Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-5-2006

Hendrickson v. McCreanor
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4340




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Hendrickson v. McCreanor" (2006). 2006 Decisions. Paper 350.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/350


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DPS-331                                       NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                             NO. 05-4340
                          ________________

    THOMAS HENDRICKSON; ROBERT B. MCCULLOUGH; ERIC GARNETT;
 ROBERT EDGAR; RAYMOND CROWHORN; GREGORY JOHNSON; MICHAEL
     MARTIN; ROGELIO CORDERO; WILLIE C. LAND; JEROME WINFIELD;
     DARRELL MIDDLETON; NATHANIEL BAGWELL; DANIEL ROBINSON;
MATTHEW MOSES; DANIEL TORRES; DOMINGO TORRES; BENJAMIN CRUMP;
      JAMES DYTON; KARL FREDERICK; JAY MORRIS; CHARLES SCOTT;
  NA'EEM O. BIDDLE; GEORGE HAMILTON; HUGH LOLLEY; ANTHONY RAY
      CASSON; DAVID CUTSHAW; GUY SMITH; DANIEL M. PASKINS, JR.;
JERRIN WRIGHT; MICHAEL ROGERS; MARK LEGG; CHRISTOPHER CLOHECY;
      KENNETH LEE JONES; PETER M. SCHELLINGER; CEDRIC MCGRIFF;
     TARSHAWN FRISBY; JOSHUA HOLMES; BRIAN FRANCISCO; BILLY R.
  WILLIAMS; SYLVESTER HARMON; WALLACE HARDEN; STEVEN BROWN;
   EDWIN FRADY; EDWARD F. MERKEL; ROBERT WILLIAM JOHNSON, JR.;
    KIM TAYLOR; OLDEN R. THOMAS, II; ELLIOT L. WEBB; LAKEE ADBEL-
    QUDUS; DENTONIO BAILEY; KEVIN WASHINGTON; RONALD K. KLINE;
  MICHAEL D. MOORE; SHAWN BRISCOE; WILLIAM A. JOHNSON; HAROLD
    ROBINSON; DAVID T. LEWIS; TIM MURDTER; MARK O'NEAL; WALTER
   BOSMAN; FREDERICK RUPP; DENNIS SANTIAGO; FRED DEJOHN; CECIL
   BROWNE; EUGENE LANCEY; ROBERT RAMPMEYER; TONY CALDWELL;
  DENNIS SMITH; JAMES JAY YATES; STEVE JOHNSON; CHARLES BEELER;
       CLINTON PORTER; MICHAEL PUFF; JOSE L. ANDINO; SEAN DAHL;
     JAMES P. SANCHEZ; VICTOR A. HART; ORIS C. SMILEY, III; ALBERTO
  MIRANDA; CLYDE F. EVANS; RONALD A. STEWART; THOMAS FRANCKS;
   JERRY PAYNE; GEORGE THODOS; PAUL LORD; LINFORD FISHER; JOHN
   DIGGS; TORY BRAXTON; BRUCE POTTER; DEION L. BROWN, SR.; CECIL
      EARL MILLS; MIKE ALEXANDER; CAPONE ROMEO; JOSE BERRIUS;
 REGINALD MCRAE; JARON BENNEFIELD; TYRENCE PURNELL; ARISTOTLE
   JOHNSON; TYRONE DUPREE; NEHEMIAH CHARLES; STEVE ANDERSON;
TRAUN BUNSON; MICHAEL BRIDGES; DAMMEYIN A. JOHNSON; JAY SCOTT;
     DION COLE; JOE KIBLUR; MICHAEL MERTH; LESTER R. MINNER, JR.;
   ANTHONY BROOKS, JR.; RICARDO MUNEZ; JOHN CARTANZA; EUGENE
  CALDWELL; MICHAEL WARNCKE; JACK W. WOLF; OLANLEE ANDERSON;
 ANTIONE HANNAH; KHALID HORNE; FREDERICK W. SMITH, JR.; LARRY D.
   FLOYD; LEON S. HAZZARD; HERBERT THOMPSON; SAMUEL H. BROWN;
      CHARLES E. SLATER; LLOYD WELCH; RODNEY BARLOW; MARK A.
     SPRUANCE; JAMES NELSON; RICHARD PEREZ; TIM SIMON; PETE C.
 ANDERSON; RICKY A. WHITFIELD-BEY; JUSTIN L. BURRELL; EDWARD A.
FAUNTEIN, JR; HUEY TIMMON; CARLTON FARBER; WILLIAM DOUNESH; D.
  GRIFFITH; JOSE CRUZ; ISSAC M. REDDING; LUIS MALDANADO; SIDNEY
BUMBREY; CHRIS JOHNSON; GREG DAVIS; JOSEPH COLUTIANO; HARKEEM
 ROGIERS; LIONEL WALLEY; FREDERICK TERRER; RANDOLPH CLAYTON;
  WILBERT HOLLOWAY; JAMES E. HARRIS, JR.; JASON VINCKX; WILLIAM
 GARLIC; RALPH SMITH; ELMER T. MILLER; ARTHUR C. WOLFE; MICHAEL
 SPEICHER; JARUIS STURGIS; LESLIE DICKSON; CHARLES ABNEY; KENNY
      HYRE; CHRISTOPHER JOHN; EDWARD R. MATTINGLY; RAMIRO
   CASTREJON; RONELL MORRIS; TONY SELLMAN; WILLIAM MCGINNIS;
  TEDDY BANKS; BENJAMIN COUNCIL; EDDIE KLINE; JAMIE ANDERSON;
        THOMAS SPENCER; CARAN ALEXANDER TEDDER; RICHARD
    SHOCKLEY; PAUL J. PROPER; BRIAN HILL; CHARLES VANDERHOOF;
   MICHAEL DENNISON; KEVIN STATES; DETLEF F. HARTMANN; MIQUEL
SERPA; HUGH MCCAFFERTY; HENRY A. HADAWAY; ROY L. ALFORD; JESSE
 L. SPENCER; DARYL AVORUS; HENRY ZOWES; JEROME CLARK; JOSEPH S.
PACZKOWSKI; SADI SANDOZ; HOWARD DEAR; AARON LANGLEY; KELVIN
  MARTIN; SHAWN OLSEN; DONALD FENIMORE; PAUL DELAR; JAMES E.
     FLOWERS; ROBERT W. BOLDEN, JR.; RAKIM RASHAD; THOMAS A.
HOLLINGSWORTH, JR.; WILLIAM HAWKINS; AARON K. CARTER; MICHAEL
     K. DUKE; JAMES VANARSDALL; PAUL WELLS; JOHN A. DICRISCIO;
ROLANDO S. MAXWELL; VICTOR HARMON; JAMES MCCULLIN; ANTHONY
 RHEA; JOHN A. TAYLOR; DAVID L. MAYFIELD; MAURICE CAROLL LAND;
          CHRISTOPHER PORTER; GREG SAVAGE; WARREN REID

                               v.

 MICHAEL MCCREANOR; BETTY BURRIS; F. DIXON; L. SMITH; CAPT. CAIN;
 C. OUTTEN; EDWARD WALLACH; JEFF CROTHERS; THOMAS L. CARROLL;
STANLEY TAYLOR; JANE BRADY; ANDRE R. JACKSON; BILL CORDEL; CAPT.
HAZZARD; LT HARVERY; WILFRED BECKLES; LT WILLEY; LT SATTERFIELD




                                    Detlef F. Hartmann;
                                    William J. Hawkins,

                               2
                                                Appellants
                       ____________________________________

                     On Appeal From the United States District Court
                               For the District of Delaware
                           (D.C. Civ. No. 03-cv-00557-KAJ)
                        District Judge: Honorable Kent A. Jordan
                     _______________________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                  September 8, 2006

Present: FUENTES, VAN ANTWERPEN AND CHAGARES, CIRCUIT JUDGES

                                 (Filed: October 5, 2006)


                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Thomas Hendrickson and other inmates incarcerated at the Delaware Correctional

Center (“DCC”) filed suit against officials there under 42 U.S.C. § 1983, alleging

violations of their rights under the First, Eighth, and Fourteenth Amendments because

inmates are prohibited from speaking during meals in the dining hall.1 In August 2004,

the United States District Court for the District of Delaware dismissed the plaintiffs’ due

process claims and vicarious liability claims against former Attorney General Jane Brady



   1
     Initially, nearly 200 inmates signed on to the complaint. The plaintiffs were never
certified as a class, and only about 23 plaintiffs ultimately pursued the action to its
conclusion in the district court.
                                             3
as frivolous under 28 U.S.C.§ 1915A(b)(1). The court later awarded summary judgment

to the DCC officials on the rest of the claims. A handful of plaintiffs in the suit filed this

timely appeal.2

       Because the appellants are proceeding in forma pauperis, we must analyze the

appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). Under

§ 1915(e)(2)(B), we must dismiss an appeal if the underlying action (i) is frivolous or

malicious, (ii) fails to state a claim upon which relief may be granted, or (iii) seeks

monetary damages from a defendant with immunity. An appeal that lacks arguable merit

should be dismissed under § 1915(e)(2)(B). Neitzke v. Williams, 

, 325

(1989).

       First, we agree with district court’s dismissal of appellants’ due process claims and

vicarious liability claims against Brady. To state a claim for relief under § 1983, a

complaint must sufficiently allege a deprivation of a right secured by the constitution.

See Nami v. Fauver, 

, 65 (3d Cir. 1996). Even accepting as true all of the

factual allegations in the complaint, as well as all reasonable inferences that can be drawn



   2
     Detlef F. Hartman and William Hawkins are the sole remaining appellants in this
action and have been granted in forma pauperis status. A fourth appellant, Ricky A.
Whitfield-Bey, never submitted additional documents, including a motion to proceed in
forma pauperis, an affidavit of poverty, a prison account statement, and authorization to
withdraw funds, as ordered by the Clerk of this Court on February 3, 2006. He will be
dismissed from the appeal and his motion for counsel will be denied. Another plaintiff in
the action below, Nathaniel Bagwell, filed a separate appeal but that appeal was
dismissed on August 2006 for failure to pay fees. See Bagwell v. McCreanor, et al., C.A.
No. 05-4197 (order entered on Aug. 28, 2006).
                                              4
from them, see 

did not allege that they had a constitutionally protected

liberty interest. Losing privileges, receiving disciplinary action and being re-classified at

a certain security level do not constitute “atypical and significant hardship[s] on the

inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 

, 484 (1995). The appellants’ claim that Brady was vicariously liable for the actions

of prison officials was also flawed because she did not supervise the DCC officers and

employees, and she could not be held liable in a § 1983 suit based on vicarious liability

theory, in any event. See City of Canton v. Harris, 

, 385-90 (1989); Rouse

v. Plantier, 

, 200 (3d Cir. 1999).

       This appeal also lacks arguable merit because the district court correctly awarded

summary judgment to the appellees on the remaining claims that the “no talking during

meals” policy violated appellants’ constitutional rights. Under Turner v. Safley, 

, 89 (1987), a prison regulation that impinges upon a prisoner’s constitutional rights is

valid as long as the regulation “is reasonably related to legitimate penological interests.”

This analysis “presupposes that the plaintiff inmate has demonstrated that a

constitutionally protected interest is at stake.” Jones v. Brown, – F.3d –, 

at *3 (3d Cir. August 24, 2006) (quoting DeHart v. Horn, 

, 51 (3d

Cir. 2000) (en banc)).

       We agree with the analysis conducted by the district court under Turner. In light

of the affidavit by Deputy Warden David Pierce, the “no talking” policy is rationally

related to the DCC’s interests at stake. The other Turner factors also weigh in the

                                              5
appellees’ favor.3 For similar reasons, we are satisfied that there is no Eighth Amendment

violation. See Tillman v. Lebanon County Correctional Facility, 

, 417-419

(3d Cir. 2000).4

       We will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B). Ricky A.

Whitfield-Bey’s motion for counsel will be denied.




   3
     The inmates clearly have alternative means for exercising their First Amendment
rights, considering that they are allowed to talk with one another when they are outside of
the dining hall, which is the majority of the day. Pierce’s affidavit also demonstrated that
an accommodation would have a significant impact on fellow inmates, corrections
personnel, and the allocation of resources in the prison, and, further, none of the
alternatives proposed by the inmates would have a de minimis effect on penological
interests. Of course, particular deference must be accorded to prison officials in this
assessment. See 

; Jones v. North Carolina Prisoners’ Union, 

, 131 (1977). Given these factors, the regulation here satisfies the reasonable
relationship test.
   4
     The Equal Protection claim raised in the complaint, i.e., that the policy was enforced
against African American inmates and not white inmates, apparently centered upon
allegations made by Nathaniel Bagwell. See D.Ct. Dkt. #1, p. 30-31. Since he is not a
party to this appeal, his claim need not be addressed here.
                                             6