                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                    No. 13-2806
                                   ____________

                               CLARENCE HALEY,
                                           Appellant

                                          v.

    THE KINTOCK GROUP; ROBERT T. LATIMER, MD; DOMINIC FORTE;
            SADIQI MUHAMMAD; JOSEPH, first name unknown;
        BROWN, first name unknown; IZAGUIRRE, first name unknown;
                        CLARK, first name unknown
                              ____________

                  On Appeal from the United States District Court
                            for the District of New Jersey
                              (D.C. No. 2-11-cv-05606)
                   District Judge: Honorable William J. Martini
                                    ____________

                    Submitted Under Third Circuit LAR 34.1(a)
                                  June 3, 2014

            Before: HARDIMAN, SCIRICA and ROTH, Circuit Judges.

                             (Filed: September 29, 2014)
                                    ____________

                                     OPINION
                                   ____________

HARDIMAN, Circuit Judge.

     Clarence Haley appeals an order of the District Court denying his claim that the
Kintock Group and several of its employees violated his constitutional rights when they

discharged him from a halfway house for medical reasons. Because Haley lacks a

protected liberty interest in remaining at the halfway house, we will affirm.

                                              I

       Haley was an inmate in the New Jersey state prison system and was paroled on

June 4, 2010. As a condition of his parole, he was required to report to a halfway house

run by the Kintock Group and to successfully complete Kintock’s “Stages to Enhance

Parolee Success” (STEPS) Program. The New Jersey State Parole Board contracts with

Kintock, a private organization, to provide alternatives to incarceration and re-entry

services to parolees. Participants in the STEPS program sign a contract with the Kintock

Group before entering the program, subjecting them to a range of restrictions. D. Ct. Op.

2. Residents are required to “abide by a dress code, keep their rooms neat, follow a strict

bedtime, request permission to leave and enter the facility, submit to random searches,

and submit to random urine testing.” Id. The Kintock Group reserved its right to reject

any “applicant with mental illness who . . . [was] unable to successfully participate in the

program, who . . . [was] not stabilized on [a] medication regime, or who . . . [posed] a

danger to him/herself, other residents/offenders or the community.” SA65-66. Haley had

also signed an agreement indicating that he understood that his “failure to complete the

program [could] result in a violation of parole and re-incarceration.” D. Ct. Op. at 2.

       While in the STEPS program, Haley filed two grievances about the staff. The first

alleged that the kitchen staff served him chemically-laced food, and the second alleged
                                             2
that the staff withheld or destroyed his medical records from the New Jersey Department

of Corrections. Id. at 2. Haley was evaluated by a psychiatrist, Dr. Robert Latimer, who

diagnosed him with paranoid schizophrenia and antisocial behavior, noting that Haley

was “hostile and highly delusional,” “uncooperative and irrational,” and “argumentative,

sullen, negativistic and angry.” Id. Dr. Latimer concluded that Haley was a “danger to

others” and recommended that he be transferred to a psychiatric facility where he could

be supervised “24/7.” Id. Soon thereafter, Haley was discharged from the STEPS

program on medical grounds and sent back to state prison.

          In September 2011, Haley filed a pro se complaint against the Kintock Group and

several of its employees, alleging civil rights violations pursuant to 42 U.S.C. § 1983. He

seeks $20 million in damages on the grounds that he was improperly discharged from the

STEPS program and that Dr. Latimer “colluded” with the other defendants and submitted

a “contrived and bogus psychological evaluation.” Id. In May 2012, Haley amended his

complaint to allege violations of his First, Fourth, Eighth, and Fourteenth Amendment

rights.

          When discovery ended in July 2012, Haley had not deposed any Kintock

employees. Kintock moved for summary judgment in August 2012, which the District

Court granted in May 2013. Haley filed a motion for reconsideration, which was denied.

He filed this timely appeal soon thereafter.




                                               3
                                             II1

       We review the District Court’s order granting summary judgment de novo. Azur v.

Chase Bank, USA Nat’l Ass’n, 601 F.3d 212, 216 (3d Cir. 2010). Summary judgment is

appropriate when “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of

material fact exists “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We

“may affirm the District Court on any grounds supported by the record.” Kossler v.

Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (en banc) (quoting Nicini v. Morra, 212 F.3d

798, 805 (3d Cir. 2000) (en banc)).

       To obtain relief under section 1983, Haley must show that Kintock: (1)acted under

color of state law, and (2) deprived Haley of his constitutional rights. 42 U.S.C. § 1983;

Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). At issue is whether the

Kintock Group’s actions violated Haley’s constitutional right to due process under the

Fourteenth Amendment and whether they were driven by a retaliatory motive in violation

of Haley’s First Amendment rights.2



       1
        The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We
have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

       Though the District Court correctly concluded that Haley’s Fourth and Eighth
       2

Amendment claims “boil down” to a due process inquiry, D. Ct. Op. 3, his First
Amendment claim cannot be as easily collapsed under the umbrella of due process. See
Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (“[T]he law of this circuit is clear that a
                                              4
       To establish a due process violation, Haley must show that: (1) he had a protected

liberty interest in remaining in the halfway house, and (2) that the procedures that led to

the deprivation of his liberty interest were constitutionally insufficient. Sample v. Diecks,

885 F.2d 1099, 1113 (3d Cir. 1989).

       Our review of the record leads us to conclude that Haley has failed to show that he

had a protected liberty interest in remaining at the Kintock facility. As the District Court

aptly noted, the Due Process Clause does not protect an individual’s interest in remaining

at a particular form of institutional confinement, whether it be a prison or a halfway

house. Montanye v. Haymes, 427 U.S. 236, 242 (1976) (“As long as the conditions or

degree of confinement . . . is within the sentence imposed . . . and is not otherwise

violative of the Constitution, the Due Process Clause does not itself subject an inmate’s

treatment by prison authorities to judicial oversight.”). Moreover, in Asquith v.

Department of Corrections, 186 F.3d 407 (3d Cir. 1999), we held that placement in a

halfway house amounts to “institutional confinement” when significant restrictions are

placed on the freedom of its residents, and that removal from such a halfway house

therefore does “not trigger the protections of the Due Process Clause.” Id. at 411.

       As the dissent notes, it is true that Haley was on parole, which was not the case

with Asquith. That fact alone is insufficient to establish a liberty interest, however, for it

is the conditions of parole that determine the liberty interest. In Morrissey v. Brewer, 408

prisoner litigating a retaliation claim need not prove that he had an independent liberty
interest in the privileges he was denied.”).

                                               5
U.S. 471 (1972), the Supreme Court held that “[w]hether any procedural protections are

due depends on the extent to which an individual will be condemned to suffer grievous

loss,” which in turn requires an examination of the “particular situation” at hand. Id. at

481 (internal quotation marks and citation omitted); see also Goldberg v. Kelly, 397 U.S.

254, 263 (1970). The concept of liberty envisioned by the Fourteenth Amendment is

“flexible,” and reflects “recognition that not all situations calling for procedural

safeguards call for the same kind of procedure.” Morrissey, 408 U.S. at 481. In

Morrissey, the Supreme Court described the “nature of the interest of the parolee in his

continued liberty” as follows:

       Subject to the conditions of his parole, he can be gainfully employed and is
       free to be with family and friends and to form the other enduring
       attachments of normal life. Though the State properly subjects him to many
       restrictions not applicable to other citizens, his condition is very different
       from that of confinement in a prison. . . . The parolee has relied on at least
       an implicit promise that parole will be revoked only if he fails to live up to
       the parole conditions.

        We see, therefore, that the liberty of a parolee, although indeterminate,
       includes many of the core values of unqualified liberty and its termination
       inflicts a “grievous loss” on the parolee and often on others.

Id. at 482; see also Young v. Harper, 520 U.S. 143, 147-48 (1997) (holding a preparolee

had a liberty interest in his continued participation in an early release program that

allowed him to keep his own residence and live “a life generally free of the incidents of

imprisonment”). Thus, the facts in Morrissey are easily distinguishable from Haley’s

situation. Whereas Morrissey could spend his day as he saw fit, maintain employment,

live with family and commingle with friends—in other words, “liv[e] a relatively normal
                                              6
life,” Morrissey, 408 U.S. at 482—Haley was subject to strict rules governing his daily

life. These restrictions were nearly identical to those in Asquith’s “particular situation”

we found to constitute “institutional confinement.” See Asquith, 186 F.3d at 411..

       As in Asquith, Haley’s parole conditions amounted to institutional confinement: he

was strictly monitored, had a curfew, had to “stand count” several times a day, was not

free to leave the facility without permission and had to “check in” when he was away

from the facility, was subject to random searches and urine tests without prior notice, and

was not at liberty to visit with friends and family unless he was granted specific visitation

privileges. SA45–49. Similarly, Asquith had “a curfew . . . had to ‘stand count’ several

times a day[,] . . . was required . . . to submit to urine monitoring,” and was subject to

random searches.” Asquith, 186 F.3d at 411. Because of these similarities, we hold that

Haley—like Asquith—was in a form of institutional confinement and lacked a protected

liberty interest under the Fourteenth Amendment. Accordingly, the District Court did not

err in granting summary judgment to the Kintock Group.

                                              III

       Haley’s First Amendment claim alleges that he was deprived of his liberty in

retaliation for his complaints. To establish a First Amendment retaliation claim, Haley

must prove that (1) he engaged in constitutionally protected conduct, (2) he suffered

adverse action sufficient to deter a person of ordinary firmness from exercising his

constitutional rights, and (3) the protected conduct caused the retaliatory action. Rauser v.

Horn, 241 F.3d 330, 333 (3d Cir. 2001). The dissent, borrowing a standard used in the
                                              7
employment context, argues that the temporal proximity between Haley’s protected

conduct—his filing of two grievances—and the retaliatory action, his removal from the

Kintock facility, establishes an inference of retaliatory motive. Dissent at 7 (citing

Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 307 (3d Cir. 2012)).

However, given our conclusion that Haley was under conditions of institutional

confinement, the standard for retaliation in the prisoner-inmate context provides a more

apt framework for analyzing Haley’s claim. In this context, even if the inmate

“demonstrates that his exercise of a constitutional right was a substantial or motivating

factor in the challenged decision, the 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.” Rauser, 241 F.3d at 334; see also

George v. Rehiel, 738 F.3d 562, 586 (3d Cir. 2013) (holding that even where a plaintiff

makes a prima facie case of retaliation, that claim fails when there is an “obvious

alternative explanation” for the officials’ conduct). Thus, even if Haley made a prima

facie case of retaliation, there is an “obvious alternative explanation” that is “reasonably

related to a legitimate penological interest”—Dr. Latimer’s diagnosis that Haley was

schizophrenic, hostile, and posed a danger to others. Accordingly, we are satisfied that

Haley would have been removed from the halfway house following Dr. Latimer’s

diagnosis—per the rules of the STEPS program—regardless of his two filed grievances.

Therefore, his First Amendment claim fails.


                                              8
                                                ***

      For the foregoing reasons, we will affirm the District Court’s order granting

summary judgment in favor of the Kintock Group.




                                            9
ROTH, Circuit Judge, dissenting:

       In 2010, the State of New Jersey Parole Board granted parole to Clarence Haley.

Parole is a legal status created by state law that allows an inmate to leave prison and live

in the community at large, subject to various conditions. N.J. Stat. Ann. § 30:4-123.51

(outlining conditions for attaining parole). In Morrissey, the Supreme Court held that

prisoners released on parole had a liberty interest in that status. Morrissey v. Brewer, 408

U.S. 471 (1972). The Court does not define what different conditions of parole, imposed

on parolees by different states, may create that liberty interest From my review of the

Morrissey opinion, I conclude that it applies to all parolees, whatever may be the

conditions of parole imposed by the State. Thus, “the liberty of a parolee, although

indeterminate, includes many of the core values of unqualified liberty and its termination

inflicts a ‘grievous loss’ on the parolee and often on others.” Id. at 482.

       I believe that the majority errs in concluding that, if the conditions of parole

imposed on one prisoner equate to the conditions of community release imposed on

another prisoner, we are free to conclude that the paroled prisoner has no liberty interest

in his release. I do not agree. Morrissey does not grant courts the freedom to review the

conditions of parole to determine if a liberty interest has been created. Nor do I think that

we want to avoid the bright line rule created by the Court in Morrissey. If we follow the

majority, we are opening ourselves up to having to review the conditions of parole in

every case in which a liberty interest is claimed. I do not favor such a situation.

       For the reasons stated above, I respectfully dissent.



                                              1
