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


12-20-2006

Nelson v. Hill
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5138




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 05-5138
                                   ________________

                              TERRY NELSON, Appellant

                                            v.

GEORGE W. HILL; J.D. CAULFIELD; TOM SAVAGE; M. LEVANDOWSKI, Major;
   V. LAT; S. HARDGROVE, Each individually and collectively, in their official
                        capacities; ANNA BATES
                           ________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                               (D.C. Civ. No. 04-cv-00910)
                     District Judge: Honorable Legrome D. Davis
                                   ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 21, 2006

                Before: RENDELL, AMBRO and ROTH, Circuit Judges

                               (Filed: December 20, 2006)
                                    ________________

                                       OPINION
                                   ________________

PER CURIAM

             Terry Nelson, a prisoner proceeding pro se, filed this complaint in the

United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C.

§ 1983. The complaint arises from circumstances occurring while Nelson was
imprisoned at the Delaware County Prison. The complaint brings claims against George

W. Hill, superintendent; Tom Savage, deputy warden; Major M. Levandowski, chief of

security; and Anna Bates, lieutenant.1 Nelson asserts that the Defendants have violated

his civil rights by: (1) denying him cigarettes and/or a tobacco supplement to help with

his nicotine addiction (Claim I); (2) arbitrarily and capriciously handing out discipline

(Claim II); and (3) providing inadequate prison conditions while he was a pretrial

detainee (Claim III).2

              Defendants Hill, Savage, Levandowski and Bates successfully moved for

summary judgment in the District Court. With respect to Claim III, the District Court

found that the Defendants were entitled to qualified immunity. The District Court

separately analyzed Claims I and II and granted summary judgment in favor of the




  1
    Nelson’s complaint also raises claims against J.D. Caulfield, S. Hardgrove and V. Lat.
The District Court dismissed the claims against these Defendants without prejudice
pursuant to Federal Rule of Civil Procedure 4(m) for failure to serve. Nelson does not
argue on appeal that this dismissal without prejudice was improper. Therefore, any
argument Nelson could have with respect to their dismissal from the action is deemed
waived. See e.g., Harvey v. Plains Twp. Police Dep’t, 

, 192 (3d Cir. 2005).
  2
    In the complaint, Nelson also alleges that the Defendants violated his civil rights by
inadequately providing him access to the prison law library. However, Nelson does not
make any argument on appeal that the District Court improperly granted summary
judgment in favor of the Defendants on this claim. Thus, any argument Nelson could
have with respect to this claim is deemed waived. See 

.
Furthermore, the complaint also asserts an Eighth Amendment claim against the
Defendants regarding the prison conditions after Nelson was convicted in August 2004.
The District Court granted summary judgment in favor of the Defendants on this claim
and Nelson does not contest this ruling on appeal. Thus, any argument Nelson could have
with respect to this claim is also deemed waived. See 

               We review the grant of summary judgment de novo. See McGreevy v.

Stroup, 

, 363 (3d Cir. 2005). Summary judgment is proper when, viewing

the evidence in the light most favorable to the non-movant, there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. See Saldana

v. Kmart Corp., 

, 232 (3d Cir. 2001); FED. R. CIV. P. 56(c).

               In Claim II, Nelson argues that the Defendants violated his constitutional

rights by subjecting him to arbitrary and capricious discipline. Nelson notes several times

that he was locked in his cell for short periods of time “without warning or a disciplinary

hearing.” We note that in determining whether restrictions are reasonably related to the

government’s interest in maintaining order and operating a prison in a manageable

fashion, such restrictions are generally within the expertise of the prison officials. See

Bell v. Wolfish, 

, 540 n.23 (1979). In the absence of substantial evidence in

the record to indicate that officials exaggerated their response, we should normally defer

to the prison official’s judgment. See 

with the District Court that Nelson

  3
    Alternatively, the District Court held that summary judgment was warranted because
Nelson failed to show the personal involvement of Defendants Hill, Savage, Levandowski
and Bates with respect to all three of the claims on appeal. See Hampton v. Holmesburg
Prison Officials, 

, 1082 (3d Cir. 1976). We agree with this holding with
respect to Defendants Hill, Savage and Levandowski on all three claims and to Defendant
Bates with respect to Claim I. Indeed, as to Defendants Hill, Savage, and Levandowski,
Nelson proceeds purely on a respondeat superior theory, which we have held is
unavailing. Hampton v. Holmsbrug Prison Officials, 

, 1082 (3d Cir. 1976).
As to Defendant Bates, Nelson has provided no evidence of her involvement in denying
him cigarettes or nicotine supplements. Thus, we will limit our remaining discussion
only to Claims II and III.

                                              3
has failed to show that locking him in his general population cell was an exaggerated

response.4 Thus, summary judgment was properly entered with respect to Claim II.

              With respect to Claim III, Nelson alleges that he was forced to sleep on a

mattress on the floor of a cell meant for two prisoners (“triple-celling”) and that he was

subjected to cold cell temperatures while he was a pretrial detainee. In the pretrial

detainee setting, a claim asserting unconstitutional conditions of confinement is reviewed

pursuant to the Due Process Clause. See Hubbard v. Taylor, 

, 158 (3d Cir.

2005). The test is whether the challenged conditions amount to punishment under the

Due Process Clause. See 

showing of express intent to punish, the

determination will normally turn on whether the conditions have an alternative purpose

and whether the conditions appear excessive in relation to that purpose. See 

441 U.S. at 538-39). The inquiry into whether given prison conditions constitute

punishment under the Due Process Clause considers the totality of the circumstances

within a given institution. 

.

              Ultimately, the District Court found that the Defendants were entitled to




  4
    In the complaint, Nelson also alludes to being placed in a disciplinary unit after he
violated prison rules by possessing cigarettes. A disciplinary hearing was held and
Nelson was found guilty and sentenced to twenty days in the disciplinary unit. Nelson
ultimately spent twenty-four days in the disciplinary unit. However, Nelson has not
shown any personal involvement of any of the Defendants regarding this additional time
spent in the disciplinary unit. See Rode v. Dellarciprete, 

, 1207 (3d Cir.
1988); 

. Thus, to the extent Nelson includes this claim as part
of Claim II, summary judgment was properly entered in favor of the Defendants.

                                             4
qualified immunity with respect to Claim III. For the following reasons, we agree.5 A

two-part test is used to determine whether an official is entitled to qualified immunity.

See Saucier v. Katz, 

, 200-02 (2001). First, a court must determine whether

the official’s conduct violated a constitutional right. See 

Second, a court must

determine whether the constitutional right was clearly established at the time of the

official’s action. See 

official can be held liable for official action only

where the contours of the particular right allegedly violated are sufficiently clear that a

“reasonable official would understand that what he is doing violates that right.”

Anderson v. Creighton, 

, 640 (1987). To determine this, the facts of the case

are analyzed in light of the relevant case law existing at the time of the alleged conduct.

See McLaughlin v. Watson, 

, 572 (3d Cir. 2001). “The qualified immunity

standard ‘gives ample room for mistaken judgments by protecting all but the plainly

incompetent or those who knowingly violate the law.’” Gilles v. Davis, 

, 203

(3d Cir. 2005)(quoting Hunter v. Bryant, 

, 229 (1991)).

              In his brief, Nelson argues that his rights associated with “triple-celling”

were sufficiently clear at the time of the Defendants’ actions based on Union County Jail

Inmates v. Di Buono, 

(3d Cir. 1983). Recently, this Court re-examined

Union County and found that its discussion of “triple-celling” was dicta. See Hubbard,


  5
    Our finding that defendants are entitled to qualified immunity is limited to claims
brought against them in their individual capacity. However, any claim that Nelson may
have against defendants in their official capacity is deemed waived, as he has failed to
raise it on appeal. See 

.

                                              

. In Hubbard, however, we declined to address the issue of “triple-

celling” in the pretrial detainee context. We remanded the matter back to the District

Court because the District Court had improperly applied the Eighth Amendment standard

when it should have applied the Due Process Clause standard. See 

Therefore, in the context of this case, we find that the issue of “triple-celling” in the

pretrial detainee context was not clearly established at the time of the Defendants’

actions. Additionally, this Court has not set forth the precise contours of whether cold

temperature, in and of itself, is enough to establish a due process claim in the pretrial

detainee context. But see Antonelli v. Sheahan, 

, 1433 (7th Cir.

1996)(stating that cold temperatures in prison and failing to provide blankets states a

claim under the Due Process Clause).6 As such, we agree that summary judgment was

properly entered on this claim.

              In conclusion, we will affirm the grant of summary judgment in favor of the

Defendants.




  6
    Even if the law with respect to cold cell temperatures was sufficiently clear at the
time the Defendants acted, summary judgment would still be proper on this claim. The
Defendants noted that the prison temperature is centrally controlled by a computer at
seventy degrees Fahrenheit at all times. Furthermore, Nelson has not come forward with
evidence that the Defendants failed to provide proper attire or blankets to combat the
purported cold cell temperatures.

                                               6