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


12-20-2006

Jerry v. Williamson
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1606




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Recommended Citation
"Jerry v. Williamson" (2006). 2006 Decisions. Paper 58.
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BLD-19                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 06-1606
                                  ________________

                             BERNARD CARTER JERRY,

                                           Appellant,

                                            v.

           DONALD WILLIAMSON; DAVID DIGUGLIELMO; F. FIELD;
                        MICHAEL WENEROWICZ
                  ____________________________________

                    On Appeal From the United States District Court
                        For the District of Eastern Pennsylvania
                               (D.C. Civ. No. 04-cv-5782)
                      District Judge: Honorable Harvey Bartle III
                    _______________________________________


Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                               October 19, 2006
              Before: MCKEE, FUENTES AND ROTH, Circuit Judges.

                               (Filed December 20, 2006)


                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

      Bernard Carter Jerry, a state prisoner in Pennsylvania, appeals the order of the

United States District Court for the Eastern District of Pennsylvania granting summary
judgment to the appellees, who are all officials of the state prison system. In 2004, Jerry

filed a lawsuit under 42 U.S.C. § 1983 against Donald Williamson, Department of

Corrections Chief of Inmate Transfers, Transportation, and Records; David DiGuglielmo,

Superintendent of SCI-Graterford; Michael Wenerowicz, Unit Manager at SCI-

Graterford; and F. Feild, Unit Major at SCI-Graterford,1 alleging violations of his First

and Fourteenth Amendment rights. After the parties conducted discovery, the appellees

filed a motion for summary judgment, and the district court granted the motion on all

claims on February 8, 2006. Jerry timely appealed.

        The appellees have moved for summary action in this appeal. Summary action is

appropriate only where there is no substantial question presented in the appeal. See Third

Circuit LAR 27.4; I.O.P. 10.6. We find that there is no substantial question presented in

this appeal and will affirm the district court’s order for the same reasons provided in its

memorandum opinion issued on February 8, 2006.

       In an as-yet unfiled appellate brief,2 Jerry argues that his retaliation claim should

have survived the motion for summary judgment. We disagree. He identifies a number

of theories to support this assertion, but none is viable here. No statute of limitations or

procedural timing requirements exist which would bar Jerry’s transfer from SCI-


   1
     According to appellees’ answer and the motion for summary judgment filed in the
district court, the correct spelling of this name appears to be “Feild” and not “Field,” as it
is spelled in the caption.
   2
     In accordance with the Clerk’s 3/22/06 order, Jerry’s “Pro Se Brief” was not filed in
this Court but was provided to the panel for informational purposes only.

                                              2
Graterford. Rather, prison officials clearly have the discretion to effectuate a

“Demotional Transfer” when an inmate exhibits “poor behavior” or when an inmate,

having previously obtained an incentive-based transfer, “fail[s] to maintain the incentive-

based criteria.” (Department of Corrections Reception and Classification Procedures

Manual, § 8, ¶ E(5)(a), annexed to Defendants’ Motion for Summary Judgment as Ex. 4,

at 6.) In this instance, as an incentive-based transferee, Jerry had to remain free of Class I

misconducts for one year after the transfer and to have no more than one Class II

misconduct during that year. Jerry failed to meet this incentive-based criteria after his

transfer, as he obtained three Class I or Class II misconducts by the time that prison

officials, namely Feild and Wenerowicz, recommended re-transfer. Even if one of those

misconducts occurred after the one-year point had passed, Jerry had already incurred two

other misconducts within that year that qualified him for re-transfer.

       Jerry also challenges the district court’s conclusion that he had failed to support a

retaliation claim under Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). In that case, we

explained that, for a retaliation claim, an inmate must demonstrate that he was engaged in

a constitutionally protected activity, that he suffered some adverse action at the hands of

the defendants, and that there was a causal link between the constitutionally-protected

activity and the adverse action. Id. As we noted, however, even if those three elements

are proved, prison officials may still prevail if they can show that they would have

undertaken the same action despite the protected conduct “for reasons reasonably related



                                              3
to a legitimate penological interest.” Id. at 334. Even assuming, arguendo, that Jerry

could have proved that his letters to the governor were considered a constitutionally-

protected activity, that appellees took actions to deter the exercise of his rights, and that

the activity was the substantial motivating factor behind the officers’ recommendation for

re-transfer (none of which he did prove), the officers were entitled to prevail because

Jerry’s behavior–including three misconducts–provided sufficient, penologically

grounded reasons for the staff to recommend his re-transfer.

       Finally, Jerry argues that his experience at SCI-Graterford and the circumstances

surrounding his re-transfer constituted atypical and significant hardships. See, e.g., Sandin

v. Conner, 515 U.S. 472, 484 (1995). But just as the district court pointed out, Jerry did

not have a protected liberty interest in the re-transfer entitling him to due process

protection in the first place. Pennsylvania code clearly states that an inmate does not have

a right to be housed in a particular facility. 37 Pa. Code § 93.11(a). Furthermore, the

United States Supreme Court has held that an inmate has no due process right to be

incarcerated in a particular institution whether it be inside the state of conviction, or

outside that state. Olim v. Wakinekona, 461 U.S. 238, 251 (1983). Jerry’s transfer

therefore did not implicate the due process clause. See Sandin, 515 U.S. at 486-487.3

       We will summarily affirm the district court’s order entered on February 8, 2006.

   3
     To the extent that Jerry contends the circumstances surrounding his last misconduct
involving a fight with another inmate violated his rights, the time that he spent in
administrative custody as a result of the misconduct did not constitute an “atypical and
significant hardship” implicating due process rights. See Sandin, 515 U.S. at 483-84.

                                               4
The motion to proceed on the original record will be denied.




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