CLD-244                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-4536
                                      ___________

                                ALFREDO MESTRE, JR.,
                                         Appellant

                                             v.

                               MR. DOMBROWSKI;
                             MS. KRISTEN REISINGER
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 1-12-cv-00276)
                   Magistrate Judge: Honorable Susan Paradise Baxter
                     ____________________________________

         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
                                     May 1, 2014

             Before: FUENTES, JORDAN and SHWARTZ, Circuit Judges

                               (Opinion filed: May 7, 2014)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       Pro se appellant Alfredo Mestre, Jr. appeals the order of the District Court

dismissing his complaint for failure to state a claim upon which relief can be granted,

pursuant to Federal Rule of Civil Procedure 12(b)(6). We have jurisdiction under 28
U.S.C. § 1291, and we exercise plenary review over the District Court’s dismissal order.

See Allah v. Seiverling, 

, 223 (3d Cir. 2000). For the reasons set forth

below, we will summarily affirm the District Court’s judgment.

       Mestre initiated this action by filing a pro se civil rights complaint under 42

U.S.C. § 1983. He named two defendants, both employees of the Pennsylvania

Department of Corrections at SCI-Forest: Mr. Bill Dombrowski, Unit Manager, and Ms.

Kristen Reisinger, Hearing Examiner. Mestre asserted that the defendants violated his

Fourteenth Amendment due process rights in connection with a misconduct violation he

incurred. Mestre was on the food service line in the prison kitchen when he took a

sandwich out of a kosher bag and put it in his pocket. Before exiting the line, he was

ordered to empty his pockets and consequently produced the sandwich. After a failed

attempt at informal resolution with Dombrowski, and a formal hearing conducted by

Reisinger, Mestre was found guilty of taking unauthorized food from the prison kitchen.

As a result, he lost his prison job and received 30 days of cell restriction.

       Mestre exhausted his administrative appeals, then filed his complaint in the district

court. The parties consented to jurisdiction by a magistrate judge, pursuant to 28 U.S.C.

§ 636(c)(1). The Magistrate Judge granted the defendants’ motion to dismiss, and Mestre

filed a timely notice of appeal to this Court.

       Mestre asserts that the defendants violated his Fourteenth Amendment due process

rights because (1) Dombrowski called Reisinger to discuss the case before the hearing


                                                 2
commenced, potentially jeopardizing her impartiality; and (2) the finding of guilt goes

against the weight of the evidence. His arguments lack merit.

       Mestre claims that Dombrowski’s pre-hearing communication with Reisinger

violated his federal due process rights. But federal due process requirements are

triggered only when a constitutionally protected liberty or property interest is at stake.

See Meachum v. Fano, 

, 223-25 (1976). Here, there is no such interest.

Mestre had no constitutionally protected interest in his prison job. See James v. Quinlan,

, 629 (3d Cir. 1989). Nor did his 30-day cell restriction constitute the

“atypical and significant hardship” required to invoke Fourteenth Amendment due

process rights in the corrections context. See Sandin v. Connor, 

, 484-86

(1995). In the absence of a constitutionally protected interest, there is no right to federal

due process and the constitutional analysis ends. See Burns v. Pa. Dep't of Corr., 

, 171 (3d Cir. 2011) (“[I]nmates are generally not entitled to procedural due

process in prison disciplinary hearings because the sanctions resulting from those

hearings do not usually affect a protected liberty interest.”).

       Mestre’s claim that the misconduct goes against the weight of the evidence is also

unavailing. Even where a constitutionally protected interest is at stake — which again is

not true here — federal courts are reluctant to review a prison disciplinary board’s

findings. See Superintendent, Mass. Corr. Inst., Walpole v. Hill, 

, 455

(1985) (noting the Court’s disinclination to “imply that a disciplinary board’s factual

findings or decisions with respect to appropriate punishment are subject to second-
                                              3
guessing upon review”). Our standard of review regarding disciplinary board decisions is

thus highly deferential: “[T]he relevant question is whether there is any evidence in the

record that could support the conclusion reached by the disciplinary board.” 

(emphasis added). Here, Mestre admits he took food that was in the kitchen and put it in

his pocket, and concedes he was not authorized to do so. This constitutes at least some

evidence that he is guilty of Pennsylvania Department of Corrections misconduct

violation #48: “Taking unauthorized food from the dining room or kitchen.”1

       Because Mestre’s claims are meritless, we will summarily affirm the District

Court’s order dismissing his complaint. See 3d Cir. L.A.R. 27.4 and I.O.P. 10.6.

Mestre’s motions for appointment of counsel are denied.




1
  Commonwealth of Pennsylvania Department of Corrections, DC-ADM 801, Inmate
Discipline Procedures Manual, Attachment 1-A. The manual further states that “[a]ny
attempt to commit any of the above listed charges shall constitute a misconduct of the
same classification as the completed act.”