Burgos v. Furguson et al

Filing 13

MEMORANDUM (Order to follow as separate docket entry) Since Burgos civil rights claims are "based on an indisputably meritless legal theory," they will be dismissed, without prejudice, as legally frivolous. Wilson, 878 F.2d at 774. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 7/3/18. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

DAVID BURGOS,

:
:
Plaintiff
:
CIVIL NO. 3:CV-18-1175
:
v.
:
:
(Judge Conaboy)
:
TAMMY FERGUSON, ET AL.,
:
:
Defendants
:
___________________________________________________________________
MEMORANDUM
Background
David Burgos, an inmate presently confined at the Retreat
State Correctional Institution, Hunlock Creek, Pennsylvania (SCIRetreat) initiated this pro se civil rights action pursuant to 42
U.S.C. § 1983.

Accompanying the Complaint are requests for leave

to proceed in forma pauperis.

See Docs. 2 & 7.

For the reasons

that follow, Plaintiff’s action will be dismissed without
prejudice.
Named as Defendants are Secretary John E. Wetzel and Chief
Hearing Examiner Joseph Dupont of the Pennsylvania Department of
Corrections (DOC) as well as the following officials at Plaintiff’s
prior place of confinement, the Benner Township State Correctional
Institution, Bellenonte, Pennsylvania (SCI-Benner): Superintendent
Tammy Ferguson; Hearing Examiner Szelewski; and Lieutenant Foster.
According to the Complaint, while held at SCI-Benner,
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Plaintiff was issued a misconduct on October 17, 2017 by Lieutenant
Foster which falsely accused him of attempt to possess contraband
(#36); violation of visiting room regulations (#37); unauthorized
use of the mail or telephone (#40); and criminal violation of the
Pennsylvania Crimes Code (#26).
Following a disciplinary hearing before Hearing Examiner
Szelewski charge # 37 was dismissed but Plaintiff was found guilty
of the three remaining charges.

Burgos was sanctioned to an

aggregate seventy-five (75) day term of disciplinary confinement
and loss of institutional employment.

Plaintiff initially contends

the disciplinary report contained no facts showing that he was
involved in the alleged misconduct.

Burgos also alleges that he

was denied due process during the resulting misconduct hearing
because he was denied permission to call a witness and present
documentary evidence regarding the incident.

Plaintiff vaguely

indicates that such denials of witnesses and submission of
documentary evidence are a common practice.1
The complaint further asserts that as a consequence of the
misconduct, his eligibility was revoked for the Recidivism Risk
Reduction Incentive (RRRI) a Pennsylvania state program which
allows non-violent offenders opportunity to get out of jail early

1

There is no discernible claim by Plaintiff that he is
challenging the legality of any specific DOC policy or custom.
Rather, he indicates only that Hearing Examiner Szelewski has a
personal practice of denying inmate requests for witnesses and to
present documentary evidence.
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and he was removed from two institutional programs, thereby
allegedly extending the length of his confinement.
As relief, Plaintiff seeks an award of compensatory and
punitive damages as well as declaratory relief including a finding
that that Plaintiff’s RRRI status was revoked without due process.
Burgos has also filed a motion seeking preliminary injunctive
relief, which seeks in part expungement of the misconduct charges.
See Doc. 9.
Discussion
When considering a complaint accompanied by a motion to
proceed in forma pauperis, a district court may rule that process
should not issue if the complaint is malicious, presents an
indisputably meritless legal theory, or is predicated on clearly
baseless factual contentions.

Neitzke v. Williams, 490 U.S. 319,

327-28 (1989), Douris v. Middleton Township, 293 Fed. Appx. 130,
132 (3d Cir. 2008).

Indisputably meritless legal theories are

those "in which either it is readily apparent that the plaintiff's
complaint lacks an arguable basis in law or that the defendants are
clearly entitled to immunity from suit ... ."

Roman v. Jeffes, 904

F.2d 192, 194 (3d Cir. 1990) (quoting Sultenfuss v. Snow, 894 F.2d
1277, 1278 (11th Cir. 1990)).
The United States Court of Appeals for the Third Circuit has
added that "the plain meaning of 'frivolous' authorizes the
dismissal of in forma pauperis claims that . . . are of little or
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no weight, value, or importance, not worthy of serious
consideration, or trivial."
1080, 1083 (3d Cir. 1995).

Deutsch v. United States, 67 F.3d
It also has been determined that "the

frivolousness determination is a discretionary one," and trial
courts "are in the best position" to determine when an indigent
litigant's complaint is appropriate for summary dismissal.

Denton

v. Hernandez, 504 U.S. 25, 33 (1992).
Disciplinary Placement
Plaintiff alleges in part that he was improperly sanctioned to
a term of disciplinary confinement.

The Complaint explains that

Burgos should not have been punished because the disciplinary
report did not set forth facts showing that he was involved in the
alleged misconduct and that he was denied due process during his
institutional hearing on the charges.
A plaintiff, in order to state a viable civil rights claim,
must plead two essential elements:

(1) that the conduct complained

of was committed by a person acting under color of law, and (2)
that said conduct deprived the plaintiff of a right, privilege, or
immunity secured by the Constitution or laws of the United States.
Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995);
Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir.
1990).
The Fourteenth Amendment of the United States Constitution
provides in pertinent part: "No State shall . . . deprive any

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person of life, liberty, or property, without due process of law .
. . ."

The Supreme Court has mandated a two-part analysis of a

procedural due process claim:

first, "whether the asserted

individual interests are encompassed within the . . . protection of
'life, liberty or property[,]'" and second, "if protected interests
are implicated, we then must decide what procedures constitute 'due
process of law.'"

Ingraham v. Wright, 430 U.S. 651, 672 (1977).

If there is no protected liberty or property interest, it is
obviously unnecessary to analyze what procedures were followed when
an alleged deprivation of an interest occurred.
Liberty interests protected by the Fourteenth Amendment may
arise either from the Due Process Clause itself or from state law.
Meachum v. Fano, 427 U.S. 215, 223-26 (1976).

In Wolff v.

McDonnell, 418 U.S. 539, 563-73 (1974), the Supreme Court
recognized that "prison disciplinary proceedings are not part of a
criminal prosecution, and the full panoply of rights due a
defendant in such proceedings does not apply."

Id. at 556.

Nonetheless, the Supreme Court held that a prisoner facing serious
institutional sanctions is entitled to some procedural protection
before penalties can be imposed.

Id. at 563-71.

In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court
reiterated that the due process safeguards set forth in Wolff must
be provided when the challenged disciplinary proceeding results in
a loss of good time credits.

However, Sandin focused the liberty

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interest analysis from one "based on the language of a particular
regulation" to "the nature of the deprivation" experienced by the
prisoner.

Id. at 481.

In Sandin the Supreme Court reasoned, inter

alia, that "[d]iscipline by prison officials in response to a wide
range of misconduct" is expected as part of an inmate's sentence.
Id. at 485.

The nature of an inmate’s confinement in disciplinary

segregation was found similar to that of inmates in administrative
segregation and protective custody at his prison. Id. at 486.
Focusing on the nature of the punishment instead of on the
words of any regulation, the Supreme Court held that the procedural
protections in Wolff were inapplicable because the "discipline in
segregated confinement did not present the type of atypical,
significant deprivation in which a state might conceivably create a
liberty interest."

Id.

The Court examined the nature of

disciplinary segregation and found that "[b]ased on a comparison
between inmates inside and outside disciplinary segregation, the
State's actions in placing him there for 30 days did not work a
major disruption in his environment."

Id.

In the final holding of

the opinion, the Court stated that neither the state prison
regulation in question, nor the Due Process Clause itself, afforded
a protected liberty interest that would entitle state prisoners to
the procedural protections set forth in Wolff." See id. at 487

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(emphasis added).2
Courts within this circuit, applying Sandin in various
actions, have found no merit in procedural due process claims
presented regarding institutional misconduct proceedings which
resulted in disciplinary custody placement.

See Torres v. Fauver,

292 F.3d 141, 150-51 (3d Cir. 2002)(because prisoners can
reasonably anticipate transfer to disciplinary custody, placement
in segregation as a disciplinary sanction did not implicate a
protected liberty interest); Smith v. Mensinger, 293 F.3d 641, 645,
654 (3d Cir. 2002)(seven (7) months of disciplinary confinement did
not implicate liberty interest).
In Diaz v. Canino, 2012 WL 5352483 *3 (3d Cir. Oct. 31, 2012),
the Third Circuit Court of Appeals reiterated that the sanctions
resulting from prison disciplinary hearings do not affect a
protected liberty interest unless the sanction imposes an atypical
and significant hardship on the inmate.

In Diaz, the Court of

Appeals concluded that a 360 day term of disciplinary confinement
did not implicate a protected liberty interest.

Considering the

2. The Sandin Court relied on three factors in making this
determination: (1) confinement in disciplinary segregation
mirrored conditions of administrative segregation and other
forms of discretionary confinement; (2) based on a
comparison between inmates inside and outside segregation, the
state's action in placing the inmate there did not work a
major disruption in the inmate's environment; and (3) the
state's action did not inevitably affect the duration of
inmate's sentence.
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rules of law set forth in Sandin and the subsequent line of
decisions by the Third Circuit Court of Appeals, this Court finds
that any Plaintiff's claims pertaining to the imposition of a
seventy-five (75) day period of disciplinary custody which was
imposed as the result of

misconduct charges does not set forth a

viable constitutional claim because Burgos had no protected liberty
interest.
RRRI
As previously discussed, Plaintiff raises a claim that the
alleged unconstitutional finding of guilt rendered at his
disciplinary hearing caused his RRRI status to be revoked thereby
increasing the length of his confinement.

The complaint also

includes a request for declaratory relief that Burgos’ “RRRI status
was revoked without Due Process.”

Doc. 1, ¶ 41.

Plaintiff has

also filed a motion seeking expungement of his institutional
misconduct and reinstatement of RRRI status.
Inmates may not use civil rights actions to challenge the fact
or duration of their confinement or to seek earlier or speedier
release.

Preiser v. Rodriguez, 411 U.S. 475 (1975).

The United

States Court of Appeals for the Third Circuit has similarly
recognized that civil rights claims seeking release from
confinement sounded in habeas corpus.

See Georgevich v. Strauss,

772 F.2d 1078, 1086 (3d Cir. 1985).
The United States Supreme Court in Edwards v. Balisok, 520

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U.S. 641, 646 (1997), similarly concluded that a civil rights claim
for declaratory relief “based on allegations ... that necessarily
imply the invalidity of the punishment imposed, is not cognizable”
in a civil rights action.

Id. at 646.

Based on the reasoning

announced in Georgevich and Edwards, Plaintiff’s present claim
regarding revocation of his RRRI and any related habeas corpus type
requests to have his misconduct expunged and his RRRI status
reinstated are not properly raised in a civil rights complaint.
See Kloss v. SCI-Albion, 2017 WL 2790648 *5 (W.D. Pa. June 28,
2017)(claim for RRRI reinstatement sounds in habeas corpus).
Accordingly, any such claims will be dismissed without prejudice to
any right Plaintiff may have to pursue such arguments via a federal
habeas corpus petition.
Monetary Damages
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court
ruled that a constitutional cause of action for damages does not
accrue "for allegedly unconstitutional conviction or imprisonment,
or for other harm caused by actions whole unlawfulness would render
a conviction or sentence invalid," until the plaintiff proves that
the "conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a
federal court's issuance of a writ of habeas corpus."
87.

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Id. at 486-

Based on the nature of Plaintiff’s allegations, a finding in
his favor would impact the duration of his ongoing confinement.
There is no indication that Burgos has successfully challenged his
disciplinary charges, RRRI revocation, or the length of his ongoing
incarceration.
Consequently, pursuant to Heck, Plaintiff’s instant Complaint
to the extent that it seeks an award of monetary damages on the
basis of excessive confinement is premature because he cannot
maintain a cause of action for excessive imprisonment until the
basis for the excessive confinement is overturned.
Conclusion
Since Burgos’ civil rights claims are "based on an
indisputably meritless legal theory," they will be dismissed,
without prejudice, as legally frivolous.

Wilson, 878 F.2d at 774.

An appropriate Order will enter.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge

DATED: JULY 3, 2018

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