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


12-19-2007

Asemani v. Fed Bur Prisons
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2640




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CLD-55                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-2640


                                BILLY G. ASEMANI,
                                                       Appellant

                                           v.

       FEDERAL BUREAU OF PRISONS; KATHLEEN M. HAWK-SAWYER;
   NORTHEAST REGIONAL B.O.P. OFFICE; SUSAN GERLINSKI, Warden, Low
 Security Correctional Institution; EXECUTIVE ASSISTANT MR. RYDER; RENE G.
GARCIA, Associate Warden for Operations; MANAGER ANGELA ESPINOSA LEVI;
     COUNSELOR MR. SOLOMON, Union Housing Unit; D.G. ZIMMERMAN;
REGISTER NURSE J. REASER; MR. TRYBUS, Number One Correctional Officer, AM
 Shift; MR. SEEKLER, Number One Correctional Officer, PM Shift; SENIOR C.O.C.
  COOMBE; C.O. MR. LOZANO; J. PASTORE; C.O. MR. SOSNOWSKI; C.O. MR.
 WILITZ; C.O. MR. WOLF; MR. MYERS, Supervisor, Material Handling Department;
    CALI, Officer, Material Handling Department; MR. FUREK Material Handling
                   Department; LT. SOELLER, Special Housing Unit




                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Civil No. 03-cv-0964)
                      District Judge: Honorable Edwin M. Kosik


         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  November 21, 2007

             BEFORE: AMBRO, FUENTES and JORDAN, Circuit Judges

                          (Opinion filed: December 19, 2007)
                                        _________




                                         OPINION


PER CURIAM

       On March 11, 2005, the United States District Court for the Middle District of

Pennsylvania granted the defendants’ motion to dismiss Billy G. Asemani’s pro se civil

rights action, wherein he challenged various incidents that allegedly occurred while he

was incarcerated at LSCI-Allenwood. Asemani filed a motion for reconsideration on

March 21, 2005, raising one issue: the District Court’s failure to specifically address his

allegation that the Bureau of Prisons (“BOP”) placed him in administrative segregation as

a protective measure for more than 90 days without seeking approval from the BOP

regional correctional administrator. The District Court denied the motion. Asemani

timely appealed.1

       We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s




   1
     Although Asemani’s motion for reconsideration, filed within ten business days of the
District Court order granting the defendants’ motion for summary judgment, preserved
review of that underlying judgment, see Fed. R. App. P. 4(a)(4)(A), we read his notice of
appeal as seeking review only of the denial of his motion for reconsideration. Assuming
that Asemani had intended to challenge the underlying judgment, we nevertheless would
have summarily affirmed that decision, as the District Court properly determined that
there was no merit to his complaints about placement in administrative segregation, the
denial of dental care, retaliatory conduct, and the deduction of funds from his prison
account.

                                             2
denial of Asemani’s motion for reconsideration for abuse of discretion. See Max’s

Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999). A motion for

reconsideration filed pursuant to Rule 59(e) may be granted on one of the following

grounds: “(1) an intervening change in the controlling law; (2) the availability of new

evidence that was not available . . . ; or (3) the need to correct a clear error of law or fact

or to prevent injustice.” Id. at 677.

       On June 14, 2002, Asemani alleged that he was sexually assaulted by a Physician’s

Assistant at LSCI-Allenwood. Pursuant to BOP policy, Asemani was immediately moved

for his own protection to administrative segregation in the Special Housing Unit. He

remained there until October 25, 2002, when his allegation was determined to be

meritless and the investigation closed. In his amended complaint, Asemani claimed that

he was housed in administrative segregation in retaliation for accusing the Physician’s

Assistant of sexual assault, rather than for his own protection. The District Court

concluded that Asemani failed to provide any support for his claims of retaliation and

that, under the circumstances, his approximately four-month confinement in

administrative segregation did not constitute an “atypical and significant hardship.”

Rather than challenge these conclusions in his motion for reconsideration, Asemani

argued that his constitutional rights were violated because prison officials did not seek or

obtain BOP approval to continue his protective custody beyond 90 days as required by

one of its own Program Statements. Asemani argued that reconsideration was warranted



                                               3
because the District Court failed to specifically address his Program Statement claim.

       It is clear that this claim involves neither an intervening change in controlling law

nor any newly discovered evidence. Moreover, the District Court did not commit a clear

error of law or create an injustice. The relevant inquiry was whether Asemani’s

confinement in administrative segregation imposed an atypical and significant hardship

on him in relation to the ordinary incidents of prison life. See Sandin v. Conner, 515 U.S.

472, 484 (1995). The District Court’s conclusion that no such hardship existed

encompassed Asemani’s allegations based on the Program Statement. See Wilkinson v.

Austin, 545 U.S. 209, 223 (2005) (observing that “the touchstone of the inquiry into the

existence of a protected, state-created liberty interest in avoiding restrictive conditions of

confinement is not the language of regulations regarding those conditions but the nature

of those conditions themselves in relation to the ordinary incidents of prison life.”

(internal quotation marks omitted)).

       For the foregoing reasons, we will summarily affirm the District Court’s order

denying the motion for reconsideration.




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