Burns v. PA Department of Corrections

PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT
_____________

No. 09-2872
_____________

RODNEY BURNS,
Appellant
v.

PA DEPARTMENT OF CORRECTIONS; SCI -
GRATERFORD; *SECRETARY PENNSYLVANIA
DEPARTMENT OF CORRECTIONS; DONALD
WILLIAMSON; DAVID DIGUGLIELMO; THOMAS
DOHMAN; MARY CANINO; JOHN DOE(S);
CONFIDENTIAL INFORMANT #1; CONFIDENTIAL
INFORMANT #2; ROBERT S. BITNER; LEVI HOSBAND;
FRANK REGAN; TONY WOLFE

*(Pursuant to Rule 43(c), Fed. R. App. P.)
_____________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civ. No. 2:05-CV-03462-BMS)
District Judge: Hon. Berle M. Schiller

_____________

Argued September 23, 2010

Before: McKEE, Chief Circuit Judge, AMBRO and
CHAGARES, Circuit Judges

(Opinion filed: April 20, 2011 )

_____________
Richard E. Coe, Esq. [Argued]
Richard M. Haggerty, Esq.
Drinker, Biddle & Reath, LLP
18th & Cherry Streets
One Logan Square
Philadelphia, PA 19103
Counsel for Appellants

Thomas W. Corbett, Jr., Esq.
Claudia M. Tesoro, Esq. [Argued]
Calvin R. Koons, Esq.
John G. Knorr, III, Esq.
Office of the Attorney General of Pennsylvania
21 South 12th St.
Third Floor
Philadelphia, PA 19107
Counsel for Appellees
_____________

OPINION OF THE COURT

McKEE, Chief Judge.

Rodney Burns appeals the district court‘s grant of
summary judgment in favor of all defendants in the suit he
brought against the Pennsylvania Department of Corrections
(―DOC‖) and several Department employees pursuant to 42
U.S.C. § 1983. For the reasons that follow, we will affirm in
part and reverse in part.1

I. Facts and Procedural History

The background of this dispute has been described in
detail by both this court and the district court. See Burns v.
Penn. Dept. of Corr., 544 F.3d 279 (3d Cir. 2008) (―Burns
1‖); Burns v. Penn. Dept. of Corr., 2009 WL 1475274

1
The District Court had jurisdiction under 42 U.S.C. §
1983 and 28 U.S.C. §§ 1341 and 1343. We have jurisdiction
over this appeal under 28 U.S.C. § 1291.

2
(E.D.Pa. May 26, 2009); and Burns v. Penn. Dept. of Corr.,
2007 U.S. Dist. LEXIS 8679, (E.D. Pa. Feb. 6, 2007).
Accordingly, we will only set forth the facts that are relevant
to this appeal.

A. The Alleged Misconduct

On February 14, 2005, a corrections officer at the State
Correctional Institute at Graterford discovered that inmate
Charles Mobley had burns on his face that had been caused
by another inmate throwing scalding water on him four days
earlier. Although Mobley did not know the assailant, he
initially said that the inmate who assaulted him occupied cell
BA-1022. One of the two occupants of that cell, Ricky
Holmes, was placed in administrative custody during the
investigation that followed.

SCI Graterford has a special hotline phone number that
is given to a select number of inmates who can use it to
provide confidential information to corrections officials. Two
callers used the hotline to report that Burns, and not Holmes,
was responsible for the assault. Defendant Thomas Dohman,
Captain of Security at SCI Graterford, believed this
information to be credible because he recognized the voices
and knew that the callers had previously provided reliable
information. Dohman therefore concluded that Mobley had
mistakenly identified Holmes instead of Burns because they
were similar in appearance and because Mobley, an older
inmate, was ―semi-coherent‖ at times, making it plausible that
his identification was simply wrong.

Burns claims that when Dohman subsequently
interviewed him, Dohman told him that the incident had been
recorded on a video surveillance camera and that the
videotape showed Burns committing the assault. Dohman
disputes this account. He insists that the assault was not
recorded and that he never told Burns otherwise.

Although Burns denied any involvement, Dohman
issued a misconduct report charging Burns with assaulting
Mobley. That report stated that the charges were based on
statements from two reliable confidential informants who had
witnessed the assault as well as information from other

3
inmates given to another corrections officer, Lt. Abdul
Ansari.

B. Pennsylvania Department of Corrections Disciplinary
Scheme

The Pennsylvania Administrative Code establishes a
baseline policy for prisons to manage disciplinary infractions.
See generally 37 Pa. Code § 93.10. As part of that policy,
prisons must develop ―[w]ritten procedures which conform to
established principles of law for inmate discipline‖ that
include, at minimum, ―[w]ritten notice of charges,‖ a
―[h]earing before an impartial hearing examiner,‖ an
―[o]pportunity for the inmate to tell his story and to present
relevant evidence,‖ ―[a]ssistance from an inmate or staff
member at the hearing if the inmate is unable to collect and
present evidence effectively,‖ a ―[w]ritten statement of the
decision and reasoning of the hearing body, based upon the
preponderance of the evidence,‖ and an ―[o]pportunit[y] to
appeal the misconduct decision in accordance with
procedures in the Department of Corrections Inmate
Handbook.‖ Id.

The Administrative Code also lists types of sanctions
that may be imposed if an inmate is convicted of a
disciplinary infraction. 37 Pa. Code § 93.10(a). Depending
on the type of misconduct, those sanctions include ―[c]hange
of cell assignment, including placement in the restricted
housing unit or restrictive confinement in a general
population cell . . . [,]‖ ―[s]uspension of privileges for a
specified period of time[,]‖ and ―[c]hange, suspension or
removal from job.‖ Id.

Additionally, an inmate found guilty of misconduct
can be sanctioned for ―[p]ayment of the fair value of property
lost or destroyed or for expenses incurred as a result of the
misconduct.‖ Id. One type of ―expenses‖ that can be
―incur[ed] as a result of the misconduct‖ is medical expenses.
The Pennsylvania Administrative Code also establishes
regulations for medical treatment of prisoners. See generally
37 Pa. Code § 93.12. While the Department of Corrections
provides some prisoner medical services for free, other
medical services incur a charge. The Administrative Code
also provides that ―[t]he Department will charge a fee to an
4
inmate for any of the following . . . (4) Medical service
provided to another inmate as a result of assaultive conduct
engaged in by an inmate to be charged the fee.‖ 37 Pa. Code §
93.12(c). As a result, prisoners who are found guilty of
assaults in which the victim needs medical treatment may be
required to pay the cost of the treatment.

C. Burns’ Disciplinary Hearing

After Dohman issued the misconduct report, Burns
responded by filing timely requests to call Mobley as a
witness at his disciplinary hearing and to present the
purported videotape of the incident.2 Both requests were
consistent with the prison‘s disciplinary procedures.

Burns renewed his request for the production of the
videotape when his disciplinary hearing began. Mary Canino,
the hearing officer, responded by continuing the hearing to
investigate Burns‘ request. Five days later, Canino conducted
an in camera proceeding during which Dohman told Canino
that the incident had not been recorded. However, Canino did
not attempt to view the relevant tapes in order to resolve the
conflict between that representation and Burns‘ statement that
Dohman had told him that the incident had been recorded.3
Dohman also testified about the confidential informants
2
The prison had a policy of retaining surveillance
tapes for 60 days before reusing them. Based on that policy,
and since Burns‘ request was within that 60 day window, we
assume that the tape was still available when Burns made his
request.
3
In her deposition, Officer Canino stated that she
could not remember if she viewed the videotape, the
videotape did not exist, or if she relied upon Dohman‘s
statement that there was nothing relevant on the videotape.
Ex. 3 at 27-28 (Canino deposition). She did indicate,
however, that it was her standard procedure to ask the prison
official if an incident had been recorded. Ex. 3 at 27 (Canino
deposition) (―Q. How would you determine [if there was a
videotape to view]‖ A. . . . I would ask Captain Dohman was
there a tape on this incident and he would say ‗yes‘ or ‗no.‘ If
there was a tape on the incident, I would review the tape.
And if the camera was pointed [away from the incident that
occurred, she would indicate that in the record.]‖)
5
during the in camera proceeding. However, he did not reveal
their names to Canino, and Canino did not receive any direct
testimony from them, either in writing or in person. Canino
also met with Mobley in camera, but he refused to testify
either in camera or at the disciplinary hearing. Canino
accepted Mobley‘s refusal to testify, and did not inquire into
why Mobley refused.4

Canino then reconvened the hearing with Burns
present. She informed Burns that Mobley had refused to
testify and that there was no videotape of the incident. She
also informed Burns that she found the information from the
confidential informants credible and reliable. She then found
Burns guilty of the assault. As a result, she imposed the
following sanctions: 180 days of disciplinary confinement in
a restricted housing unit (―RHU‖), and loss of his prison job.
Canino also assessed Burns‘ prison account for the amount of
Mobley‘s medical expenses resulting from the assault.
Despite the assessment, prison administrators did not deduct
any part of Mobley‘s medical expenses from Burns‘ inmate
account. Nevertheless, the threat of assessment remained for
several years, and that continuing threat was the initial focus
of this suit.

D. Subsequent Procedural History

After his administrative appeals were unsuccessful,
Burns filed this pro se § 1983 action in the district court
claiming that the Pennsylvania Department of Corrections
and certain officials violated his due process rights during the
prison‘s disciplinary proceedings when it assessed his prison
account.5 The district court granted summary judgment in
favor of the defendants on all counts after concluding that the
assessment of Burns‘ account was not a sufficient liberty or
property interest to support a claim under § 1983.

4
Canino speculated that Mobley may have been
concerned for his safety, but this speculation was not based
on anything Mobley said.
5
After Burns filed his suit pro se, counsel was
appointed to represent him.
6
 Burns appealed that judgment, and we reversed and
remanded.6 We held that ―the Department of Corrections‘
assessment of Burns‘ institutional account constituted the
deprivation of a protected property interest for purposes of
procedural due process‖ and ―[t]hat deprivation [was]
sufficient to trigger the protections of the Due Process
Clause.‖ Burns, 544 F.3d at 291. However, we remanded the
case so that the district court could determine what process
Burns was due and whether the disciplinary hearing described
above satisfied the procedural protections Burns was entitled
to under the Due Process Clause. If the district court found
that due process was violated, the question of remedies also
needed to be addressed.

On remand, the district court found that Burns‘ due
process rights had been violated by the hearing officer‘s
failure to independently evaluate the credibility of the
confidential informants, but it did not find that Burns‘
procedural due process rights were violated by the hearing
officer‘s refusal to compel Mobley‘s testimony or by her
failure to view the alleged videotape. Despite finding a due
process violation, the court found that the state officials were
protected by qualified immunity and that Burns could
therefore not recover damages from them. Burns v. PA Dept.
of Corr., 2009 WL 1475274, *5 (E.D. Pa. May 26, 2009). The
court did, however, grant Burns‘ request for a declaration that
his prison account could not be assessed. The district court
denied all of Burns‘ other requests for injunctive relief.

Burns now argues that his right to due process was
also violated by the hearing officer‘s failure to compel
Mobley to testify as well as her failure to view the videotape,
that the prison officials are not entitled to qualified immunity,
and that the district court erred in denying his requests for

6
Following oral argument that occurred during the
initial appeal, the DOC sent a letter to Burns declaring that it
would not deduct money from his inmate account to assess
him for expenses arising from the assault as allowed by the
hearing officer's order. The DOC then argued that Burns'
appeal was therefore moot. That claim of mootness was
rejected. See Burns, 544 F.3d at 283.
7
relief for the harms he suffered as a result of the violation of
due process.

II. Standards of Review

―We review an award of summary judgment de novo,
applying the same test on review that the District Court
should have applied.‖ MBIA Ins. Corp. v. Royal Indem. Co.,
426 F.3d 204, 209 (3d Cir. 2005). On summary judgment, we
review ―the facts in the light most favorable to the nonmoving
party and draw all inferences in that party‘s favor.‖
Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994).
We review the district court‘s grant of qualified immunity de
novo as it raises a purely legal issue. Curley v. Klem, 298 F.3d
271, 279 (3d Cir. 2002).

We generally review a district court‘s grant of relief
for abuse of discretion, but ―we must exercise a plenary
review of the trial court's choice and interpretation of legal
precepts and its application of those precepts to the historical
facts.‖ Universal Minerals, Inc. v. C.A. Hughes & Co., 669
F.2d 98, 103 (3d Cir. 1981).

III. Due Process

It is well established that ―[p]risoners . . . may not be
deprived of life, liberty or property without due process of
law.‖ Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
However, inmates are generally not entitled to procedural due
process in prison disciplinary hearings because the sanctions
resulting from those hearings do not usually affect a protected
liberty interest. See Sandin v. Conner, 515 U.S. 472, 483-84
(1995) (holding that not all sanctions resulting from prison
disciplinary hearings affect protected liberty interests). Burns
does not assert here that any of the sanctions imposed by
Hearing Officer Canino—including his prison transfer, his
security level, and his 180-day sentence in the SHU—affects
any protected liberty interest. Nor does Burns have a
property interest in his prison job.7

7
Burns does assert that he is entitled to remedies
because of these sanctions based upon his contention that they
8
 We have already determined that Burns does have a
protected property interest in the assessment of his prison
account and was therefore entitled to due process prior to the
assessment of his account. See Burns, 544 F.3d at 291
(―[W]e are satisfied that the Department of Corrections‘
assessment of Burns‘ institutional account constituted the
deprivation of a protected property interest for purposes of
procedural due process.‖).

Pennsylvania‘s Administrative Code allows an
inmate‘s account to be assessed in two different
circumstances. First, the Code establishes that if an inmate is
found to have engaged in misconduct, the ―sanction‖ may
include ―[p]ayment of the fair value of property lost or
destroyed or for expenses [including medical expenses]
incurred as a result of the misconduct.‖ 97 Pa. Code §
93.10(a). Elsewhere, the Code requires that the Department
of Corrections ―will‖ charge that inmate‘s prison account for
the costs of treating his victim‘s injuries.

As noted, we held in Burns I, that ―a disciplinary
conviction directing that an inmate's institutional account be
assessed for medical or other expenses implicates a property
interest sufficient to trigger the protections of procedural due
process. . .‖. 544 F.3d at 280. Thus, Burns was entitled to
procedural due process at his disciplinary hearing because
assessment of his inmate account for the costs of Mobley‘s
medical expenses was a possible consequence of conviction
of the infractions he was charged with.

However, the parameters of that due due process are
not readily defined because loss of liberty is a normal
consequence of a criminal conviction. See Sandin, 515 U.S.
at 487 (―The regime to which he was subjected as a result of
the misconduct hearing was within the range of confinement
to be normally expected for one serving [a prison sentence]‖).

On remand, the district court found that Hearing
Officer Canino had violated Burns‘ right to due process by
relying on the statement of two unnamed confidential
informants without independently evaluating their reliability

were the result of a constitutionally flawed hearing. This
issue is discussed more fully in Part V.
9
and credibility. Burns, 2009 WL 1475274, *13-14. The
Commonwealth does not appeal that ruling. However, Burns
appeals the district court‘s conclusion that Canino‘s refusal to
personally view the videotape and her refusal to force Mobley
to testify also violated Burns‘ due process rights.

Burns claims that Wolff v. McDonnell, 418 U.S. 539
(1974), should govern our due process inquiry into the
procedural protection he was due in his prison disciplinary
hearing. In Wolff, the Supreme Court outlined the basic
process inmates are entitled to when prison officials seek to
deprive them of good-time credits, a protected liberty interest.
The district court‘s due process analysis was based on Wolff.
Burns, 2009 WL 1475274, *10.

The Commonwealth argues that Wolff does not apply.
It claims that ―no decision by the Supreme Court has found
Wolff applicable in an inmate‘s deprivation-of-property case.‖
Appellee‘s Br. at 23. The Commonwealth thus attempts to
distinguish between deprivations of liberty and deprivations
of property and argues that Wolff only applies to the former
while two other Supreme Court cases - Paratt v. Taylor, 451
U.S. 527 (1981), overruled in part by Daniels v. Williams,
474 U.S. 327 (1986), and Hudson v. Palmer, 468 U.S. 517
(1984) - apply to the latter.

We are not persuaded. Wolff itself notes that its due
process analysis applies regardless of whether the deprivation
is of liberty or property: ―This analysis as to liberty parallels
the accepted due process analysis as to property. The Court
has consistently held that some kind of hearing is required at
some time before a person is finally deprived for his property
interests. . . . We think a person‘s liberty is equally protected
[as that of his or her property] . . . .‖ 418 U.S. at 557-58.

Moreover Paratt and Hudson only address post-
deprivation remedies of unauthorized or unintentional
deprivations of property. Unlike Wolff, which addresses the
state‘s obligation to provide pre-deprivation notice and a
hearing, Paratt involved a prisoner‘s mail packages being
negligently misplaced, 451 U.S. at 529, and the process due
after that deprivation. Hudson extended this post-deprivation
analysis to the process an inmate is due after a prison guard‘s
unauthorized destruction of an inmate‘s property, 468 U.S. at
10
520. Thus, neither case is helpful to our inquiry into the
process that should have been afforded before the deprivation
that occurred here, where pre-deprivation notice and
opportunity to be heard were part of an established process.

―[W]e must balance the inmate‘s interest . . . against
the needs of the prison, and some amount of flexibility and
accommodation is required.‖ Wolff, 418 U.S. at 566. The
district court began its analysis by reasoning that

[t]he newly recognized property interest at
issue here – the security of a prisoner‘s
account – is a less important private interest
than the good time credits at issue in Wolff. . .
. The reduction in the economic value of
Burns‘ institutional account and the threat of
appropriation, although it lasted three years,
was so minor that the Court must conclude
that this is a less weighty interest than a
possible extension on a term of
imprisonment[.]

Burns, 2009 WL 1475274, *11. In a footnote, the
court further noted that ―[h]ad Burns‘ account
actually been assessed, the maximum amount for
which he could have been liable was $10.00.‖ Id. at
19 n.7.

We do not fully agree with the court‘s framing of the
issue. First, as both the Commonwealth and Burns recognize
in their briefs, when Canino assessed Burns‘ account, she
believed that the assessment could be much larger than
$10.00, possibly including the costly prospect of covering
plastic surgery Mobley may have needed. 8 See Appellant‘s

8
Canino‘s deposition reads:
―Q. And you wrote here that you assessed the inmate‘s
– to assess the inmate‘s account for medical or other
expenses. That would be the medical expenses for Mr.
Mobley?
A. Plastic surgery or whatever. I‘m not a doctor.
Whatever it takes to make him right.
11
Br. at 46 n.15, Appellee‘s Br. at 16 n.18. Thus, although we
now know that Burns‘ exposure was less than $10, the
exposure appeared far more substantial at the time of the
hearing.

Second, although a prisoner‘s interest in freedom is
certainly paramount, we are not willing to ignore his/her
interest in property,9 nor are we willing to say that it is so de
minimus that the requirements of the Due Process Clause are
substantially reduced. As we have already noted, the
Supreme Court was careful to explain that ―a person‘s liberty
is equally protected [as his or her property] . . . .‖ Wolff, 418
U.S. at 557-58.

Rather, we must balance the legitimate interests of
both the state and the inmate while affording deference to the
unique institutional concerns that arise in the prison setting.
Wolff, 468 U.S. at 562. The appropriate balance must
recognize these competing interests when determining what
process is due. See Mathews v. Eldridge, 424 U.S. 319, 334-
35 (1976).

A. Documentary Evidence

As noted earlier, during his disciplinary hearing, Burns
requested that a videotape of the incident be presented as
permitted under prison policy. The requested tape appeared
relevant because Burns alleged that Dohman told him that the
assault was recorded by surveillance cameras. Burns claims
that the videotape would have exonerated him because it
would have shown the real assailant. As also noted, Captain
Dohman claims he never told Burns there was a videotape,
and he told Hearing Officer Canino that the assault had not
been recorded. Canino does not remember if she ever viewed
the videotape.

Q. Were there any other expenses you had in mind
other than medical expenses.
A. I think that was basically it.‖
Exhibit 3 at 79-80 (Canino deposition).
9
For example, an inmate‘s prison account may be the
only means of paying for long distance phone calls to family
or others in his/her support network.
12
 Because we are reviewing a grant of summary
judgment, we must view the facts in the light most favorable
to the nonmoving party. Armbruster v. Unisys Corp., 32 F.3d
768, 777 (3d. Cir 1994). We must therefore assume that
Canino did not view the videotape. However, we make no
assumptions about what, if anything, was then recorded on
the videotape.

It is clearly established that due process requires that
an inmate be permitted to ―present documentary evidence in
his defense when permitting him to do so will not be unduly
hazardous to institutional safety or correctional goals.‖ Wolff,
418 U.S. at 566. Although prison officials are afforded
deference regarding whether evidence might be unduly
hazardous or undermine institutional safety or correctional
goals, ―the discretion afforded prison officials is not without
limits.‖ Young v. Kann, 926 F.2d 1396, 1400 (3d Cir. 1991).

In Dalton v. Hutton, 713 F.2d 75 (4th Cir. 1983), the
Court of Appeals for the Fourth Circuit dealt with a similar
issue. Although that case is not ―on all fours‖ with the
circumstances here, the court‘s analysis is helpful. There, an
inmate asked two prison officials to testify in his behalf at
disciplinary proceedings arising from a prison disturbance;
both guards declined. Pursuant to the applicable prison
regulations precluding inmates from calling any prison
employees as witnesses, no efforts were made to compel their
testimony.10 On appeal, the court found the regulation
inconsistent with the inmate‘s right to due process because

[o]ne needs no ‗right‘ to call a witness who
voluntarily presents himself to testify. If
there is preclusion of an entire class of
witnesses (i.e., anyone who would rather not
appear), the right is dissipated in a cloud of
verbiage. An inmate granted the right, albeit
qualified, to call witnesses in his behalf loses
it altogether, in any meaningful employment
of language, if any witness may refuse to
testify for no reason whatsoever.
10
The court focused on the fact that the applicable regulation
was a ―per se proscription against the calling of all but
voluntary witnesses.‖ Dalton, 713 F.2d at 77.
13
Id. at 78.

An inmate‘s right to present documentary evidence is
similarly undermined if prison officials can bar the inmate
from presenting the evidence simply by denying that the
evidence is relevant. If a disciplinary hearing is to have any
substance, the hearing officer must determine relevance of
evidence, not corrections officers or employees. See Young v.
Kann, 926 F.2d 1396, 1402 (3d Cir. 1991) (discussing Helms
v. Hewitt, 655 F.2d 487 (3d Cir. 1981), rev’d on other
grounds, 459 U.S. 460 (1983), aff’d on remand, 712 F.2d 48
(3d. Cir 1983)). Deferring such a determination to the
charging corrections officer turns the disciplinary proceeding
into little more than the administrative equivalent of a ―show
trial.‖ A ―right‖ to present evidence is no right at all if the
officer overseeing a disciplinary hearing can simply decide
not to view the evidence based on a representation of the
prosecuting corrections officer.

It is therefore troubling that the hearing officer here
appeared to rely entirely on the statements of Officer Dohman
in determining whether the videotape was relevant. The
problem is compounded by the fact that the record suggests
that Officer Dohman may not even have been under oath
when he told Canino about the videotape.

Burns was thus deprived of due process because his
right to present evidence was completely undermined by the
hearing officer‘s failure to independently determine whether
the evidence was relevant.

We therefore hold that an inmate‘s right to procedural
due process is violated when a hearing examiner simply fails
to view available evidence to determine its relevance and
suitability for use at a disciplinary hearing. If such hearings
are to have any substance, the hearing officer must
independently assess whether the evidence is relevant and
then determine whether there are legitimate penological
reasons to deny the prisoner access to the evidence
requested.11 Although the government may have a very real

11
This does not, of course, mean that prison officials
must indefinitely preserve anything which may become
evidence in a disciplinary proceeding. Rather, where, as here,
14
interest in barring an inmate‘s access to certain documentary
evidence, that interest is not implicated when it is provided
only to the hearing officer, who can then independently assess
its probative value and weigh that against any institutional
concerns that may counsel against allowing otherwise
probative evidence to be used at the hearing.

B. Mobley’s Testimony

Burns also claims that he was denied procedural due
process when Hearing Officer Canino denied his request to
call Mobley as a witness. The prison‘s policy allows an
inmate to call up to three relevant witnesses, including one
staff member. Burns requested only Mobley‘s testimony.

From what we have already stated, it should be clear
that an ―inmate facing disciplinary proceedings should be
allowed to call witnesses and present documentary evidence
when permitting him to do so will not be unduly hazardous to
institutional safety or correctional goals.‖ Wolff, 418 U.S. at
566. The Supreme Court has cautioned, however, that
inmates are not entitled to the full panoply of constitutional
rights. Here again, the inmate‘s right must be balanced
against concerns that are endemic to a situation of one inmate
testifying against another:

Relationships among the inmates are
varied and complex and perhaps subject
to the unwritten code that exhorts
inmates not to inform on a fellow
prisoner. It is against this background

an institution‘s record retention policy suggests that
documentary evidence exists, and an inmate properly requests
that the evidence be produced at his/her disciplinary hearing,
due process requires that the evidence be produced unless the
hearing officer makes an independent determination that the
evidence is not relevant, or if relevant, should not be
introduced because of overriding penological concerns such
as security of the institution or safety of prison personnel or
other inmates. Here, the prison had a policy of retaining such
tapes for 60 days, and the hearing was held well within that
time frame. We must therefore assume that the tapes were
available for Burns‘ hearing.
15
 that disciplinary proceedings must be
structured by prison authorities; and it is
against this background that we must
make our constitutional judgments . . . .

Id. at 562.

Here, Burns‘ desire to have Mobley testify was
certainly reasonable since Mobley was the victim of the
assault and presumably saw his assailant. Hearing Officer
Canino appropriately responded by asking Mobley to testify.
However, as we have noted, Mobley refused to testify either
at the hearing or in camera. He also refused to provide any
kind of written testimony. Canino did not explain why
Mobley refused to testify, and it is not clear that she even
knew Mobley‘s reasons or inquired into them. Canino
therefore conducted the hearing and rendered a decision
without having the benefit of hearing what the victim knew
about the identity of his attacker.

The Supreme Court has explained that ―it would be
useful for the [prison disciplinary hearing officer] to state [his
or her] reason for refusing to call a witness, whether it be for
irrelevance, lack of necessity, or the hazards presented in
individual cases.‖ Wolff, 418 U.S. at 566. However, the
Court has also cautioned that institutional concerns, including
the possibility of retaliation, may make it wholly impractical
to compel an inmate‘s testimony at a disciplinary hearing. Id.
at 567.

We will therefore not conclude that a hearing officer
must always record the reason for permitting an inmate to
refuse to testify. That may sometimes be as problematic as
reporting that an inmate refused to testify out of fear of
retaliation. These institutional concerns override Burns‘
interest in being able to call Mobley as a witness. If Burns
had been the assailant, Mobley would either have had to
testify truthfully and risk retaliation or perjure himself and
thereby become the vehicle by which his assailant would
escape sanction.

16
 In Dalton, the inmate wished to call prison officials to
testify, but under prison policy they could not be compelled to
testify— as noted earlier, all testimony had to be voluntary.
Dalton, 713 F.2d at 77. While we agree with the Fourth
Circuit that the right to call only voluntary witnesses is no
right at all, we find no justification for extending this analysis
so far that it would force a victim inmate to testify against
his/her assailant, nor is Dalton to the contrary. The court was
there concerned with a per se prohibition that did not allow
for inmates to require testimony of anyone (including
corrections officers), even when that testimony presented no
institutional concerns that would have counseled against it.

The Commonwealth‘s interest in protecting Mobley
and managing the difficult relationships within the prison
setting far outweigh Burns‘ right to call Mobley as a witness.
Wolff requires ―a case-by-case analysis of the calling of
involuntary witnesses.‖ See Forbes v. Trigg, 976 F.2d 308,
317 (7th Cir. 1992). Here, we conclude that the special
circumstances involving an inmate victim, and the concerns
about the ―unwritten code that exhorts inmates not to inform
on a fellow prisoner,‖ Wolff, 418 U.S. at 562, outweigh the
right Burns may have otherwise had to call an unwilling
witness. Accordingly, we will affirm the district court‘s
finding that there was no due process violation in allowing
Mobley not to testify, but we will reverse the court‘s finding
that Burns‘ due process right was not violated by the hearing
examiner‘s failure to view the videotape that may have
recorded the incident.

III. Qualified Immunity

Finding that prison officials violated Burns‘ due
process rights does not end our inquiry, however. The
question remains whether those officials have qualified
immunity. Qualified immunity shields government officials
from suit even if their actions were unconstitutional as long as
those officials‘ actions ―d[id] not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.‖ Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982).

―Qualified immunity balances two important
interests—the need to hold public officials accountable when
17
they exercise power irresponsibly and the need to shield
officials from harassment, distraction and liability when they
perform their duties reasonably.‖ Pearson v. Callahan, ---
U.S. ---, 129 S.Ct. 808, 815 (2009). ―The general rule of
qualified immunity is intended to provide government
officials with the ability ‗reasonably [to] anticipate when their
conduct may give rise to liability for damages.‘‖ Anderson v.
Creighton, 483 U.S. 634, 645 (1987) (quoting Davis v.
Scherer, 468 U.S. 183, 195 (1984)) (alteration in original).
The burden of establishing qualified immunity falls to the
official claiming it as a defense. See Harlow, 457 U.S. at 819
(describing qualified immunity as a defense and noting that
―if the official pleading the defense claims extraordinary
circumstances and can prove that he neither knew nor should
have known of the relevant legal standard, the defense should
be sustained‖) (emphasis added).

For the official to have ―fair warning,‖ United States v.
Lanier, 520 U.S. 259, 270 (1997), that his or her actions
violate a person‘s rights, ―[t]he contours of the right must be
sufficiently clear that a reasonable official would understand
that what he is doing violates that right.‖ Anderson v.
Creighton, 483 U.S. 635, 640 (1987). However, ―[t]his is not
to say that an official action is protected by qualified
immunity unless the very action in question has previously
been held unlawful, but it is to say that in the light of pre-
existing law the unlawfulness must be apparent.‖ Wilson v.
Layne, 526 U.S. 603, 615 (1999).

The district court reasoned that, since our holding in
Burns I (that Burns‘ property interest in his inmate account
was protected under the Due Process Clause) rested upon
sources other than our own case law, the right we recognized
there was not ―clearly established‖ when the defendants
assessed his account. The district court believed that, prior to
our holding there, procedural due process only protected an
inmate‘s account when it was debited, and no property
interest was implicated by the ―mere‖ assessment of the
account. Accordingly, the court reasoned that the defendants
were entitled to qualified immunity pursuant to Saucier v.
Katz, 533 U.S. 194 (2001). Burns I, 2007 WL 442385, *5.
Although we believe that the question of qualified immunity

18
is a closer call than suggested by the district court‘s analysis,
we will nevertheless affirm that court‘s holding.

The district court was correct in concluding that our
holding in Burns I that a prisoner has an interest in the
security of his or her prison account was a new understanding
of property interests protected by due process rights.
However, that does not end our qualified immunity inquiry
because ―officials can still be on notice that their conduct
violates established law even in novel factual circumstances.‖
Hope v. Pelzer, 536 U.S. 730, 741 (2002).

To determine whether a new scenario is sufficiently
analogous to previously established law to warn an official
that his/her conduct is unconstitutional, we ―inquir[e] into the
general legal principles governing analogous factual
situations . . . and . . . determin[e] whether the official
should have related this established law to the instant
situation.‖ Hicks v. Feeney, 770 F.2d 375, 380 (3d Cir.
1985). ―This approach eliminates unexpected liability for
public officials as well as prevents the occurrence of a mere
‗factual wrinkle‘ in an area of clearly established law from
barring suit altogether.‖ Id. (quoting People of Three Mile
Island v. Nuclear Regulatory Commissioner, 747 F.2d 139,
148 (3d Cir. 1984)).

Because qualified immunity is intended to protect
officials absent ―fair warning‖ that their conduct violates
constitutional guarantees, we examine qualified immunity
from the perspective of the official at the time of the
violation. We must therefore determine ―whether reasonable
officials in their positions, with the information then available
to them, should have known that their actions or omissions
violated clearly established law.‖ Ryan v Burlington County,
860 F.2d 1199, 1204 (3d Cir. 1988).12

12
See also Saucier v. Katz, 533 U.S. at 202 (―The
relevant inquiry is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted‖); Wilson v. Layne, 526 U.S. 603, 615 (1999)
(inquiring ―whether a reasonable officer could have believed
that [his or her action] was lawful, in light of clearly
established law and the information that the officers
19
 Here, the question is ―whether reasonable officials in
[Hearing Examiner Canino‘s] position, with the information
then available to [her], should have known that their actions
[in ordering an assessment of Burns‘ prison account under the
circumstances here] violated clearly established law.‖ Ryan,
860 F.2d at 1204.

At the time of Burns‘ disciplinary hearing, it was well
established that ―[i]nmates have a property interest in funds
held in prison accounts.‖ Reynolds v. Wagner, 128 F.3d 166,
179 (3d. Cir. 1997) (citing Mahers v. Halford, 76 F.3d 951,
954 (8th Cir. 1996); Campbell v. Miller, 787 F.2d 217, 222
(7th Cir. 1986); Quick v. Jones, 754 F.2d 1521, 1523 (9th Cir.
1985)). Accordingly, it was clearly established that ―inmates
are entitled to due process with respect to any deprivation of
this money.‖ Reynolds, 128 F.3d.at 179 (citing Mahers, 76
F.3d at 954). To the extent that Burns I added a ―new twist,‖
it did so by concluding that the position of the Department of
Corrections was similar to that of a judgment creditor when it
assessed inmates‘ accounts even if the account was not
debited until some point in the future.13

Under Pennsylvania law, after an inmate has been
found responsible for an assault, ―[t]he Department [of
Corrections] will charge a fee to an inmate for . . . [m]edical
service provided to another inmate as a result of assaultive
conduct engaged in by an inmate to be charged the fee.‖ 37
Pa. Code § 93.12(c)(4). An ―assessment [i]s a statutorily

possessed.‖); Anderson v. Creighton, 483 U.S. 634, 641
(1987) (―The relevant question in this case, for example, is
the objective (albeit fact-specific) question whether a
reasonable officer could have believed [the] warrantless
search to be lawful, in light of clearly established law and the
information the searching officers possessed.‖)
13
In Burns 1, although we conceded that the ―analogy
is technically imperfect,‖ we held that ―the legal right
obtained by the Department of Corrections through its
assessment of Burns' account mirrors the interest held by a
Judgment Creditor under Pennsylvania law.‖ 544 F.3d at 588.
We also noted that, the position of the Department of
Corrections here was even stronger than that of a judgment
creditor. Id.
20
authorized consequence of [a prisoner‘s] being found guilty
of institution misconduct.‖ Brome v. Dept. of Corr., 756 A.2d
87, 89 (Pa. Cmwlth. 2000); see also Greene v. Dept. of Corr.,
729 A.2d 652, 654 (Pa. Cmwlth. 1999).

The Commonwealth Court of Pennsylvania has
previously found that the Department of Correction‘s
procedures regarding the assessment of inmates‘ accounts
violated due process. In Holloway v. Lehman, 671 A.2d 1179
(Pa. Cmwlth. 1996), the court noted that ―[i]t is beyond
dispute that money is property. Private property cannot be
taken by the government without due process.‖ Id. at 1181
(citations omitted). There, the court found the Department‘s
policy of providing no opportunity for inmates to protest the
amount of money to be deducted from the prisoner‘s account
denied inmates due process of law. The court thus began
requiring a hearing that has come to be known as a ―Holloway
hearing.‖

However, a Holloway hearing merely determines the
amount of money to be assessed from a prisoner‘s account; it
does not provide an opportunity to challenge the fact of the
assessment in the first place. That determination is made at a
misconduct hearing—such as the hearing over which Canino
presided.

A reasonable official at the time of Burns‘ misconduct
hearing would have known, or should have known, that
―inmates are entitled to due process with respect to any
deprivation of‖ their prison accounts. Reynolds, 128 F.3d at
179 (citing Mahers, 76 F.3d at 954). An official should also
have realized that the hearing over which Canino presided is
the only opportunity under Pennsylvania law for an inmate to
challenge whether his or her prison account should be
assessed (not merely the amount to be debited). Indeed,
Pennsylvania officials should have been on heightened notice
of the constitutional requirements with regard to such actions
because Pennsylvania courts have previously upheld inmates‘
due process challenges of the assessment procedures. See
Holloway, 671 A.2d 1179.

Thus, we do not think it is unreasonable for prison
officials at the time of Burns‘ hearing to have known that: (1)
Burns had a property interest in his prison account, (2) he was
21
entitled to due process before his account could be debited,
(3) a later Holloway hearing would determine the amount of
money to be deducted, but the actual disciplinary hearing was
the only forum for determining if any money should be
deducted at all, and (4) due process is violated when a
determination to deprive an inmate of a protected interest is
based solely on the uncorroborated statements of confidential
informants.

However, two matters give us pause in concluding that
Burns is entitled to relief here. First, although it was not
unreasonable for a government official to have realized that
due process must be provided in adjudicating whether a
prison account can be debited, Burns is the first case that
clearly established that the assessment itself implicates a
prisoner‘s protected property interests, even if the account is
not actually debited. The devaluation in the property interest
in the inmate‘s funds that results from such an assessment
was not clearly established before Burns I, and we do not
believe that a reasonable official could have foreseen the
analogy to a judgment creditor that formed the basis of our
holding in Burns I. Second, we think it understandable that
the existence of a later Holloway hearing could have caused a
reasonable prison official to believe that, because the
Pennsylvania state courts have found that a Holloway hearing
was necessary to satisfy due process, that hearing was also
sufficient to satisfy due process.

Although some officials may have been able to deduce
that a Holloway hearing was insufficient to satisfy due
process, we do not believe that a reasonable official in
Canino‘s position would have had a ―fair warning‖ that an
assessment of the account prior to the Holloway hearing was
subject to due process protections. Prior to Burns I, inmates
were only entitled to procedural due process before their
accounts were debited. Neither this court, nor any
Pennsylvania appellate courts had held that an inmate was
also entitled to procedural due process before the account was
assessed, even if the fund was not debited before we decided
Burns I.

Thus we cannot conclude that the circumstances here
were sufficient to give prison officials ―fair warning‖ that

22
their conduct was unconstitutional. United States v. Lanier,
520 U.S. 259, 270 (1997). Accordingly, we hold that they are
entitled to qualified immunity.

V. Remedies

Although qualified immunity bars Burns from seeking
monetary compensation, he may still be entitled to injunctive
relief. See Harris v. Pernsley, 755 F.2d 338, 343 (3d Cir.
1985) (―The qualified immunity defense only applies, of
course, to claims for money damages.‖).

Burns argues that the district court should have
provided remedies for all of the injuries that flowed from the
flawed hearing, and that the remedies should have included:
reversing the finding that he assaulted Mobley; remedying the
increased security clearance that followed the assault on
Mobley; rescinding the order separating him and Mobley that
resulted in his transfer; and compensating him for his lost job
and wages, and his out-of-pocket expenses resulting from
these actions.

However, Burns‘ ―wish list‖ is not the least bit helpful
to our attempt to fashion an appropriate remedy. Prison
officials would have been perfectly within their authority had
they separated Mobley and Burns after the disciplinary
hearing, regardless of its outcome. In fact, prudence may
well have required separation even if Burns had been
exonerated at the hearing. Prison authorities may still have
had legitimate concerns that Burns would attempt to retaliate
against Mobley because Mobley refused to exonerate him at
the hearing. The same can be said for the order transferring
Burns to a different institution. Burns certainly did not have
any right to serve his sentence in any particular institution.
Prison authorities routinely transfer inmates for reasons of
security, convenience or available space. Burns surely did
not acquire a vested right to remain where he was housed
based upon this incident or the violations of his due process
rights that followed. The same is true of his job. Job
classifications are uniquely the province of prison authorities,

23
not the courts, and Burns did not have any vested right to a
particular job that a court could enforce.14

The Commonwealth argues that because prison
officials could have imposed all of these penalties without
any process at all, the constitutional violation did not cause
any injury to Burns. In the Commonwealth‘s view, since
prisoners have no liberty interests in their prison location,
Meachum v. Fano, 427 U.S. 215, 228-29 (1976), or
placement in restricted housing units, Sandin, 515 U.S. at
486, and no property interests in their jobs, prison officials
were free to take these actions without any justification at all.

The argument is problematic for two reasons. First, it
fails to recognize that these actions resulted from a
constitutionally flawed hearing. Second, it assumes that
every remedy must be based upon a liberty or property
interest. In fact, while the injury must have been proximately
caused by a violation of a protected interest, there is no
requirement that the remedy be limited solely to that property
interest. See, e.g., Doe v. District of Columbia, 697 F.2d
1115, 1124 (D.C. Cir. 1983) (finding prisoners whose Eighth
Amendment right to be free from cruel and unusual
punishment had been violated to be ―entitled to compensation
for any physical injuries, pain and suffering, emotional
distress, and impairment of their prospects for future
employment proximately caused by the defendants'
unconstitutional conduct‖ even though there is no property
interest in employment prospects).

In order to determine what remedies are appropriate,
the Commonwealth asks us to adopt the reasoning of the
district court and proceed as if the hearing did not implicate
Burns‘ property interest and therefore did not require any
constitutional protections. The district court posed the legal
question as: ―if the hearing had not implicated Plaintiff‘s
property interest in the security of his account, . . . would the

14
We do not, however, take any position on whether
an inmate who loses a particular job or is transferred to a
different institution in retaliation for his/her exercise of a
constitutional right would have a remedy in that very different
situation.
24
disciplinary determination and its subsequent effects be
upheld?‖ Burns, 2009 WL 1475274, *8.

However, that does not advance our inquiry. We
cannot erase unconstitutional actions in order to uphold steps
that were taken because of them. The constitutional violation
did occur, and the Commonwealth cannot put that genie back
in the bottle.

Rather, we must approach this from the perspective of
what would have happened had Burns been afforded the
procedural protections to which he was entitled. In advancing
their opposing arguments regarding the appropriate remedy,
both parties rely on Carey v. Piphus, 435 U.S. 247, 260
(1978). The question there was not whether the state could
have taken certain actions against a group of students without
violating their constitutional right to due process. Rather, the
Court considered whether the students would still have been
suspended if they had been afforded procedural due process.
See Carey v. Piphus, 435 U.S. at 260.

Carey lays out a helpful burden shifting scheme for
resolving the remedial issue here. See Carey, 435 U.S. at 260
(describing and approving of the Court of Appeals burden
shifting scheme). Under Carey, the plaintiff in a § 1983 case
must prove that a constitutional violation has occurred, and
that it was the proximate cause of his or her injuries. Once
the plaintiff clears both hurdles, the burden shifts to the
defendant, who then has an opportunity to prove that the same
actions would have occurred even if due process had been
provided.

Here, as we have explained, Burns has established a
procedural due process violation and has pointed to all of the
sanctions that resulted from that action. Accordingly, the
burden should have shifted to the Commonwealth to show
that it would have taken the same steps if due process had
been provided. For those actions the prison officials can
establish would have been taken regardless of the flawed
hearing, the plaintiff is entitled to no remedy, as any remedy
would constitute a windfall. However, if the prison cannot
establish that it would have taken the same steps even absent
the constitutionally flawed hearing, the inmate is then entitled
to relief.
25
 We believe that had due process been provided, at
least one consequence of the flawed hearing would not have
occurred: Burns would not have been convicted of
misconduct on the evidence presented. The district court
found that the evidence was insufficient to assess Burns‘
account and the state did not appeal that finding.

SCI Graterford has one process for determining
whether an inmate is guilty of misconduct and will have
funds assessed because of that misconduct. The processes of
finding guilt and allocating medical treatment costs are
inseparably intertwined in a single proceeding with one
adjudicator, one body of evidence, and the same burdens of
proof. In fact, the punishment of allocating costs to an inmate
appears to flow automatically from the result of the
disciplinary proceeding because it appears that an assessment
is a mandatory consequence of a disciplinary action if the
inmate is convicted of the infraction. See 37 Pa. Code §
93.12(c)(4) (―The Department [of Corrections] will charge a
fee to an inmate for . . . [m]edical service provided to another
inmate as a result of assaultive conduct engaged in by an
inmate to be charged the fee.‖ (emphasis added)). This
means that the prison could not have assessed Burns‘ prison
account without a disciplinary conviction, but it also appears
that the prison had to assess his account once Burns was
convicted of the infraction.

We agree with the district court that there is simply not
enough evidence in the record to support the assessment of
Burns‘ account, and the Commonwealth has not appealed
that finding. Since the assessment is inextricably intertwined
with the finding that Burns committed the charged infraction,
we must also conclude that there is simply not enough
evidence to support a finding that he was the one who
assaulted Mobley. Therefore, we grant Burns‘ request that the
disciplinary conviction be expunged.

Nevertheless, prison officials were entitled to have
taken the other actions regardless of the outcome of the
disciplinary hearing, and Burns‘ request to reverse those
measures must be denied. As noted above, he would
otherwise receive a windfall. He cannot rise above the
legitimate institutional concerns of prison officials merely

26
because they did not provide him with a proper hearing. The
Commonwealth argues that prison officials may have been
wise to impose such sanctions as the separation order and the
job changes regardless of the outcome of the hearing for fear
of retaliation or other concerns, and we agree. We are
mindful that prison officials must make complicated and
difficult decisions regarding inmate placement and privileges,
and officials should clearly be afforded deference regarding
such actions. We are also mindful that the Prison Litigation
Reform Act (―PLRA‖) provides that ―[p]rospective relief in
any civil action with respect to prison conditions shall extend
no further than necessary to correct the violation of the
Federal right‖ and that such relief should be ―narrowly
drawn,‖ ―extend[] no further than necessary to correct the
violation of the Federal right, and [be] the least intrusive
means necessary to correct the violation of the Federal right.‖
18 U.S.C.A. § 3626(a)(1)(A).

Moreover, our ―involvement . . . in the day-to-day
management of prisons‖ must be limited. Sandin, 515 U.S. at
482. Thus, our holding only disturbs the conviction that
resulted from a constitutionally flawed hearing. Consistent
with the PLRA, we do not interfere with the prison‘s day-to-
day management of Burns.

VI. Conclusion

Accordingly, we will affirm the district court‘s finding
that Mobley‘s refusal to testify did not constitute a due
process violation, but we will reverse and hold that it is a due
process violation for a prison hearing officer not to seek to
view documentary evidence requested by an inmate unless
there are legitimate institutional concerns that counsel against
it. We will nevertheless affirm the district court‘s finding of
qualified immunity. Finally, we will grant Burns‘ request to
order the misconduct be expunged, but we deny his request
for all other relief.

27