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


1-7-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 00-1986




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                                                           NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                                No. 00-1986


                       HAYW OOD W ILLIAMS, JR.,

                                      Appellant

                                       v.

       FEDERAL BUREAU OF PRISONS AND PAROLE COMMISSION;
                JOHN FANELLO, Warden @USP-Allenwood;
        TRISH RODM AN, Acting Warden of Programs @USP-Allenwood;
      VALERIE KEPNER, Acting Supervisor of Education @USP-Allenwood


                 Appeal from the United States District Court
                   for the Middle District of Pennsylvania
                          (Civ. No. 3:98-cv-01598)
                   District Judge: Hon. A. Richard Caputo


                         Argued: November 7, 2003


                 Before: McKEE and SMITH, Circuit Judges,
                   and GREENBERG, Senior Circuit Judge

                       (Opinion filed: January 7, 2004)

SANDRA KACZM ARCZYK, ESQ. (Argued)
AMAR D. SARWAL, ESQ.
GREGORY A. CASTANIAS, ESQ.
Jones Day
51 Louisiana Avenue, N.W.
Washington, D.C. 20001
      Attorneys for Appellant
THOMAS A. MARINO, ESQ.
United States Attorney
KATE L. MERSHIMER, ESQ. (Argued)
Assistant United States Attorney
United States Attorney’s Office
Middle District of Pennsylvania
228 Walnut Street, 2nd Floor
P.O. Box 11754
Harrisburg, PA 17108
       Attorneys for Appellees


                                         OPINION


McKEE, Circuit Judge.

       Haywood Williams, Jr., appeals from the district court’s grant of summary

judgment in favor of the defendants on his suit to expunge certain prison records, and for

employment discrimination. For the reasons that follow, we will affirm the grant of

summary judgment on the expungement claims and reverse on the employment

discrimination and retaliation claims.

                                         I. FACTS

       Inasmuch as we write only for the parties, we need not set forth in detail the rather

extensive procedural background of this case. It is, however, necessary to recite some of

the relevant history in order to place our discussion in context.

       In 1979, Williams was convicted of possession of a firearm by a convicted felon,




                                              2
in violation of 18 U.S.C. § 1202(a)(1), 1 in the United States District Court for the Eastern

District of Virginia. A Presentence Report (“PSR”) was prepared, and Williams was

thereafter sentenced to two years imprisonment.

       In 1980, he was convicted of narcotics conspiracy in violation of 21 U.S.C. § 846;

managing a continuing criminal enterprise in violation of 18 U.S.C. § 848; three counts

of interstate travel in aid of narcotics distribution in violation of 18 U.S.C. § 1952(a)(3);

possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1); and

distribution of heroin in violation of 21 U.S.C. § 841(a)(1).2 The following day, the

district court sentenced Williams to life imprisonment on the continuing criminal

enterprise conviction, and imposed a consecutive prison term of forty-five years on the

remaining counts. The sentencing was accelerated at Williams’ request, and he was

sentenced the day after the jury returned its guilty verdicts. Although the Probation

Office prepared a PSR for the 1980 conviction, it consisted only of a face sheet, a second

page noting the new conviction and ranges of punishment for each count, and a copy of

the 1979 PSR.3 Although these two federal sentences were imposed in 1979 and 1980,



   1
   18 U.S.C. § 1202 was repealed in 1986. The crime of felon in possession is now
codified at 18 U.S.C. § 931(a).
   2
    On June 21, 1991, the Court of Appeals for the Fourth Circuit vacated Williams’
conspiracy conviction. United States v. Williams, No. 990-7400, 1991 WL 107588 at *2
(4th Cir. 1991).
   3
   Williams’ 1979 and 1980 convictions were before the effective date of the Sentencing
Guidelines, i.e., November 1, 1987.

                                              3
respectively, Williams remained in state custody following his federal sentencing.

                           A. The Presentence Report Issue.

       In 1985, the Bureau of Prisons (“BOP”) asked the Eastern District of Virginia’s

Probation Office to provide the 1980 PSR and/or an official statement of facts related to

the 1980 convictions in anticipation of Williams’ transfer to federal custody to begin

serving his federal sentences. The document that the BOP received in response to this

request was the face sheet and page 2 from the 1980 PSR, plus a “Statement of Facts.”

The BOP apparently believed that this document was the 1980 PSR. However, the

“Statement of Facts” was actually the factual summary taken directly from the brief that

the prosecuting attorney had filed in opposition to Williams’ direct appeal from his 1980

conviction.

       Relying upon this information, the BOP placed Williams into its Sophisticated

Criminal Activity (“SCA”) - Drugs Assignment, classification.4 Williams subsequently

requested a copy of his 1980 PSR under the Freedom of Information Act. In response, he

received the document that the BOP received in 1985 (hereinafter “the 1985 version”),

which the BOP mistakenly believed to be the 1980 PSR.

       In 1994, Williams filed various motions to correct his sentence under Fed. R.




   4
    The government says that this classification meant that Williams could not be housed
with similarly classified inmates. Government’s Br. at 14 n.4.

                                             4
Crim. P. 35(a).5 In January 1995, Williams, who was then confined at the USP in

Allenwood, Pennsylvania, unsuccessfully filed an Administrative Remedy with the BOP

asking to have the “improper presentence report,” removed from his BOP central file.

Williams complained that the BOP had failed to comply with the Privacy Act, 5 U.S.C. §

552a(e)(5), (g)(1)(C), and its own policies, because the accuracy of the 1985 version had

not been established.

       Williams appealed the denial of his grievance to the regional level, but the

Regional Director denied his appeal. The Central Office noted that the issue was moot

because the BOP had eliminated the SCA – Drug Classification on July 25, 1994.

       Thereafter, the issue of the 1985 version being in Williams’ prison file was

apparently dropped for a while. Then, on April 17, 1998, Williams’ Unit Manager at USP

Allenwood wrote the Probation Office in the Eastern District of Virginia concerning

Williams’ claim of inaccuracies in his PSR. Chief Deputy Hale responded by advising

that the confusion had been addressed when Williams was confined at USP Leavenworth.

          B. The Prison File Claim Regarding the FCI Memphis Homicide.

       From April 20, 1989 until July 29, 1992, Williams was incarcerated at Federal

Correctional Institution (“FCI”) Memphis, Tennessee. Williams was transferred from

FCI Memphis to FCI Oxford because of his suspected involvement in the homicide of




   5
     We need not detail the several administrative steps taken in the interim to challenge
or confirm the accuracy of the 1985 version.

                                             5
another inmate. The government claims that this transfer was for administrative purposes

for Williams’ own protection because of concerns about inmate reprisals for Williams’

role in the killing at FCI M emphis.

                         C. Employment Discrimination Issue.

       Williams began working in the Education Department at USP Allenwood on

August 13, 1994. While in that department, he worked as a law clerk and remained in

that position until November 13, 1995 when he was reassigned to various other work

details.6 He returned to his job as a law clerk in the Education Department on October 7,

1996, and continued to work in that capacity thereafter except for brief absences due to

sickness or vacation.

       The BOP has four pay grades for inmates assigned to jobs in institutions under its

control. The lowest level is Pay Grade Four and the highest is Pay Grade One. There are

a very limited number of Pay Grade One positions in any given institution, with only five

percent of the inmates at any institution being permitted to be assigned to that pay grade.

       The Education Department at USP Allenwood is assigned four Pay Grade One

positions. Although there is no predetermined number of such positions in any given

department, one has traditionally been assigned to the law clerk position in the law library

at Allenwood. The other three Pay Grade One positions have been given to tutors.




   6
   In 1971, while incarcerated at USP Atlanta on a drug charge, Williams received a
LL.B. through correspondence from the Blackstone School of Law in Chicago, Illinois.

                                             6
       Williams began his job as a law clerk in the Education Department at USP

Allenwood at Pay Grade Four; the lowest pay grade. However, over time, he was

promoted to his then-current status of Pay Grade Two. In 1997, a Pay Grade One position

opened in the Education Department. According to the government, the factors

considered when filling a Pay Grade One position are the eligible individual’s

qualifications, past work performance, and seniority.

       Here, the government claims that the Education Department considered the eligible

inmates under consideration for Pay Grade One to be relatively equal. Initially, the

Education Department selected two part-time employees who had the longest consecutive

longevity. However, when informed that absent extenuating circumstances, the Pay

Grade One position had to be given to a full-time employee, the Education Department

told the most senior inmate that he would have to work full-time if he wanted to keep his

promotion. The inmate agreed and was thus assigned to Pay Grade One.

       Williams was eligible for Pay Grade One, but was not selected. According to the

government, Williams was third on the eligibility list behind two other inmates who had

more seniority having started on July 10, 1995, and September 26, 1996. Thereafter, a

series of administrative filings ensued in which Williams asserted that he had been denied

the Pay Grade One position because of race. The prison administrators claimed at

different points in the process that the decision had been made based upon seniority,

consecutive seniority, the greater responsibilities of the inmate who was selected over



                                             7
Williams, and that inmate’s proficiency in Spanish.

                             D. The Good Time Credit Issue.

       While Williams was at FCI Memphis, administrators recommended that he receive

Meritorious Good Time Credit effective August 1, 1991. According to the government,

that recommendation was removed pursuant to BOP policy7 effective August 10, 1992,

when Williams was transferred from FCI Memphis and to FCI Oxford. The Meritorious

Good Time Credit began again on March 8, 1995, at USP Allenwood when that

institution approved the staff recommendation to award such credit. Williams claims that

his good time credit from Memphis was denied because of his alleged involvement in the

aforementioned inmate homicide at Memphis without affording him due process.

                             II. PROCEDURAL HISTORY

       On September 29, 1998, Williams filed a pro se § 2241 habeas petition in the

district court claiming: (1) that federal officials had improperly refused to delete false

information contained in his PSR, i.e., the 1985 version, from his prison file (the

“presentence report” claim); (2) that federal officials had violated his due process rights


   7
    The government alleges:
             Under Program Statement 5880.30, Meritorious Good Time
             (“MGT”) Credit initiated at an institution ends when an
             inmate is received by a new institution, with each receiving
             institution evaluating whether such credit should be awarded.
Government’s Br. at 23 n. 5. Apparently MGT credit is available only for work
performance, which requires an inmate’s work supervisor to recommend it and the
Warden to approve it. Id.


                                              8
by not giving him a disciplinary hearing in 1992 relative to information in his prison file

regarding the inmate homicide at Memphis (the “prison file” claim); and (3) that he had

been denied a promotion to Pay Grade One position in his law clerk prison job due to

discrimination based on his race, age and disability, and in retaliation for filing an inmate

grievance (the “employment discrimination” claim). The requested relief included (1)

expungement of the allegedly inaccurate PSR from his prison file; (2) either a disciplinary

hearing comporting with due process or expunging information pertaining to his alleged

involvement in the prison at FCI Memphis homicide from his prison file, and (3) backpay

and promotion to Pay Grade One. He named as respondents the BOP, the United States

Parole Commission, and three employees from USP Allenwood, viz., Warden John

Fanello, Acting Warden of Programs Trish Rodman, and Acting Supervisor of Education

Valerie Kepner. 8

       After several additional filings by Williams and the government, the magistrate

judge concluded that since Williams’ habeas claims did not challenge the length of his

confinement, the habeas petition would be construed as a Bivens action.9 The magistrate

judge then granted an additional 15 days to supplement the record, and at the conclusion

of that period, the judge issued a Report and Recommendation recommending that



   8
     Kepner had been Williams’ supervisor when he was denied the Pay Grade One
assignment.
   9
    See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971).

                                              9
summary judgment be granted in favor of the federal entities and the individual USP

Allenwood employees.10 Williams objected arguing, in part, that he had not had an

opportunity to conduct discovery. However, he did not explain how that affected the

grant of summary judgment. He also claimed that the record contained sufficient

evidence to preclude the grant of summary judgment.

        Thereafter, the district court adopted the R&R and entered judgment in favor of

the defendants. Williams filed a timely pro se appeal, and thereafter, we appointed

counsel for Williams.11

                                    III. DISCUSSION

                                A. Expungement Claims.

        We have never had to decide whether to endorse the right of expungement

announced in Paine v. Baker, 595 F.2d 197 (4th Cir. 1979), and other Circuit Courts of

Appeals have expressly questioned its precedential value. Johnson v. Rodriguez, 110

F.3d 299, 308-09 n.13 (5th Cir. 1997). Nevertheless, Williams argues that his

presentence claim and prison file expungement claim are meritorious under Paine v.

Baker. There, the Court of Appeals for the Fourth Circuit announced that, in limited

circumstances, state prisoners have a federal due process right to have “prejudicial



   10
      During the 15 day period the magistrate set for supplementing the record, Williams
neither supplemented the record, nor sought a continuance to take discovery.
   11
     We ordered supplemental briefing and directed the parties to address certain
specified issues in addition to any other issues the parties wanted to address.

                                            10
erroneous information expunged from their prison files.” 595 F.2d at 202. The court

held:

               [I]n certain limited circumstances a claim of constitutional
               magnitude is raised where a prisoner alleges (1) that
               information is in his file, (2) that the information is false, and
               (3) that it is relied upon to a constitutionally significant
               degree.

Id. at 201. Williams argues that he can assert Paine v. Baker expungement claims in a §

2241 habeas petition.

        Even if we assume arguendo that Williams can assert a Paine v. Baker

expungement claim in a § 2241 habeas petition, it is nevertheless clear that he is not

entitled to relief on either his presentence report claim or his prison file claim. Williams

admits that “subsequent jurisprudence has required proof of an implicated liberty interest

or other unconstitutional conduct in order to challenge prison procedures, including

information in inmate files.” W illiams’ Br. at 25; see Johnson v. Rodriguez, 110 F.3d at

309 n.13.

        His attempt to “correct” the 1985 version stems from his belief that it prejudiced

him by causing him to be inappropriately classified in prison. However, federal inmates

have no constitutional right to a particular classification. Moody v. Dagget, 429 U.S. 78,

88 n.9 (1976). Moreover, in Meachum v. Fano, 427 U.S. 215 (1976), the Court held that

no due process protections were required upon the discretionary transfer of state prisoners

to a substantially less agreeable prison, even where that transfer visited a "grievous loss"



                                               11
upon the inmate. The Due Process Clause therefore does not afford Williams any right to

have the 1985 version expunged from his prison files.

        Williams’ due process claim is similarly flawed. He claims that he was denied due

process because he was not given a disciplinary hearing in connection with the murder of

an inmate prior to being transferred from Memphis, or losing the aforementioned good

time. He requests either a disciplinary hearing or expungement of the investigation report

becuse he similarly claims that his alleged involvement in the Memphis homicide resulted

in a disciplinary transfer. This claim is also meritless because a prisoner has no liberty

interest in being confined at any particular prison. Olin v. Wakinekona, 461 U.S. 238

(1983); Meachum v. Fano, 427 U.S. 215 (1976); Montayne v. Haymes, 427 U.S. 236

(1976). In addition, as noted above, his transfer from Memphis was not punitive or

disciplinary. Rather, the government claims, without contradiction, that he was

transferred for his own protection. Accordingly, there was no due process violation.

                         B. Employment Discrimination Claim.

        Williams alleged that he was denied a promotion to a Pay Grade One position in

his law clerk prison job because of his race.12 The district court concluded that there was

no evidence that the prison employees were motivated by discriminatory intent in not


   12
     Williams also alleged age and disability discrimination. However, the magistrate
judge found that the only issue raised during the course of administrative proceedings was
race discrimination. Therefore, the magistrate judge only discussed the racial
discrimination claim, and Williams did not object. Accordingly, we will limit our
discussion to that claim.

                                             12
selecting Williams for the Pay Grade One promotion. Accordingly, the district court

granted summary judgment to the defendants.

       Although inmates have no right to a particular job assignment while they are

incarcerated, James v. Quinlan, 866 F.2d 627, 630 (3d Cir. 1989), prison officials cannot

discriminate against an inmate by making a job assignment on the basis of race. Cruz v.

Beto, 405 U.S. 319, 321 (1972). Williams’ race discrimination claim was premised on the

equal protection component of the Due Process Clause of the Fifth Amendment which

prohibits the government from invidiously discriminating between individuals or groups.

Bolling v. Sharpe, 347 U.S. 497 (1954). “Proof of discriminatory racial purpose is

required to establish an equal protection violation; an official act is not unconstitutional

solely because it has a racially disproportionate impact.” Foster v. Wyrick, 823 F.2d 218,

221 (8th Cir. 1987) (citing Washington v. Davis, 426 U.S. 229, 239 (1976) and Village of

Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-66

(1977)).

       The familiar McDonnell-Douglas-Burdine burden-shifting framework applies to

equal protection claims of racial discrimination. Stewart v. Rutgers, 120 F.3d 426, 432

(3d Cir. 1997). Under that framework, the plaintiff “must first establish a prima facie

case by a preponderance of the evidence.” Id. (citations omitted). The burden then shifts

to the defendant to come forward with a nondiscriminatory explanation for the challenged

action. Id.



                                              13
       Here, it is undisputed that Williams made out a prima facie case of discrimination.

He is an African-American inmate who was rejected for promotion in favor of a non-

African-American inmate. Moreover, Kepner, the person responsible for making the

promotion decision, said that Williams is an exceptional law clerk. Consequently, the

burden shifted to the government to produce evidence that Williams was not promoted for

a legitimate, nondiscriminatory reason. Initially, the government attempted to do this by

offering several race neutral explanations including seniority, and the other inmate’s

greater responsibilities and proficiency in Spanish.

       However, the district court never examined the proffered explanations to

determine if they were merely a pretext for invidious discrimination. Rather, once the

government proffered its explanation, the district court stopped its inquiry and concluded

that there was “no indication that defendants discriminated against [Williams] in

declining to promote him.” Dist. Ct. Op. at 9 (App. at 35.). The court’s failure to

examine the defendants’ explanations for pretext was error.

       In order to make the requisite showing of pretext,

              the . . . plaintiff must demonstrate such weakness,
              implausibilities, inconsistencies, incoherencies, or
              contradictions in the employer’s proffered legitimate reasons
              for its action that a reasonable factfinder could rationally find
              them unworthy of credence and hence infer that the employer
              did not act for the asserted nondiscriminatory reasons.


Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (internal quotations and brackets



                                             14
omitted).

        Williams made the following arguments in support of his position that the

government’s race neutral explanation for its hiring decision was pretext: First, he

alleged that not one African-American has been promoted to Pay Grade One during the

last five years, even though 85% of the prisoners at Allenwood are African-American.

Second, Kepner disregarded the recommendation of Williams’ direct supervisor, Brenda

Krakowski, that Williams be promoted. Third, the government changed its rationale for

not promoting him. Fourth, Williams claimed that he had greater seniority than the

inmate who was promoted.

        The government disputes Williams’ evidence of pretext. However, because the

district court never considered that pretext evidence, it is not necessary for us to now

consider the government’s critique of Williams’s argument. Rather, the court’s failure to

examine the government’s stated reasons for pretext requires remand.13

                                  C. Retaliation Claim.

        Williams also alleged that the other inmate was promoted to Pay Grade One to




   13
      Williams also argues that the district court erred because it failed to consider his
Rule 56(f) motion. That rule provides that “the court may order a continuance to permit. .
. discovery to be had” where the “party opposing the motion . . . cannot . . . present by
affidavit facts essential to justify the party’s opposition.”
       However, because the district court erred by granting summary judgment without
considering Williams’ evidence of pretext, we need not decide whether the district court
also erred by not allowing Williams discovery. On remand, Williams can renew that
motion.

                                             15
retaliate against Williams for filing grievances. The district court never considered that

claim, and there is therefore nothing for us to review. The district court will address that

on remand.

                                   IV. CONCLUSION

        For all of the above reasons, we will affirm the district court’s grant of summary

judgment in favor of the defendants on Williams’ expungement claims, but we will

reverse the grant of summary judgment in favor of defendants on Williams’ employment

discrimination claim, and remand that claim to the district court. The district court

should also consider Williams’ retaliation claim on remand.14


   14
      On March 28, 1999, seven months after he filed his § 2241 habeas petition,
Williams moved to amend the petition to add a loss of good time credits claim, in which
he alleged that he lost good time credits because of the information in his prison file
about his involvement in the murder at FCI Memphis. It is unclear whether the district
court considered his motion. As we noted earlier, Williams’ good time credits was subject
to a BOP policy. The government has represented without contradiction that the policy is
not related to discipline or punishment. Accordingly, Williams’ claim for good time
credits appears to lack merit. Moreover, neither the counseled brief, nor Williams’ pro se
brief discusses W illiams’ claim for good time credits. Therefore, it is waived. Kost v.
Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (citations omitted).
        In addition, as noted above, when we appointed counsel, we posed several
questions that we directed counsel to be prepared to address. One of the issues we raised
was whether Williams’ false and inaccurate report claim should be construed as a Bivens
claim, a Privacy Act claim pursuant to 5 U.S.C. § 552a, an expungement claim pursuant
to Paine v. Baker, 595 F.2d 197 (4th Cir. 1979), and/or a habeas claim pursuant to 28
U.S.C. § 2241, see Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). Our discussion
here does not address whether the claim can be addressed under the Privacy Act, and we
now conclude that little discussion is necessary to dispose of that issue.
        The Privacy Act gives an individual the right to request that an agency amend any
records that it maintains on him or her, 5 U.S.C. § 552a(d). However, “[u]nder
regulations . . . presentence reports and BOP inmate records are exempt from the

                                             16
TO THE CLERK OF THE COURT:

             Please file the foregoing Opinion.




                                                     /s/ Theodore A. McKee,
                                                          Circuit Judge




DATED:




amendment provisions of the Act.” White v. United States Probation Office, 148 F.3d
1124, 1125 (D.C. Cir. 1998) (citing 28 C.F.R. §§ 16.51(c), 16.97(a)). Consequently,
Williams has no expungement claim under the Privacy Act.

                                           17
