Thomas v. Rosemeyer , 199 F. App'x 195 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-12-2006
Thomas v. Rosemeyer
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1940
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Recommended Citation
"Thomas v. Rosemeyer" (2006). 2006 Decisions. Paper 333.
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DPS-362 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-1940
________________
VINCENT THOMAS,
Appellant
v.
FREDERIC A. ROSEMEYER, Superintendent in his
individual and official capacity as Superintendent
of Laurel Highlands; MARDI HUNSBERGER, Deputy, in her
individual and official capacity as Deputy of Laurel
Highlands; STEVEN M. GATES, In his individual and official
capacity as Deputy of Laurel Highlands; RONALD CHERO,
In his individual and official capacity as Captain of
Security of Laurel Highlands; MICHAEL TURNER, In his
individual and official capacity as Lieutenant of Security
of Laurel Highlands; JOANN CROSS, In her individual and
official capacity as Educational Guidance Counsel for
Laurel Highlands; RAYMOND SOBINA, In his individual and
official capacity as Superintendent of Somerset; GERALD
ROZUM, In his individual and official capacity as Deputy
of Somerset; M. LARRY AMENTI, In his individual and official
capacity as Program Manager for Somerset; GEHLMANN, Lt.,
In his individual and official capacity Major of Somerset; ROBERT BITNER,
In his individual and official capacity as Chief
Hearing Examiner for Misconducts for the Department of Corrections
of Pennsylvania; BEN E. ANSELL, In his individual and official
capacity as Hearing Examiner for Misconducts for the Department
of Corrections of Pennsylvania
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 05-cv-00032)
District Judge: Honorable Kim R. Gibson
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
September 28, 2006
Before: FUENTES, VANANTWERPEN AND CHAGARES, Circuit Judges.
(Filed: October 12, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Vincent Thomas appeals the order of the United States District Court for the
Western District of Pennsylvania dismissing his civil rights action.
While Thomas was incarcerated in SCI-Laurel Highlands in 2003, he was
suspected of sending a threatening letter to defendant Joann Cross, who is a guidance
counselor at the institution. Thomas was then transferred to SCI-Somerset and placed
into the restricted housing unit (RHU). On November 26, 2003, a misconduct hearing
was conducted relating to the threatening letter. At the conclusion of the hearing,
defendant Ben Ansell found Thomas guilty of three charges, and imposed a sanction of
90 days’ confinement on each charge for a total disciplinary time of 270 days.
Thomas filed a complaint pursuant to 42 U.S.C. § 1983, alleging that: (1) his
Fourteenth Amendment procedural due process rights were violated when he was denied
access to witnesses and evidence at his misconduct hearing, and (2) defendants violated
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his Eighth Amendment right to be free from cruel and unusual punishment. Thomas
sought damages and expungement of his record. The magistrate judge recommended that
Thomas’s complaint be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state
a claim upon which relief may be granted. The District Court adopted the
recommendation of the magistrate judge and dismissed Thomas’s complaint.
Thomas timely filed a notice of appeal. We have appellate jurisdiction pursuant to
28 U.S.C. § 1291. Having granted Thomas leave to proceed in forma pauperis on appeal,
we must now determine whether his appeal should be dismissed pursuant to
§ 1915(e)(2)(B). An appeal may be dismissed under § 1915(e)(2)(B) if it has no arguable
basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Thomas alleges that his Fourteenth Amendment right to procedural due process
was violated when he was transferred to SCI-Somerset and placed in the RHU, and when
he received 270 days of disciplinary confinement without being permitted to see the
evidence against him or call any witnesses. In analyzing a due process claim, the
threshold question is whether the complaining party has been deprived of a protected
liberty or property interest. See Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000). In a
prison context, due process protection is limited to those situations where the deprivation
rises to the level of an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Thomas
concedes that he has no liberty interest in being confined at any particular prison. See
Olim v. Wakinekona, 461 U.S. 238, 245 46 (1983). Thomas’s confinement in the RHU
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for a period of 270 days is not an atypical or significant hardship. See Griffin v. Vaughn,
112 F.3d 703, 706 (3d Cir. 1997) (placement of a prisoner in administrative custody for
15 months did not involve an atypical, significant deprivation). He thus does not assert a
liberty interest for which he is entitled to due process protection. To the extent Thomas
asserts that the prison’s failure to comply with state procedures deprived him of due
process, state procedures, in themselves, do not confer a liberty interest protected by the
due process clause. See Rodriguez v. McLoughlin, 214 F.3d 328, 339 (2d Cir. 2000) (the
fact that a state has established procedures to be followed does not mean that it has
created a protected liberty interest). Accordingly, Thomas’s claims under the Fourteenth
Amendment fail.
Thomas also alleges that he was subjected to cruel and unusual punishment in
violation of the Eighth Amendment. The relevant Eighth Amendment inquiry is whether
the prisoner has been deprived of the “minimal civilized measure of life’s necessities.”
Farmer v. Brennan, 511 U.S. 825, 834 (1994). This requires an allegation that the
prisoner has been denied “basic human needs, such as food, clothing, shelter, sanitation,
medical care and personal safety” from physical assault. Griffin, 112 F.3d at 709. As the
District Court explained, Thomas presented no evidence that he was denied basic human
needs such as food, clothing, shelter, sanitation, medical care, or personal safety.
Thomas’s claim that his placement in the RHU violated the Eighth Amendment lacks
merit. See Griffin, 112 F.3d at 709 (placement of a prisoner in administrative custody for
15 months did not involve the deprivation of any basic human need under the Eighth
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Amendment).
For the foregoing reasons, Thomas’s appeal will be dismissed under 28 U.S.C.
§ 1915(e)(2)(B) for lack of legal merit. Because Thomas’s appeal lacks legal merit, his
motion for appointment of counsel is denied. See Tabron v. Grace, 6 F.3d 147, 155-56
(3d Cir. 1993).
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