Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-19-2007
Asemani v. Fed Bur Prisons
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2640
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CLD-55 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2640
BILLY G. ASEMANI,
Appellant
v.
FEDERAL BUREAU OF PRISONS; KATHLEEN M. HAWK-SAWYER;
NORTHEAST REGIONAL B.O.P. OFFICE; SUSAN GERLINSKI, Warden, Low
Security Correctional Institution; EXECUTIVE ASSISTANT MR. RYDER; RENE G.
GARCIA, Associate Warden for Operations; MANAGER ANGELA ESPINOSA LEVI;
COUNSELOR MR. SOLOMON, Union Housing Unit; D.G. ZIMMERMAN;
REGISTER NURSE J. REASER; MR. TRYBUS, Number One Correctional Officer, AM
Shift; MR. SEEKLER, Number One Correctional Officer, PM Shift; SENIOR C.O.C.
COOMBE; C.O. MR. LOZANO; J. PASTORE; C.O. MR. SOSNOWSKI; C.O. MR.
WILITZ; C.O. MR. WOLF; MR. MYERS, Supervisor, Material Handling Department;
CALI, Officer, Material Handling Department; MR. FUREK Material Handling
Department; LT. SOELLER, Special Housing Unit
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 03-cv-0964)
District Judge: Honorable Edwin M. Kosik
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 21, 2007
BEFORE: AMBRO, FUENTES and JORDAN, Circuit Judges
(Opinion filed: December 19, 2007)
_________
OPINION
PER CURIAM
On March 11, 2005, the United States District Court for the Middle District of
Pennsylvania granted the defendants’ motion to dismiss Billy G. Asemani’s pro se civil
rights action, wherein he challenged various incidents that allegedly occurred while he
was incarcerated at LSCI-Allenwood. Asemani filed a motion for reconsideration on
March 21, 2005, raising one issue: the District Court’s failure to specifically address his
allegation that the Bureau of Prisons (“BOP”) placed him in administrative segregation as
a protective measure for more than 90 days without seeking approval from the BOP
regional correctional administrator. The District Court denied the motion. Asemani
timely appealed.1
We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s
1
Although Asemani’s motion for reconsideration, filed within ten business days of the
District Court order granting the defendants’ motion for summary judgment, preserved
review of that underlying judgment, see Fed. R. App. P. 4(a)(4)(A), we read his notice of
appeal as seeking review only of the denial of his motion for reconsideration. Assuming
that Asemani had intended to challenge the underlying judgment, we nevertheless would
have summarily affirmed that decision, as the District Court properly determined that
there was no merit to his complaints about placement in administrative segregation, the
denial of dental care, retaliatory conduct, and the deduction of funds from his prison
account.
2
denial of Asemani’s motion for reconsideration for abuse of discretion. See Max’s
Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999). A motion for reconsideration filed pursuant to Rule 59(e) may be granted on one of the following grounds: “(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available . . . ; or (3) the need to correct a clear error of law or fact or to prevent injustice.”Id. at 677.
On June 14, 2002, Asemani alleged that he was sexually assaulted by a Physician’s
Assistant at LSCI-Allenwood. Pursuant to BOP policy, Asemani was immediately moved
for his own protection to administrative segregation in the Special Housing Unit. He
remained there until October 25, 2002, when his allegation was determined to be
meritless and the investigation closed. In his amended complaint, Asemani claimed that
he was housed in administrative segregation in retaliation for accusing the Physician’s
Assistant of sexual assault, rather than for his own protection. The District Court
concluded that Asemani failed to provide any support for his claims of retaliation and
that, under the circumstances, his approximately four-month confinement in
administrative segregation did not constitute an “atypical and significant hardship.”
Rather than challenge these conclusions in his motion for reconsideration, Asemani
argued that his constitutional rights were violated because prison officials did not seek or
obtain BOP approval to continue his protective custody beyond 90 days as required by
one of its own Program Statements. Asemani argued that reconsideration was warranted
3
because the District Court failed to specifically address his Program Statement claim.
It is clear that this claim involves neither an intervening change in controlling law
nor any newly discovered evidence. Moreover, the District Court did not commit a clear
error of law or create an injustice. The relevant inquiry was whether Asemani’s
confinement in administrative segregation imposed an atypical and significant hardship
on him in relation to the ordinary incidents of prison life. See Sandin v. Conner, 515 U.S.
472, 484 (1995). The District Court’s conclusion that no such hardship existed encompassed Asemani’s allegations based on the Program Statement. See Wilkinson v. Austin,545 U.S. 209
, 223 (2005) (observing that “the touchstone of the inquiry into the
existence of a protected, state-created liberty interest in avoiding restrictive conditions of
confinement is not the language of regulations regarding those conditions but the nature
of those conditions themselves in relation to the ordinary incidents of prison life.”
(internal quotation marks omitted)).
For the foregoing reasons, we will summarily affirm the District Court’s order
denying the motion for reconsideration.
4