                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-6-2007

Dahlan v. Dept Homeland
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5546




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                                                          NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                           ________________

                                 No. 05-5546
                              ________________

                             MARWAN DAHLAN,

                                        Appellant

                                        v.

  DEPARTMENT OF HOMELAND SECURITY; ATTORNEY GENERAL USA;
 EDMOND CICCHI, the warden wherever the Plaintiff is held/Detained/imprisoned;
     MIDDLESEX COUNTY DETENTION FACILITY MEDICAL STAFF;
     MIDDLESEX COUNTY DETENTION FACILITY DENTAL STAFF;
 MIDDLESEX COUNTY OFFICER/DIRECTOR OF MEDICAL DEPARTMENT;
         MIDDLESEX COUNTY DETENTION FACILITY ANY
   CONTRACT MEDICAL STAFF USED BY THE MIDDLESEX COUNTY;
                         JERRY BERKOWITZ
              ____________________________________

                 On Appeal From the United States District Court
                          For the District of New Jersey
                          (D.C. Civ. No. 04-CV-05161)
                    District Judge: Honorable Joel A. Pisano
                  ____________________________________

                   Submitted Under Third Circuit LAR 34.1(a)
                               February 5, 2007

          Before: FISHER, ALDISERT and WEIS, CIRCUIT JUDGES.

                           (Filed: February 6, 2007)
                          _______________________

                                 OPINION
                          _______________________

PER CURIAM
          Marwan Dahlan appeals from orders of the United States District Court for the

District of New Jersey, dismissing his complaint. For the reasons given below, we will

affirm.

                                              I.

          Dahlan filed a complaint against the Department of Homeland Security (DHS),

Attorney General Ashcroft, Middlesex County Adult Correctional Center Medical and

Dental Staff (“MCACC medical staff”), and Edmond Cicchi, the Warden of Middlesex

County Adult Correctional Facility, alleging that the conditions of his confinement as an

immigration detainee and the denial of medical care violated his constitutional rights.

Dahlan applied to proceed in forma pauperis, and the District Court, pursuant to 28

U.S.C. § 1915(e)(2)(b)(ii), determined that Dahlan had failed to state a claim as to his

conditions of confinement claims, as he had not alleged facts indicating that he had been

subjected to extreme deprivation. The Court noted that it was conceivable that Dahlan

could supplement his pleading with facts sufficient to state a claim regarding his medical

care, and thus allowed the medical care claims to proceed. The Court dismissed the

complaint as to Attorney General John Ashcroft, as Dahlan had not alleged any personal

involvement on the part of the Attorney General. Dahlan filed an amended complaint,

adding claims that he was denied sufficient law library time and materials and that he had

not been permitted to pray with other Muslims, and reiterating his claims concerning the

conditions of confinement and his claims regarding his medical care. At that time he also



                                              2
named additional MCACC staff (“other MCACC defendants”) and the law library

director, Jerry Berkowitz, as defendants.

       DHS filed a motion to dismiss, which the District Court granted in June 2005,

finding that Dahlan’s release from the corrections facility mooted his requests for

injunctive relief, and that his damage claims were not cognizable against the DHS. On

October 17, 2005, the court granted Warden Cicchi’s motion to dismiss, which Dahlan

had failed to answer, despite being given an extension of time to do so. Cicchi had

argued that Dahlan’s amended complaint merely reiterated the conditions of confinement

claims that had already been dismissed in his first complaint, and, to the extent he raised

claims regarding his medical treatment, he was not alleging that he was denied medical

treatment, but only disagreed with the manner in which he was treated. In December

2005, Dahlan filed a notice of appeal, despite the fact that not all defendants had been

dismissed from the case.

       Subsequent to Dahlan’s noticing an appeal, Berkowitz filed a motion to dismiss,

and the MCACC parties filed a motion for summary judgment. The District Court

granted those motions on December 27, 2005, and closed the case. The District Court

granted Berkowitz’s motion to dismiss because Dahlan’s amended complaint merely

reiterated previously dismissed claims; and, in the alternative, because Dahlan’s claim

that Berkowitz had denied him access to the courts lacked factual support. The Court

granted the MCACC parties’ motion because the defendants did not violate Dahlan’s

rights in providing medical and dental care, no evidence proved that the defendants acted

                                             3
in a deliberately indifferent manner in providing care, no evidence demonstrated that

Dahlan’s medical needs were serious, and Dahlan had failed to raise any issues of

material fact with regard to his medical care.

                                              II.

       At the time Dahlan filed his notice of appeal, the District Court had not yet

dismissed the complaint as to all parties. However, when a notice of appeal is filed

before a final decision has been made but is followed by a final appealable order, the

premature notice of appeal is treated as an appeal from the final order in the absence of a

showing of prejudice to respondent. Cape May Greene, Inc. v. Warren, 698 F.2d 179,

185 (3d Cir. 1983); 2-J Corp. v. Tice, 126 F.3d 539 (3d Cir. 1997). As the District

Court’s December 27, 2005 order dismissed the complaint as to the remaining parties and

closed the case, and as no party has alleged prejudice, the decisions are now appealable,

and we have jurisdiction to consider the appeal.

                                             III.

       In his brief, Dahlan lists six grounds for appeal. Although the grounds are not

entirely clear, we will address each one briefly. Dahlan alleges that the District Court

“refused to address the complaint against City of Perth Amboy . . .” and “refused to

address ‘Petition for Solution’ . . . .” The District Court docket sheet does not reflect any

complaint against Perth Amboy, nor any document titled “Petition for Solution.” We

therefore do not find any error in the District Court’s alleged failure to address the

documents. Dahlan alleges that the Court “refused to address complaint against

                                              4
Homeland Security (DHS), staff or amend parties to the pending complaint or even

acknowledge receiving complaint.” However, the District Court’s June 21, 2005 order

clearly addresses and dismisses the complaint against DHS. We find no error in the

District Court’s decision to dismiss DHS from the case, as we agree that Dahlan alleged

no legal basis for claims against the United States or its agencies. Dahlan also argues that

the District Court erred in failing to appoint an attorney. We find that the District Court

did not abuse its discretion in denying the motion for appointment of counsel, as Dahlan

appeared to be capable of presenting the case, the issues were not complex, and his

release from incarceration facilitated his ability to pursue the action.1 Tabron v. Grace, 6

F.3d 147, 156 (3d Cir. 1993).

        Dahlan’s remaining two grounds for appeal are that the District Court “refused to

address Petitioner knee problem,” and that the Court “refused to address detention

conditions such as, address medical issues within timely manner, refused to address meals

that was served with unusual manner, and with filthy objects, also declined to address the

hygiene problem at the units, furthermore the court declined to address the issue where

the petitioner was housed in a unit with TB, and Hepatitis infected immigrants.” Contrary

to Dahlan’s assertion, the District Court did address these issues, both in its opinion and

order of December 6, 2004, and in its orders of October 17, 2005, and December 27,

2005.



        1
         We similarly denied Dahlan’s motion for appointment of counsel in this appeal.

                                              5
       The District Court properly analyzed Dahlan’s situation as an immigration

detainee to be comparable to that of a pretrial detainee. See Edwards v. Johnson, 209

F.3d 772, 778 (5th Cir. 2000). In the pretrial detainee setting, a claim asserting

unconstitutional conditions of confinement is reviewed pursuant to the Due Process

Clause. See Hubbard v. Taylor, 399 F.3d 150, 158 (3d Cir. 2005). The test is whether

the challenged conditions amount to punishment under the Due Process Clause. See id.

Absent a showing of express intent to punish, the determination will normally turn on

whether the conditions have an alternative purpose and whether the conditions appear

excessive in relation to that purpose. See id. (citing Bell v. Wolfish, 441 U.S. 520,

538-39 (1979)). The inquiry into whether given prison conditions constitute punishment

under the Due Process Clause considers the totality of the circumstances within a given

institution. See id. (citations omitted). Here, Dahlan did not present any evidence to

show that any of the named defendants had an express intent to punish him by way of the

prison conditions. Although some of the conditions Dahlan described were undoubtedly

unpleasant, he did not show that the conditions were excessive in relation to the prison’s

interest in maintaining security and effectuating his detention. Bell, 441 U.S. at 540.2 As


       2
        We note that the District Court analyzed the conditions of confinement claims
under the Eighth Amendment “for the sake of convenience.” We have cautioned that an
Eighth Amendment analysis is not applicable to a pretrial detainee’s claims that
conditions of confinement violate his constitutional rights; rather, the analysis should be
whether the conditions amounted to “punishment” and therefore violated the detainee’s
Due Process rights. Hubbard, 399 F.3d at 164. However, given the District Court’s
emphasis on the test enunciated in Bell, we are confident that its analysis was guided by
Bell, and we will affirm the District Court’s holding that Dahlan’s conditions of

                                              6
to his medical claims, we agree that Dahlan did not show deliberate indifference on the

part of any of the named defendants to his serious medical needs. We will therefore

affirm the District Court’s orders.




confinement claims were without merit.

                                            7
