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


2-9-2006

Jordan v. Horn
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3541




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Recommended Citation
"Jordan v. Horn" (2006). 2006 Decisions. Paper 1615.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1615


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DPS-61                                                     NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                    No. 03-3541

                                THOMAS JORDAN,

                                                    Appellant

                                          v.

            MARTIN HORN, Secretary, Department of Corrections;
      WILLIAM LOVE; JOHN DOE, 1; JOHN DOE, 2; ROBERT BITNER,
           Chief Hearing Examiner; FREDERICK A. ROSEMEYER;
        JAMES C. HENDERSON; DAVID W. PITKINS; JOHN PAUL;
  NICHOLAS PONCHIONE; CAPTAIN JOHN WILLIAMS; MICHAEL FLYNN;
          VICKIE VISH; SERGEANT TSIKALAS; JAMES BENCH;
   LIEUTENANT HILER; LIEUTENANT MCGUFF; LIEUTENANT CORRAN;
       OFFICER CRISSEY; RAYMOND J. SOBINA; DEPUTY FILINO;
          SYLVIA GIBSON; JOSEPH H. ROLLINS; KERRI CROSS;
        LIEUTENANT WIRECK; CAPTAIN PAPUGA; SUSAN DARR;
   CORRECTIONAL OFFICER DOYKA; CORRECTIONAL OFFICER VIGAS;
                CORRECTIONAL OFFICER GOTTSCHALK

         _______________________________________________________

                 On Appeal From the United States District Court
                     For the Western District of Pennsylvania
                           (D.C. Civ. No. 00-CV-00036J)
                 District Judge: Honorable David Stewart Cercone
          ______________________________________________________

         Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or
           Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 December 1, 2005

     Before: ROTH, FUENTES AND VAN ANTWERPEN, CIRCUIT JUDGES

                             (Filed February 9, 2006 )
                         _________________________________

                                     OPINION
                         _________________________________

PER CURIAM

       Thomas Jordan, a Pennsylvania prisoner, filed this § 1983 action alleging

violations of his rights under the First, Eighth, and Fourteenth Amendments, arising

primarily out of an incident in June, 1999. Jordan alleges that he was verbally threatened

and harassed with racial comments by Correctional Officer Flynn at S.C.I. Laurel

Highlands (the “Flynn incident”).

       The factual and procedural background of the case is well known to the parties and

is fully set forth in the Magistrate Judge’s Report entered July 1, 2003. We affirmed the

District Court’s order entered June 29, 2001 to the extent that it dismissed Jordan’s race

discrimination, disproportionate disciplinary sanctions, procedural due process, denial of

access to the courts, and retaliatory transfer and mail confiscation claims. See Jordan v.

Horn, C.A. No. 01-2843 (3d Cir. Oct. 17, 2002). We vacated the order as to two claims

that certain defendants retaliated against Jordan for pursuing a complaint to the Warden

and prison grievance concerning the Flynn incident by subjecting him to false disciplinary

charges on June 23, 1999 and July 9, 1999, and his claim that certain legal and non-legal

property was lost or destroyed upon his transfer to S.C.I. Somerset without procedural due

process (the “destruction of property claim”). On remand, the District Court adopted the

Magistrate Judge’s Report and granted summary judgment in the defendants’ favor,

dismissing the destruction of property claim and one of the retaliation claims. Jordan
timely appealed. We remanded for consideration of the remaining retaliatory discipline

claim, but retained jurisdiction. The District Court has granted summary judgment on

that claim.

       We exercise plenary review over the District Court’s grant of summary judgment

pursuant to Fed. R. Civ. P. 56(c). Public Interest Research of N.J. v. Powell Duffryn

Terminals, Inc., 

, 71 (3d Cir. 1990). Because this appeal presents “no

substantial question,” 3d Cir. LAR 27.4 and I.O.P. 10.6, we will summarily affirm the

District Court’s orders entered August 18, 2003, and September 15, 2005.

       We conclude that the District Court properly granted summary judgment as to both

of Jordan’s retaliation claims for the reasons set forth in the Magistrate Judge’s Report

issued on July 1, 2003, and by the District Court in its Memorandum Opinion entered

September 15, 2005. With respect to the destruction of property claim, the Magistrate

Judge determined that the DOC conducted an independent investigation of Jordan’s

lost/destroyed property grievances which showed that the property was inventoried at

both prison sites and that Jordan signed the appropriate inventory sheets acknowledging

that this property and his legal materials had been returned to him. Because the DOC had

investigated the grievance and responded to Jordan, the Magistrate Judge concluded that

the absence of a final response to Jordan’s appeal of the denial of his grievance did not

render inadequate an otherwise adequate post-deprivation remedy. Jordan did not submit

any evidence contradicting the substance of the DOC investigation. We agree with the

Magistrate Judge’s conclusion that the defendants were entitled to summary judgment on
the destruction of property claim. Although the failure of the Central Office to render a

decision on Jordan’s appeal is not commendable, we cannot say that such a failure

deprived Jordan of any meaningful access to a post-deprivation remedy, based on the

undisputed facts in this case.1 Therefore, the District Court properly granted summary

judgment with respect to this claim.

       Accordingly, we will affirm the judgment of the District Court.




       1
         We find this case factually distinguishable from Freeman v. Dep’t of
Corrections, 

(10 th Cir. 1991). There, Freeman had no meaningful access to
any post-deprivation remedy because the defendant prison officials actively thwarted
Freeman’s attempts to grieve the loss of his stereo player through the prison grievance
system and they caused him to drop his civil court lawsuit on their false promise that his
stereo player would be returned to him. In Freeman’s case, even the court failed to
respond to his numerous requests regarding the status of his lawsuit.