                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-22-2008

Ella Henderson v. Kerns-Barr
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2665




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"Ella Henderson v. Kerns-Barr" (2008). 2008 Decisions. Paper 336.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/336


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ALD-7                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-2665
                                      ___________

                              ELLA MAE HENDERSON,
                                          Appellant

                                            v.

                       MRS. KERNS-BARR; OFFICER RIPPEY
                      ____________________________________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (M.D. Pa. Civ. No. 07-cv-00936)
                    District Judge: Honorable Christopher C. Conner
                      ____________________________________

         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
                                    October 9, 2008

             Before: SLOVITER, FUENTES and JORDAN, Circuit Judges

                            (Opinion filed October 22, 2008)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

              Ella Henderson, a state prisoner proceeding pro se, appeals an order of the

United States District Court for the Middle District of Pennsylvania granting summary

judgment for the defendants in her civil rights action, and an order denying her motion for
reconsideration. We will affirm the District Court’s orders.

              The record reflects that Henderson was standing in line for medication at

the prison infirmary when Corrections Officer Brenda Rippey asked her whether she was

wearing her state-issued brown t-shirt. Henderson replied that she was and opened her

coat to show Rippey the t-shirt. According to Henderson, she asked Rippey her name and

then entered the infirmary to receive her medication without incident. Rippey, however,

states that Henderson ran towards her in a threatening manner with her fists clenched and

screamed, “What the hell is your name? I’m f------ sick of this s—.” Rippey states that

she believed Henderson was going to assault her, and that she ordered Henderson several

times to get her medication and return to her housing unit.

              Rippey filed a misconduct report charging Henderson with threatening an

employee or his family with bodily harm, using abusive, obscene, or inappropriate

language to an employee, and refusing to obey an order. L.S. Kerns-Barr conducted a

disciplinary hearing. Kerns-Barr’s report reflects that Henderson pleaded not guilty and

provided her version of the incident.1 Kerns-Barr denied Henderson’s requests to have

Rippey appear and to present witnesses, noting that they were not necessary to establish

Henderson’s guilt or innocence. Kerns-Barr viewed a video of the incident, but she found

the video inconclusive. Kerns-Barr credited Rippey’s written report and found


   1
    The hearing report reflects that Henderson stated that, after she showed Rippey her t-
shirt, the officer thanked her. Henderson stated that she and Rippey had an exchange of
pleasant words, but she did tell Rippey “she was not welcome.” Def. Statement of
Material Facts, Ex. C.

                                             2
Henderson guilty. Henderson received 90 days in disciplinary custody. Her

administrative appeals were unsuccessful.

              Henderson then filed a civil rights action against Kerns-Barr and Rippey

alleging that she was not guilty of the charges, that she was unable to present witnesses at

her hearing, and that she was denied her medication while in disciplinary custody. The

District Court construed Henderson’s complaint as asserting violations of her due process

and Eighth Amendment rights. The District Court granted the defendants’ motion for

summary judgment, and denied Henderson’s subsequent motion for reconsideration. This

appeal followed.

              We agree with the District Court that summary judgment was warranted on

Henderson’s due process claim because her 90-day disciplinary confinement did not

implicate a liberty interest. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (holding that

prisoner’s disciplinary segregation did not deprive him of a cognizable liberty interest

where confinement did not impose an atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life). Although Henderson attested that the

misconduct report caused her parole to be “held up,” as recognized by the District Court,

she provided no evidence showing that her release date was affected.2

              Summary judgment also was warranted on Henderson’s Eighth Amendment


   2
    Because Henderson was not entitled to the procedural protections set forth in Wolff v.
McDonnell, 418 U.S. 539 (1974), we find it unnecessary to address the District Court’s
further conclusion that Henderson’s hearing satisfied all constitutional mandates. See
Sandin, 515 U.S. at 487.

                                             3
claim based on the denial of medication while in disciplinary custody. The District Court

correctly concluded that Henderson did not establish – or even claim – that either Rippey

or Kerns-Barr was personally involved in her medical care. Rode v. Dellarciprete, 845

F.2d 1195, 1207 (3d Cir. 1988). Finally, the District Court did not abuse its discretion in

denying Henderson’s motion for reconsideration.

              Accordingly, because this appeal does not raise a substantial question, we

will affirm the District Court’s orders.3




   3
   Henderson’s motions for appointment of counsel are denied. See Tabron v. Grace, 6
F.3d 147, 155 (3d Cir. 1993) (requiring claim to appear to have some merit in fact and
law before counsel will be appointed).

                                             4
