Davis v. United States , 182 F. App'x 105 ( 2006 )


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  •                                                                                                                            Opinions of the United
    2006 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    6-1-2006
    Davis v. USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 05-4801
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    Recommended Citation
    "Davis v. USA" (2006). 2006 Decisions. Paper 973.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2006/973
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    BPS-205                                                    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ________________
    No. 05-4801
    ________________
    MICHAEL DAVIS,
    Appellant
    v.
    UNITED STATES OF AMERICA; DR. MARIE TYRGOVAC;
    TROY WILLIAMSON, WARDEN, USP ALLENWOOD;
    S. CONFAIR; R. DIVERS; S. MITCHELL; TODD CERNEY
    ________________
    On Appeal From the United States District Court
    For the Middle District of Pennsylvania
    (D.C. Civ. No. 04-cv-02284)
    District Judge: Honorable A. Richard Caputo
    ________________
    Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
    April 27, 2006
    BEFORE: SCIRICA, Chief Judge RENDELL and AMBRO, Circuit Judges
    (Filed: June 1, 2006)
    ________________
    OPINION
    ________________
    PER CURIAM
    Michael Davis appeals from the District Court’s order granting summary
    judgment in favor of the defendants. In his Bivens action, Davis alleges that officials at
    the United States Penitentiary-Allenwood retaliated against him for taking legal or
    administrative action against a program coordinator at the prison. Specifically, Davis
    contends that the defendants planted a seven-inch sharpened metal rod in his locked
    locker (located within his two-person cell) and charged him with possession,
    manufacture, or introduction of a weapon. Davis also claims that his right to due process
    was violated during the subsequent disciplinary hearing and resulting sentence of 60 days
    in disciplinary segregation.
    In response to the complaint, the defendants filed a motion to dismiss the
    complaint or, alternatively, for summary judgment. The District Court entered summary
    judgment in the defendants’ favor; this timely appeal followed.1 Because the appeal
    lacks arguable merit, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
    To prove retaliation, a prisoner must demonstrate 1) that he engaged in
    constitutionally-protected conduct, 2) an adverse action by prison officials, sufficient to
    deter a person of ordinary firmness from exercising his constitutional rights, and 3) a
    causal link between the exercise of the rights and the adverse action taken against him.
    1
    We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over
    the District Court’s decision to grant summary judgment. See Torres v. Fauver, 
    292 F.3d 141
    , 145 (3d Cir. 2002). Summary judgment is appropriate where there is no genuine
    issue of material fact. See Fed. R. Civ. P. 56. A genuine issue of material fact exists only
    where a reasonable jury could find for the non-moving party in light of the evidence
    presented. See Childers v. Joseph, 
    842 F.2d 689
    , 693-94 (3d Cir. 1988). We review the
    facts in a light most favorable to the party against whom summary judgment was entered,
    and where the parties’ evidence is in conflict, we accept the non-movant’s as true. See
    Pastore v. Bell Telephone Co. of Pa., 
    24 F.3d 508
    , 512 (3d Cir. 1994).
    2
    See Mitchell v. Horn, 
    318 F.3d 523
    , 530 (3d Cir. 2003). In granting summary judgment,
    the District Court concluded that because Davis was not prevented from pursuing this
    suit or administratively exhausting his claims, any adverse action failed the deterrence
    prong. The District Court also found Davis’ evidence of a causal link lacking.
    We agree that Davis’ retaliation claim fails, but for different reasons. Though his
    allegations are not precisely clear, Davis claims either that prison officials planted a
    seven-inch knife-like metal rod in his locker, or that officials legitimately found a pair of
    gloves and a metal sardine can top (prohibited items), and later changed the paperwork to
    make it look as if they had found the knife. We find no credible evidence to support
    either claim. Davis provides no support for his assertion that the defendants deliberately
    destroyed a surveillance tape that would show that the weapon was not legitimately
    discovered. Instead, the evidence shows that by the time the appropriate staff member
    was contacted nearly two months after the incident, the tape was recorded over as part of
    a regular practice of recycling surveillance tapes after a certain amount of time has
    passed. There is also evidence, not addressed by Davis, that even if it existed, the tape
    would not be fruitful because the surveillance system does not record activity inside the
    cell. Davis’ allegation that the weapon that prison officials planted was one previously
    seized from another inmate is refuted by the disciplinary hearing officer’s specific
    finding that the two weapons are not similar. Davis offers no evidence to support his
    assertion that the disciplinary report documenting the event originally charged him with
    possession of an unauthorized item, but was then changed to the more serious weapon
    3
    charge. Finally, Davis’ allegations regarding time discrepancies in reports documenting
    the events do not support his larger planted-weapon claim. For these reasons, we
    conclude that Davis has not shown adverse action by prison officials.
    With regard to the due process claim, Davis’ procedural due process rights are
    triggered by deprivation of a legally cognizable liberty interest. See 
    Mitchell, 318 F.3d at 531
    . If Davis has no protected liberty interest in remaining free of disciplinary custody,
    then the Fourteenth Amendment does not obligate the state to provide him with process.
    
    Id. Here, the
    District Court concluded that because Davis’ sanction did not include the
    loss of good conduct time, he did not possess a liberty interest, and accordingly, was not
    entitled to due process rights.
    Though we agree with the conclusion, the analysis is incomplete. Though the
    Supreme Court has found that the loss of good time credits entitles prisoners to
    appropriate due process, see Wolff v. McDonnell, 
    418 U.S. 539
    , 556-57 (1974), the
    question of whether a sanction implicates a liberty interest is not answered by looking at
    good time credits alone. A liberty interest may also be present where a punishment
    entails an “atypical and significant hardship.” 
    Mitchell, 318 F.3d at 532
    (citation
    omitted). Courts are required to look into this possibility. See 
    id. at 533
    n.6. In order to
    do so, a court should perform a fact-specific inquiry evaluating “the duration of
    disciplinary confinement and the conditions of that confinement in relation to other
    prison conditions.” 
    Id. at 532
    (citation omitted).
    Applying these criteria, we conclude that Davis has not shown that he had a liberty
    4
    interest at stake. He has provided no evidence that the conditions during his 60 days of
    disciplinary segregation involved atypical or significant hardship. Contra 
    id. at 528,
    533
    (“deplorable” conditions of prisoner’s cell in restricted housing unit included human
    waste smeared on the walls, infestation by insects, and nightly kicking and banging on
    the walls by other inmates). In addition, this Court has found several times that
    restrictive confinement for a much longer period than that imposed upon Davis does not
    implicate the prisoner’s liberty interests. See Smith v. Mensinger, 
    293 F.3d 641
    , 645,
    654 (3d Cir. 2002) (seven months disciplinary confinement); Torres v. Fauver, 
    292 F.3d 141
    , 151-52 (3d Cir. 2002) (disciplinary detention for fifteen days and administrative
    segregation for 120 days); Griffin v. Vaughn, 
    112 F.3d 703
    , 706-09 (3d Cir. 1997)
    (fifteen months administrative detention). Davis offers no other reason why the sanction
    against him meets the standard.
    In sum, we conclude that the District Court properly dismissed Davis’ claims.
    Because this appeal lacks merit, we will dismiss it pursuant to 28 U.S.C.§ 1915(e)(2)(B).
    5