August 31, 2005. (Rec.Doc.1).

5

In his Report, the Magistrate Judge accurately noted that pursuant to Local Rule 8.1 of this Court, Plaintiff's requests for specific
amounts of monetary damages should be stricken from the Complaint as his seeking of unliquidated damages precludes any claim
to a specific sum of relief. See Stuckey v. Ross, No. 05-2354, slip op. (M.D.Pa. Jan. 9, 2006) (McClure, J.). Indeed, Plaintiff concedes
this point. (Rec. Doc. 9 at 1 n. 1). However, given our disposition of the remainder of the issues in this case, we find an Order striking
Plaintiff's specific monetary requests to be unnecessary.

6

Plaintiff concedes as much in his Objection: “Generally speaking, Plaintiff concedes that there lies no constitutional right to a job
in prison per se.” (Rec. Doc. 10 at 6). Plaintiff, however, goes on to argue that circumstances surrounding the action created a right
to his photographer job. We find said argument unpersuasive for all of the reasons outlined herein.

7

As outlined in the Magistrate Judge's Report, Plaintiff fails to state the personal involvement of any of the unnamed John Doe
Defendants with respect to his two (2) claims. Even without such allegations, dismissal of both of instant claims against these
unidentified Defendants is proper because the reasons for which Plaintiff's Due Process and Equal Protection claims fail are
applicable regardless of the Defendants' identity. Moreover, without the identification, and serving, of said Defendants, their Due
Process rights would be implicated were the instant action to proceed against them. (Rec. Doc. 8 at 6-7).

8

For the reasons outlined in the preceding note, we will also dismiss Plaintiff's Equal Protection claims against the unnamed John Doe
Defendants.

9

In the interest of completeness, we note our agreement with the Magistrate Judge's conclusion that Plaintiff should not be permitted
to amend his Complaint because doing so would be futile. See Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.2000). Indeed, Plaintiff
concedes as much by failing to argue in favor of such in his Objections.

1

Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
Plaintiff correctly indicates that this is a Bivens action as he seeks monetary damages from federal officials for alleged violations of
his Constitutional rights. Doc. 1, p. 1, ¶ 1.

2

Plaintiff must exhaust his administrative remedies prior to filing a civil rights suit. Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir.2004);
Woodford v. Ngo, --- U.S. ----, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). In Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152
L.Ed.2d 12 (2002), the Supreme Court reiterated that the exhaustion requirement under § 1997e(a) applies to all actions regarding
prisons conditions, including civil rights actions or actions brought pursuant to any other federal law. The Porter Court held that “the
PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other wrong.” Id. However, Defendants have the burden to plead
exhaustion as an affirmative defense. See Ray v. Kertes, 285 F.3d 287, 295 (3d Cir.2002).

3

Pub.L. No. 104-134, 110 Stat. 1321 (April 26, 1996).

4

As stated above, Plaintiff paid the required filing fee. (Docs. 6 & 7).

5

Plaintiff provided a citation to BOP policy 28 C.F.R. § 541.10(2). (Doc. 1, pp. 8-9).

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6

As stated above, we also find that Plaintiff's Injunction Motion (Doc. 2) should be dismissed as moot, since Plaintiff cannot show
any likelihood of success on the merits of either of his claims. See In Re Arthur Treacher's Franchise Litigation, 689 F.2d 1137, 1143
(3d Cir.1982) (“[A] failure to show a likelihood of success or a failure to demonstrate irreparable injury must necessarily result in
the denial of a preliminary injunction.”).

7

Notwithstanding Vieux's pro se status, we do not recommend that he be permitted to amend his Complaint regarding his due process
and equal protection claims since we find that based on well-settled case law that he fails to state such claims. Thus, we find futility
of any amendment of this claim, and we shall not recommend Plaintiff be granted leave to amend his action. 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).

End of Document

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