Filed: Sep. 14, 2007
Latest Update: Mar. 02, 2020
Summary: 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of the United 2007 Decisions States Court of Appeals for the Third Circuit 9-14-2007 Wilson v. Budgeon Precedential or Non-Precedential: Non-Precedential Docket No. 07-1607 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Wilson v. Budgeon" (2007). 2007 Decisions. Paper 429. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/429 This decision is brought to you for free and open access by the Opinions of the Unite
Summary: 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of the United 2007 Decisions States Court of Appeals for the Third Circuit 9-14-2007 Wilson v. Budgeon Precedential or Non-Precedential: Non-Precedential Docket No. 07-1607 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Wilson v. Budgeon" (2007). 2007 Decisions. Paper 429. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/429 This decision is brought to you for free and open access by the Opinions of the United..
More
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Precedential or Non-Precedential: Non-Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Wilson v. Budgeon" (2007). 2007 Decisions. Paper 429.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/429
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
ALD-369 NOT PRECEDENTIAL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).
5
