David Fiore v. Ronnie Holt , 435 F. App'x 63 ( 2011 )

CLD-202
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1907
___________
DAVID W. FIORE,
Appellant
v.
RONNIE R. HOLT, FBOP/DOJ; JULIE A. NICKLIN, FBOP/DOJ;
STEPHEN G. WAGNER, FBOP/DOJ; BOLCAVAGE MARK, FBOP/DOJ;
STEVEN HANIS, FBOP/DOJ; UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-09-cv-02259)
District Judge: Honorable Richard P. Conaboy
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
June 3, 2011
Before: RENDELL, FUENTES and SMITH, Circuit Judges
(Opinion filed: July 6, 2011 )
_________
OPINION
_________
PER CURIAM
David Fiore, proceeding pro se, appeals from the District Court‟s order granting
the defendant-appellees‟ motion for summary judgment. Because the appeal does not
present a substantial question, we will summarily affirm. See 3d Cir. L.A.R. 27.4; 3d
Cir. I.O.P. 10.6.
I
Because we write primarily for the parties, we will recount only those background
facts that are necessary to our decision. In January 2007, Fiore, who was then a federal
prisoner, was transferred from the Federal Medical Center in Devens, Massachusetts, to
the United States Penitentiary (“USP Canaan”) in Waymart, Pennsylvania. Upon
arriving at USP Canaan, Fiore informed staff members that the inmate handbook they
provided him was incomplete, and he declared that he could not be held responsible for
any disciplinary violation.
Sometime between March and May 2007, Fiore met with Warden Holt to discuss
what Fiore perceived to be a pattern of misconduct and retaliation taken against him
dating back to 2005. Fiore alleged that Holt looked into the matter but concluded that
there was no way to help Fiore because the problem “goes to high (Washington) you‟re
on your own.” D. Ct. Doc. No. 1, 5. Fiore then explained to Holt that he would pursue
administrative remedies against him. According to Fiore, between June and September
2007, he filed grievances against Holt and the other defendants, employees at USP
Canaan. Fiore alleged that, as a result, those employees engaged in a conspiracy “to
falsify, obfuscate, misdirect, prevaricate, conceal a conflict of interest, and conceal
material fact(s) in connection with” his grievances. Id.
In September 2007, Fiore submitted an informal complaint form regarding
Executive Assistant Wagner‟s failure to provide Fiore with written responses to his
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administrative requests. The next day, Fiore‟s prison employment assignment was
changed.
In November 2007, Fiore refused to be transferred to a halfway house in Boston
because he had previously submitted several requests to prison officials to determine
whether he would be eligible for disability benefits while in the halfway house work
program, but had not received an answer. As a result of his refusal, Fiore was disciplined
for failing to obey a direct order and for refusing to participate in a program. He was
placed in segregated housing and, after a disciplinary hearing, was sanctioned with 30
days‟ loss of commissary privileges. Fiore noted that the disciplinary hearing was held
on the fourth business day following the incident, beyond the three-day period prescribed
by the Bureau of Prisons‟ (“BOP”) regulations. Hanis and Bolcavage included an
explanatory note in the decision indicating that the delay resulted from being short-
staffed during the holiday season, which Fiore alleged was a misrepresentation. Fiore
appealed and the charge for refusing the program placement was expunged. At a re-
hearing, his sanction was amended to 15 days‟ loss of commissary privileges.
After learning that he could receive disability benefits while in a halfway house,
Fiore reapplied for placement. While his request was pending, he wrote a letter of
complaint to Senator Reed of Rhode Island, who then sent an inquiry to BOP staff
concerning Fiore‟s application. In a response dated January 25, 2008, Holt explained
why Fiore was sanctioned in November 2007 and that Fiore‟s second request for halfway
house placement was under administrative review. Fiore noted that Holt had received a
letter from USP Canaan staff dated January 11, 2008, which recommended that Fiore‟s
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request be denied. At some point, Warden Holt signed the letter, indicating his
concurrence with the recommendation.
In December 2007, while on his way to his prison work assignment, Fiore slipped
on a patch of ice, injuring his back, shoulders, and hands. He alleged that prison officials
were aware of the ice, but failed to do anything that would have prevented his injuries.
Fiore also alleged that prison medical staff provided him improper treatment after his fall
by failing to transport him on a back board or stretcher. In February 2008, Fiore filed an
administrative claim under the Federal Tort Claims Act (“FTCA”).
In November 2009, Fiore filed in the District Court a complaint under Bivens v.
Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and the FTCA.
He alleged that: the defendants‟ conduct amounted to an unlawful conspiracy; the
defendants deprived him of due process; prison staff negligently maintained the grounds
on which Fiore fell; and prison medical staff provided him negligent medical care. The
District Court granted the defendants‟ motion for summary judgment. Fiore now appeals
that decision.
II
We have jurisdiction pursuant to 28 U.S.C. § 1291. “Our review of a district
court‟s grant of summary judgment is plenary, and we must apply the same standard the
district court was required to apply under Federal Rule of Civil Procedure 56(c).” Spence
v. ESAB Group, Inc., 623 F.3d 212, 216 (3d Cir. 2010). “Thus, we can affirm only „if
the pleadings, the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled to
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judgment as a matter of law.‟” Id. (quoting former Fed. R. Civ. P. 56(c)(2)). “A genuine
issue of material fact exists if there is sufficient evidence favoring the nonmoving party
for a jury to return a verdict for that party.” Id. “In evaluating the evidence, we must
view the facts in the light most favorable to the nonmoving party and draw all inferences
in that party‟s favor.” Id. (internal quotation marks and citation omitted).
Pennsylvania law governs Fiore‟s claims, brought under the FTCA, that he fell
because of the prison‟s negligence and that he was given negligent medical care. See 28
U.S.C. §§ 1346(b)(1), 2674; DeJesus v. United States Dep‟t of Veterans Affairs, 479
F.3d 271, 279 (3d Cir. 2007). In Pennsylvania, a plaintiff in a negligence action must
demonstrate: (1) that the defendants owed him a duty or obligation recognized by law;
(2) a breach of that duty; (3) a causal connection between the conduct and the resulting
injury; and (4) actual injury. See Nw. Mut. Life Ins. Co. v. Babayan, 430 F.3d 121, 139
(3d Cir. 2005). The BOP must exercise ordinary diligence in keeping prisoners safe and
free from harm. See 18 U.S.C. § 4042; Jones v. United States, 534 F.2d 53, 54 (5th Cir.
1976).
Because Pennsylvania law recognizes inmates as invitees, see Graf v. Cnty. of
Northampton, 654 A.2d 131, 134 (Pa. Commw. Ct. 1995), Fiore had to show that staff at
USP Canaan: (1) knew of the icy walkway condition or would have discovered it by the
exercise of reasonable care, and should have realized that it posed an unreasonable risk of
harm; (2) should have expected that Fiore would not discover the danger or would have
failed to protect himself against it; and (3) failed to exercise reasonable care to protect
Fiore from the danger. See Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983). Further,
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Fiore had to demonstrate that USP Canaan staff either had a hand in creating the harmful
condition or had actual or constructive notice of the condition. See Estate of Swift v. Ne.
Hosp. of Phila., 690 A.2d 719, 722 (Pa. Super. Ct. 1997). The District Court concluded
that summary judgment was appropriate with respect to this claim because Fiore offered
no more than his bare assertions that the ice on the walkway was in view of a security
camera and that staff were aware of the situation. Viewing the complaint and all the
evidence in Fiore‟s favor, we agree that there was insufficient evidence in the record
upon which a jury could conclude that USP Canaan staff knew (or should have known)
about the condition or failed to do anything about it.
We also agree that the defendants were entitled to summary judgment as to Fiore‟s
claim for negligent medical treatment. As the District Court reasoned, the evidence in the
record indicates that prison medical staff concluded that Fiore‟s injuries did not
necessitate transporting him on a stretcher or back board; had such a device been needed,
they would have used one. Fiore has presented no material evidence disputing that
assessment.
We turn next to Fiore‟s claims arising under Bivens. Fiore first argued that USP
Canaan staff retaliated against him for filing grievances and lawsuits by issuing him an
institutional misconduct, denying his administrative grievances, and changing his prison
employment. Prison officials may be held liable for retaliatory conduct that was
motivated “in substantial part by a desire to punish [the prisoner] for exercise of a
constitutional right,” Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000) (quoting
Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999) (en banc)), such as filing
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lawsuits and grievances related to the conditions of incarceration. See Mitchell v. Horn,
318 F.3d 523, 530 (3d Cir. 2003); Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir. 1981).
To prevail on a retaliation claim, the prisoner must prove: (1) that the conduct leading to
the alleged retaliation was constitutionally protected; (2) that he suffered an adverse
action sufficient to deter a person of ordinary firmness from exercising his constitutional
rights; and (3) that his protected conduct was a substantial or motivating factor in the
decision to discipline him. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).
However, “prison officials may still prevail by proving that they would have made the
same decision absent the protected conduct for reasons reasonably related to a legitimate
penological interest.” Id. at 334.
With regard to Fiore‟s institutional misconduct claim, the defendants presented
evidence that Fiore was cited specifically in response to his refusal to obey orders and
accept placement in the halfway house. Although Fiore ultimately succeeded in having
one of the misconduct charges expunged, there is no evidence in the record that either
charge was filed because staff were retaliating against him. Likewise, we agree with the
District Court that there is no evidence in the record that establishes a causal link between
the denial of any of Fiore‟s administrative grievances and his filing of lawsuits and
grievances. Thus, the District Court properly granted summary judgment with respect to
those two claims.
Summary judgment was also appropriate with regard to Fiore‟s claim that his
prison employment was changed in retaliation for complaining about Wagner‟s failure to
provide written responses to his administrative requests. The District Court reasoned
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that, inter alia, Fiore failed to demonstrate that the change in his employment constituted
an adverse action because he was not deterred from pursuing his lawsuits and
administrative grievances. Although we agree that Fiore failed to satisfy Rauser‟s second
prong, whether or not Fiore was actually deterred is irrelevant. The standard is an
objective inquiry, and “is intended to weed out only inconsequential actions, and is not a
means whereby solely egregious retaliatory acts are allowed to proceed past summary
judgment.” Thaddeus-X, 175 F.3d at 398. An appropriate basis for entering summary
judgment, then, is that Fiore presented no evidence that the transfer was an adverse
action. Before the District Court, he provided no basis to conclude that the position to
which he was transferred was less preferable than his prior job. Our assessment is
bolstered by his statement on appeal, which indicates only that he “was placed into a job
where he had to sit all day long from 7:30 AM released for lunch returned at 12:00 PM
and had to stay there until recall for the 4:00 institutional count.” Appellant‟s Response,
7. We do not think, based on the record before us, that a transfer into such a position was
sufficiently adverse to deter a person of ordinary firmness from exercising his
constitutional rights.
Fiore‟s second set of claims alleged Due Process violations in the denials of his
grievances, Wagner‟s verbal, rather than written, responses to some of his grievances, the
change in Fiore‟s prison employment, and the disciplinary hearing related to Fiore‟s
refusal to participate in the halfway house program. Because “the existence of a prison
grievance procedure confers no liberty interest on a prisoner,” Massey v. Helman, 259
F.3d 641, 647 (7th Cir. 2001), we agree with the District Court that summary judgment
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was appropriate with regard to Fiore‟s claims concerning the disposition of his
grievances.1 Likewise, the defendants were entitled to summary judgment as to Fiore‟s
prison employment claim, as prisoners enjoy no protected interest in prison employment.
See James v. Quinlan, 866 F.2d 627, 629-30 (3d Cir. 1989).
Fiore also alleged that his right to due process was violated because his
disciplinary hearing was not timely held and because Hanis and Bolcavage
misrepresented the reason for the delay. The District Court reasoned that Fiore‟s claim
did not implicate either substantive or procedural due process rights. To give rise to a
liberty interest under the Due Process Clause, a sanction must either fall within the
contours of a sentence “in such an unexpected manner as to give rise to protection by the
Due Process Clause of its own force, . . . [or] impose[] 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). We need not address the District Court‟s procedural due process
analysis because we agree that Fiore‟s 30-day loss of commissary privileges (later
reduced to 15 days) was not the type of atypical and significant hardship contemplated in
Sandin.
Finally, Fiore alleged a conspiracy among the defendants to deprive him of his
constitutional rights. To survive the defendants‟ motion for summary judgment, Fiore
was required to provide evidence that would allow a reasonable factfinder to conclude
that USP Canaan staff conspired to harass and retaliate against him for pursuing
1
Inasmuch as Fiore sought relief for Holt‟s purported misrepresentation to Senator Reed, we
perceive no potential basis for liability.
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administrative remedies and filing grievances against them. See Estate of Oliva ex rel.
McHugh v. New Jersey, 604 F.3d 788, 802 (3d Cir. 2010). Because, as discussed above,
Fiore failed to make out any viable claim that his constitutional rights were infringed, the
record cannot support the determination that any conspiracy to infringe Fiore‟s rights
existed. Nor has Fiore introduced any evidence beyond his bare assertions that USP
Canaan staff engaged in any such conspiracy. Thus, summary judgment as to that claim
was appropriate.
We have considered Fiore‟s other arguments raised on appeal and conclude that
they lack merit and warrant no additional discussion. Accordingly, we will affirm the
District Court‟s order.
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