                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-28-2005

McDaniel v. NJ Dept Corr
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3052




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"McDaniel v. NJ Dept Corr" (2005). 2005 Decisions. Paper 41.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/41


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BPS-67
                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                   NO. 05-3052
                                  _____________

                         MICHAEL PAUL MCDANIEL,
                                       Appellant

                                         v.

                    STATE OF NEW JERSEY DEPARTMENT
                    OF CORRECTIONS; FRANK PEDALINO;
                     LT. GRAHAM; LYDELL B. SHERRER
                              ____________________

                  On Appeal From the United States District Court
                          For the District of New Jersey
                           (D.C. Civil No. 04-cv-00008)
                    District Judge: Honorable Mary L. Cooper
                              ____________________

         Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                December 1, 2005

           Before: RENDELL, AMBRO and BECKER, Circuit Judges.

                            (Filed : December 28, 2005)

                            _______________________

                            OPINION OF THE COURT
                            _______________________

PER CURIAM

     Michael Paul McDaniel appeals from the order of the United States District Court
for the District of New Jersey dismissing his civil rights action filed pursuant to 42 U.S.C.

§ 1983. McDaniel, a former inmate at Northern State Prison at Newark, New Jersey,

alleged that he was confined in the “STGMU,” to which he refers alternatively as the

“gang unit.” McDaniel stated that the defendants classified him as a gang member and

housed him in the gang unit, thereby placing him in harm’s way, and that he was not

given an opportunity to employ counsel or to show that he is not a gang member. He

asserted that the defendants’ conduct violated his constitutional rights to due process.

McDaniel sought injunctive relief in the form of a hearing at which he would be allowed

to show that he is not a gang member. In addition, he sought transfer out of the gang unit

and into general population, or transfer to another prison. The District Court granted

McDaniel’s application to proceed in forma pauperis under 28 U.S.C. § 1915(a) and

dismissed the complaint under section 1915(e)(2). The District Court later issued a

supplemental order assessing the amount of the filing fee to be deducted from McDaniel’s

prison account in installments pursuant to section 1915(b)(2). McDaniel appeals and has

been granted leave to proceed in forma pauperis on appeal. We have jurisdiction under

28 U.S.C. § 1291.

       Upon careful review of the record, we discern no error in the dismissal of

McDaniel’s complaint and in assessing the filing fee. First, the District Court concluded

that the complaint was moot regarding McDaniel’s request to be transferred to another

prison, because McDaniel had been transferred to the New Jersey State Prison in Trenton,



                                             2
New Jersey. It appears from the record that McDaniel was transferred after filing the

complaint and currently remains incarcerated at the Trenton facility. We agree that this

request for relief is moot. Second, the District Court determined that McDaniel’s

confinement in the STGMU did not deprive him of a protected liberty interest arising

under the due process clause or under a state-created liberty interest. We agree. See

Fraise v. Terhune, 283 F.3d 506, 522-23 (3d Cir. 2002). Finally, we agree with the

District Court that assessment of the fee to be paid in installments is appropriate under the

provisions of 28 U.S.C. § 1915(b). We note that McDaniel’s in forma pauperis

application contains a signed authorization form in contemplation of the fee being

collected pursuant to the statute.

       We will dismiss this appeal under 28 U.S.C. § 1915(e)(2)(B).




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