Jonathan Pena v. Kevin Clark

ALD-106 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-2931
___________
JONATHAN PENA,
Appellant
v.
KEVIN CLARK; T. WATERS; A. FRITZINGER
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-19-cv-01536)
District Judge: Honorable Robert D. Mariani
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 17, 2022
Before: JORDAN, RESTREPO and SCIRICA, Circuit Judges
(Opinion filed: March 28, 2022)
_________
OPINION*
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Jonathan Pena, a prisoner proceeding pro se and in forma pauperis, appeals the
District Court’s order granting summary judgment to the defendants in his civil rights
action. We will summarily affirm the District Court’s judgment.
I.
In 2019, Pena filed a complaint in state court against Lieutenant Kevin Clark and
correctional officers T. Waters and A. Fritzinger, all employees of the State Correctional
Institution – Mahanoy. Pena alleged that after randomly searching his cell and person in
October 2017, the defendants verbally threatened him, confiscated items from his cell in
violation of Department of Corrections policy, and fabricated information in a
misconduct filed against him. The misconduct at issue charged Pena with possession or
use of a dangerous or controlled substance; gambling or possession of gambling
paraphernalia; possession of contraband; lying to an employee; and failure to report the
presence of contraband.1 Pena admitted to the gambling charge but maintained that he
did not possess drugs, while the defendants contended that seven pieces of paper located
during the search of Pena’s cell tested positive for the presence of Suboxone. According
to Pena, the defendants never produced the test results or the pair of pants they claimed to
have located the paper in.
Following a disciplinary hearing, Pena was found guilty of all charges except for
possession of contraband and sentenced to a total term of 210 days in the Restricted
Housing Unit (“RHU”) and loss of his job. According to Pena, he was not permitted to
1
Pena was also charged criminally with possession of a controlled substance, although
the charge was ultimately disposed of by nolle prosequi.
2
call witnesses on his behalf, and defendants Clark and Waters improperly attended the
hearing. Pena also suggested that the defendants’ actions resulted in his transfer to a
different institution. In addition to raising several state-law claims, Pena alleged that the
defendants’ actions constituted cruel and unusual punishment in violation of the Eighth
Amendment and deprived him of due process in violation of the Fourteenth Amendment.
The defendants removed the action to the United States District Court for the
Middle District of Pennsylvania, and after a period of discovery, filed a motion for
summary judgment. The District Court ultimately granted the motion, and Pena timely
appealed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review
over the District Court’s summary judgment ruling. See Blunt v. Lower Merion Sch.
Dist., 767 F.3d 247, 265 (3d Cir. 2014). Summary judgment is appropriate if, viewing
the evidence in the light most favorable to the non-moving party, “there is ‘no genuine
issue as to any material fact [such] that the moving party is entitled to judgment as a
matter of law.’” Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010) (citation
omitted); see also Fed. R. Civ. P. 56(a). We may summarily affirm “on any basis
supported by the record” if the appeal fails to present a substantial question. Murray v.
Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam); 3d Cir. L.A.R. 27.4; 3d Cir.
I.O.P. 10.6.
III.
3
The District Court first concluded that Pena failed to exhaust his administrative
remedies in accordance with the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a),
because he did not appeal his misconduct disposition beyond the first level of the prison’s
three-level appeal process. See Jones v. Bock, 549 U.S. 199, 218 (2007) (noting that “to
properly exhaust administrative remedies prisoners must complete the administrative
review process in accordance with the applicable procedural rules,” which “are defined . .
. by the prison grievance process itself” (internal quotation marks and citation omitted)).
In so holding, the District Court rejected as impermissibly vague Pena’s contention that
he filed a second-level appeal but was never provided with a response. But even
assuming Pena’s allegations created a genuine dispute as to whether administrative
remedies were unavailable, see Shifflett v. Korszniak, 934 F.3d 356, 365 (3d Cir. 2019),
we agree with the District Court that the defendants were nonetheless entitled to
judgment as a matter of law on Pena’s constitutional claims.
With respect to Pena’s Eighth Amendment claim, only “extreme deprivations” are
sufficient to make out a conditions of confinement claim, Hudson v. McMillian, 503 U.S.
1, 8-9 (1992), such as when a prisoner has been denied “basic human needs, such as food,
clothing, shelter, sanitation, medical care and personal safety,” Griffin v. Vaughn, 112
F.3d 703, 709 (3d Cir. 1997). Here, to the extent that Pena’s claim arose out of his
confinement in the RHU after being found guilty of the allegedly false misconduct
charges, such confinement does not, standing alone, constitute cruel and unusual
punishment. See Young v. Quinlan, 960 F.2d 351, 364 (3d Cir. 1992), superseded by
statute on other grounds as stated in Nyhuis v. Reno, 204 F.3d 65, 71 n.7 (3d Cir. 2000).
4
And insofar as Pena’s claim rested on the defendants’ alleged verbal threats against him,
it also fails. See McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001) (explaining
that “acts or omissions resulting in an inmate being subjected to nothing more than
threats and verbal taunts do not violate the Eighth Amendment”); DeWalt v. Carter, 224
F.3d 607, 612 (7th Cir. 2000) (“Standing alone, simple verbal harassment does not
constitute cruel and unusual punishment.”). Thus, we agree with the District Court that
the defendants were entitled to summary judgment on this claim.
As for Pena’s due process claim, we agree with the District Court that 210 days in
disciplinary segregation, by itself, does not amount to an “atypical and significant”
hardship that implicates due process concerns. See Sandin v. Conner, 515 U.S. 472, 484-
86 (1995) (explaining that “[d]iscipline by prison officials in response to a wide range of
misconduct” is expected as part of an inmate’s sentence); see also Smith v. Mensinger,
293 F.3d 641, 653-54 (3d Cir. 2002) (holding that seven months of disciplinary
confinement did not violate a protected liberty interest). Pena also lacks a due process
liberty interest in his prison job. See James v. Quinlan, 866 F.2d 627, 629 (3d Cir. 1989).
To the extent that Pena suggested the defendants were also responsible for his later
transfer to a different prison, moreover, the District Court correctly observed that
prisoners do not have a liberty interest in being confined to a particular institution. See
Meachum v. Fano, 427 U.S. 215, 225 (1976). Therefore, we agree with the District Court
that summary judgment was warranted on this claim.2
2
The District Court also concluded that Pena’s Fourteenth Amendment claim pertaining
to his disciplinary hearing was barred under Heck v. Humphrey, 512 U.S. 477 (1994),
5
To the extent that Pena contended that the defendants’ confiscation of his
property—packs of cigarettes and tobacco—in violation of DOC policy also violated his
rights to due process, the District Court properly concluded that Pena had an adequate
post-deprivation remedy for the loss under prison grievance procedures and state law.
See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Tillman v. Lebanon Cnty. Corr.
Facility, 221 F.3d 410, 422 (3d Cir. 2000); see also 42 Pa. Cons. Stat. § 8522(a), (b)(3).
Finally, Pena also asserted state-law claims, which the District Court did not
address. We interpret the District Court to have declined to exercise supplemental
jurisdiction over those claims and discern no abuse of discretion in this decision. See 28
U.S.C. § 1367(c)(3); see also Doe v. Mercy Cath. Med. Ctr., 850 F.3d 545, 567 (3d Cir.
2017); Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 175 (3d Cir. 1999).
Accordingly, we will affirm the judgment of the District Court.3
and Edwards v. Balisok, 520 U.S. 641 (1997), because a judgment in Pena’s favor would
imply the invalidity of his disciplinary sanction and he did not show that the sanction had
been overturned. However, Heck and Edwards do not apply to disciplinary proceedings
like those at issue here that would not, if invalidated, necessarily impact the duration of
the plaintiff’s sentence. See Leamer v. Fauver, 288 F.3d 532, 542-43 (3d Cir. 2002);
Jenkins v. Haubert, 179 F.3d 19, 27 (2d Cir. 1999). Regardless, we agree with the
District Court’s holding that Pena’s Fourteenth Amendment claim fails on the merits.
3
Pena’s motion for summary action in his favor is denied. Insofar as Pena’s motion to
proceed in forma pauperis included copies of a “Rule 60 Motion,” motion for
appointment of counsel, and an “Application for the Issuance of Subpoena for the
Production of Documents and Things” that he attempted to file with the District Court
Clerk’s Office, it appears those documents have now been filed on the District Court
docket.
6