Burnside v. Moser , 138 F. App'x 414 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-30-2005
Burnside v. Moser
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4713
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Recommended Citation
"Burnside v. Moser" (2005). 2005 Decisions. Paper 934.
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CPS-210 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4713
________________
JOHN OTIS BURNSIDE,
Appellant
v.
C. MOSER, Unit 3B counselor
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 04-cv-02485)
District Judge: Honorable Malcolm Muir
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
April 21, 2005
BEFORE: ALITO, McKEE and AMBRO, CIRCUIT JUDGES
(Filed: June 30, 2005)
_______________________
OPINION
_______________________
PER CURIAM
John Otis Burnside, a prisoner at FCI-Allenwood, appeals an order of the United
States District Court for the Middle District of Pennsylvania dismissing his civil rights
action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.
Burnside filed a Bivens action,1 alleging that Moser, a prison counselor at FCI-
Allenwood, failed to properly process four inmate grievances addressing prison
conditions. Specifically, the grievances complained of the medical staff’s failure to
provide medical treatment for his broken left arm, umbilical hernia, and lactose
intolerance, the Food Service Administrator’s poor food service, and the S.H.U.’s
unhealthy commissary list. Burnside also alleged that Moser failed to provide him with
BP-10 forms so that he could appeal disciplinary charges. He sought damages.
The Magistrate Judge recommended dismissal for failure to state a claim, finding
that Moser’s failure to properly process Burnside’s grievances did not rise to the level of
a constitutional violation because there is no constitutional right to an effective prison
grievance procedure. Because Burnside’s sole complaint against Moser for failure to
process his administrative grievances did not amount to a constitutional violation, the
Magistrate Judge concluded that any amendment of the complaint would be deemed
futile. Finally, the Magistrate Judge noted that substance of the grievances themselves
failed to state a claim against Moser because there was no allegation that Moser was
personally involved in the failure to provide proper and timely medical treatment, or in
the proper provision of food service or commissary items.
The District Court overruled Burnside’s objections, adopted the Magistrate Judge’s
1
Bivens v. Six Unknown Named Agents of Fed. Bur. Of Narcotics, 403 U.S. 388
(1971).
2
Report, and sua sponte dismissed Burnside’s complaint for failure to state a claim. The
District Court rejected Burnside’s claim that Moser’s failure to process his grievances
amounted to a violation of his First Amendment right to access to the courts, drawing a
distinction between access to a prison grievance process and the constitutionally protected
right to access to the courts. The District Court also found Burnside failed to allege any
actual injury resulting from the alleged deprivation of access to the courts. Burnside
timely appealed.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Burnside has been
granted leave to proceed in forma pauperis on appeal. Like the District Court, we must
accept as true the factual allegations in the Complaint and all reasonable inferences that
can be drawn from them. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). As discussed
further below, we will dismiss this appeal pursuant to § 1915(e)(2)(B)(i). See Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).
Moser’s failure to process Burnside’s medical treatment, food service, and
commissary grievances, although not to be commended, does not rise to the level of a
violation of a constitutional right. Inmates do not have a constitutionally protected right
to the prison grievance process. See Flick v. Alba, 932 F.2d 728, 729 (8 th Cir. 1991).
And, “a state grievance procedure does not confer any substantive constitutional right
upon prison inmates.” Hoover v. Watson, 886 F. Supp. 410, 418 (D.Del. 1995), aff’d 74
F.3d 1226 (3d Cir. 1995). Accordingly, the District Court properly dismissed the
3
Complaint for failure to state a § 1983 claim.
Burnside contends that by failing to process his medical grievances, Moser
intentionally allowed Burnside’s medical conditions to worsen in violation of the Eighth
Amendment. The fact that Moser failed to process Burnside’s grievance fails to
demonstrate the requisite level of deliberate indifference on Moser’s part in delaying
Burnside’s medical treatment. See Durmer v. O’Carroll, 991 F.2d 64 (3d Cir. 1993)
(non-physician prison official cannot be considered deliberately indifferent in failing to
respond to medical complaints of a prisoner already under treatment by the prison’s
medical experts). Thus, we conclude that Moser’s failure to process Burnside’s medical
treatment grievances does not state a claim under the Eighth Amendment.
As for Burnside’s claim that Moser violated his Due Process rights when he failed
to provide Burnside with the appropriate BP-10 form to appeal a disciplinary action, it is
well-settled that the protections afforded prisoners by the Due Process Clause are not
triggered by the simple negligence of prison officials. See Daniels v. Williams, 474 U.S.
327 (1986). Assuming, as we must, that the allegations in the Complaint are true,
Burnside merely states a negligence claim against Moser for an alleged failure to timely
respond to a request for an appeals form. Burnside alleged that Moser failed to do his job
because Moser “never gave [Burnside] a BP-10 so that he could appeal the D.H.O.
Hearing Report rendered against [Burnside] on 10-21-04,” and that “[t]he defendant has
not made half of an effort to keep up with historical practices of weekly S.H.U. rounds,
4
since [Burnside] began the process of administrative remedies.” Notably, the Complaint
is devoid of any allegation from which we can reasonably infer an intentional deprivation
of a constitutional right. Therefore, we conclude that Burnside’s disciplinary due process
claim does not does not rise to the level of a constitutional violation under § 1983.
This Court is required to dismiss an in forma pauperis appeal if it is “frivolous.”
28 U.S.C. § 1915(e)(2)(B)(i). An appeal is frivolous where none of the legal points is
arguable on its merits. See Neitzke v. Williams, 490 U.S. 319, 325 (1989). Burnside has
no arguable legal basis upon which to appeal the District Court’s order. His appeal is,
therefore, frivolous and will be dismissed as such pursuant to 28 U.S.C. §
1915(e)(2)(B)(i).