Fortune v. Bitner

285 F. App'x 947
CourtCourt of Appeals for the Third Circuit
DecidedJuly 17, 2008
Docket07-3385
StatusUnpublished
Cited by6 cases

This text of 285 F. App'x 947 (Fortune v. Bitner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fortune v. Bitner, 285 F. App'x 947 (3d Cir. 2008).

Opinion

OPINION

PER CURIAM.

Kenneth Fortune appeals, pro se, from the judgment entered in favor of Appellees by the United States District Court for the Middle District of Pennsylvania. We will affirm the decision of the District Court.

I.

This case arose out of Fortune’s incarceration at SCI-Huntingdon (“Hunting-don”) from December 1996 until May 2001. While at Huntingdon, he was generally housed in the prison’s Restricted Housing Unit (“RHU”), either in Disciplinary or Administrative Custody. Fortune advanced numerous claims against multiple employees of the Pennsylvania Department of Corrections (“DOC”), including J. Harvey Bell, a DOC pardons case specialist, and Robert S. Bitner, DOC’s Chief Hearing Examiner. Among his many allegations, Fortune claimed that he repeatedly tried without success to obtain a transfer from Huntingdon on the grounds that Huntingdon staff members continued to mistreat and threaten him and that he had been separated from the staff members in the past. Furthermore, Huntingdon staff members allegedly defamed Fortune by characterizing him as mentally ill. The characterization was allegedly part of an extensive plot to murder him and then make it look like a suicide. For a relatively brief period of time, Fortune was incarcerated in SCI-Waymart’s Special Assessment Unit, evidently for a mental health assessment. According to Fortune, he was also a victim of retaliation on account of his history of litigation. 1 Finally, Hun *949 tingdon guards allegedly used excessive force against him on December 28, 1999, as well as on July 24, 2000.

The case itself was extensively litigated before the District Court, which disposed of Fortune’s various claims in several thorough decisions. Following the filing of an amended complaint, the District Court granted in part and denied in part Appellees’ motion to dismiss for failure to state a claim. It subsequently denied Fortune’s motion for reconsideration. After discovery was conducted, the District Court granted Appellees’ motion for summary judgment as to Fortune’s remaining claims and entered judgment in favor of all Appellees. As before, Fortune moved to reconsider, but the District Court denied his motion. Fortune accordingly filed a timely notice of appeal.

II.

We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review over a district court’s orders granting a motion to dismiss and for summary judgment. See, e.g., Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008); Debiec v. Cabot Corp., 352 F.3d 117, 128 n. 3 (3d Cir.2003). In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court is required to “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips, 515 F.3d at 233 (citation omitted). With respect to summary judgment, we must determine if there is any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. See, e.g., Fed.R.Civ.P. 56(c); Debiec, 352 F.3d at 128 n. 3. We also may affirm on any ground supported by the record. See, e.g., Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999). After reviewing the arguments raised by Fortune in his appellate brief, the record on appeal, and the District Court’s own thorough decisions, we conclude that the District Court committed no reversible error in disposing of Fortune’s claims.

Fortune initially contends that the District Court erred by prematurely dismissing his retaliation claims against Bell and Bitner. According to Fortune, he adequately alleged that Appellees were aware of his unresolved separation from Huntingdon staff members but participated in a conspiracy to deny his transfer requests, cover up the previous separation, and even kill him “because he is [an] intelligent, articulate, well spoken prisoner known to [Appellees] to file grievances and lawsuits to vindicate his rights.” (Appellant’s Br. at 8.) Nevertheless, the District Court properly determined that he failed to state a cognizable claim, observing that his allegations of retaliation were conclusory in nature. See, e.g., Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir.2005) (“However, a court need not credit either ‘bald assertions’ or ‘legal conclusions’ in a complaint when deciding a motion to dismiss.” (citation omitted)). For instance, Fortune speculated “that the only possible reason Bitner would deny his appeal would be to retaliate against him.” (10/28/03 Memorandum at 3-4.) Furthermore, his appellate challenge to the District Court’s retaliation ruling appears premised on the alleged existence of an evidently wide-ranging conspiracy against him. However, the District Court correctly determined that his conspiracy claims must be dismissed because of his failure to state, in a non-conclusory fashion, “facts from which any type of conspiratorial *950 agreement between the [Appellees] can be inferred.” See, e.g., D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1377 (3d Cir.1992).

Fortune further challenges the District Court’s dismissal of his mental health claims. However, we must deny this challenge as well. The District Court correctly determined that he failed to state a legally cognizable claim of defamation under the federal Constitution. See, e.g., Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir.2006). In the course of the District Court’s proceedings, it was further revealed that the DOC did briefly transfer Fortune to a “Special Assessment Unit” in another Pennsylvania prison. Fortune accordingly asserts that he was denied his due process rights, pursuant to the Supreme Court’s ruling in Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), to an adversarial hearing at which he could confront the mental illness accusations against him. Nevertheless, his brief transfer was evidently for the sole purpose of a mental health assessment. As the District Court expressly noted, he was apparently never subjected to either involuntary medication or any other compulsory treatment for mental illness. In turn, Fortune testified in his deposition that he never even spoke with any doctors while he was in the Special Assessment Unit.

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Bluebook (online)
285 F. App'x 947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fortune-v-bitner-ca3-2008.