Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
6-20-2007
Keller v. PA Bd Probation
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4558
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BLD-252 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-4558
________________
WAYNE KELLER,
Appellant,
vs.
PA BOARD OF PROBATION AND PAROLE; KATHLEEN M. ZWIERZYNA; SEAN
RYAN; W. HIGGINS; DONALD J. JONES; SUPERINTENDENT THOMAS LAVAN,
SCI-DALLAS; CHIEF HEARING EXAM. ROBERT S. BITNER
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(M.D. Pa. Civ. No. 02-cv-1925)
District Judge: Honorable Richard P. Conaboy
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
May 31, 2007
Before: MCKEE, FUENTES and WEIS, CIRCUIT JUDGES
(Filed June 20, 2007)
_______________________
OPINION
_______________________
PER CURIAM.
Wayne Keller, a Pennsylvania state prisoner proceeding pro se, appeals
from the District Court’s orders granting summary judgment in favor of appellees. For
the reasons set forth below, we will dismiss this appeal pursuant to 28 U.S.C. §
1
1915(e)(2)(B)(I).
Keller is, and at all relevant times was, incarcerated at the State
Correctional Institution at Dallas, Pennsylvania (“SCI-Dallas”). In October 2002, Keller
commenced a civil rights action under 42 U.S.C. § 1983 in the U.S. District Court for the
Middle District of Pennsylvania seeking damages, a declaratory judgment, and injunctive
relief against the following defendants: the Pennsylvania Board of Probation and Parole
(“the Parole Board”); Parole Board Secretary Kathleen Zwierzyna; Parole Board member
Sean Ryan; Hearing Examiner Donald Jones; and Correctional Officer W. Higgins. In the
complaint, Keller alleged that: (1) he was denied due process and equal protection when
the Parole Board, Zwierzyna, and Ryan improperly denied him re-parole on three
occasions in retaliation for his refusal to pay a certain fee, and in retaliation for his having
threatened litigation against the Parole Board; (2) Zwierzyna refused to consider his
allegation that his sentence had been miscalculated; (3) on September 6, 2001,
Correctional Officer Higgins issued a false misconduct charge against him; and (4) during
institutional disciplinary proceedings on the misconduct charge, Hearing Examiner
Donald Jones denied Keller his right to present witnesses and excluded other evidence.
Keller also alleged that he was subject to cruel and unusual punishment when, as a result
of the misconduct charge, he was placed in the prison’s Restricted Housing Unit (“RHU”)
2
for 90 days.1
Keller subsequently filed an amended complaint in which he named as
defendants Chief Hearing Examiner Robert Bitner and SCI-Dallas Superintendent
Thomas Lavan, whom he alleged improperly denied his appeals from the misconduct
charge. Keller sought damages and a declaratory judgment against these defendants.
On September 9, 2004, the District Court entered an order granting partial
summary judgment to the defendants, and dismissed Keller’s claims against the Parole
Board, Hearing Examiners Robert Bitner and Donald Jones, and Superintendent Thomas
Lavan. The District Court initially permitted Keller to proceed on his claims against
Parole Board members Kathleen Zwierzyna and Sean Ryan, and Correctional Officer
Higgins, but, by order dated March 29, 2006, granted summary judgment in favor of these
defendants as well. Keller submitted a timely motion for reconsideration, which the
District Court denied on October 10, 2006. The present appeal followed.2
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. See
Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). Because Keller is
1
Keller’s claims are appropriately brought in a § 1983 action. See, e.g., Wilkinson v.
Dotson, 544 U.S. 74, 81-82 (2005).
2
Keller states that he is appealing from the District Court’s March 29, 2006 order
granting summary judgment, and does not reference the Court’s earlier summary
judgment order. Nonetheless, since “the appeal of a final judgment draws into question
all prior non-final orders and rulings,” Drinkwater v. Union Carbide Corp., 904 F.2d 853,
858 (3d Cir. 1990), we will review the Court’s September 9, 2004 summary judgment
order as well.
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proceeding in forma pauperis, we must review this appeal to determine whether it should
be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). We dismiss an appeal if it “lacks an
arguable basis in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
We review a District Court's grant of summary judgment de novo.
Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 235 (3d Cir. 1995). Summary judgment
is proper only if it appears “that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c);
Carrasca v. Pomeroy, 313 F.3d 828, 832-33 (3d Cir. 2002). If a motion for summary
judgment demonstrates that no genuine issue of material fact exists, the nonmoving party
must set forth specific facts showing a genuine material issue for trial and may not rest
upon the mere allegations or denials of its pleadings. Connors v. Fawn Mining Corp., 30
F.3d 483, 489 (3d Cir. 1994). After a careful review of the record, we conclude that the
District Court correctly entered summary judgment against Keller on all of his claims.
First, the District Court properly dismissed Keller’s claim for damages
against the defendants in their official capacities, as it is well established that § 1983
claims against state officials acting in their official capacities are barred by the Eleventh
Amendment. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). The
District Court also properly dismissed Keller’s claims against the Parole Board, as those
claims were likewise barred by the Eleventh Amendment. See id.; Independent
4
Enterprises, Inc. v. Pittsburgh Water and Sewer Auth., 103 F.3d 1165, 1172 (3d Cir.
1997).
We also agree with the District Court that Hearing Examiners Donald Jones
and Robert Bitner and Superintendent Thomas Lavan were entitled to summary judgment
on Keller’s claim that he was denied due process during the institutional disciplinary
proceedings following his September 6, 2001 misconduct charge. As the District Court
explained, an inmate's due process rights are not triggered unless the prison “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). Here, Keller was placed in
RHU for 90 days. We have made clear that this type of confinement does not constitute
an “atypical and significant hardship” so as to trigger due process rights. See Griffin v.
Vaughn, 112 F.3d 703, 706 (3d Cir. 1997) (finding that 15 months in segregation was not
an “atypical and significant hardship”).3
The District Court was also correct in granting summary judgment in favor
of Correctional Officer Higgins on Keller’s claim that the misconduct charge was
falsified. As discussed above, Keller was not subjected to “atypical and significant
hardship” when he was placed in RHU following his misconduct charge. See Sandin, 515
3
The District Court did not address Keller’s related claim that his placement in RHU
constituted cruel and unusual punishment. We conclude, however, that confinement in a
restricted housing unit does not in itself constitute cruel and unusual punishment in
violation of the Eighth Amendment. See Griffin, 112 F.3d at 708.
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U.S. at 484; Griffin, 112 F.3d at 706. Therefore, because Keller was not deprived of a
protected liberty interest, his challenge to the misconduct charge is actionable only under
section 1983 if Officer Higgins issued the misconduct in retaliation for Keller having
exercised a constitutional right. See Rauser v. Horn, 241 F.3d 330, 333 (2001). Here,
Keller did not present any facts that would establish a retaliatory motive behind the
misconduct charge. Rather, the record reflects that Officer Higgins issued the charge
following an altercation at the food window during which Keller “aggressively” yelled,
used an obscenity, and threatened to hit Officer Higgins over the head with a food tray.
In any event, Officer Higgins could not have been motivated by Keller’s threat of
litigation against the Parole Board because Keller did not threaten the Parole Board until
after Officer Higgins issued the misconduct. Therefore, we conclude that the District
Court properly granted summary judgment in favor of Officer Higgins on this claim.
We also agree with the District Court that Parole Board Secretary
Zwierznya was entitled to summary judgment on the grounds that she was not personally
involved in any aspect of Keller’s sentencing or parole hearings. See Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Here, Keller failed to show that
Secretary Zwierznya participated in any way in the 1997, 2001, or 2002 parole hearings or
the subsequent review process. Rather, Keller claimed only that Zwierznya acted as
Secretary of the Parole Board, and that her signature appeared at the bottom of the Parole
Board’s decisions. These allegations are insufficient to establish that Secretary
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Zwierznya was somehow personally involved in Keller’s case. Therefore, the District
Court correctly found that Secretary Zwierznya was entitled to summary judgment.
We further agree with the District Court’s disposition of Keller’s claim
against Parole Board member Sean Ryan. In the complaint, Keller alleged that Ryan
improperly denied him re-parole in 2001 and 2002 in retaliation for his refusal to pay a
certain fee, and in retaliation for his having threatened litigation against the Parole Board.
In Wilson v. Rackmill, we recognized that parole officers are entitled to absolute
immunity when the challenged act arises from their “adjudicatory duties” as distinguished
from their executive, administrative, or investigative duties. 878 F.2d 772, 775 (3d Cir.
1989). In the present matter, the record indicates that Ryan interviewed Keller for re-
parole and took part in deciding whether Keller should be granted re-parole in 2001 and
2002. These actions were adjudicatory in nature. See id. (finding that defendants were
performing adjudicatory duties when they were serving as parole hearing examiners).
Accordingly, the District Court properly granted summary judgment in favor of Parole
Board member Ryan on the grounds that he was immune.
Finally, we note that in his notice of appeal, Keller does not appear to seek
review of the District Court’s October 10, 2006 order denying his motion for
reconsideration. Nonetheless, in deference to Keller being a pro se litigant, we have
reviewed Keller’s motion and the District Court’s order and conclude that the District
Court did not abuse its discretion in denying the motion on the grounds that Keller failed
7
to present any newly discovered evidence or legal precedent. See Hudson United Bank v.
Litenda Mortgage Corp., 142 F.3d 151, 159 (3d Cir. 1998).
For the foregoing reasons, we conclude that the District Court properly
entered summary judgment against Keller on all of his claims. Accordingly, because this
appeal lacks an arguable basis, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
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