Mohammad Saleem v. Brungart

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-1610
______________
MOHAMMAD SOHAIL SALEEM,
Appellant
v.
CORRECTIONS OFFICER BRUNGART; SGT. GLASS, C/A Housing Unity
Supervisor; T. PILOSI, Hearing Examiner; G. MCMAHON, Deputy Superintendent;
MORRIS HOUSER, Deputy Superintendent; MARK A. GARMAN; T. MILLER,
Program Manager; JOSEPH DUPONT, Chief Hearing Examiner’s Office; JOHN DOE
NUMBER ONE, Corrections Officer; JOHN DOE NUMBER TWO, Corrections Officer;
JOHN DOE LIEUTENANT, Corrections Supervisor; JOHN DOE RHU LIUTENANT,
Corrections Supervisor
______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-19-cv-00025)
District Judge: Honorable Robert D. Mariani
______________
Argued
September 20, 2022
Before: AMBRO, RESTREPO, and FUENTES, Circuit Judges
(Filed: November 30, 2022)
Johanna Dennehy [ARGUED]
Jessica Rothschild
Laurie Edelstein
Steven Reed
Steptoe & Johnson LLP*
1330 Connecticut Avenue, N.W.
Washington, DC 20036
Counsel for Appellant Mohammad Sohail Saleem
Sean A. Kirkpatrick [ARGUED]
Lindsey A. Bedell
Office of Attorney General of Pennsylvania
Strawberry Square
15th Floor
Harrisburg, PA 17120
Counsel for Appellees
______________
OPINION**
______________
FUENTES, Circuit Judge.
Plaintiff-Appellant Mohammad Sohail Saleem, a former Pennsylvania state
prisoner, filed a civil rights action pursuant to 42 U.S.C. § 1983 against various prison
officials in the United States District Court for the Middle District of Pennsylvania. The
District Court granted Defendants-Appellees’ motions to dismiss and for summary
judgment and dismissed Saleem’s claims. Saleem appeals the District Court ruling,
arguing that the court erred in (1) finding that he did not exhaust his administrative
remedies before bringing suit, as required by the Prison Litigation Reform Act (“PLRA”);
and (2) determining that he failed to state a procedural due process claim because he was
*
We note that the attorneys representing Appellant appeared pro bono. We thank them for
taking these cases on a pro bono basis and for the very able and professional way in which
they handled the representation and argument before the Court.
**
This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not
constitute binding precedent.
2
not deprived of a liberty interest when placed in 30-day disciplinary confinement. We
agree with the District Court, and we therefore affirm the dismissal of Saleem’s complaint.
I. BACKGROUND
In June 2017, Defendant-Appellee Officer Brungart filed a misconduct report
against Saleem. When Saleem responded to the misconduct report, the sole allegation he
raised was that Brungart had falsified the report. A hearing was held, after which the
Hearing Examiner, Defendant-Appellee T. Pilosi, determined that the evidence presented
supported Brungart’s version of events. During the administrative appeals process, Saleem
filed a grievance pursuant to DC-ADM 8041 against Brungart, making the same allegation
that he had falsified the misconduct report. The DC-ADM 804 grievance was denied, and
Saleem fully appealed the misconduct report through the DC-ADM 8012 process.
In January 2019, Saleem filed the present civil rights suit asserting: (1) Eighth
Amendment deliberate indifference claims against Brungart and his housing supervisor
(Sergeant Glass); (2) Religious Land Use and Institutionalized Persons Act, 42 U.S.C.
§§ 2000cc et seq. (“RLUIPA”) and First Amendment claims against Brungart, Glass, and
Pilosi; (3) Fourteenth Amendment Equal Protection claims against Brungart, Glass, and
Pilosi; and (4) Fourteenth Amendment Due Process claims against Brungart, Pilosi, and
the officers involved in the appeals process, McMahon, Miller, Houser, Garman, and
1
DC-ADM 804 is one of the prison’s three inmate grievance procedures meant for
grievances concerning conditions of confinement.
2
The DC-ADM 801 grievance process is oriented toward concerns relating to a misconduct
or resulting proceedings.
3
Dupont. The defendants filed a motion to dismiss and for summary judgment on the issue
of administrative exhaustion.
The District Court granted summary judgment to Garman, McMahon, Houser,
Glass, Miller, Pilosi, and Dupont for failure to exhaust administrative remedies as to these
individuals. It concluded that the only claim Saleem had exhausted was the procedural due
process claim against Brungart (for lying in statements written in the misconduct) but
dismissed that claim as well, concluding that Saleem had no protected liberty interest in 30
days of disciplinary custody. This appeal followed.
II. JURISDICTION
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and this Court has
jurisdiction under 28 U.S.C. § 1291. We review de novo the District Court’s determination
that Saleem failed to exhaust administrative remedies.3 “In doing so, we accept the Court’s
factual findings unless clearly erroneous.”4 We also review de novo the District Court’s
grant of the motion to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6).5 We “are required to accept as true all allegations in the complaint and
all reasonable inferences that can be drawn from them after construing them in the light
most favorable to the nonmovant.”6
3
Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 153 (3d Cir. 2016); Mitchell v.
Horn, 318 F.3d 523, 529 (3d Cir. 2003).
4
Robinson, 831 F.3d at 153 (citing Small v. Camden Cnty., 728 F.3d 265, 268 (3d Cir.
2013)).
5
See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
6
Id. (citations omitted).
4
III. DISCUSSION
The questions on appeal are whether the District Court erred in (1) granting
summary judgment on Saleem’s claims for failure to exhaust administrative remedies, and
(2) dismissing Saleem’s due process claims for failure to state a claim. We find that the
District Court did not err because Saleem failed to exhaust available administrative
remedies and he was not deprived of any state-created liberty interest.
A.
Under the PLRA, a prisoner must “exhaust . . . administrative remedies” before
bringing suit in court for grievances related to their incarceration.7 Exhaustion entails
“complet[ing] the administrative review process in accordance with the applicable
procedural rules,” which are provided by the individual prisons.8 However, “exhaustion
applies only when administrative remedies are ‘available,’ and “[u]nder certain
circumstances, a nominally extant prison grievance policy is not truly an ‘available’
remedy.”9 Whether a remedy is truly “available” is a functional inquiry based on “real-
world workings of prison grievance systems.”10 A remedy may be found to be
“unavailable” if, among other things, the procedure results in officers being “unable or
consistently unwilling to provide any relief to aggrieved inmates.”11
7
42 U.S.C. § 1997e(a).
8
Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 305 (3d Cir. 2020) (citing, inter alia,
Woodford v. Ngo, 548 U.S. 81, 88 (2006)); see also Spruill v. Gillis, 372 F.3d 218, 222 (3d
Cir. 2004).
9
Shifflet v. Korszniak, 934 F.3d 356, 365 (3d Cir. 2019).
10
Ross v. Blake, 578 U.S. 632, 643 (2016).
11
Id.5
Saleem argues that he exhausted his administrative remedies by putting prison
officials on notice of his claims, and that there was no available route by which to make a
grievance related to the misconduct charge. Both arguments are unpersuasive under the
circumstances presented.
The prison’s procedural rules dictated that inmate misconduct, and the resultant
proceedings, are addressed through a DC-ADM 801 disciplinary process. Grievances
related to placement in administrative custody could be addressed through DC-ADM 802,
and all other grievances not arising from misconduct or custody procedures could be
addressed through DC-ADM 804. In the misconduct proceedings pursuant to DC-ADM
801, Saleem only alleged that Brungart lied about seeing him fighting with another inmate.
Saleem did not allege, until his second administrative appeal, that there was surveillance
footage that should be viewed, and he did not accuse the Hearing Examiner or Program
Review Committee of failing to view the footage.12 He also did not raise any allegation
regarding religious retaliation, and only vaguely accused the hearing officers of “bias” in
his second appeal. Proper exhaustion of administrative remedies means not only “using all
steps that the agency holds out” but also “doing so properly,” so that the agency has a
12
This Court has previously held that an inmate’s due process rights are violated when a
hearing officer refuses to review surveillance video of the alleged incident, and instead
simply relies on a correction officer’s story. See Burns v. Penn. Dep’t of Corrections, 642
F.3d 163 (3d Cir. 2011). Here, however, Saleem failed to exhaust his administrative
remedies on this issue and, in any event, as discussed further below, has not stated a liberty
interest implicated by the hearing.
6
chance to address the relevant arguments on the merits.13 Thus, Saleem failed to exhaust
his administrative remedies for most of his claims.
With respect to Saleem’s accusation that there was no grievance procedure available
for his claims, Saleem had different avenues to make his complaints, and points to no
evidence of a blanket policy of denying DC-ADM 804 grievances relating in any way to
misconduct. Indeed, his written rejection allowed him to appeal that determination, which
he did not do, and directed him to raise his challenges related to the misconduct via DC-
ADM 801. Moreover, Saleem’s DC-ADM 804 grievance focused again on the alleged
falsity of the misconduct charge against him—not on any other conduct. In sum, there is
no evidence that the procedures available to Saleem “operate[d] as a simple dead end.”14
Because there were no material issues of fact regarding the availability of administrative
remedies, we will affirm the District Court’s grant of summary judgment.
B.
The Fourteenth Amendment provides that no state shall “deprive any person of life,
liberty, or property, without due process of law.”15 “In analyzing a procedural due process
claim, the first step is to determine whether the nature of the interest is one within the
contemplation of the ‘liberty or property’ language of the Fourteenth
Amendment.”16 “Under certain circumstances, states may create liberty interests with
13
Woodford, 548 U.S. at 90 (internal quotation marks and citation omitted).
14
Ross, 578 U.S. at 643.
15
U.S. Const. amend. XIV.
16
Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000) (citation omitted).
7
respect to inmates’ rights that are protected by the Clause.”17 Prison disciplinary action
does not typically implicate a liberty interest requiring due process safeguards unless the
punishment “imposes atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.”18
The parties acknowledge that 30 days of disciplinary confinement, on its own, does
not implicate a liberty interest.19 Saleem argues, however, that the 30 days of confinement
deprived him of his ability to attend mandatory programming, which affected his ability to
seek parole and resulted in his sentence being extended “several years.”20 Saleem contends
that Wolff v. McDonnell, 418 U.S. 539 (1974), and this Court’s decision in Leamer v.
Fauver, 288 F.3d 532 (3d Cir. 2002), govern and require reversal. Saleem’s contention
fails because this case is distinguishable from Leamer, and there is no state-created right to
be released on parole in Pennsylvania.21
In Leamer, we held that New Jersey created a cognizable liberty interest in treatment
for incarcerated sexual offenders.22 As the Court explained, “[t]he structure of the statutory
scheme established by New Jersey to ensure treatment for sex offenders” was “somewhat
unique.”23 The statutory scheme there predicated the term of the plaintiff’s sentence on his
17
Fantone v. Latini, 780 F.3d 184, 190 (3d Cir. 2015).
18
Sandin v. Conner, 515 U.S. 472, 484 (1995).
19
See, e.g., Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (confinement in
administrative custody for fifteen months not atypical or significant deprivation sufficient
for a liberty interest).
20
Saleem does not further describe how his inability to attend programming for 30 days
extended his sentence by “several years.”
21
Weaver v. Penn. Bd. of Probation and Parole, 688 A.2d 766, 770 (Pa. Cmwlth. 1997).
22
Leamer, 288 F.3d at 545.
23
Id. at 538.
8
response to treatment. Good behavior, parole policies, or other credits could not affect the
term of the plaintiff’s sentence, only successful therapy. Saleem argues that the statutory
scheme in Pennsylvania creates a similar situation in which he was required to complete
sex offender treatment before being released to parole, and his 30-day confinement caused
him to fail to complete that programing, thereby extending his sentence.
The relevant statute here, 61 Pa. Con. Stat. Ann. § 6137(a)(3.1), states:
(i) Following the expiration of the offender’s minimum term of
imprisonment, if the primary reason for not paroling the offender is the
offender’s inability to access and complete prescribed programming within
the correctional institution, the board may release the offender on parole with
the condition that the offender complete the prescribed programming while
on parole.
(ii) This paragraph shall not apply to offenders who are currently serving a
term of imprisonment for a crime of violence as defined in 42 Pa.C.S.
§ 9714 (relating to sentences for second and subsequent offenses) or for a
crime requiring registration under 42 Pa.C.S. Ch. 97 Subch. H (relating to
registration of sexual offenders).
(iii) For those offenders to whom subparagraph (ii) is applicable, the board
may release the offender on parole if the offender is subject to another
jurisdiction’s detainer, warrant or equivalent writ.
By its plain language, the statutory scheme applies only where the “primary reason” for
denying parole is the offender’s failure to complete programming.24 The parole board did
not cite a failure to complete programming as the “primary reason” it denied Saleem parole.
Rather, failure to complete programming was only one of several reasons underlying that
decision.
24
61 Pa. Con. Stat. Ann. § 6137(a)(3.1)(i).
9
Moreover, even if subparagraph ii of 61 Pa. Con. Stat. Ann. § 6137(a)(3.1) applies
to Saleem, there was no state-created liberty interest of which Saleem was deprived. First,
under Pennsylvania law, there is no right to parole unless and until the inmate is actually
released on parole.25 Second, 42 Pa. Con. Stat. Ann. § 9718.1(d), relating to sex offenders
required to participate in treatment, states that “this section shall not be construed to confer
any legal right upon any individual, including an individual . . . seeking to . . . be paroled.”
As this Court has previously held, “[w]here state law provides parole authorities complete
discretion to rescind a grant of parole prior to release, an inmate does not have a
constitutionally protected liberty interest in being paroled.”26
For this reason, Saleem’s reliance on Wolff v. McDonnell is misplaced. There, the
Supreme Court found a protected liberty interest in a state-created statutory right to good
time credit that could only be rescinded as a sanction for “major misconduct.”27 Here, by
contrast, the state system allows parole to be rescinded at the discretion of the parole board.
Thus, Saleem failed to state a claim upon which relief could be granted on any unexhausted
claim because the state created no liberty interest in release to parole.
IV. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s order dismissing
Saleem’s complaint.
25
Weaver, 688 A.2d at 770.
26
Fantone, 780 F.3d at 190.
27
Wolff, 418 U.S. at 557.
10