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


9-14-2007

Wilson v. Budgeon
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1607




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Recommended Citation
"Wilson v. Budgeon" (2007). 2007 Decisions. Paper 429.
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ALD-369                                                NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                     NO. 07-1607
                                  ________________

                                 JOHN D. WILSON,
                                                       Appellant,

                                           v.

                UNKNOWN BUDGEON; ROBERT SHANNON;
               KEVIN KANE; PETE DAMITER; JOHN KARESTES;
                      J. D. SHUTT; ROBERT BITNER

                     ____________________________________

                   On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                            (D.C. Civ. No. 05-cv-02101)
                     District Judge: Honorable Edwin M. Kosik
                           __________________________

          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
             and/or Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  August 30, 2007

      Before: SLOVITER, CHAGARES AND COWEN, CIRCUIT JUDGES

                              (Filed September 14, 2007)
                                 _________________

                                     OPINION
                                 _________________


PER CURIAM

     Appellant John D. Wilson, a state prisoner, filed a civil rights action under 42
U.S.C. § 1983 in United States District Court for the Middle District of Pennsylvania

against correctional officer Timothy Budgeon, hearing examiner Kevin Kane, and other

correctional officials. Wilson alleged that Budgeon fabricated and pursued misconduct

complaint No. A465945 against him in retaliation for exercising his First Amendment

right to argue about what program to watch on the cell block television.1 Kane was

alleged to be biased in his adjudication of the misconduct, which resulted in a sanction of

60 days disciplinary confinement. Wilson sought money damages. Early in the litigation,

the District Court dismissed Wilson’s state law negligence claim, and the court also

dismissed two defendants from the action because the body of the complaint did not

include any allegations against them.

       Wilson’s retaliation and due process claims were allowed to proceed. The

defendants moved for summary judgment. The Magistrate Judge filed a Report and

Recommendation, addressing that motion, and Wilson filed Objections to it. In an order

entered on February 13, 2007, the District Court overruled Wilson’s Objections and

granted summary judgment to the remaining defendants. Wilson appeals. His motion to



   1
     The allegedly fabricated misconduct charges Wilson with threatening an employee or
his or her family member with bodily harm. According to the misconduct, on January 5,
2004, Wilson was counseled by Budgeon not to get into another inmate’s property.
Wilson was alleged to have asked: “Do you have a problem with me?” When Budgeon
replied that he was simply enforcing the rules, Wilson was alleged to have said: “If you
have a problem with me, my people on the street will take care of it for me.” Wilson
denied issuing this threat. What really happened, according to Wilson, is that he told
Budgeon the television was for inmates, not guards. He then went to the “chowhall” and
the next thing he knew he was in handcuffs.

                                             2
appeal in forma pauperis was granted by our Clerk and he was notified that his appeal

would be considered under 28 U.S.C. § 1915(e)(2)(B).

       We will dismiss the appeal as frivolous. An appeal is frivolous when it lacks an

arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Our

review of the District Court's grant of summary judgment is plenary and we must affirm

summary judgment if there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-

23 (1986). We conclude that there is no arguable basis in fact or law for disagreeing with

the District Court’s summary judgment determination. The defendants sought summary

judgment on the retaliation claim on the basis that Wilson failed to exhaust his

administrative remedies. The District Court declined to reach this issue, concluding

instead that the retaliation claim simply lacked merit.2

   2
     A prisoner must first exhaust available administrative remedies pursuant to 42 U.S.C.
§ 1997e(a) before filing suit. Wilson appealed his misconduct at the highest level, but he
did not raise his First Amendment retaliation argument during the disciplinary
proceedings. Instead, he submitted a separate grievance. It was returned to him by prison
officials unadjudicated on the ground that there were ongoing disciplinary proceedings.
This action by prison officials raises the question whether the remedy was available, cf.
Brown v. Croak, 312 F.3d 109, 110 (3d Cir. 2002) (assuming that prisoner may rely on
instruction by prison officials to await outcome of internal security investigation before
filing grievance). Wilson did not appeal the decision rejecting his grievance on
procedural grounds. His inaction raises the question whether he defaulted his retaliation
claim, see Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004) (administrative exhaustion
requirement of section 1997e(a) includes a procedural default component). The District
Court was reticent to dismiss the retaliation claim for failure to exhaust administrative
remedies, observing that Wilson might justifiably be confused about whether
Pennsylvania Department of Corrections Administrative Directive DC-ADM 801
governing misconducts or DC-ADM 804 governing grievances provided the appropriate

                                              3
       We agree that the retaliation claim plainly lacks merit. Retaliation for the exercise

of constitutionally protected rights is itself a constitutional violation. White v. Napoleon,

897 F.2d 103, 111-12 (3d Cir. 1990). Wilson, however, failed to show that the conduct

which allegedly led to the retaliatory misconduct was constitutionally protected, see

Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (relief unavailable where conduct not

protected by First Amendment). Expressing an opinion about which television channel to

select is not protected speech. See Wilson v. Schillinger, 761 F.2d 921, 925 (3d Cir.

1985) (prisoners’ First Amendment rights may be curtailed because of institutional

needs).

       Wilson further alleged that Hearing Examiner Kane was biased in violation of his

right to due process; he finds in favor of the guards and against the prisoners on a

disproportionate basis. Wilson argued that there was no evidence to support the sanction

imposed on him for the misconduct. We conclude that the District Court correctly

determined that these allegations do not state a due process claim. Constitutionally

mandated procedures are only necessary where protected interests are involved, and,

under Sandin v. Conner, 515 U.S. 472 (1995), protected liberty interests are generally

limited to freedom from restraint that “impose[] atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life.” Id. at 484. The determination



procedure for raising his retaliation claim. Like the District Court, we will not decide the
more difficult exhaustion of administrative remedies question presented by Wilson’s case,
because we are satisfied that the merits of the retaliation claim are plainly lacking.

                                              4
of what is “atypical and significant” is based upon the range of conditions an inmate

would reasonably expect to encounter, Asquith v. Dep’t of Corrections, 186 F.3d 407,

412 (3d Cir. 1999); Griffin v. Vaughn, 112 F.3d 703, 706 n.2 (3d Cir. 1997), and the

sanction of six months of disciplinary confinement is in the range of conditions that do

not violate a protected interest as defined by Sandin. See Smith v. Mensinger, 293 F.3d

641, 654 (3d Cir. 2002).

       Wilson challenges the impartiality of hearing examiner Kane, but Sandin prohibits

us from considering whether Wilson is entitled to an unbiased hearing examiner. In any

event, even if we concluded that a protected liberty interest was at stake, we would still

uphold summary judgment for the defendants on the ground that there was an insufficient

evidentiary basis on which a reasonable jury could find in Wilson’s favor on this claim.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Fed. R. Civ. Pro. 56(e).

His “evidence” that Kane is biased consists of conclusory allegations, which are not

adequate under Rule 56(e).

       Last, Wilson appeared to allege an Equal Protection claim, but, certainly in this

context, inmates and guards are not “similarly situated” and thus may be treated

differently. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

       We will dismiss the appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).




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