                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-12-2006

Thomas v. Rosemeyer
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1940




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Recommended Citation
"Thomas v. Rosemeyer" (2006). 2006 Decisions. Paper 333.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/333


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DPS-362                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    NO. 06-1940
                                 ________________

                               VINCENT THOMAS,

                                              Appellant

                                         v.

                    FREDERIC A. ROSEMEYER, Superintendent in his
                      individual and official capacity as Superintendent
              of Laurel Highlands; MARDI HUNSBERGER, Deputy, in her
                     individual and official capacity as Deputy of Laurel
              Highlands; STEVEN M. GATES, In his individual and official
               capacity as Deputy of Laurel Highlands; RONALD CHERO,
                     In his individual and official capacity as Captain of
                Security of Laurel Highlands; MICHAEL TURNER, In his
                  individual and official capacity as Lieutenant of Security
                of Laurel Highlands; JOANN CROSS, In her individual and
                    official capacity as Educational Guidance Counsel for
              Laurel Highlands; RAYMOND SOBINA, In his individual and
                 official capacity as Superintendent of Somerset; GERALD
                 ROZUM, In his individual and official capacity as Deputy
             of Somerset; M. LARRY AMENTI, In his individual and official
              capacity as Program Manager for Somerset; GEHLMANN, Lt.,
           In his individual and official capacity Major of Somerset; ROBERT BITNER,
                        In his individual and official capacity as Chief
          Hearing Examiner for Misconducts for the Department of Corrections
             of Pennsylvania; BEN E. ANSELL, In his individual and official
            capacity as Hearing Examiner for Misconducts for the Department
                                 of Corrections of Pennsylvania
                         ____________________________________

                   On Appeal From the United States District Court
                      For the Western District of Pennsylvania
                             (D.C. Civ. No. 05-cv-00032)
                      District Judge: Honorable Kim R. Gibson
                     _______________________________________


           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                  September 28, 2006

      Before: FUENTES, VANANTWERPEN AND CHAGARES, Circuit Judges.

                                (Filed: October 12, 2006)

                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Vincent Thomas appeals the order of the United States District Court for the

Western District of Pennsylvania dismissing his civil rights action.

       While Thomas was incarcerated in SCI-Laurel Highlands in 2003, he was

suspected of sending a threatening letter to defendant Joann Cross, who is a guidance

counselor at the institution. Thomas was then transferred to SCI-Somerset and placed

into the restricted housing unit (RHU). On November 26, 2003, a misconduct hearing

was conducted relating to the threatening letter. At the conclusion of the hearing,

defendant Ben Ansell found Thomas guilty of three charges, and imposed a sanction of

90 days’ confinement on each charge for a total disciplinary time of 270 days.

       Thomas filed a complaint pursuant to 42 U.S.C. § 1983, alleging that: (1) his

Fourteenth Amendment procedural due process rights were violated when he was denied

access to witnesses and evidence at his misconduct hearing, and (2) defendants violated


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his Eighth Amendment right to be free from cruel and unusual punishment. Thomas

sought damages and expungement of his record. The magistrate judge recommended that

Thomas’s complaint be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state

a claim upon which relief may be granted. The District Court adopted the

recommendation of the magistrate judge and dismissed Thomas’s complaint.

       Thomas timely filed a notice of appeal. We have appellate jurisdiction pursuant to

28 U.S.C. § 1291. Having granted Thomas leave to proceed in forma pauperis on appeal,

we must now determine whether his appeal should be dismissed pursuant to

§ 1915(e)(2)(B). An appeal may be dismissed under § 1915(e)(2)(B) if it has no arguable

basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

       Thomas alleges that his Fourteenth Amendment right to procedural due process

was violated when he was transferred to SCI-Somerset and placed in the RHU, and when

he received 270 days of disciplinary confinement without being permitted to see the

evidence against him or call any witnesses. In analyzing a due process claim, the

threshold question is whether the complaining party has been deprived of a protected

liberty or property interest. See Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000). In a

prison context, due process protection is limited to those situations where the deprivation

rises to the level of an “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). Thomas

concedes that he has no liberty interest in being confined at any particular prison. See

Olim v. Wakinekona, 461 U.S. 238, 245 46 (1983). Thomas’s confinement in the RHU

                                              3
for a period of 270 days is not an atypical or significant hardship. See Griffin v. Vaughn,

112 F.3d 703, 706 (3d Cir. 1997) (placement of a prisoner in administrative custody for

15 months did not involve an atypical, significant deprivation). He thus does not assert a

liberty interest for which he is entitled to due process protection. To the extent Thomas

asserts that the prison’s failure to comply with state procedures deprived him of due

process, state procedures, in themselves, do not confer a liberty interest protected by the

due process clause. See Rodriguez v. McLoughlin, 214 F.3d 328, 339 (2d Cir. 2000) (the

fact that a state has established procedures to be followed does not mean that it has

created a protected liberty interest). Accordingly, Thomas’s claims under the Fourteenth

Amendment fail.

       Thomas also alleges that he was subjected to cruel and unusual punishment in

violation of the Eighth Amendment. The relevant Eighth Amendment inquiry is whether

the prisoner has been deprived of the “minimal civilized measure of life’s necessities.”

Farmer v. Brennan, 511 U.S. 825, 834 (1994). This requires an allegation that the

prisoner has been denied “basic human needs, such as food, clothing, shelter, sanitation,

medical care and personal safety” from physical assault. Griffin, 112 F.3d at 709. As the

District Court explained, Thomas presented no evidence that he was denied basic human

needs such as food, clothing, shelter, sanitation, medical care, or personal safety.

Thomas’s claim that his placement in the RHU violated the Eighth Amendment lacks

merit. See Griffin, 112 F.3d at 709 (placement of a prisoner in administrative custody for

15 months did not involve the deprivation of any basic human need under the Eighth

                                              4
Amendment).

       For the foregoing reasons, Thomas’s appeal will be dismissed under 28 U.S.C.

§ 1915(e)(2)(B) for lack of legal merit. Because Thomas’s appeal lacks legal merit, his

motion for appointment of counsel is denied. See Tabron v. Grace, 6 F.3d 147, 155-56

(3d Cir. 1993).




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