Filed: Jul. 17, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 7-17-2008 Fortune v. Bitner Precedential or Non-Precedential: Non-Precedential Docket No. 07-3385 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Fortune v. Bitner" (2008). 2008 Decisions. Paper 830. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/830 This decision is brought to you for free and open access by the Opinions of the Unite
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 7-17-2008 Fortune v. Bitner Precedential or Non-Precedential: Non-Precedential Docket No. 07-3385 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Fortune v. Bitner" (2008). 2008 Decisions. Paper 830. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/830 This decision is brought to you for free and open access by the Opinions of the United..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-17-2008
Fortune v. Bitner
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3385
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Fortune v. Bitner" (2008). 2008 Decisions. Paper 830.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/830
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 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3385
___________
KENNETH FORTUNE,
Appellant
v.
ROBERT S. BITNER, individually and in his official capacity as chief hearing examiner;
J. HARVEY BELL, individually and in his official capacity as case specialist of Bureau
of Inmates Services of the Department of Corrections; ROBERT LALLI; SNYDER; C.O.
STEVENS; C.O. PARKS; NURSE WILLIAM WILLIAMS; R.N. PATTY EVERHART;
WALLACE F. COUCH; LT. ASHLEY SMITH; DAVID MELLOTT; C.O.
CALDERWOOD; C.O. BOONE; C.O. FOGLE; C.O. WEYANDT; C.O. GIBSON; C.O.
WHITESEL; C.O. DUGAN
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 01-cv-00111)
District Judge: Honorable Thomas I. Vanaskie
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 11, 2008
Before: SLOVITER, BARRY and NYGAARD, Circuit Judges
(Opinion filed: July 17, 2008)
___________
OPINION
___________
PER CURIAM
Kenneth Fortune appeals, pro se, from the judgment entered in favor of Appellees
by the United States District Court for the Middle District of Pennsylvania. We will
affirm the decision of the District Court.
I.
This case arose out of Fortune’s incarceration at SCI-Huntingdon (“Huntingdon”)
from December 1996 until May 2001. While at Huntingdon, he was generally housed in
the prison’s Restricted Housing Unit (“RHU”), either in Disciplinary or Administrative
Custody. Fortune advanced numerous claims against multiple employees of the
Pennsylvania Department of Corrections (“DOC”), including J. Harvey Bell, a DOC
pardons case specialist, and Robert S. Bitner, DOC’s Chief Hearing Examiner. Among
his many allegations, Fortune claimed that he repeatedly tried without success to obtain a
transfer from Huntingdon on the grounds that Huntingdon staff members continued to
mistreat and threaten him and that he had been separated from the staff members in the
past. Furthermore, Huntingdon staff members allegedly defamed Fortune by
characterizing him as mentally ill. The characterization was allegedly part of an
extensive plot to murder him and then make it look like a suicide. For a relatively brief
period of time, Fortune was incarcerated in SCI-Waymart’s Special Assessment Unit,
evidently for a mental health assessment. According to Fortune, he was also a victim of
retaliation on account of his history of litigation.1 Finally, Huntingdon guards allegedly
1
Fortune is a frequent pro se litigant. In particular, he previously filed a federal
action alleging, among other things, the use of excessive force during a cell extraction.
The district judge dismissed all claims except the one alleging excessive force, and the
jury ultimately rendered a verdict against Fortune. We affirmed on appeal. See Fortune
2
used excessive force against him on December 28, 1999, as well as on July 24, 2000.
The case itself was extensively litigated before the District Court, which disposed
of Fortune’s various claims in several thorough decisions. Following the filing of an
amended complaint, the District Court granted in part and denied in part Appellees’
motion to dismiss for failure to state a claim. It subsequently denied Fortune’s motion for
reconsideration. After discovery was conducted, the District Court granted Appellees’
motion for summary judgment as to Fortune’s remaining claims and entered judgment in
favor of all Appellees. As before, Fortune moved to reconsider, but the District Court
denied his motion. Fortune accordingly filed a timely notice of appeal.
II.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary
review over a district court’s orders granting a motion to dismiss and for summary
judgment. See, e.g., Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008);
Debiec v. Cabot Corp.,
352 F.3d 117, 128 n.3 (3d Cir. 2003). In considering a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6), a court is required to “accept all
factual allegations as true, construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable reading of the complaint, the
plaintiff may be entitled to relief.”
Phillips, 515 F.3d at 233 (citation omitted). With
respect to summary judgment, we must determine if there is any genuine issue of material
v. Horn, 80 F. App’x 285 (3d Cir. 2003) (unpublished table decision).
3
fact and whether the moving party is entitled to judgment as a matter of law. See, e.g.,
Fed. R. Civ. P. 56(c); Debiec, 352 F.3d at 128 n.3. We also may affirm on any ground
supported by the record. See, e.g., Tourscher v. McCullough,
184 F.3d 236, 240 (3d Cir.
1999). After reviewing the arguments raised by Fortune in his appellate brief, the record
on appeal, and the District Court’s own thorough decisions, we conclude that the District
Court committed no reversible error in disposing of Fortune’s claims.
Fortune initially contends that the District Court erred by prematurely dismissing
his retaliation claims against Bell and Bitner. According to Fortune, he adequately
alleged that Appellees were aware of his unresolved separation from Huntingdon staff
members but participated in a conspiracy to deny his transfer requests, cover up the
previous separation, and even kill him “because he is [an] intelligent, articulate, well
spoken prisoner known to [Appellees] to file grievances and lawsuits to vindicate his
rights.” (Appellant’s Br. at 8.) Nevertheless, the District Court properly determined that
he failed to state a cognizable claim, observing that his allegations of retaliation were
conclusory in nature. See, e.g., Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005)
(“However, a court need not credit either ‘bald assertions’ or ‘legal conclusions’ in a
complaint when deciding a motion to dismiss.” (citation omitted)). For instance, Fortune
speculated “that the only possible reason Bitner would deny his appeal would be to
retaliate against him.” (10/28/03 Memorandum at 3-4.) Furthermore, his appellate
challenge to the District Court’s retaliation ruling appears premised on the alleged
existence of an evidently wide-ranging conspiracy against him. However, the District
4
Court correctly determined that his conspiracy claims must be dismissed because of his
failure to state, in a non-conclusory fashion, “facts from which any type of conspiratorial
agreement between the [Appellees] can be inferred.” See, e.g., D.R. v. Middle Bucks
Area Vocational Technical Sch., 972 F.2d 1364, 1377 (3d Cir. 1992).
Fortune further challenges the District Court’s dismissal of his mental health
claims. However, we must deny this challenge as well. The District Court correctly
determined that he failed to state a legally cognizable claim of defamation under the
federal Constitution. See, e.g., Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir.
2006). In the course of the District Court’s proceedings, it was further revealed that the
DOC did briefly transfer Fortune to a “Special Assessment Unit” in another Pennsylvania
prison. Fortune accordingly asserts that he was denied his due process rights, pursuant to
the Supreme Court’s ruling in Vitek v. Jones,
445 U.S. 480 (1980), to an adversarial
hearing at which he could confront the mental illness accusations against him.
Nevertheless, his brief transfer was evidently for the sole purpose of a mental health
assessment. As the District Court expressly noted, he was apparently never subjected to
either involuntary medication or any other compulsory treatment for mental illness. In
turn, Fortune testified in his deposition that he never even spoke with any doctors while
he was in the Special Assessment Unit. After approximately two weeks, Fortune was
promptly returned to Huntingdon, and his name itself was then removed from the mental
health roster. Such temporary measures, evidently taken for evaluation purposes, do not
appear to give rise to any cause of action under Vitek. See, e.g., Gay v. Turner,
994 F.2d
5
425, 427 (8th Cir. 1993) (per curiam) (“The temporary transfers in the present case were
unlike the indefinite commitment in Vitek and did not constitute a major change in the
conditions of confinement amounting to a grievous loss to [the inmate], which would
require the Vitek procedural protections.” (citations omitted)).
Following discovery, the District Court granted summary judgment as to Fortune’s
Eighth Amendment failure-to-protect claims against Bell and Bitner on the ground that
Fortune failed to exhaust his available administrative remedies as required by 42 U.S.C. §
1997e(a). While Fortune takes issue with this exhaustion ruling at some length,
Appellees persuasively argue that the claims themselves lack merit. Fortune characterizes
both Bell and Bitner as “executive supervisory officials within the [DOC].” (Appellant’s
Br. at 12.) On the contrary, Bell, as a pardons case specialist, lacked authority over
inmate separations or transfer matters. Likewise, Bitner served as the DOC’s Chief
Hearing Examiner, and his role was generally limited to providing an additional level of
administrative review pursuant to the DOC’s own policies. In the end, Fortune did not
raise a genuine issue of material fact with respect to whether the two officials personally
violated his Eighth Amendment rights. He simply failed to “present enough evidence to
support the inference that the defendants ‘knowingly and unreasonably disregarded an
objectively intolerable risk of harm.’” Beers-Capitol v. Whetzel, 256 F.3d 120, 132 (3d
Cir. 2001). Likewise, it cannot be said that Bell and Bitner were legally accountable for
the conduct of Huntingdon staff members under any theory of supervisory liability. See,
e.g.,
id. at 133-34; Baker v. Monroe Twp.,
50 F.3d 1186, 1190-91 (3d Cir. 1995).
6
Next, Fortune argues that the District Court erred in granting summary judgment
as to his excessive force claims arising out of the December 28, 1999 and July 24, 2000
incidents. Fortune does not dispute that he failed to file an excessive force grievance
pursuant to the DOC’s inmate grievance procedures specified in DC-ADM 804. Instead,
he claims that DOC policy prevented him from pursuing an excessive force grievance
pursuant to the inmate grievance procedures because he was already subject to
misconduct proceedings regarding the two incidents under the separate disciplinary
procedures in DC-ADM 801. However, as the District Court noted, “Fortune’s professed
confusion about his inability to file a grievance related to an event which resulted in his
receipt of a misconduct seems self-serving in light of the fact that Fortune filed two (2)
grievances [pursuant to DC-ADM 804] related to the 1999 use of force event.” (Supp.
App. at 122.) The District Court also observed that Fortune’s administrative appeals from
his misconduct for the December 28, 1999 incident, filed pursuant to DC-ADM 801, were
based solely on the alleged disproportionality of his punishment and omitted any
allegation involving excessive force. With respect to the July 24, 2004 incident, Bitner
twice rejected Fortune’s attempt to obtain final administrative review of his misconduct
because he failed to complete his appeal to the Huntingdon’s superintendent as required
by the applicable policy. See, e.g., Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007)
(noting that prisoner must comply with administrative requirements and that “prison
grievance procedures supply the yardstick for determining what steps are required for
exhaustion.” (quotation omitted)). While Fortune did submit letters to the Program
7
Review Committee (“PRC”) and Huntingdon’s superintendent regarding the misconduct
for the July 24, 2004 incident, his PRC correspondence lacked any reference whatsoever
to the issue of excessive force. Accordingly, the District Court properly granted summary
judgment as to Fortune’s claims of excessive force for failure to exhaust administrative
remedies.
Finally, Fortune contends that the District Court committed reversible error by sua
sponte granting summary judgment in Appellees’ favor as to the other claims arising out
of the December 28, 1999 incident, including his claim that he was subjected to an
unreasonable strip search. Following the District Court’s original summary judgment
ruling, Fortune sought reconsideration because the District Court “sua sponte, without
notice to him, granted Defendants summary judgment on claims not encompassed within
their motion.” (Supp. App. at 123.) The District Court expressly rejected Fortune’s
argument because such claims arose out of the December 28, 1999 incident and, as with
the excessive force claim, Fortune failed to exhaust administrative remedies. Fortune
now argues that he could not file the requisite grievances because he was restricted to
filing no more than two grievances per month. Nevertheless, the District Court
appropriately considered and rejected this restriction argument in connection with the
subsequent incident on July 24, 2000. Fortune himself did not attempt to submit an
otherwise untimely grievance and request that it be considered on the merits in light of his
grievance restriction. He also did not try to raise the strip search and other issues in the
course of his misconduct proceedings under DC-ADM 801. Under the circumstances,
8
the District Court correctly denied his remaining claims arising out of the December 28,
1999 incident as unexhausted.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
9
