DLD-274 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 18-2033 ___________
KEITH DAVIS, Appellant
v.
ANTHONY E. EBERLING; LT. HOUSE; CAPTAIN JOHN DOE; J. THOMAS; HEARING EXAMINER S. ELLENBERGER; L. OLIVER DEPUTY SUPERINTENDENT; KEVIN KAUFFMAN SUPERINTENDENT; JOSEPH H. DUPONT, CHIEF HEARING EXAMINER ____________________________________
On Appeal from the United States District Court for the Middle District of Pennsylvania (M.D. Pa. Civil No. 3:18-cv-00314) District Judge: Honorable Richard P. Conaboy ____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 July 26, 2018 Before: JORDAN, SHWARTZ, and KRAUSE, Circuit Judges
(Opinion filed: July 31, 2018) _________
OPINION* _________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Pro se appellant Keith Davis, proceeding in forma pauperis, appeals from the
District Court’s dismissal of his claims against numerous defendants in a civil rights
action brought pursuant to 42 U.S.C. § 1983. For the reasons that follow, we will
summarily affirm the District Court’s judgment with one modification.
I.
Because we write primarily for the parties, we will recite only the facts necessary
for our discussion. At the time relevant to his claims, Davis was incarcerated at the State
Correctional Institution in Huntingdon, Pennsylvania.1 Davis alleges the following
account in his complaint. Lieutenant Anthony Eberling issued a misconduct report
involving Davis on April 10, 2017. The report states that Davis passed a knife to another
prisoner, Harris, and then stood by while Harris stabbed another prisoner as they were
waiting in a line. Lieutenant House participated in the investigation leading to the
issuance of the misconduct report.
Hearing Examiner Ellenberger held a disciplinary hearing on the misconduct
charges on April 13, 2017. Davis contended that he was not involved with the stabbing
and requested that the hearing examiner review video footage from that day; he also
requested the presence of three witnesses to testify on his behalf. The hearing examiner
concluded after reviewing video footage that Davis had passed a knife to Harris and then
watched as Harris stabbed another prisoner. The examiner did not allow any of Davis’
requested witnesses to testify because the video footage sufficiently supported the
1 Davis is presently incarcerated at the State Correctional Institution in Houtzdale, Pennsylvania. 2 allegations against Davis. Davis was sanctioned to 135 days in disciplinary confinement.
Davis appealed the guilty finding through the prison administrative appeal
process. A Program Review Committee, Superintendent Kevin Kauffman, and finally
Chief Hearing Examiner Joseph Dupont denied all of Davis’ appeals. The Program
Review Committee included Deputy Superintendents Oliver and Thomas.
In early 2018, Davis filed a complaint in the District Court seeking relief pursuant
to 42 U.S.C. § 1983 against defendants Eberling, House, Ellenberger, Oliver, Thomas,
Kauffman, Dupont, and Captain Harris.2 Davis claims that his due process rights were
violated during his hearing because the hearing examiner denied his request to present his
witnesses and supposedly failed to review the video footage of the incident. Davis insists
that he would not have been found guilty if the hearing examiner had viewed the video
footage and maintains that his administrative appeals were wrongly denied. Additionally,
Davis maintains that he was denied access to the courts because he was given inadequate
time and materials to conduct research for his state post-conviction proceedings and
insufficient time to consult with his attorney in those proceedings while he was in
disciplinary confinement.
The District Court screened Davis’ complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i) and dismissed all of his claims as frivolous. Davis timely appealed.
II.
2 It appears that Captain Harris reviewed a decision to place Davis into administrative confinement at the completion of his disciplinary confinement term in order to protect him. Davis includes no factual allegations about Harris in his complaint; this information is available only in a prison report that Davis attached to his complaint. 3 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.3 We exercise
plenary review over the District Court’s dismissal of Davis’ complaint as frivolous. See
Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). We review the District
Court’s denial of Davis’ request for appointment of counsel for abuse of discretion. See
Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993). We may summarily affirm a district
court’s decision “on any basis supported by the record” if the appeal fails to present a
substantial question. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per
curiam).
III.
The District Court properly dismissed all of Davis’ claims. First, Davis failed to
state a due process claim against defendants Eberling, House, and Ellenberger regarding
their involvement in his disciplinary hearing because he was not deprived of a legally
cognizable liberty interest when he was placed in disciplinary confinement. A prisoner
can identify a cognizable liberty interest if a punishment “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 (1995). “In deciding whether a protected liberty
interest exists[,] . . . we consider the duration of the disciplinary confinement and the
conditions of that confinement in relation to other prison conditions.” Mitchell v. Horn,
318 F.3d 523, 532 (3d Cir. 2003).
3 Although the District Court dismissed Davis’ complaint without prejudice, because Davis cannot cure the deficiencies in his complaint, as discussed below, the District Court’s order is final within the meaning of 28 U.S.C. § 1291. See Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976). 4 Davis has not identified a protected liberty interest. He does not allege that any
conditions of his 135-day confinement in disciplinary custody involved an atypical and
significant hardship. This Court has held that significantly longer stays in restrictive
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DLD-274 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 18-2033 ___________
KEITH DAVIS, Appellant
v.
ANTHONY E. EBERLING; LT. HOUSE; CAPTAIN JOHN DOE; J. THOMAS; HEARING EXAMINER S. ELLENBERGER; L. OLIVER DEPUTY SUPERINTENDENT; KEVIN KAUFFMAN SUPERINTENDENT; JOSEPH H. DUPONT, CHIEF HEARING EXAMINER ____________________________________
On Appeal from the United States District Court for the Middle District of Pennsylvania (M.D. Pa. Civil No. 3:18-cv-00314) District Judge: Honorable Richard P. Conaboy ____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 July 26, 2018 Before: JORDAN, SHWARTZ, and KRAUSE, Circuit Judges
(Opinion filed: July 31, 2018) _________
OPINION* _________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Pro se appellant Keith Davis, proceeding in forma pauperis, appeals from the
District Court’s dismissal of his claims against numerous defendants in a civil rights
action brought pursuant to 42 U.S.C. § 1983. For the reasons that follow, we will
summarily affirm the District Court’s judgment with one modification.
I.
Because we write primarily for the parties, we will recite only the facts necessary
for our discussion. At the time relevant to his claims, Davis was incarcerated at the State
Correctional Institution in Huntingdon, Pennsylvania.1 Davis alleges the following
account in his complaint. Lieutenant Anthony Eberling issued a misconduct report
involving Davis on April 10, 2017. The report states that Davis passed a knife to another
prisoner, Harris, and then stood by while Harris stabbed another prisoner as they were
waiting in a line. Lieutenant House participated in the investigation leading to the
issuance of the misconduct report.
Hearing Examiner Ellenberger held a disciplinary hearing on the misconduct
charges on April 13, 2017. Davis contended that he was not involved with the stabbing
and requested that the hearing examiner review video footage from that day; he also
requested the presence of three witnesses to testify on his behalf. The hearing examiner
concluded after reviewing video footage that Davis had passed a knife to Harris and then
watched as Harris stabbed another prisoner. The examiner did not allow any of Davis’
requested witnesses to testify because the video footage sufficiently supported the
1 Davis is presently incarcerated at the State Correctional Institution in Houtzdale, Pennsylvania. 2 allegations against Davis. Davis was sanctioned to 135 days in disciplinary confinement.
Davis appealed the guilty finding through the prison administrative appeal
process. A Program Review Committee, Superintendent Kevin Kauffman, and finally
Chief Hearing Examiner Joseph Dupont denied all of Davis’ appeals. The Program
Review Committee included Deputy Superintendents Oliver and Thomas.
In early 2018, Davis filed a complaint in the District Court seeking relief pursuant
to 42 U.S.C. § 1983 against defendants Eberling, House, Ellenberger, Oliver, Thomas,
Kauffman, Dupont, and Captain Harris.2 Davis claims that his due process rights were
violated during his hearing because the hearing examiner denied his request to present his
witnesses and supposedly failed to review the video footage of the incident. Davis insists
that he would not have been found guilty if the hearing examiner had viewed the video
footage and maintains that his administrative appeals were wrongly denied. Additionally,
Davis maintains that he was denied access to the courts because he was given inadequate
time and materials to conduct research for his state post-conviction proceedings and
insufficient time to consult with his attorney in those proceedings while he was in
disciplinary confinement.
The District Court screened Davis’ complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i) and dismissed all of his claims as frivolous. Davis timely appealed.
II.
2 It appears that Captain Harris reviewed a decision to place Davis into administrative confinement at the completion of his disciplinary confinement term in order to protect him. Davis includes no factual allegations about Harris in his complaint; this information is available only in a prison report that Davis attached to his complaint. 3 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.3 We exercise
plenary review over the District Court’s dismissal of Davis’ complaint as frivolous. See
Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). We review the District
Court’s denial of Davis’ request for appointment of counsel for abuse of discretion. See
Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993). We may summarily affirm a district
court’s decision “on any basis supported by the record” if the appeal fails to present a
substantial question. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per
curiam).
III.
The District Court properly dismissed all of Davis’ claims. First, Davis failed to
state a due process claim against defendants Eberling, House, and Ellenberger regarding
their involvement in his disciplinary hearing because he was not deprived of a legally
cognizable liberty interest when he was placed in disciplinary confinement. A prisoner
can identify a cognizable liberty interest if a punishment “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 (1995). “In deciding whether a protected liberty
interest exists[,] . . . we consider the duration of the disciplinary confinement and the
conditions of that confinement in relation to other prison conditions.” Mitchell v. Horn,
318 F.3d 523, 532 (3d Cir. 2003).
3 Although the District Court dismissed Davis’ complaint without prejudice, because Davis cannot cure the deficiencies in his complaint, as discussed below, the District Court’s order is final within the meaning of 28 U.S.C. § 1291. See Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976). 4 Davis has not identified a protected liberty interest. He does not allege that any
conditions of his 135-day confinement in disciplinary custody involved an atypical and
significant hardship. This Court has held that significantly longer stays in restrictive
confinement did not implicate a prisoner’s liberty interests under otherwise similar
circumstances. See Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (concluding
that seven months in disciplinary confinement alone did not violate a prisoner’s liberty
interest); Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (same for fifteen months in
administrative custody). To the extent that Davis alleged due process claims against
Oliver, Thomas, Kauffman, and Dupont for their handling of his grievances and appeals,
those too fail because access to prison grievance procedures is not constitutionally
required. See Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (“[T]he existence of
a prison grievance procedure confers no liberty interest on a prisoner.”). Therefore,
Davis’ due process claims were all correctly dismissed.
Davis’ only remaining claims, that he was denied access to the courts by
seemingly all defendants, also lack merit. Although Davis contends that he had difficulty
conducting sufficient research or getting enough time to speak with his post-conviction
attorney due to his placement in disciplinary confinement, he does not allege that any
defendant had a role in any incident where he sought and was denied research time or
telephone access. Thus, they lacked personal involvement in any underlying civil rights
5 violation.4 See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (“A defendant
in a civil rights action must have personal involvement in the alleged wrongs.”).
Finally, to the extent that the District Court dismissed Davis’ complaint without
prejudice after it additionally held that Davis’ claims were barred by the favorable
termination rule in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), we will modify the
judgment to be a dismissal with prejudice. The favorable termination rule in Heck
applies only where prison disciplinary outcomes implicate the fact or duration of a
prisoner’s confinement; here, the discipline imposed on Davis had no bearing on his
underlying conviction or the duration of his sentence. See Muhammad v. Close, 540 U.S.
749, 751 (2004) (“Heck’s requirement to resort to state litigation and federal habeas
before § 1983 is not . . . implicated by a prisoner’s challenge that threatens no
consequence for his conviction or the duration of his sentence.”). Accordingly, Davis’
claims should be dismissed with prejudice, as they lack legal merit and cannot be
salvaged through amendment. See Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
In all other respects, we will summarily affirm the dismissal of Davis’ claims.
4 Because Davis’ claims lack arguable merit, the District Court did not err in denying his motion for appointment of counsel. See Tabron, 6 F.3d at 158. We deny his present motion for appointment of counsel for the same reason. 6