                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-12-2004

Delker v. McCullough
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2145




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Recommended Citation
"Delker v. McCullough" (2004). 2004 Decisions. Paper 505.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/505


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                                       NOT PRECEDENTIAL
           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                         No. 03-2145
                         ___________

                      DANIEL DELKER,

                                          Appellant

                                v.

       JOHN MCCULLOUGH, in his official capacity as the
       Superintendent of the State Correctional Institution at
  Houtzdale; J. F. MAZURKIEWICZ, in his official capacity as
     a member of the Program Review Committee of the State
    Correctional Institution at Houtzdale; D. A. KYLER, in his
        official capacity as a member of the Program Review
          Committee of the State Correctional Institution at
  Houtzdale; VARIOUS JOHN DOES, in their official capacity
   as members of the Program Review Committee of the State
 Correctional Institution at Houtzdale; THOM AS FULCOM ER, in
      his official capacity as a Regional Deputy Secretary for
             the Pennsylvania Department of Corrections
            ____________________________________

        On Appeal From the United States District Court
           For the Western District of Pennsylvania
                  (D.C. Civ. No. 01-cv-00312J)
          District Judge: Honorable Joy Flowers Conti
        _______________________________________

                   Argued February 12, 2004


Before: SCIRICA, Chief Judge, ROTH and MCKEE, Circuit Judges

                    (Filed   July 12, 2004 )
Jere Krakoff, Esquire (Argued)
Pennsylvania Institutional Law Project
429 Forbes Avenue
1705 Allegheny Building
Pittsburgh, PA 15219

       Counsel fo Appellant

D. Michael Fisher
Attorney General

Kemal A. Mericli (Argued)
Senior Deputy Attorney General

John G. Knorr, III
Chief Deputy Attorney General
Office of Attorney General of Pennsylvania
6 th Floor
564 Forbes Avenue
Manor Complex
Pittsburgh, PA 15219

       Counsel for Appellees

                                    _______________

                                       OPINION
                                    _______________


ROTH, Circuit Judge:

       Daniel Delker appeals the District Court’s order granting appellees’ motion for

summary judgment. The procedural history of this case and the details of Delker’s claims

are well-known to the parties, set forth in the District Court’s thorough opinion, and need

not be discussed at length. Briefly, Delker alleged that he was confined in administrative



                                             2
segregation without meaningful review and that this violated his right to due process.

Delker has been kept in segregation since December 1973 after killing a Department of

Corrections captain. The Magistrate Judge issued a Report and Recommendation and

concluded that, while Delker had a liberty interest in being released from administrative

segregation, the procedures used to determine whether or not he would be released

comported with procedural due process. The District Court adopted the Magistrate

Judge’s Report and Recommendation and granted the motion for summary judgment.

Delker filed a timely notice of appeal and we have jurisdiction under 28 U.S.C. § 1291.

       We exercise plenary review over the District Court’s order granting appellees’

motion for summary judgment. Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3d Cir.

1998). A grant of summary judgment will be affirmed if our review reveals that “there is

no genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c). We review the facts in a light most favorable

to the party against whom summary judgment was entered. See Coolspring Stone Supply,

Inc. v. American States Life Ins. Co., 10 F.3d 144, 146 (3d Cir. 1993).

       Appellees conceded in the District Court that Delker’s continuing placement in

administrative confinement triggers due process protections. Thus, the question is

whether Delker received procedural due process in relation to his confinement. In Shoats

v. Horn, 213 F.3d 140 (3d Cir. 2000), we examined the case of a prisoner who had been

held in administrative confinement for eight years. We held that based on the periodic



                                             3
reviews of his status, Shoats had received the due process to which he was entitled. We

further noted that even if Shoats’s confinement was based only on his past crimes, the

process would be constitutional. Delker argues that, while he has been given the required

periodic reviews, these reviews were “no more than rote exercises” and this denial of

meaningful review violates the Fourteenth Amendment.

        The District Court did a thorough review of the relevant caselaw and set forth a

concise summary of the appellees’ deposition testimony. We agree with the District

Court that the appellees gave Delker meaningful periodic reviews, and thus procedural

due process, and were entitled to summary judgment. However, we note that it would be

helpful for judicial review if a brief written rationalization for keeping Delker confined in

solitary was made when his status was reviewed, although not necessarily every ninety

days.

        For the above reasons, as well as those set forth by the District Court, we will

affirm the District Court’s April 1, 2003, judgment.




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