                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-2009

Daniel Heleva v. Paul Jennings
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3408




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"Daniel Heleva v. Paul Jennings" (2009). 2009 Decisions. Paper 1323.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1323


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                                                        NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                                No. 08-3408
                                ___________

                           DANIEL A. HELEVA,
                                           Appellant

                                     v.

                       SGT. JOSEPH KRAMER;
               MICHAEL TAEBERRY, Director of Treatment;
                 DEPUTY WARDEN PAUL JENNINGS;
                    WARDEN DAVID KEENHOLD
                ____________________________________

               On Appeal from the United States District Court
                    for the Middle District of Pennsylvania
                      (D.C. Civil Action No. 05-cv-1139)
               District Judge: Honorable Christopher C. Conner
                 ____________________________________

               Submitted Pursuant to Third Circuit LAR 34.1(a)
                               May 21, 2009

             Before: BARRY, SMITH and GARTH, Circuit Judges

                       (Opinion filed : May 22, 2009)

                                ___________

                                 OPINION
                                ___________

PER CURIAM



                                     1
       Daniel A. Heleva, pro se, appeals from the District Court’s grant of the appellees’

motion for summary judgment. For the reasons that follow, we shall affirm the District

Court’s order.

       Heleva is currently incarcerated at SCI-Albion. He filed a 42 U.S.C. § 1983

complaint, alleging that the appellees violated his First Amendment right to exercise his

religion and unfairly administered the prison grievance procedures during his

incarceration at another facility. Heleva alleged in particular that they had intentionally

deprived him for a period of at least eight months of two books sent to him by his sister

entitled Survival Kit: 5 Ways to Spiritual Growth and The Power of a Praying Parent.

Heleva argued that he needed those books to “learn to pray constructively and offer [his]

concerns to the grace of his God.” The appellees argued that the prison had a policy of

only accepting books that were directly shipped from publishers or that contained the

publisher’s invoice, which reduces the amount of contraband coming into the prison.

They maintained that Heleva did not receive his books because the invoice was missing.

       The District Court, finding that Heleva had not stated a free exercise claim under

the First Amendment, dismissed his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

The Court also determined that Heleva’s alleged obstruction of prison grievances did not

give rise to an independent constitutional claim. On appeal, this Court affirmed in part

and reversed in part. Heleva v Kramer, 214 Fed. Appx. 244 (3d Cir. 2007). We found

that Heleva had in fact stated a free exercise claim under the First Amendment but agreed



                                              2
that there was no separate claim for violation of prison grievances. We also instructed the

District Court to evaluate whether Heleva’s claims implicated the Religious Land Use and

Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc to 2000cc-5.

       On remand, the District Court granted the defendants’ motion for summary

judgment on the First Amendment and RLUIPA claims. The District Court found that the

prison’s policy did not violate Heleva’s First Amendment rights under Turner v. Safley,

482 U.S. 78, 89 (1987). The District Court also held that the prison had not violated

RLUIPA because Heleva did not show that his religious exercise had been burdened

substantially by the challenged conduct. Heleva filed a timely appeal.

       Because summary judgment is appropriate only where there is no issue of material

fact and judgment is appropriate as a matter of law, our review of a grant of summary

judgment is plenary. Rosen v. Bezner, 996 F.2d 1527, 1530 (3d Cir. 1993) (citing

Jefferson Bank v. Progressive Cas. Ins. Co., 965 F.2d 1274, 1276 (3d Cir. 1992). After

reviewing the record, we will affirm the District Court’s grant of summary judgment.

       To establish a free exercise violation, Heleva must show that the appellees

burdened the practice of his religion by preventing him from engaging in conduct

mandated by his faith without any justification reasonably related to legitimate

penological interests. Turner, 482 U.S. at 89. The Turner test requires that:

              First, there must be a valid, rational connection between the
              prison regulation and the legitimate governmental interest put
              forward to justify it, and this connection must not be so
              remote as to render the policy arbitrary or irrational. Second, a

                                              3
              court must consider whether inmates retain alternative means
              of exercising the circumscribed right. Third, a court must take
              into account the costs that accommodating the right would
              impose on other inmates, guards, and prison resources
              generally. And fourth, a court must consider whether there are
              alternatives to the regulation that fully accommodate[ ] the
              prisoner’s rights at de minimis cost to valid penological
              interests.

DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000)(internal footnotes and citations omitted).

After reviewing the record, we agree with the District Court’s holding. The prison policy

is clearly a legitimate one, meant to serve the purpose of reducing prison contraband.1 As

defendants Kramer and Jennings stated in their depositions, the reason Heleva did not

receive his books is because they did not come with an invoice from the publisher.2 As

soon as it was determined that the invoices were received, Heleva’s books were delivered

to him. Furthermore, even though Heleva experienced a significant delay in the delivery

of those books, he still had access to many other similar books of a religious nature

through the prison library system.

       The District Court next determined that the appellees were entitled to summary

judgment under RLUIPA. Under RLUIPA, “[a] plaintiff-inmate bears the burden to



   1
    A policy similar to the MCCF’s publisher’s only policy was held to be constitutional
by the Supreme Court in Bell v. Wolfish, 441 U.S. 520, 548-55 (1979); see also Hurd v.
Williams, 755 F.2d 306 (3d Cir. 1985).
   2
    Heleva does not challenge the prison’s policy. He complains that Sergeant Kramer
did not deliver the books promptly as a matter of personal dislike. Accepting this
allegation as true, as we must in a summary judgment context, we nevertheless affirm the
District Court’s holding.

                                             4
show that a prison institution’s policy or official practice has substantially burdened the

practice of that inmate’s religion.” Washington v. Klem, 497 F.3d 272, 278 (3d

Cir. 2007). A substantial burden exists where: “1) a follower is forced to choose between

following the precepts of his religion and forfeiting benefits otherwise generally available

to other inmates versus abandoning one of the precepts of his religion in order to receive

a benefit; OR 2) the government puts substantial pressure on an adherent to substantially

modify his behavior and to violate his beliefs.” Id. at 280. Heleva argued that “Sgt.

Kramers actions imposed that burden by refusing literature designed to uphold and

strengthen petitioners faith in God and find solace in the fact that his children would be

protected.” Although an eight-month delay is undoubtedly a burden, Heleva does not

demonstrate that the prison policy resulted in a substantial burden under RLUIPA and

Washington. At no point did Heleva have to abandon one of the precepts of his Christian

religion, nor did the government put pressure on him to substantially modify his behavior

or violate his beliefs.

       Finally, we note that Heleva requested the appointment of counsel, which the

District Court denied. The District Court’s authority to appoint counsel to represent an

indigent litigant in a civil case derives from 28 U.S.C. § 1915(e)(1), which gives district

courts broad discretion to request an attorney to represent an indigent civil litigant. Such

litigants have no statutory right to appointed counsel. Tabron v. Grace, 6 F.3d 147, 153

(3d Cir. 1993). In light of our decision on the merits of Heleva’s claims, we conclude that



                                              5
the District Court did not abuse its discretion in denying the request for counsel.

       In conclusion, we will affirm the District Court’s grant of summary judgment.




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