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


3-24-2006

Durham v. Dept Corr
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4568




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CPS-142                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    NO. 05-4568
                                 ________________

                              WARREN DURHAM JR.

                                                     Appellant,

                                          v.

DEPARTMENT OF CORRECTIONS, MR. THOMAS L. JAMES, INDIVIDUALLY in
      his capacity as Chief Grievance Coordinator, SUP. DONALD T. VAUGHN,
INDIVIDUALLY, in his Capacity as Superintendent of SCI Graterford, LT. WILLIAM
MASH, INDIVIDUALLY, in his capacity as Grievance Coordinator for SCI Graterford,
 JANE DOE IRVIN, INDIVIDUALLY, in her Capacity as Correctional Officer for SCI
 Graterford, CERT OFFICER NO. 1, INDIVIDUALLY, in his capacity as Correctional
Officer for Department of Corrections, CERT OFFICER NO. 2, INDIVIDUALLY, in his
capacity as Correctional Officer for Department of Corrections, CERT OFFICER NO. 3,
INDIVIDUALLY, in his capacity as Correctional Officer for Department of Corrections
                      ____________________________________

                   On Appeal From the United States District Court
                      For the Eastern District of Pennsylvania
                               (D.C. Civ. No. 03-3803 )
                      District Judge: Honorable John P. Fullam
                   _______________________________________

   Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or for Possible
          Summary Action Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                 February 24, 2006
          Before: BARRY, SMITH AND NYGAARD, CIRCUIT JUDGES


                               (Filed March 24, 2006)
                             _______________________

                                    OPINION
                             _______________________
PER CURIAM

          Warren Durham, Jr. appeals from two District Court Orders. The first granted

Defendants’ motion to dismiss as to some of Durham’s claims and the second granted

summary judgment in favor of the Defendants on Durham’s remaining claims. Because

the District Court’s disposition of these motions clearly was correct, we will summarily

affirm.

          Durham formerly was in the custody of the Pennsylvania Department of

Corrections and was housed at SCI-Graterford when the incidents giving rise to this

action occurred. On December 18, 2002, Commonwealth Emergency Response Team

(“CERT”) officers went into Durham’s cell, tore down paintings of Elijah Muhammad

and Louis Farrakahn and uttered religious slurs about Islam. After the CERT officers left,

Durham spoke to Sergeant Irvin about the incident. Irvin was unwilling to give the names

of the individuals involved in the incident. Durham then filed a grievance, which was

denied in part because he could not identify the CERT officers who had seized the

paintings and because he did not establish a monetary value for the missing paintings.

          On June 30, 2003, Durham filed this civil rights action, asserting constitutional and

state law claims and requesting compensatory and punitive damages. Upon Defendants’

motion, the District Court dismissed with prejudice all claims against the Department of

Corrections, as well as the claims against the individual Defendants in their official

capacities, based on Eleventh Amendment immunity. The District Court also dismissed

Durham’s Eighth Amendment and state law claims. After the close of discovery, the

                                                2
District Court granted Defendants’ motion for summary judgment on Durham’s

remaining claims. Durham timely filed his notice of appeal. We have appellate

jurisdiction pursuant to 28 U.S.C. § 1291.

       Our review is plenary. See Santiago v. GMAC Mortg. Group, Inc., 417 F.3d 384,

386 (3d Cir. 2005)(motion to dismiss); McGreevey v. Stoup, 413 F.3d 359, 363 (3d Cir.

2005)(motion for summary judgment). In deciding a motion to dismiss, a court must

determine whether the party making the claim would be entitled to relief under any set of

facts that could be established in support of his claim. See Hishon v. King & Spalding,

467 U.S. 69, 73 (1984). Summary judgment is proper when, viewing the evidence in the

light most favorable to the non-movant, there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. See Saldana v. K Mart Corp.,

260 F.3d 228, 232 (3d Cir. 2001); FED. R. CIV. P. 56(c).

       The Eleventh Amendment states that “[t]he judicial power of the United States

shall not be construed to extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another state, or by Citizens or Subjects of

any Foreign State.” U.S. CONST. amend. XI. The Eleventh Amendment has long been

interpreted to encompass cases involving a suit brought by a citizen against his own state.

See Kimel v. Fl. Bd. of Regents, 528 U.S. 62 (2000). Here, the District Court properly

determined that the Pennsylvania Department of Corrections is immune from suit

pursuant to the Eleventh Amendment. See Mt. Healthy City Bd. of Educ. v. Doyle, 429

U.S. 274 (1977)(holding that the Eleventh Amendment bars suit in federal court against

                                             3
subordinate state agencies). The Complaint also was properly dismissed pursuant to the

Eleventh Amendment as to the individual Defendants to the extent they were sued in their

official capacities. See Will v. Mi. Dep’t of State Police, 491 U.S. 58, 71 (1989)(stating

suit against state official in his official capacity is a suit against the official’s office and is

no different from a suit against the state itself). We note that the Commonwealth of

Pennsylvania has not waived its rights under the Eleventh Amendment. See 42 PA.

CONST. STAT. ANN. § 8521(b).

       The Eighth Amendment places restraints on prison officials, including the

prohibition of cruel or unusual punishment. See Farmer v. Brennan, 511 U.S. 825, 832

(1994). The Eighth Amendment also imposes duties on prison officials, “who must

provide humane conditions of confinement” and make sure that prisoners “receive

adequate food, clothing, shelter, and medical care and must take reasonable measures to

guarantee the safety of inmates.” Id. (internal quotation marks and citations omitted). In

this case, Durham alleged that he was deprived of his Muhammad and Farrakahn

paintings and was subjected to religious slurs. The District Court properly determined

that such allegations do not give rise to an Eighth Amendment violation.

       The state law claims against the Defendants were properly dismissed on the basis

of sovereign immunity. State prison officials are immune from suit for those actions

within the scope of their duties, except in instances in which the immunity has been

specifically waived. See 1 PA. CONS. STAT. ANN. § 2310. Here, the allegations of

Durham’s Complaint do not fall under any one of the nine listed categories for which

                                                 4
immunity has been waived by the Commonwealth of Pennsylvania.1 See 42 PA. CONS.

STAT. ANN. § 8522(b).

       We turn now to the claims for which summary judgment was entered. Durham

alleged violations of his Due Process and First Amendment rights. “[A]n unauthorized

intentional deprivation of property does not constitute a violation of the procedural

requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful

postdeprivation remedy is available for the loss.” See Hudson v. Palmer, 468 U.S. 517,

533 (1984). We have previously found that the Pennsylvania Department of Corrections’

grievance procedure provides an adequate post-deprivation remedy.        See Tillman v.

Lebanon County Corr. Facility, 221 F.3d 410, 422 (3d Cir. 2000). Also, Durham noted in

his deposition testimony that the paintings that were taken were not central to his

religious worship and that their loss did not substantially impact his practice of his

religion. See DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000); see also, Freeman v.

Arpaio, 125 F.3d 732, 736 (9th Cir. 1997)(citing Turner v. Safley, 482 U.S. 78, 89

(1987)). Therefore, summary judgment was properly entered on these claims.

       To the extent Durham’s Complaint may be construed as containing a claim for

conspiracy to deprive him of his rights under the First, Eighth or Fourteenth


   1
     The nine categories for which sovereign immunity will not apply are: (1) vehicle
liability; (2) medical professional liability; (3) care custody or control of personal
property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other
dangerous conditions; (6) care, custody, or control of animals; (7) liquor store sales; (8)
National Guard activities; and (9) toxoids and vaccines. See 42 PA. CONS. STAT. ANN. §
8522(b).

                                              5
Amendments, he has not stated a claim because he has not shown an underlying

constitutional injury. See Thompson v. City of Lawrenece, 58 F.3d 1511, 1517 (10th Cir.

1995); Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995); cf. Dykes v. Southeastern Pa.

Transp. Auth., 68 F.3d 1564, 1570 (3d Cir. 1995)(determining that it was not necessary to

reach the issue of conspiracy because plaintiff failed to allege cognizable violation of due

process rights).

       Finally, in his motion for summary reversal, Appellant asks to resubmit his claim

that he was retaliated against for filing this Complaint. In the District Court, Appellant

unsuccessfully attempted to amend his Complaint to include this claim. To the extent

Appellant is challenging the District Court’s denial of his motion to amend, our review is

for abuse of discretion, see Krantz v. Prudential Investments Fund Management, LLC,

305 F.3d 140, 144 (3d Cir. 2002), and we find that the District Court did not abuse its

discretion.

       For the foregoing reasons, we conclude that no substantial question is presented in

this appeal. We, therefore, will affirm the District Court’s judgment pursuant to I.O.P.

10.6. Appellant’s motion for summary reversal is denied.




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