Mohammad Saleem v. Brungart

• Court: Court of Appeals for the Third Circuit
• Decided: November 30, 2022
• Docket: 20-1610
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 20-1610 ______________

MOHAMMAD SOHAIL SALEEM, Appellant

v.

CORRECTIONS OFFICER BRUNGART; SGT. GLASS, C/A Housing Unity Supervisor; T. PILOSI, Hearing Examiner; G. MCMAHON, Deputy Superintendent; MORRIS HOUSER, Deputy Superintendent; MARK A. GARMAN; T. MILLER, Program Manager; JOSEPH DUPONT, Chief Hearing Examiner’s Office; JOHN DOE NUMBER ONE, Corrections Officer; JOHN DOE NUMBER TWO, Corrections Officer; JOHN DOE LIEUTENANT, Corrections Supervisor; JOHN DOE RHU LIUTENANT, Corrections Supervisor ______________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3-19-cv-00025) District Judge: Honorable Robert D. Mariani ______________

Argued September 20, 2022

Before: AMBRO, RESTREPO, and FUENTES, Circuit Judges

(Filed: November 30, 2022)

Johanna Dennehy [ARGUED] Jessica Rothschild Laurie Edelstein Steven Reed Steptoe & Johnson LLP* 1330 Connecticut Avenue, N.W. Washington, DC 20036 Counsel for Appellant Mohammad Sohail Saleem

Sean A. Kirkpatrick [ARGUED] Lindsey A. Bedell Office of Attorney General of Pennsylvania Strawberry Square 15th Floor Harrisburg, PA 17120 Counsel for Appellees ______________

OPINION** ______________

FUENTES, Circuit Judge.

Plaintiff-Appellant Mohammad Sohail Saleem, a former Pennsylvania state

prisoner, filed a civil rights action pursuant to 42 U.S.C. § 1983 against various prison

officials in the United States District Court for the Middle District of Pennsylvania. The

District Court granted Defendants-Appellees’ motions to dismiss and for summary

judgment and dismissed Saleem’s claims. Saleem appeals the District Court ruling,

arguing that the court erred in (1) finding that he did not exhaust his administrative

remedies before bringing suit, as required by the Prison Litigation Reform Act (“PLRA”);

and (2) determining that he failed to state a procedural due process claim because he was

* We note that the attorneys representing Appellant appeared pro bono. We thank them for taking these cases on a pro bono basis and for the very able and professional way in which they handled the representation and argument before the Court. ** This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not constitute binding precedent. 2 not deprived of a liberty interest when placed in 30-day disciplinary confinement. We

agree with the District Court, and we therefore affirm the dismissal of Saleem’s complaint.

I. BACKGROUND

In June 2017, Defendant-Appellee Officer Brungart filed a misconduct report

against Saleem. When Saleem responded to the misconduct report, the sole allegation he

raised was that Brungart had falsified the report. A hearing was held, after which the

Hearing Examiner, Defendant-Appellee T. Pilosi, determined that the evidence presented

supported Brungart’s version of events. During the administrative appeals process, Saleem

filed a grievance pursuant to DC-ADM 8041 against Brungart, making the same allegation

that he had falsified the misconduct report. The DC-ADM 804 grievance was denied, and

Saleem fully appealed the misconduct report through the DC-ADM 8012 process.

In January 2019, Saleem filed the present civil rights suit asserting: (1) Eighth

Amendment deliberate indifference claims against Brungart and his housing supervisor

(Sergeant Glass); (2) Religious Land Use and Institutionalized Persons Act, 42 U.S.C.

§§ 2000cc et seq. (“RLUIPA”) and First Amendment claims against Brungart, Glass, and

Pilosi; (3) Fourteenth Amendment Equal Protection claims against Brungart, Glass, and

Pilosi; and (4) Fourteenth Amendment Due Process claims against Brungart, Pilosi, and

the officers involved in the appeals process, McMahon, Miller, Houser, Garman, and

1 DC-ADM 804 is one of the prison’s three inmate grievance procedures meant for grievances concerning conditions of confinement. 2 The DC-ADM 801 grievance process is oriented toward concerns relating to a misconduct or resulting proceedings. 3 Dupont. The defendants filed a motion to dismiss and for summary judgment on the issue

of administrative exhaustion.

The District Court granted summary judgment to Garman, McMahon, Houser,

Glass, Miller, Pilosi, and Dupont for failure to exhaust administrative remedies as to these

individuals. It concluded that the only claim Saleem had exhausted was the procedural due

process claim against Brungart (for lying in statements written in the misconduct) but

dismissed that claim as well, concluding that Saleem had no protected liberty interest in 30

days of disciplinary custody. This appeal followed.

II. JURISDICTION

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and this Court has

jurisdiction under 28 U.S.C. § 1291. We review de novo the District Court’s determination

that Saleem failed to exhaust administrative remedies.3 “In doing so, we accept the Court’s

factual findings unless clearly erroneous.”4 We also review de novo the District Court’s

grant of the motion to dismiss for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6).5 We “are required to accept as true all allegations in the complaint and

all reasonable inferences that can be drawn from them after construing them in the light

most favorable to the nonmovant.”6

3 Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 153 (3d Cir. 2016); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003). 4 Robinson, 831 F.3d at 153 (citing Small v. Camden Cnty., 728 F.3d 265, 268 (3d Cir. 2013)). 5 See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). 6 Id. (citations omitted). 4 III. DISCUSSION

The questions on appeal are whether the District Court erred in (1) granting

summary judgment on Saleem’s claims for failure to exhaust administrative remedies, and

(2) dismissing Saleem’s due process claims for failure to state a claim. We find that the

District Court did not err because Saleem failed to exhaust available administrative

remedies and he was not deprived of any state-created liberty interest.

A.

Under the PLRA, a prisoner must “exhaust . . . administrative remedies” before

bringing suit in court for grievances related to their incarceration.7 Exhaustion entails

“complet[ing] the administrative review process in accordance with the applicable

procedural rules,” which are provided by the individual prisons.8 However, “exhaustion

applies only when administrative remedies are ‘available,’ and “[u]nder certain

circumstances, a nominally extant prison grievance policy is not truly an ‘available’

remedy.”9 Whether a remedy is truly “available” is a functional inquiry based on “real-

world workings of prison grievance systems.”10 A remedy may be found to be

“unavailable” if, among other things, the procedure results in officers being “unable or

consistently unwilling to provide any relief to aggrieved inmates.”11

7 42 U.S.C. § 1997e(a). 8 Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 305 (3d Cir. 2020) (citing, inter alia, Woodford v. Ngo, 548 U.S. 81, 88 (2006)); see also Spruill v. Gillis, 372 F.3d 218, 222 (3d Cir. 2004). 9 Shifflet v. Korszniak, 934 F.3d 356, 365 (3d Cir. 2019). 10 Ross v. Blake, 578 U.S. 632, 643 (2016). 11 Id. 5 Saleem argues that he exhausted his administrative remedies by putting prison

officials on notice of his claims, and that there was no available route by which to make a

grievance related to the misconduct charge. Both arguments are unpersuasive under the

circumstances presented.

The prison’s procedural rules dictated that inmate misconduct, and the resultant

proceedings, are addressed through a DC-ADM 801 disciplinary process. Grievances

related to placement in administrative custody could be addressed through DC-ADM 802,

and all other grievances not arising from misconduct or custody procedures could be

addressed through DC-ADM 804. In the misconduct proceedings pursuant to DC-ADM

801, Saleem only alleged that Brungart lied about seeing him fighting with another inmate.

Saleem did not allege, until his second administrative appeal, that there was surveillance

footage that should be viewed, and he did not accuse the Hearing Examiner or Program

Review Committee of failing to view the footage.12 He also did not raise any allegation

regarding religious retaliation, and only vaguely accused the hearing officers of “bias” in

his second appeal. Proper exhaustion of administrative remedies means not only “using all

steps that the agency holds out” but also “doing so properly,” so that the agency has a

12 This Court has previously held that an inmate’s due process rights are violated when a hearing officer refuses to review surveillance video of the alleged incident, and instead simply relies on a correction officer’s story. See Burns v. Penn. Dep’t of Corrections, 642 F.3d 163 (3d Cir. 2011). Here, however, Saleem failed to exhaust his administrative remedies on this issue and, in any event, as discussed further below, has not stated a liberty interest implicated by the hearing. 6 chance to address the relevant arguments on the merits.13 Thus, Saleem failed to exhaust

his administrative remedies for most of his claims.

With respect to Saleem’s accusation that there was no grievance procedure available

for his claims, Saleem had different avenues to make his complaints, and points to no

evidence of a blanket policy of denying DC-ADM 804 grievances relating in any way to

misconduct. Indeed, his written rejection allowed him to appeal that determination, which

he did not do, and directed him to raise his challenges related to the misconduct via DC-

ADM 801. Moreover, Saleem’s DC-ADM 804 grievance focused again on the alleged

falsity of the misconduct charge against him—not on any other conduct. In sum, there is

no evidence that the procedures available to Saleem “operate[d] as a simple dead end.”14

Because there were no material issues of fact regarding the availability of administrative

remedies, we will affirm the District Court’s grant of summary judgment.

B.

The Fourteenth Amendment provides that no state shall “deprive any person of life,

liberty, or property, without due process of law.”15 “In analyzing a procedural due process

claim, the first step is to determine whether the nature of the interest is one within the

contemplation of the ‘liberty or property’ language of the Fourteenth

Amendment.”16 “Under certain circumstances, states may create liberty interests with

13 Woodford, 548 U.S. at 90 (internal quotation marks and citation omitted). 14 Ross, 578 U.S. at 643. 15 U.S. Const. amend. XIV. 16 Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000) (citation omitted). 7 respect to inmates’ rights that are protected by the Clause.”17 Prison disciplinary action

does not typically implicate a liberty interest requiring due process safeguards unless the

punishment “imposes atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.”18

The parties acknowledge that 30 days of disciplinary confinement, on its own, does

not implicate a liberty interest.19 Saleem argues, however, that the 30 days of confinement

deprived him of his ability to attend mandatory programming, which affected his ability to

seek parole and resulted in his sentence being extended “several years.”20 Saleem contends

that Wolff v. McDonnell, 418 U.S. 539 (1974), and this Court’s decision in Leamer v.

Fauver, 288 F.3d 532 (3d Cir. 2002), govern and require reversal. Saleem’s contention

fails because this case is distinguishable from Leamer, and there is no state-created right to

be released on parole in Pennsylvania.21

In Leamer, we held that New Jersey created a cognizable liberty interest in treatment

for incarcerated sexual offenders.22 As the Court explained, “[t]he structure of the statutory

scheme established by New Jersey to ensure treatment for sex offenders” was “somewhat

unique.”23 The statutory scheme there predicated the term of the plaintiff’s sentence on his

17 Fantone v. Latini, 780 F.3d 184, 190 (3d Cir. 2015). 18 Sandin v. Conner, 515 U.S. 472, 484 (1995). 19 See, e.g., Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (confinement in administrative custody for fifteen months not atypical or significant deprivation sufficient for a liberty interest). 20 Saleem does not further describe how his inability to attend programming for 30 days extended his sentence by “several years.” 21 Weaver v. Penn. Bd. of Probation and Parole, 688 A.2d 766, 770 (Pa. Cmwlth. 1997). 22 Leamer, 288 F.3d at 545. 23 Id. at 538. 8 response to treatment. Good behavior, parole policies, or other credits could not affect the

term of the plaintiff’s sentence, only successful therapy. Saleem argues that the statutory

scheme in Pennsylvania creates a similar situation in which he was required to complete

sex offender treatment before being released to parole, and his 30-day confinement caused

him to fail to complete that programing, thereby extending his sentence.

The relevant statute here, 61 Pa. Con. Stat. Ann. § 6137(a)(3.1), states:

(i) Following the expiration of the offender’s minimum term of imprisonment, if the primary reason for not paroling the offender is the offender’s inability to access and complete prescribed programming within the correctional institution, the board may release the offender on parole with the condition that the offender complete the prescribed programming while on parole.

(ii) This paragraph shall not apply to offenders who are currently serving a term of imprisonment for a crime of violence as defined in 42 Pa.C.S. § 9714 (relating to sentences for second and subsequent offenses) or for a crime requiring registration under 42 Pa.C.S. Ch. 97 Subch. H (relating to registration of sexual offenders).

(iii) For those offenders to whom subparagraph (ii) is applicable, the board may release the offender on parole if the offender is subject to another jurisdiction’s detainer, warrant or equivalent writ.

By its plain language, the statutory scheme applies only where the “primary reason” for

denying parole is the offender’s failure to complete programming.24 The parole board did

not cite a failure to complete programming as the “primary reason” it denied Saleem parole.

Rather, failure to complete programming was only one of several reasons underlying that

decision.

24 61 Pa. Con. Stat. Ann. § 6137(a)(3.1)(i). 9 Moreover, even if subparagraph ii of 61 Pa. Con. Stat. Ann. § 6137(a)(3.1) applies

to Saleem, there was no state-created liberty interest of which Saleem was deprived. First,

under Pennsylvania law, there is no right to parole unless and until the inmate is actually

released on parole.25 Second, 42 Pa. Con. Stat. Ann. § 9718.1(d), relating to sex offenders

required to participate in treatment, states that “this section shall not be construed to confer

any legal right upon any individual, including an individual . . . seeking to . . . be paroled.”

As this Court has previously held, “[w]here state law provides parole authorities complete

discretion to rescind a grant of parole prior to release, an inmate does not have a

constitutionally protected liberty interest in being paroled.”26

For this reason, Saleem’s reliance on Wolff v. McDonnell is misplaced. There, the

Supreme Court found a protected liberty interest in a state-created statutory right to good

time credit that could only be rescinded as a sanction for “major misconduct.”27 Here, by

contrast, the state system allows parole to be rescinded at the discretion of the parole board.

Thus, Saleem failed to state a claim upon which relief could be granted on any unexhausted

claim because the state created no liberty interest in release to parole.

IV. CONCLUSION

For the foregoing reasons, we will affirm the District Court’s order dismissing

Saleem’s complaint.

25 Weaver, 688 A.2d at 770. 26 Fantone, 780 F.3d at 190. 27 Wolff, 418 U.S. at 557. 10