                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-28-2000

Allah v. Seiverling
Precedential or Non-Precedential:

Docket 97-3627




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Recommended Citation
"Allah v. Seiverling" (2000). 2000 Decisions. Paper 208.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/208


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Filed September 28, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-3627

MICHAEL MALIK ALLAH,
       Appellant

v.

THOMAS SEIVERLING; ROBERT SPARBANIE;
JOHN D'ELETTO; BEN VARNER

COMMONWEALTH OF PENNSYLVANIA,
       Amicus Curiae
UNITED STATES OF AMERICA,
       Intervenor

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 97-cv-01696)
District Judge: Hon. Robert J. Cindrich

Argued July 20, 2000

Before: SLOVITER, NYGAARD and FUENTES,
Circuit Judges

(Filed September 28, 2000)

       Deena Jo Schneider
       Joseph T. Lukens (Argued)
       S. Jnatel Simmons
       Schnader Harrison Segal & Lewis
       Philadelphia, PA 19103

        Attorneys for Appellant
       D. Michael Fisher
        Attorney General
       J. Bart DeLone (Argued)
       Calvin R. Koons
        Senior Deputy Attorney General
       John G. Knorr, III
        Chief Deputy Attorney General
        Chief, Appellate Litigation Section
       Office of Attorney General
       Appellate Litigation Section
       Harrisburg, PA 17120

        Attorneys for Amicus Curiae
       on behalf of Appellees

       David W. Ogden
        Acting Asistant Attorney General
       Michael R. Stiles
        United States Attorney
       John C. Hoyle
       Susan L. Pacholski

        Attorney for Intervenor

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Michael Malik Allah appeals the District Court's order
dismissing Allah's complaint before service on the ground
that his claims are barred by the Supreme Court's decision
in Sandin v. Connor, 515 U.S. 472 (1995). The appeal
requires us to consider the effect of the Sandin decision on
Allah's access-to-courts claims, including his claim that he
was kept in administrative segregation in retaliation for
filing civil rights lawsuits.

I.

Allah, who was granted leave to proceed in forma
pauperis, filed his pro se complaint on September 19, 1997
alleging that he was being kept in administrative
segregation at S.C.I. Greene in retaliation forfiling civil

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rights lawsuits against prison officials at S.C.I. Frackville
and S.C.I. Graterford, two prisons where he had earlier
been housed, and that while he was kept in administrative
segregation he was denied meaningful access to the courts.

According to his complaint, Allah was transferred from
S.C.I. Frackville to S.C.I. Greene on July 9, 1997 and was
placed in administrative segregation. He was told by the
officer in charge that the officer "had not had a chance to
review [his] records" but that Allah would be brought before
the Program Review Committee ("PRC") the next day, July
10. App. at 10. Allah was brought before the PRC on July
15 and was told that the PRC still did not have his records
but that he would be seen every 30 days. Allah alleges the
PRC did have his records but kept him in administrative
segregation in retaliation for filing lawsuits when he was
housed at other prisons. He was again brought before the
PRC on August 12, 1998 and denied release to the general
population, with "[n]o valid reason given." App. at 11. On
September 9, 1997, he was again brought before the PRC
and denied release to the general population.

Allah alleges in his complaint that he is "unable to file
and product [sic] briefs" in his criminal case and unable to
conduct discovery in his civil rights cases while in
administrative segregation at S.C.I. Greene. App. at 10. His
complaint seeks relief in the form of compensation damages
and punitive damages. In his briefs he asserts that he also
seeks injunctive and declaratory relief.

On September 29, 1997, before service of the complaint,
the Magistrate Judge recommended that the complaint be
dismissed for failure to state a claim, stating:

       In Sandin v. Connor, 115 S. Ct. 2293 (1995), the Court
       held that housing an inmate in disciplinary custody did
       not impose such atypical and significant hardships on
       the inmate so as to invoke Constitutional protection.
       Thus, the plaintiff 's complaint here is without merit
       . . .

Report and Recommendation, Doc. # 6 (Sept. 29, 1997) at
2. The District Court adopted the Magistrate Judge's Report
and Recommendation as the opinion of the court and
ordered the complaint dismissed. Allah timely appealed.

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This court appointed counsel to represent Allah on appeal.1
We also requested that the Commonwealth submit a brief
and argue as amicus curiae.2 The appeal was consolidated
with another brought by Allah in a separate case captioned
Allah v. Al-Hafeez, No. 98-1385. The two consolidated
appeals present distinct legal issues, and we address the
issues in separate opinions.

Our review of the District Court's sua sponte dismissal
for failure to state a claim, which was authorized by 28
U.S.C. S 1915(e)(2)(B)(ii) and 42 U.S.C. S 1997e(c)(2), like
that for dismissal under Fed. R. Civ. P. 12(b)(6), is plenary.
See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.
1999). "[W]e must accept as true the factual allegations in
the complaint and all reasonable inferences that can be
drawn therefrom." Nami v. Fauver, 82 F.2d 63, 65 (3d Cir.
1996).

II.

Allah alleges two claims in his complaint: that he was
denied meaningful access to the courts while he was kept
in administrative segregation and that he was kept in
administrative segregation in retaliation for filing civil rights
claims against prison officials at S.C.I. Frackville and S.C.I.
Graterford. The District Court interpreted Sandin to
_________________________________________________________________

1. We expressed our appreciation to this firm and others in note 4 of the
companion opinion in Allah v. Al-Hafeez, No. 98-1385.

2. A motions panel of this court requested that the parties address
several additional issues in their briefs, including, inter alia, whether
any
or all of Allah's claims are moot, whether Allah has exhausted available
administrative remedies in accordance with 42 U.S.C.S 1997e(a),
whether Allah's claims seeking monetary damages are barred by 42
U.S.C. S 1997e(e), and what standard should be applied to a claim
alleging retaliation for exercising the right to petition the courts. For
the
most part, those issues are not directly presented by this appeal, and we
accordingly do not decide them here. As for mootness, a jurisdictional
issue, it is clear, and the parties do not dispute, that at least Allah's
claims for damages survive his release from administrative segregation.
See Weaver v. Wilcox, 650 F.2d 22, 27 n.13 (3d Cir. 1981) (stating that
prisoner's transfer from the prison moots claim for injunctive and
declaratory relief with respect to prison conditions but not claim for
damages).

                               4
preclude both of these claims, apparently in the belief that
Sandin stands for the principle that no claim arising out of
administrative segregation can form the basis for a
constitutional violation. We cannot agree with that
interpretation of Sandin.

Sandin involved a S 1983 suit brought by a state prisoner
against several prison officials alleging that they had
violated his constitutional right to procedural due process
by sentencing him to disciplinary segregation without
permitting him to call certain witnesses. See 515 U.S. at
476. The Supreme Court noted in Sandin that under the
procedure previously followed, if the Due Process Clause
itself did not confer a liberty interest in a particular prison
situation,3 the federal courts would proceed to "examin[e]
. . . the possibility that the State had created a liberty
interest by virtue of its prison regulations. . . ." Id. at 480
(explaining the approach taken by the Court in Hewitt v.
Helms, 459 U.S. 460 (1983)). The Supreme Court
substantially modified that analysis in Sandin , holding that
an examination of a state statute or regulation should not
be conducted unless the challenged restraint on freedom
"imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life." Id. at 484.
As the Court explained:

       States may under certain circumstances create liberty
       interests which are protected by the Due Process
       Clause. But these interests will be generally limited to
       freedom from restraint which, while not exceeding the
       sentence in such an unexpected manner as to give rise
       to protection by the Due Process Clause of its own
       force, nonetheless imposes atypical and significant
       hardship on the inmate in relation to the ordinary
       incidents of prison life.
_________________________________________________________________

3. The Court has held that the Due Process Clause confers a liberty
interest in certain situations. See, e.g., Washington v. Harper, 494 U.S.
210 (1990) (holding that an inmate has a liberty interest in being
protected from the involuntary administration of psychotropic drugs);
Vitek v. Jones, 445 U.S. 480 (1980) (holding that an inmate has a liberty
interest in being free from involuntary transfer to mental hospital for
treatment).

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Id. at 483-84 (citations omitted). Applying this approach to
the facts of the case before it, the Court held that"[the
prisoner's] discipline in segregated confinement did not
present the type of atypical, significant deprivation in which
a State might conceivably create a liberty interest,"
inasmuch as "[t]he regime to which [the prisoner] was
subjected . . . was within the range of confinement to be
normally expected for one serving an indeterminate term of
30 years to life." Id. at 486-87.

The Court's opinion makes clear that the decision does
not foreclose other claims challenging the constitutionality
of official actions. Specifically, it states:

       Prisoners . . . , of course, retain other protection from
       arbitrary state action even within the expected
       conditions of confinement. They may invoke the First
       and Eighth Amendments and the Equal Protection
       Clause of the Fourteenth Amendment where
       appropriate, and may draw upon internal prison
       grievance procedures and state judicial review where
       available.

Id. at 487 n.11.

Accordingly, we conclude that Allah's claim alleging
denial of his constitutional right to meaningful access to
the courts is not foreclosed by Sandin. In fact, the
Commonwealth concedes as much in its brief, stating that
the District Court "should have" considered that claim. See
Amicus Br. at 27. It is well settled that prisoners have a
constitutional right to access to the courts, which requires
access to "adequate law libraries or adequate assistance
from persons trained in the law" for filing challenges to
criminal sentences, both direct and collateral, and civil
rights actions. Bounds v. Smith, 430 U.S. 817, 828 (1977);
see also Lewis v. Casey, 518 U.S. 343, 355 (1996)
(recognizing that the Constitution requires that prisoners
be provided the tools "that the inmates need in order to
attack their sentences, directly or collaterally, and in order
to challenge the conditions of their confinement"); Wolff v.
McDonnell, 418 U.S. 539, 579 (1974) (extending right of
access to the courts, founded on the Due Process Clause,
to prisoners filing actions under 42 U.S.C. S 1983 to

                               6
vindicate "basic constitutional rights"). 4 This right to access
to the courts is distinct from any liberty interest in
remaining free from administrative or disciplinary
segregation. A claim founded on the right of access remains
viable after Sandin.5

Nor does Sandin preclude Allah's claim alleging that he
was kept in administrative segregation in retaliation for
filing civil rights suits against prison officials. We have
recognized that "[t]he right of access to the courts . . . must
be freely exercisable without hindrance or fear of
retaliation." Milhouse v. Carlson, 652 F.2d 371, 374 (3d Cir.
1981) (locating right to access the courts in a retaliation
case in the First Amendment right to petition for redress of
grievances); see also Crawford-El v. Britton, 523 U.S. 574,
588 n.10 (1998) (stating that "[t]he reason why . . .
retaliation offends the Constitution is that it threatens to
inhibit exercise of the protected right").

Sandin instructs that placement in administrative
confinement will generally not create a liberty interest. See
Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997)
(applying Sandin and holding that conditions experienced
by prisoner in administrative custody did not implicate
liberty interest). Retaliation may be actionable, however,
even when the retaliatory action does not involve a liberty
interest. See, e.g., Stanley v. Litscher , 213 F.3d 340, 343
_________________________________________________________________

4. The right to access to the courts has a number of constitutional roots,
including the Due Process Clause and the First Amendment. See
generally Peterkin v. Jeffes, 855 F.2d 1021, 1036 n.18 (3d Cir. 1988)
(chronicling sources of the right).

5. At argument, the Commonwealth suggested that Allah's access to
courts claim should be dismissed for failure to allege actual injury, as
required by Casey. Under Casey, in order to have standing to challenge
prison conditions as denying meaningful access to the courts, a prisoner
must plead facts to "demonstrate that the alleged shortcomings . . .
hindered his efforts to pursue a legal claim." 518 U.S. at 351. Allah
alleges, inter alia, that while he was in administrative segregation he
did
not have access to trained legal aids and as a result was unable to file
a brief in his post-conviction appeal, which he alleges was due on
September 10, 1997, the day after the date of his complaint. Construing
Allah's complaint liberally, that allegation is sufficient to state a
claim
under Casey.

                               7
(7th Cir. 2000) (holding that plaintiff stated claim for
retaliatory transfer even though no liberty interest involved
in transfer); Rouse v. Benson, 193 F.3d 936, 939 (8th Cir.
1999) (same). "[G]overnment actions, which standing alone
do not violate the Constitution, may nonetheless be
constitutional torts if motivated in substantial part by a
desire to punish an individual for exercise of a
constitutional right." Thaddeus-X v. Blatter , 175 F.3d 378,
386 (6th Cir. 1999) (en banc).

Our holding that claims alleging retaliation for the
exercise of First Amendment rights survive Sandin is
consistent with those circuits that have considered the
issue. In Pratt v. Rowland, 65 F.3d 802, 806-07 (9th Cir.
1995), the Court of Appeals for the Ninth Circuit held that
Sandin did not bar a claim alleging that a prisoner-plaintiff
had been transferred and placed in a double cell in
retaliation for a television interview that he had given. The
court stated:

       To succeed on his retaliation claim, [the plaintiff] need
       not establish an independent constitutional interest in
       either assignment to a given prison or placement in a
       single cell, because the crux of his claim is that state
       officials violated his First Amendment rights by
       retaliating against him for his protected speech
       activities.

Id. at 806. In Babcock v. White, 102 F.3d 267, 274-75 (7th
Cir. 1996), the Court of Appeals for the Seventh Circuit
agreed, holding that a prisoner-plaintiff 's claim that a
prison official had prevented an expeditious transfer in
retaliation for his filing lawsuits against prison officials was
actionable "even if [the prison official's] actions did not
independently violate the Constitution" and thus was not
barred by Sandin.

The Commonwealth argues that "the sense of the Sandin
opinion" counsels us to hold that continued placement in
administrative confinement can never amount to adverse
action sufficient to support a retaliation claim. Amicus Br.
at 18. As the Supreme Court recognized in its footnote in
Sandin, however, "[p]risoners . . . retain other protection
from arbitrary state action even within the expected

                               8
conditions of confinement." 515 U.S. 487 n.11 (emphasis
added).

We recently explained this court's position on the adverse
action prong of a retaliation claim in Suppan v. Dadonna,
203 F.3d 228 (3d Cir. 2000). There, we considered whether
the defendants' action of placing plaintiffs lower on
promotion ranking lists in retaliation for the exercise of
their First Amendment free speech rights was sufficiently
adverse to state a claim for retaliation. We held that it was,
stating that a fact finder could conclude that"the alleged
retaliatory conduct was sufficient `to deter a person of
ordinary firmness' from exercising his First Amendment
rights." Id. at 235 (quoting Bart v. Telford, 677 F.2d 622,
625 (7th Cir. 1982)). This same test has been applied in the
prison context. See Thaddeus-X, 175 F.3d at 396-99;
Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996)
(en banc) (approving the Bart standard in the prison
context), reversed on other grounds, 523 U.S. 574 (1998).

Although it is possible that in some cases placement in
administrative segregation would not deter a prisoner of
ordinary firmness from exercising his or her First
Amendment rights, we cannot say that such action can
never amount to adverse action. On the contrary, whether
a prisoner-plaintiff has met that prong of his or her
retaliation claim will depend on the facts of the particular
case.

Here, Allah alleges that his confinement in administrative
segregation resulted, inter alia, in reduced access to phone
calls, reduced access to the commissary, reduced access to
recreation, confinement in his cell for all butfive hours per
week, denial of access to rehabilitative programs and,
significantly, inadequate access to legal research materials
and assistance. A fact finder could conclude from those
facts that retaliatory continued placement in administrative
confinement would "deter a person of ordinaryfirmness
from exercising his First Amendment rights." Suppan, 203
F.3d at 235 (internal quotations omitted); see Thaddeus-X,
175 F.3d at 396 ("[A]n action comparable to transfer to
administrative segregation would certainly be adverse.").

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III.

For the reasons stated, we will vacate the order of the
District Court sua sponte dismissing Allah's complaint as
barred by Sandin and will remand for further proceedings
not inconsistent with this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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