CLD-440 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-2080
___________
NORMAN SHELTON,
Appellant
v.
C/O T. CRAWLEY; UNIT MANAGER BREWER; A. W. YOUNG; C/O ROGERS;
MEDICAL LADISTIC; LT SEEBA; LT MILLER; LT HAMILTON; C/O GRENOT;
CASE MANAGER COTTERALL; COUNSELOR EDENGER; COUNSELOR
STRUCK; LT AUGUSTA; LT HUNTER; LIESENFIELD, CORRECTIONAL
OFFICER
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-12-cv-00422)
District Judge: Honorable William J. Nealon, Jr.
____________________________________
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
September 26, 2013
Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges
(Opinion filed: October 16, 2013)
_________
OPINION
_________
PER CURIAM
1
Norman Shelton, a federal prisoner proceeding pro se, appeals from the District
Court’s April 4, 2013, order granting the defendants’ motion to dismiss. For the
following reasons, we will summarily affirm.
I.
The facts being well-known to the parties, we set forth only those pertinent to this
appeal. Shelton is currently serving a term of 322 months’ imprisonment for bank
robbery and related charges. He was assigned to USP-Lewisburg in 2009 to participate
in the Special Management Unit (“SMU”) program due to his extensive disciplinary
history, which included making threats and sexual proposals, assault resulting in serious
injury, and fighting. After being assigned to SMU, he continued that disruptive behavior.
On August 13, 2011, Shelton displayed imminent violence by making verbal
threats to prison staff while being escorted from the showers to his cell.1 As a result, the
Warden was notified and a Use of Force Team was assembled. The Team successfully
placed Shelton in ambulatory restraints. He remained in restraints until the morning of
August 15, 2011, when he regained self-control. An After Action Review concluded that
the actions taken by the staff were reasonable and appropriate. Shelton received an
incident report charging him with threatening bodily harm. A hearing was held before a
Disciplinary Hearing Officer (“DHO”) and Shelton was found guilty of the charge.
1
He told the officer escorting him back to cell that to “take [him]in the back so we can do
this I am gonna kick your ass, come on let’s do this, let’s go [come] on I am ready to go.”
(Dkt. No. 121, p. 16.)
2
Sanctions were imposed, including the loss of twenty-seven days of good conduct time
(“GCT”).
Shelton filed a Bivens2 complaint against the defendants, alleging that they used
excessive force against him, threatened him, refused to give him incoming legal mail,
admitted that they were conspiring against him due to his repeated filing of lawsuits,
injured his wrists with handcuffs, called him names, and falsified incident reports. He
claimed that they retaliated against him because he complained about the way he was
treated in prison and that they were attempting to prevent him from completing the SMU
program. Shelton sought injunctive relief and transfer to another institution. He also
sought compensatory damages against each of the defendants.
The defendants filed a motion to dismiss, or, in the alternative, for summary
judgment. (Dkt. No. 66.) The District Court dismissed all but two of Shelton’s claims
for failure to exhaust administrative remedies. The first exhausted claim, that the
defendants violated his due process rights during disciplinary hearings, was determined to
be barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994), and Edwards v. Balisok, 520
U.S. 641, 646-48 (1997). The second exhausted claim, alleging denial of access to the
courts, was dismissed because Shelton failed to allege an actual injury. 3 Shelton timely
appealed.
2
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), creates a cause of action against the federal government analogous to a § 1983
action against the states.
3
The District Court denied injunctive relief because Shelton had not demonstrated a
likelihood of success on the merits of his exhausted claims.
3
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the District Court’s decision to grant a motion to dismiss. Spruill v. Gillis, 372 F.3d
218, 226 (3d Cir. 2004). We may summarily affirm if no substantial question is
presented on appeal. 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
Our review of the record reveals no error in the District Court’s conclusion that
Shelton failed to exhaust his administrative remedies as to all but two of his claims.
After searching the defendants’ records, the District Court determined that, during the
time period encompassed by Shelton’s complaint, he filed forty-seven requests for
administrative remedies. (Dkt. No. 121, p. 15.) For all of the reasons expressed by the
District Court, of those forty-seven, two were properly exhausted, and the defendants also
conceded as much.4 (Id. pp. 16-20.) The District Court properly dismissed the
unexhausted claims. See 42 U.S.C. § 1997e(a); Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir.
2000).
We now to turn the District Court’s analysis of Shelton’s first exhausted claim that
he was denied due process during prison disciplinary proceedings. (Dkt. No. 121, pp. 17,
22 n.6.) Shelton appealed the DHO’s decision finding him guilty of threatening bodily
harm, which resulted in sanctions and the loss of twenty-seven days GCT. He argued
that he did not threaten prison staff. The Regional Director denied the appeal, affirming
4
The remaining forty-five “were either unrelated to the allegations in the complaint . . .
or were rejected for procedural reasons.” (Dkt. No. 121, p. 20.)
4
the DHO’s decision that the “greater weight of the evidence supported” that Shelton
committed the offense. (Dkt. No. 121, p. 16.) He filed another appeal, which was again
denied, because “the evidence [was] sufficient to support” the DHO’s determination,
particularly in light of Shelton’s “verbal testimony as well as the handwritten statements
[he] submitted for review . . . .” (Id. p. 18.) The Regional Director also stated that “the
required disciplinary procedures were substantially followed . . . .” (Id.)
When faced with a deprivation of a liberty interest in a prison disciplinary hearing,
a prisoner is entitled to procedures sufficient to ensure that his interest in his GCT is not
arbitrarily abrogated. See Wolfe v. McDonnell, 418 U.S. 539, 557 (1974). Specific
procedural protections must be afforded to the prisoner. See, e.g., id.at 563-72. In
addition, to comport with the requirements of due process, the decision of the DHO must
be supported by some evidence. See Superintendent v. Hill, 472 U.S. 445, 454 (1985).
The allegations set forth in Shelton’s complaint fall far short of stating a claim that his
due process rights were violated during the disciplinary proceedings. Specifically, he
never alleged that he was denied the procedural protections set forth in Wolfe, nor did he
allege that no evidence supported the DHO’s decision that he threatened the prison staff.5
5
Even if he did, the uncontroverted record reflects that Shelton received notice and had
an opportunity to be heard, as he submitted written and oral testimony. Further, the Hill
standard is minimal, and it appears that there is sufficient “evidence in the record that
could support the conclusion reached by the disciplinary board.” 472 U.S. at 455-56.
5
Shelton’s first exhausted claim was properly dismissed for failure to state a claim.6 (Dkt.
No. 121, pp. 24-25.)
Shelton’s second exhausted claim alleged that Officer Rogers illegally searched
his cell and destroyed legal mail from the court and from his lawyers. In order to sustain
a claim of denial of access to the courts, a plaintiff must allege an actual injury; that is,
that because of the defendant’s conduct he sustained the “loss or inadequate settlement of
a meritorious case, . . . the loss of an opportunity to sue, . . . or the loss of an opportunity
to seek some particular order of relief.” Gibson v. Superintendent of N.J. Dep’t of Law
& Pub. Safety, 411 F.3d 427, 441 (3d Cir. 2005) (citing Christopher v. Harbury, 536 U.S.
403, 414 (2002)). We agree that Shelton failed to allege any actual injury in this case.7
His claim of denial of access to the courts was, therefore, properly dismissed.
III.
There being no substantial question presented on appeal, we will summarily affirm the
judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
6
Though the District Court determined that this claim was barred by Heck and Edwards,
we may affirm on any basis supported by the record. See Brightwell v. Lehman, 637
F.3d 187, 191 (3d Cir. 2011).
7
As the District Court pointed out, “Shelton’s ability to present this current action
indicates that his access to the courts has not been impeded.” (Dkt. No. 121, p. 26.)
6