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


11-24-2004

Burkholder v. Newton
Precedential or Non-Precedential: Non-Precedential

Docket No. 00-2939




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                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                     No. 00-2939


                           WILLIAM M. BURKHOLDER,

                                          Appellant


                                           v.

           ANDREW NEWTON, M.D.; MARESCA, Hearing Officer; JOHN
                           PARCELL, C.O.


                                    _____________
                     Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                        (D.C. Civil Action No. 00-cv-00923)
                     District Judge: Honorable James F. McClure


                            Argued on December 15, 2003

                Before: ROTH, M CKEE and ROSENN, Circuit Judges


                         (Opinion filed November 24, 2004 )




Robert O. Lindefjeld, Esquire (Argued)
Joseph P. Donohue, Esquire
500 Grant Street, 31 st Floor
Pittsburgh, PA 15219

      COUNSEL FOR APPELLANT
Alan S. Gold, Esquire (Argued)
Gold Butkovitz & Robins
7837 Old York Road
Elkins, Park, PA 19027

John J. Talaber, Esquire (Argued)
Pennsylvania Department of Corrections
Office of Chief Counsel
55 Utley Drive
P.O. Box 598
Camp Hill, PA 17011

       COUNSEL FOR APPELLEES




                                       OPINION


ROTH, Circuit Judge:

       William Burkholder, a prisoner at the Pennsylvania Correctional Institution in Coal

Township, brought a 42 U.S.C. §1983 action in which he alleged violations of his right to

remain silent, his right to due process of law, and his right against cruel and unusual

punishment. All of these claims arose out of a report by Dr. Andrew Newton, a prison

psychiatrist, that Burkholder had made threats against Correctional Officer John Parcell.

The report resulted in a disciplinary hearing as a result of which Burkholder was

sentenced to 30 days lock-up in the Restricted Housing Unit (RHU). Burkholder named

Dr. Newton, Officer Parcell, and Nichole Maresca, who presided at the disciplinary

                                              2
hearing, as defendants in the action. The District Court granted defendants’ motion to

dismiss Burkholder’s complaint for failure to exhaust his administrative remedies. We

will affirm but on other grounds, as stated below.

       I.     Factual Background and Procedural History

       Burkholder alleges that Officer Parcell made numerous unwanted sexual gestures

toward him over a one-month period. More specifically, Burkholder claims that Officer

Parcell blew kisses at him, allegedly making Burkholder fearful of a future sexual assault.

       On December 3, 1999, Burkholder’s name appeared on a call sheet, which

required him to meet with the prison psychiatrist, Dr. Newton. During that meeting,

Burkholder reported Officer Parcell’s alleged misconduct to Dr. Newton. Burkholder

then said that he would harm Officer Parcell if this conduct continued. Dr. Newton

immediately reported this threat to prison officials.

       A misconduct hearing was held, presided over by Maresca. Burkholder claims that

Maresca had in the past seen Burkholder in connection with certain psychological

problems and had knowledge of psychiatric information about him. Burkholder contends

that M aresca, because of her knowledge, could not be an impartial hearing officer.

Maresca sentenced Burkholder to thirty days lock-up in the RHU. Burkholder alleges that

his cell in the RHU was cold and that his malfunctioning toilet often backed up human

waste into his cell. Burkholder does not claim that he notified the prison officials of these

conditions.



                                              3
       On his release from RHU, Burkholder filed a grievance with prison officials

regarding Parcell’s conduct and the conditions of his RHU cell. He also alleged that Dr.

Newton violated his rights by reporting his threats to prison officials and that Maresca

violated his due process rights because she was not an impartial adjudicator. After his

grievance failed, he filed a complaint in the Court of Common Pleas of Northumberland

County. The case was removed to federal court by the defendants. The defendants then

filed a motion to dismiss, alleging that Burkholder did not exhaust his administrative

remedies under the Prison Litigation Reform Act, 42 U.S.C. §1997e(a) because he did not

make a final appeal of his grievance to prison officials. Defendants also asserted that his

§1983 claim did not make out any violations cognizable under the United States

Constitution. The District Court ordered the dismissal of Burkholder’s complaint for

failure to exhaust administrative remedies.

                         II. Jurisdiction and Standard of Review

       We have jurisdiction in this case pursuant to 28 U.S.C. §1291. We exercise

plenary review over the District Court’s grant of defendants’ motion to dismiss.

Broselow v. Fisher, 319 F.3d 605, 607 (3d Cir. 2003). A pro se complaint must be

liberally construed and can be dismissed only if it appears to a certainty that the

complainant can prove no set of facts which would entitle him to relief. Estelle v.

Gamble, 429 U.S. 97, 106 (1976).

                                       III. Discussion



                                              4
       The District Court dismissed Burkholder’s claims for failure to exhaust his

administrative remedies. Generally, absent exceptional circumstances, we will not

consider issues that were not ruled on by the District Court. Desi’s Pizza, Inc. v. City of

Wilkes Barre, 321 F.3d 411, 428 (3d Cir. 2003). This rule, however, is “one of discretion

rather than jurisdiction.” Selected Risks Ins. Co. v. Bruno, 718 F.2d 67, 69 (3d Cir.

1983). Such circumstances present themselves when they comport with “the interests of

justice and fairness,” Abrams v. United States Dep’t of Navy, 714 F.2d 1219, 1221 n.5

(3d Cir. 1983), and “where the proper resolution is not in doubt.” Homar v. Gilbert, 89

F.3d 1009, 1021 (3d Cir. 1996). Because we find Burkholder’s §1983 claims completely

lacking merit, we will exercise this discretion and affirm the District Court’s ruling on the

merits of the case.

                      A. Burkholder’s Claims Against O fficer Parcell

       Burkholder has made only one claim against Officer Parcell – that Parcell would

“blow kisses” to Burkholder, causing him to fear that Officer Parcell was going to

sexually assault him. This conduct, while unprofessional if it is true, does not state a

claim under §1983. It is well established that “[a]llegations of threats or verbal

harassment, without injury or damage, do not state a claim under 42 U.S.C. §1983.”

Ramirez v. Holmes, 921 F. Supp. 204, 210 (S.D.N.Y. 1996). See Patton v. Przybylski,

822 F.2d 697 (7th Cir. 1987) (holding that mere derogatory remarks do not make out a

constitutional violation); Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987) (explaining



                                              5
that verbal threats will not violate the Fourteenth Amendment unless accompanied by

physical force or a present ability to effectuate them); Gaut v. Sunn, 810 F.2d 923, 925

(9th Cir. 1987) (ruling that “it trivializes the eighth amendment to believe a threat

constitutes a constitutional wrong”). Section 1983 claims are based on constitutional

violations and have a different threshold level than a simple tort action. Burton v.

Livingston, 791 F.2d 97, 99 (8th Cir. 1986). Simply blowing kisses to an inmate does not

make out a constitutional cause of action.

                      B. Burkholder’s Claims Against Dr. Newton

       Burkholder’s case against Dr. Newton is also without merit. Dr. Newton had no

duty to give Miranda warnings to Burkholder and did not violate Burkholder’s rights by

reporting Burkholder’s threats to prison officials. Burkholder’s contention that he should

have been read his Miranda rights before his meeting with Dr. Newton is erroneous.

Miranda v. Arizona established the proposition that the “prosecution may not use

statements . . . stemming from a custodial interrogation of the defendant unless it

demonstrates the use of procedural safeguards effective to secure the privilege against

self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). A custodial

interrogation is an “inquiry conducted by officers who are aware of the potentially

incriminatory nature of the disclosures sought” and that is held in “custodial settings that

have inherently coercive pressures that tend to undermine the individual’s will to resist

and to compel him to speak.” Id at 467; Garner v. United States, 424 U.S. 648, 657



                                              6
(1976). Furthermore, the statements must be likely to elicit an incriminating response --

that is, one that carries criminal penalties. Rhode Island v. Innis, 446 U.S. 291, 300-01

(1966). In this case, Burkholder was not in custody, Dr. Newton was not interrogating

Burkholder about possible illicit activity, and Burkholder’s statements were not used

against him in a criminal setting.

       Just because Burkholder was already in prison does not mean that he was in a

custodial setting. As explained by the Fourth Circuit Court of Appeals, Miranda

warnings are not required prior to all prisoner interrogations, but only when there is a

“change in the surroundings of the prisoner which results in an added imposition on his

freedom of movement.” United States v. Conley, 779 F.2d 970, 973 (4th Cir. 1985)

(quoting Cervantes v. Walker, 589 F.2d 424, 428 (9th Cir. 1978)); accord Flittie v. Solem,

751 F.2d 967 (8th Cir. 1985); United States v. Schalf, 725 F.2d 1272 (10th Cir. 1984);

Garcia v. Singletary, 13 F.3d 1487 (11th Cir. 1994). Such a change in surroundings could

include the imposition of handcuffs or being taken to a locked room to be questioned by

correctional officers. See Conley, 779 F.2d at 970. Here, Burkholder claims that he was

asked to go see Dr. Newton and that if he did not go, he would be written up. Burkholder

does not state that he was restrained in any way once in Dr. Newton’s presence or that he

could not leave the interview room. Therefore, on the face of the complaint, we cannot

say that Burkholder was in a custodial setting.

       Regardless of whether Burkholder was in a custodial setting, Burkholder does not



                                             7
even contend that Dr. Newton was interrogating him. A prison psychologist is required to

give Miranda warnings before conducting an interrogation. See Estelle v. Smith, 451

U.S. 454, 465 (1981) (“The fact that respondent’s statements were uttered in the context

of a psychiatric examination does not automatically remove them from the reach of the

Fifth Amendment.”). However, “[u]nless the Government seeks testimony that will

subject its giver to criminal liability, the constitutional right to remain silent absent

immunity does not arise.” Garner v. United States, 424 U.S. 648, 655 (1976) (emphasis

added). Additionally, the interrogator must be aware of the “potentially incriminating

nature of the disclosures sought.” United States v. Morales, 834 F.2d 35, 38 (2d Cir.

1987). There is no indication that Dr. Newton was seeking incriminating statements from

Burkholder. Burkholder contends that Dr. Newton did ask him some questions, but

nowhere does he allege that Dr. Newton was asking Burkholder questions about any

possible criminal or otherwise illicit activities. Burkholder’s threat was freely and

spontaneously made. Because his threat against Officer Parcell was not a result of any

interrogation, Burkholder’s Fifth Amendment claims are baseless.

       Additionally, Burkholder’s statements were not used against him in a criminal

setting. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). Such statements, even if in

violation of Miranda, are admissible if the statements were not used to increase the

prisoner’s criminal sentence. See Baxter, 425 U.S. at 318; Chavez-Raya v. INS, 519 F.2d

397 (7th Cir. 1975) (ruling that a confession obtained in violation of Miranda could be



                                               8
used at a deportation hearing). Burkholder was put in the restrictive housing unit for

thirty days but he claims no other ramifications from the disciplinary hearing.

       We also note that there is no question that Dr. Newton’s report of Burkholder’s

threatening remarks was proper and did not violate any of Burkholder’s substantive due

process rights. Prison doctors have an absolute obligation to report threats made within

the prison, and there is no substantive due process violation when a prison psychiatrist

reports a threat that a prisoner makes against a prison guard. See Emerich v. Philadelphia

Ctr. for Human Development, Inc., 554 Pa. 209 (1998); Ms. B. v. Montgomrey Cty.

Emergency Srvcs, Inc., 799 F. Supp. 534 (E.D. Pa. 1992).

          C. Burkholder’s Procedural Due Process Claim Against Maresca

       Burkholder also claims that he was denied procedural due process at his

disciplinary hearing. We conclude that this claim is meritless as well. In order to make

out a due process claim, Burkholder must show that he was deprived of a liberty interest.

However, as noted by the Supreme Court in Sandin v. Conner: “[D]iscipline in

segregated confinement d[oes] not present the type of atypical, significant deprivation in

which a state might conceivably create a liberty interest.” 515 U.S. 472, 484 (1995). The

Supreme Court in Sandin found there was no liberty interest in having to spend thirty days

in lock-up – the exact penalty that Burkholder faced. Id. Without a recognized liberty

interest, there can be no violation of the due process clause.

       In addition, a prisoner’s right to an impartial adjudicator is necessarily weaker in



                                              9
the context of a disciplinary hearing. As noted by the Supreme Court, “[p]rison

disciplinary proceedings are not part of a criminal prosecution, and the full panoply of

rights due a defendant in such proceedings does not apply.” Wolff v. M cDonnell, 418

U.S. 539, 556 (1974). For this reason, the burden of proof in a disciplinary hearing does

not have to be beyond a reasonable doubt. There is no right to counsel at such hearings,

the prisoner may be prohibited from cross-examining witnesses, and evidence that would

be excluded in a normal prosecution can be used. See Rusher v. Arnold, 550 F.2d 896,

899-901 (3d Cir. 1977). It is generally true that a prisoner has a right to have a

disciplinary hearing conducted by an impartial decision maker, Withrow v. Larkin, 421

U.S. 35, 46-47 (1975), but the constitutional standard for impermissible bias is extremely

high in such a setting. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821 (1986). In fact,

adjudicators enjoy a presumption of honesty and integrity, and “the mere exposure to

[other] evidence presented in nonadversary investigative procedures is insufficient in

itself to impugn the fairness of the Board members . . ..” Withrow, 421 U.S. at 47, 55. It

is “only in the most extreme cases” where disqualification due to bias or prejudice would

be constitutionally required. Aetna Life Ins. Co., 475 U.S. at 821.

       Burkholder does not present such an extreme case. Burkholder claims that the

adjudicator in this case, Nichole Maresca, knew confidential information about

Burkholder’s mental history and thus could not be impartial. As directed by the Supreme

Court, we will assume that Maresca is a woman “of conscience and intellectual discipline,



                                             10
capable of judging a particular controversy fairly on the basis of its own circumstances.”

Withrow, 421 U.S. at 55. Burkholder has not alleged any faults of Maresca except for

this limited knowledge, and without more this claim is also dismissed.

                       D. Burkholder’s Eighth Amendment Claim

       Finally, Burkholder claims that he was subjected to cruel and unusual punishment

in violation of the Eighth Amendment when he was placed in the restricted housing unit

of the prison for thirty days. He complains that his cell was so cold that it caused pain in

his legs. He also asserts that his toilet was unsanitary, often backing up into his cell and

causing him to fear for his safety. It is questionable if having a cold cell or a toilet that

backs up sometimes is really an “atypical and significant hardship . . . in relation to the

ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Courts

have found that the Eighth Amendment is not violated in much more harsh conditions.

See Peterkin v. Jeffes, 855 F.2d 1021, 1026-28 (3d Cir. 1998) (holding that being made to

sleep on dirty mattress on floor did not make out an Eighth Amendment claim); Blizzard

v. Watson, 892 F. Supp. 587, 591, 598 (D. Del. 1995) (dismissing an Eighth Amendment

claim where plaintiff claimed he was awakened “by urine splashing on his leg from a

prisoner using the toilet near his bed”); Wilson v. Schonig, 863 F. Supp. 789, 794-95

(N.D. Ill. 1994) (ruling that without a showing of physical harm, claim that inmate was

forced to sleep on urine and feces-stained mattress in dirty, roach-infested, leaky cell was

not enough to make out an Eighth Amendment claim). Moreover, even if his conditions



                                              11
were objectively harsh, Burkholder must also show that the prison authorities acted with

“deliberate indifference” to those conditions. See Farmer v. Brennan, 511 U.S. 825

(1994). Burkholder makes no such claims on the face of his complaint; indeed, he made

no allegation that he complained about these conditions while he was in RHU. Thus his

Eighth Amendment claims fail to state a claim upon which relief can be granted.

                                     IV. Conclusion

      For the reasons stated above, we will affirm the judgment of the District Court,

granting defendants’ motion to dismiss.




                                           12
