                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-25-2002

Fidtler v. PA Dept Corrections
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3994




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"Fidtler v. PA Dept Corrections" (2002). 2002 Decisions. Paper 767.
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                                               NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT
          ____________

               No: 01-3994
              ____________

           JOSEPH FIDTLER,

                     Appellant


                      v.

PA DEPARTMENT OF CORRECTIONS;
CHARLES STROUP; KAREN RODGERS;
CHARLES MCCLOSKEY; RAY P. SMITH




Appeal from the United States District Court
  for the Middle District of Pennsylvania
  (D.C. Civil Action No. 01-cv-00955)
  District Judge: Honorable Yvette Kane




Submitted Under Third Circuit LAR 34.1(a)
          on September 9, 2002


       Before: NYGAARD, ROTH
        and WEIS Circuit Judges


    (Opinion filed: November 25, 2002)
                                             OPINION


ROTH, Circuit Judge:

        Appellant Joseph Fidtler brought a civil rights action in the Court of Common Pleas

of Northumberland County, Pennsylvania, against the Department of Corrections and

several of its employees. In his suit, he challenged a new prison policy on inmate

compensation. The defendants removed the case to the United States District Court for the

Middle District of Pennsylvania. The District Court dismissed his suit and Fidtler

appealed.

        Pursuant to Department of Corrections Amendment 816, “any inmate refusing an

education program should not be compensated in any manner.” Because Fidtler refused to

participate in an adult education program, he was refused “idle pay.” “Idle pay” is given to

inmates who, through no fault of their own, do not have a prison work assignment. DC

ADM 816-5. Fidtler claims on appeal that (1) the claims brought against the Department of

Corrections for Pennsylvania are not barred by the Eleventh Amendment, (2) the refusal of

an allowance without notice or a hearing violates the Fourteenth Amendment’s conception

of due process, and (3) the policy change constitutes an illegal ex post facto law.

        We have jurisdiction pursuant to 28 U.S.C. § 1291 from the final order dismissing

the case under Rule 12(b)(6). We exercise plenary review to determine whether Fidtler is

entitled to any relief under any reasonable reading of the pleadings. Langford v. City of

Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000) (citing Nami v. Fauver, 82 F.3d 63, 65 (3d



                                                    2
Cir. 1996)).

        The District Court concluded that Fidtler’s claim was barred by the Eleventh

Amendment on the basis that a state agency is not a person within the meaning of 42 U.S.C.

§ 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1991). Under Will, a

suit in federal court against the state or one of its agencies is barred by the Eleventh

Amendment. However, since the time that the District Court dismissed Fidtler’s claim

against the department and the individual defendants in their official capacities as barred by

the Eleventh Amendment, the Supreme Court has ruled in Lapides v. Board of Regents of

the University System of Georgia, 122 S. Cit. 1640 (2002), that a state’s removal of a suit

to federal court constitutes waiver of its Eleventh Amendment immunity. Under Lapides,

therefore, the dismissal of the claims on Eleventh Amendment grounds cannot stand.

        The District Court did, however, go on to consider the merits of Fidtler’s claim.

First, the District Court held that Fidtler had failed to show an interest in receiving idle pay

which was protected by the Due Process Clause of the Fourteenth Amendment. See

Aultman v. Dept. of Corrections, 686 A.2d 40, 42-42 (Pa. Commw. Ct. 1996), aff’d 701

A.2d 1359 (Pa. 1997); McCoy v. Chesney, 1996 WL 119990, **2-3 (E.D.Pa. Mar. 18,

1996). Additionally, we have held that a state inmate does not have a liberty or property

interest in prison employment. Bryan v. Verner, 516 F.2d 233, 240 (3d Cir. 1975).

Therefore, Fidtler has failed to show an interest protected by the Fourteenth Amendment.

        Moreover, we agree with the District Court that the new policy does not constitute

an illegal ex post facto law. The Supreme Court has described an illegal ex post facto law

                                                      3
as one “which imposes a punishment for an act which was not punishable at the time it was

committed; or imposes additional punishment to that then prescribed.” Weaver v. Graham,

450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri, 18 L.Ed. 356 (1867)). Further,

the ex post facto clause only applies to laws that are penal in nature. Collins v.

Youngblood, 497 U.S. 37, 41 (1990).

        The enactment of the new policy is not punitive. It is meant only to encourage

inmates to participate in educational programs. Courts give broad deference to prison

administrators’ policies that are “reasonably related to legitimate penological interests.”

Turner v. Safley, 482 U.S. 78, 89 (1987). Moreover, the policy does not affect Fidtler’s

term of incarceration in any way. Hence, the policy does not fall within the ambit of an

illegal ex post facto law.

        Because we agree with the District Court that there is no due process violation and

that the new policy is not an illegal ex post facto law, we will affirm the dismissal of

Fidtler’s action by the District Court.




                                                     4
TO THE CLERK:

     Please file the foregoing Opinion.




                                          By the Court,




                                            /s/ Jane R. Roth
                                             Circuit Judge




                                            5
