Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-8-2008

Gregory Milton v. Ray
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1593




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CLD-39                                                         NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                      No. 08-1593
                                      ___________

                               GREGORY A. MILTON,
                                               Appellant

                                            v.

                        M. E. RAY, former Regional Director for the
                     Northeast Region of the Federal Bureau of Prisons;
                  TODD W. CERNEY, Disciplinary Hearing Officer for the
                Federal Bureau of Prisons at U.S.P. Allenwood, Pennsylvania;
               ALAN STEVENSON, former III Unit Manager for the Federal
                    Bureau of Prisons at U.S.P. Allenwood, Pennsylvania;
               G. GALLICK, (A) Counselor for the Federal Bureau of Prisons
              at U.S.P. Allenwood, Pennsylvania; J. KAMINSKI, Manager for
             the Federal Bureau of Prisons at U.S.P. Allenwood, Pennsylvania;
              M. FLANAGAN, Lieutenant for the Federal Bureau of Prisons at
            U.S.P. Allenwood, Pennsylvania; R. EDER, Senior Officer Specialist
            for the Federal Bureau of Prisons at U.S.P. Allenwood, Pennsylvania
                      ____________________________________

                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (M.D. Pa. No. 04-cv-01586)
                        District Judge: Honorable Yvette Kane
                      ____________________________________

         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, 2008

           Before: RENDELL, HARDIMAN and NYGAARD, Circuit Judges

                               (Filed: December 8, 2008)
                                          _________

                                 OPINION OF THE COURT
                                       _________

PER CURIAM

         Gregory Milton, a prisoner proceeding pro se, filed a Bivens 1 action against

various officials of the Federal Bureau of Prisons (“BOP”), alleging that BOP disciplinary

procedures violated his Due Process and First Amendment rights. The District Court

initially granted summary judgment in favor of Defendants as to the due process claims

under Wolff v. McDonnell, 

(1974). Milton filed a motion for

reconsideration, noting that the District Court overlooked additional due process and

freedom of speech claims. After granting his motion and considering those claims, the

District Court again granted summary judgment in favor of Defendants. Milton filed

another motion for reconsideration, which was denied. This appeal followed. Because

the appeal does not present a substantial question, we will summarily affirm. See 3d Cir.

LAR 27.4; 3d Cir. IOP 10.6.

                                               I

         In 2002 and 2003, Milton received sanctions stemming from two incidents at

U.S.P. Allenwood, where he is incarcerated. In the first instance, Milton was charged

with violating Prohibited Action Code 397, which prohibits “Use of the Telephone for




  1
      See Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 

(1971).

                                               2
Abuses other than Criminal Activity.” 2 After Milton filed a formal resolution request, a

Disciplinary Hearing Officer (DHO) conducted a hearing, at which the DHO determined

that Milton had violated Code 397. Milton received a sanction of lost phone privileges

for three months and a loss of thirteen days’ good time credit. Milton appealed the

DHO’s decision to the Regional Director, arguing that the sanction violated his Due

Process and First Amendment Rights. The Regional Director upheld the DHO’s decision.

Milton then appealed to the General Counsel, which ordered the DHO to reconsider the

charge against Milton. Notably, Milton did not argue a First Amendment violation in that

final appeal. Upon review of the case, a DHO determined that Milton had not violated

Code 397 and reinstated his good time credit. In July 2004, Milton filed the instant action

in the District Court.

       In the second incident, Milton was charged with “Possession of Anything Not

Authorized,” in violation of Code 305.3 At a hearing, a DHO found Milton guilty of

violating Code 305 and sanctioned him with two months’ loss of commissary privileges

and fifteen days’ disciplinary segregation, suspended pending 180 days of clear conduct.

Milton’s appeals were denied and, in August 2004, he amended his pending federal

complaint to allege Due Process violations during the Code 305 proceedings.


  2
    It was alleged that Milton had initiated a plan of third party contact by suggesting over
the phone that his brother contact another relative on Milton’s behalf, thereby
circumventing BOP’s monitoring of inmate communications.
  3
   BOP officials alleged that Milton possessed food items taken from the prison cafeteria
and secreted in his laundry bag.

                                              3
                                              II

       Milton contends that the District Court improperly granted the Defendants’

motions for summary judgment.4 A motion for summary judgment may not be granted

unless the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.

Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, admissions on file, and any affidavits show that there is no genuine issue

as to any material fact. Fed. R. Civ. P. 56(c). An issue of fact is “genuine only if a

reasonable jury, considering the evidence presented, could find for the nonmoving party.”

Childers v. Joseph, 

, 693-94 (3d Cir. 1988) (internal citations omitted).

       The burden of proving that there is no genuine issue of material fact is initially

upon the movant; upon such a showing, the burden shifts to the nonmoving party. See El

v. Southeastern Pennsylvania Transp. Auth., 

, 238 (3d Cir. 2007). The

nonmoving party is required to go beyond the pleadings and by affidavits or by

“depositions, answers to interrogatories and admissions on file” designate “specific facts

showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).




  4
    Milton’s complaint includes the following claims: the DHO proceedings related to his
Code 397 and Code 305 charges failed to provide due process, as required by Wolff v.
McDonnell, 

(1974), and Superintendent, Mass. Corr. Inst., Walpole v. Hill,

(1985); the telephone restriction sanctions imposed against Milton under
Code 397 violated his free speech rights under the First Amendment; and Code 397 fails
to provide fair notice of the conduct it prohibits, in violation of the Due Process Clause of
the Fifth Amendment.

                                              4
                                             III

       When an inmate faces the possibility of loss of good conduct time credits, he

should receive: (1) written notice of the claimed violation at least twenty-four hours in

advance of the hearing, (2) an opportunity to call witnesses and present documentary

evidence in his defense when doing so would not be unduly hazardous to institutional

safety or correctional goals, (3) assistance from a representative, if the charged inmate is

illiterate or if complex issues are involved, and (4) a written statement by the factfinder as

to evidence relied on and reasons for the disciplinary action. See 

.

Further, the DHO’s decision must be supported by “some evidence” on the record. See

.

       The District Court record overwhelmingly supports the conclusion that the

requirements of Wolff and Hill were met in both DHO proceedings. In the Code 397

proceeding, Milton received timely notice of the claimed violation, had the opportunity to

call witnesses and present documentary evidence, received assistance from a staff

representative, and received a written statement by the DHO concerning the evidence

relied upon and the reasons for imposing sanctions. Further, because Milton admitted to

making the phone call and asking his brother to contact a third party, evidence existed on

the record to support the DHO’s decision. Milton has not met his burden of

demonstrating the existence of a disputed material fact with regard to the Code 397 claim.




                                              5
                                             IV

       Milton’s claim with respect to the Code 305 proceeding also lacks merit.

“Discipline by prison officials in response to a wide range of misconduct” is expected as

part of an inmate’s sentence, Sandin v. Conner, 

, 484 (1995), and a sanction

of fifteen days’ segregated confinement ordinarily does not violate a protected liberty

interest. See, e.g., Smith v. Mensinger, 

, 653 (3d Cir. 2002) (seven months’

disciplinary segregation insufficient to trigger due process violation); Griffin v. Vaughan,

, 706-08 (3d Cir. 1997) (fifteen months’ administrative custody insufficient

to trigger due process violation). The District Court reasoned that the suspended term of

disciplinary segregation and two months’ loss of commissary privileges did not amount to

a hardship of sufficient magnitude to implicate a liberty interest, and concluded that

summary judgment was appropriate because Wolff due process protections did not apply.

We agree.5

                                             V

       Milton’s First Amendment claim also fails. No prisoner may file an action in

federal court with respect to prison conditions without first exhausting all available




  5
    Moreover, even if Wolff’s protections applied, we note that the conditions of Wolff
and Hill were satisfied. Milton received timely notice of the hearing. He was advised of
his rights, indicated that he understood them, and chose not to have a staff representative
or witnesses appear on his behalf. The DHO provided a written report explaining the
conclusion that Milton committed the proscribed conduct, and inculpatory evidence in the
form of Milton’s possession of the food provided some support for that decision.

                                              6
administrative remedies. 42 U.S.C. § 1997e(a). Pursuant to BOP regulations, a federal

prisoner found guilty at a DHO hearing of a code violation may appeal the decision to the

Regional Director. 28 C.F.R. § 542.14(d)(2). If he does not prevail, he may appeal the

Regional Director’s decision to the Central Office. 28 C.F.R. § 542.15. At all stages of

the administrative appellate process, the inmate must “state specifically the reason[s] for

appeal,” § 542.15(b)(1), and “an inmate may not raise in an Appeal issues not raised in

lower level filings.” § 542.15(b)(2). In the instant case, although Milton raised a First

Amendment claim in his appeal to the Regional Director, he did not do so in his appeal to

the Central Office. Because he failed to exhaust administrative remedies concerning any

First Amendment violations, Milton cannot prevail on such a claim in federal court.

                                             VI

       Finally, with regard to Milton’s fair notice claim, the District Court reasoned that,

in light of the DHO’s conclusion that Milton did not violate Code 397, the regulations

provided adequate notice.6 We agree.7

       In sum, the appeal presents no substantial issues. Accordingly, we summarily

affirm the judgment of the District Court.



  6
    Code 397 prohibits “use of the telephone for abuses other than criminal activity (e.g.,
conference calling, possession and/or use of another inmate’s PIN number, three-way
calling, providing false information for preparation of a telephone list).” 28 C.F.R. §
541.13, Table 3.
  7
   We also agree with the District Court’s reasons for denying Milton’s motion for
reconsideration.

                                              7