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


4-19-2007

Bacon v. Governor DE
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3594




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BLD-168                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   NO. 06-3594

                                _______________

                              DEVEARL L. BACON,
                                     Appellant

                                        vs.

GOVERNOR RUTH ANN MINNER; COMMISSIONER STAN TAYLOR; WARDEN
  CARROLL; DEPUTY WARDEN BURRIS; DEPUTY WARDEN MCGUIGAN;
 SECURITY SUPER. CUNNINGHAM; SECURITY SUPER. HOLMAN; SERVICE
MANAGER HUDSON; TREATMENT ADMIN. HOSTERMAN; S/LT. WILLIAMS;
     S/LT. RAMONE TAYLOR; S/LT. PROFACI; LT. BOONE; LT. PORTER;
 INVESTIGATOR DRAKE; LEGAL SERVICES MIKE LITTLE; SGT. T. DRACE;
SGT. KRUMPLER; C/O MORGAN; CORPORAL L.M. MERSON; C/O PARKS; C/O
 WELLS; C/O STEPHEN MCCLAIN; CASSANDRA ARNOLD; CINDY ATTLIAN;
             TODD KRAMER; JAYME JACKSON; LT. SEACORD

                    ____________________________________

                  On Appeal From the United States District Court
                             For the District of Delaware
                             (D.C. Civ. No. 06-cv-00254)
                   District Judge: Honorable Joseph J. Farnan, Jr.
                   _____________________________________

Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                    Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   March 22, 2007
            Before: MCKEE, FUENTES and WEIS, CIRCUIT JUDGES
                              (Filed April 19, 2007)




                                         1
                               _______________________

                                      OPINION
                               _______________________

PER CURIAM.

              Devearl L. Bacon appeals from the district court’s order dismissing his civil

rights action brought under 42 U.S.C. § 1983. For the following reasons, we will

summarily affirm the district court’s order.

              Bacon is, and at all relevant times was, an inmate at the Delaware

Correctional Center housed in the medium-high security housing unit (“MHU”). On

April 19, 2006, Bacon filed a seven-count civil rights complaint with the district court.

Bacon specifically alleged the following: (1) embezzlement on the part of prison staff; (2)

injury as a result of the racial and sexual discrimination directed at female correctional

officers and nursing staff; (3) sexual harassment; (4) unfair and arbitrary rules concerning

the conditions of his confinement; (5) lack of jobs and group assignments; (6) inadequate

grievance procedures; and (7) inadequate conditions of confinement. Bacon was granted

in forma pauperis status pursuant to 28 U.S.C. § 1915. On July 18, 2006, carrying out its

obligation to screen Bacon’s complaint under 28 U.S.C. § 1915A(a), the district court

entered an order dismissing Bacon’s complaint for failing to state a claim upon which

relief could be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); see also 28 U.S.C. §

1915A(b)(1); Fed. R. Civ. P. 12(b)(6). Bacon, again proceeding pro se, filed a timely




                                               2
notice of appeal.1 Because this appeal presents us with no “substantial question,” we will

summarily affirm the district court’s order for the reasons contained herein. See 3d Cir.

LAR 27.4 and I.O.P. 10.6.

               The district court properly dismissed Bacon’s claims. First, Bacon failed to

establish a constitutional violation based upon the underlying classification program

itself, his housing assignment, or the unavailability of jobs or programs. “A protected

liberty interest may arise from only one of two sources: the Due Process Clause or the

laws of a state.” Asquith v. Dep’t of Corr., 186 F.3d 407, 409 (3d Cir. 1999). Generally,

prisoners under confinement do not have inherent liberty interests in particular modes,

places, or features of confinement. See Hewitt v. Helms, 459 U.S. 460, 466-68 (1983),

abrogated by Sandin v. Conner, 515 U.S. 472, 483 (1995). The Supreme Court has

consistently held that “[a]s long as the conditions or degree of confinement to which the

prisoner is subjected is within the sentence imposed upon him and is not otherwise

violative of the Constitution, the Due Process Clause does not itself subject an inmate’s

treatment by prison authorities to judicial oversight.” Id. at 468; see also Asquith, 186

F.3d at 410.




               1
                 This court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
Our review of the district court’s dismissal order is plenary. See Allah v. Seiverling, 229
F.3d 220, 222 (3d Cir. 2000). Accordingly, “we must accept as true the factual
allegations in the complaint and all reasonable inferences that can be drawn therefrom.”
Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).

                                              3
              We agree with the district court that Bacon has no liberty interest arising

from the Due Process Clause itself. As noted, however, the Due Process Clause also

protects liberty interests created by the laws or regulations of a state. See Sandin, 515

U.S. at 484. But, “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.’” Allah, 229 F.3d at 223; see

also Smith v. Mensinger, 293 F.3d 641, 652 (3d Cir. 2002). Further, “the baseline for

determining what is ‘atypical and significant’-the ‘ordinary incidents of prison life’-is

ascertained by what a sentenced inmate may reasonably expect to encounter as a result of

his or her conviction in accordance with due process of law.” Asquith, 186 F.3d at 412

(quoting Griffin v. Vaughn, 112 F.3d 703, 706 & n.2 (3d Cir. 1997)). Delaware’s

classification scheme and housing arrangements can hardly be characterized as the type of

hardships warranting due process protection and are not atypical of the ordinary incidents

of daily prison life. Thus, we agree with the district court that Bacon was not deprived of

any state-created liberty interests.

              Second, Bacon’s bald allegations regarding racial discrimination within the

DOC’s classification system were properly dismissed by the district court. “Prisoners are

protected under the Equal Protection Clause of the Fourteenth Amendment from invidious

discrimination based on race.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). The

Equal Protection Clause requires that “all persons similarly situated should be treated

alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler

                                              4
v. Doe, 457 U.S. 202, 216 (1982)). Construing Bacon’s complaint in his favor, we agree

with the district court that he has failed to allege anything more than mere discriminatory

impact. Absent more, as the district court noted, an allegation of mere discriminatory

impact is insufficient to establish an infringement of Bacon’s constitutional rights. See

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977) (internal

citation omitted). Thus, the district court properly dismissed this argument for failing to

state a claim upon which relief could be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).

              Third, the district court properly dismissed Bacon’s conditions of

confinement claims. In his complaint, Bacon alleged that the conditions of his

confinement were deficient, under the Eighth Amendment, for the following reasons: (1)

recreation time within the prison was reduced, without notice, and halted completely

during emergency lockdowns; and (2) the pattern of lighting within the prison changed,

without notice, and was oppressive. “Prison conditions may amount to cruel and unusual

punishment if they cause ‘unquestioned and serious deprivations of basic human needs . .

. . [that] deprive inmates of the minimal civilized measure of life’s necessities.’ . . . To

demonstrate a deprivation of his basic human needs, a plaintiff must show a sufficiently

serious objective deprivation, and that a prison official subjectively acted with a

sufficiently culpable state of mind, i.e., deliberate indifference.” Tillman v. Lebanon

County Corr. Facility, 221 F.3d 410, 418 (3d Cir. 2000) (internal citations omitted).

              Bacon’s allegations concerning the conditions of confinement were not

objectively serious enough to warrant constitutional protection. With regard to exercise,

                                               5
Bacon merely alleged a change, and subsequent reduction, in the recreation schedule at

the DOC rather than a complete elimination of exercise for inmates—save for emergency

lockdown situations. While the denial of exercise may, in certain instances, rise to the

level of an Eighth Amendment violation, such was not the case here. Cf. Wishon v.

Gammon, 978 F.2d 446, 449 (8th Cir. 1992) (forty-five minutes of exercise per week not

constitutionally infirm); see also Knight v. Armontrout, 878 F.2d 1093, 1096 (8th Cir.

1989) (holding denial of outdoor recreation for thirteen days not cruel and unusual

punishment).

               Bacon’s claim concerning the pattern of lighting within the DOC was

equally insufficient. Specifically, Bacon alleged that the lights in the MHU were turned

on between the hours of 8:30 a.m and 11:30 p.m. and turned off for the remainder of the

day and night. During the period when the lights were officially off, however, Bacon

alleged that they were turned on for 15 minutes to distribute medication and again for

more than 2 hours (4:45 a.m. to 7:00 a.m.) when the inmates were taken to the dining area

for breakfast. Other circuits have held that the constitutional requirement of adequate

shelter for an inmate includes the provision of adequate lighting. See Hoptowit v.

Spellman, 753 F.2d 779, 783 (9th Cir. 1985). Further, courts have noted that “[t]here is

no legitimate penological justification for requiring [inmates] to suffer physical and

psychological harm by living in constant illumination.” LeMaire v. Maass, 745 F. Supp.

623, 636 (D. Or. 1990), vacated on other grounds by 12 F.3d 1444, 1458-59 (9th Cir.

1993); see also Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996) (holding that an

                                             6
allegation “that large florescent lights directly in front of and behind [an inmate’s] cell

shone into his cell 24 hours a day, so that his cell was ‘constantly illuminated, and [he]

had no way of telling night or day,’ and that this condition caused him ‘grave sleeping

problems’ and other mental and psychological problems” was sufficient to state a claim of

cruel and unusual punishment). Bacon, on the other hand, has not alleged that he is

subject to constant illumination, or that he has suffered any significant medical condition

as a result of the pattern of lighting in his cell. Nor is the pattern he describes objectively

serious enough to warrant inquiry under the Eighth Amendment. Thus, the district court

correctly dismissed his claim.

              Given our preceding discussion, it is inconceivable that Bacon could have

supplemented the deficiencies within his complaint as any amendments to his filings

would have proven futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d

Cir. 2002); see also Shane v. Fauver, 213 F.3d 113, 115-16 (3d Cir. 2000).

              We have considered the remaining arguments Bacon made before the

district court and find them to be similarly deficient. See 28 U.S.C. 1915(e)(2)(B)(ii).

Even in light of the less stringent standards applied to pro se complaints, Bacon failed to

allege sufficient facts to survive a dismissal for failure to state a claim. See Estelle v.

Gamble, 429 U.S. 97, 104 (1976) (noting that “a pro se complaint . . . can only be

dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove

no set of facts in support of his claim which would entitle him to relief.”) Accordingly,

because this appeal presents us with no substantial question, we will summarily affirm the

                                               7
decision of the district court.2 See 3d Cir. LAR 27.4 and IOP 10.6.




             2
                 Bacon, in error, filed a motion to appoint counsel on appeal with the
district court. Had the motion been properly filed with this court we would have denied
it. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993) (in deciding whether to make an
appointment, the court must determine, as a threshold matter, if the claim has arguable
merit in fact and law).

                                            8
