Burns v. PA Department of Corrections

PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

_____________

No. 09-2872

_____________

RODNEY BURNS,

Appellant

v.

PA DEPARTMENT OF CORRECTIONS; SCI -

GRATERFORD; *SECRETARY PENNSYLVANIA

DEPARTMENT OF CORRECTIONS; DONALD

WILLIAMSON; DAVID DIGUGLIELMO; THOMAS

DOHMAN; MARY CANINO; JOHN DOE(S);

CONFIDENTIAL INFORMANT #1; CONFIDENTIAL

INFORMANT #2; ROBERT S. BITNER; LEVI HOSBAND;

FRANK REGAN; TONY WOLFE

*(Pursuant to Rule 43(c), Fed. R. App. P.)

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(Civ. No. 2:05-CV-03462-BMS)

District Judge: Hon. Berle M. Schiller

_____________

Argued September 23, 2010

Before: McKEE, Chief Circuit Judge, AMBRO and

CHAGARES, Circuit Judges

(Opinion filed: April 20, 2011 )

_____________

Richard E. Coe, Esq. [Argued]

Richard M. Haggerty, Esq.

Drinker, Biddle & Reath, LLP

18th & Cherry Streets

One Logan Square

Philadelphia, PA 19103

Counsel for Appellants

Thomas W. Corbett, Jr., Esq.

Claudia M. Tesoro, Esq. [Argued]

Calvin R. Koons, Esq.

John G. Knorr, III, Esq.

Office of the Attorney General of Pennsylvania

21 South 12th St.

Third Floor

Philadelphia, PA 19107

Counsel for Appellees

_____________

OPINION OF THE COURT

McKEE, Chief Judge.

Rodney Burns appeals the district court‘s grant of

summary judgment in favor of all defendants in the suit he

brought against the Pennsylvania Department of Corrections

(―DOC‖) and several Department employees pursuant to 42

U.S.C. § 1983. For the reasons that follow, we will affirm in

part and reverse in part.1

I. Facts and Procedural History

The background of this dispute has been described in

detail by both this court and the district court. See Burns v.

Penn. Dept. of Corr., 544 F.3d 279 (3d Cir. 2008) (―Burns

1‖); Burns v. Penn. Dept. of Corr., 2009 WL 1475274

1

The District Court had jurisdiction under 42 U.S.C. §

1983 and 28 U.S.C. §§ 1341 and 1343. We have jurisdiction

over this appeal under 28 U.S.C. § 1291.

2

(E.D.Pa. May 26, 2009); and Burns v. Penn. Dept. of Corr.,

2007 U.S. Dist. LEXIS 8679, (E.D. Pa. Feb. 6, 2007).

Accordingly, we will only set forth the facts that are relevant

to this appeal.

A. The Alleged Misconduct

On February 14, 2005, a corrections officer at the State

Correctional Institute at Graterford discovered that inmate

Charles Mobley had burns on his face that had been caused

by another inmate throwing scalding water on him four days

earlier. Although Mobley did not know the assailant, he

initially said that the inmate who assaulted him occupied cell

BA-1022. One of the two occupants of that cell, Ricky

Holmes, was placed in administrative custody during the

investigation that followed.

SCI Graterford has a special hotline phone number that

is given to a select number of inmates who can use it to

provide confidential information to corrections officials. Two

callers used the hotline to report that Burns, and not Holmes,

was responsible for the assault. Defendant Thomas Dohman,

Captain of Security at SCI Graterford, believed this

information to be credible because he recognized the voices

and knew that the callers had previously provided reliable

information. Dohman therefore concluded that Mobley had

mistakenly identified Holmes instead of Burns because they

were similar in appearance and because Mobley, an older

inmate, was ―semi-coherent‖ at times, making it plausible that

his identification was simply wrong.

Burns claims that when Dohman subsequently

interviewed him, Dohman told him that the incident had been

recorded on a video surveillance camera and that the

videotape showed Burns committing the assault. Dohman

disputes this account. He insists that the assault was not

recorded and that he never told Burns otherwise.

Although Burns denied any involvement, Dohman

issued a misconduct report charging Burns with assaulting

Mobley. That report stated that the charges were based on

statements from two reliable confidential informants who had

witnessed the assault as well as information from other

3

inmates given to another corrections officer, Lt. Abdul

Ansari.

B. Pennsylvania Department of Corrections Disciplinary

Scheme

The Pennsylvania Administrative Code establishes a

baseline policy for prisons to manage disciplinary infractions.

See generally 37 Pa. Code § 93.10. As part of that policy,

prisons must develop ―[w]ritten procedures which conform to

established principles of law for inmate discipline‖ that

include, at minimum, ―[w]ritten notice of charges,‖ a

―[h]earing before an impartial hearing examiner,‖ an

―[o]pportunity for the inmate to tell his story and to present

relevant evidence,‖ ―[a]ssistance from an inmate or staff

member at the hearing if the inmate is unable to collect and

present evidence effectively,‖ a ―[w]ritten statement of the

decision and reasoning of the hearing body, based upon the

preponderance of the evidence,‖ and an ―[o]pportunit[y] to

appeal the misconduct decision in accordance with

procedures in the Department of Corrections Inmate

Handbook.‖ Id.

The Administrative Code also lists types of sanctions

that may be imposed if an inmate is convicted of a

disciplinary infraction. 37 Pa. Code § 93.10(a). Depending

on the type of misconduct, those sanctions include ―[c]hange

of cell assignment, including placement in the restricted

housing unit or restrictive confinement in a general

population cell . . . [,]‖ ―[s]uspension of privileges for a

specified period of time[,]‖ and ―[c]hange, suspension or

removal from job.‖ Id.

Additionally, an inmate found guilty of misconduct

can be sanctioned for ―[p]ayment of the fair value of property

lost or destroyed or for expenses incurred as a result of the

misconduct.‖ Id. One type of ―expenses‖ that can be

―incur[ed] as a result of the misconduct‖ is medical expenses.

The Pennsylvania Administrative Code also establishes

regulations for medical treatment of prisoners. See generally

37 Pa. Code § 93.12. While the Department of Corrections

provides some prisoner medical services for free, other

medical services incur a charge. The Administrative Code

also provides that ―[t]he Department will charge a fee to an

4

inmate for any of the following . . . (4) Medical service

provided to another inmate as a result of assaultive conduct

engaged in by an inmate to be charged the fee.‖ 37 Pa. Code §

93.12(c). As a result, prisoners who are found guilty of

assaults in which the victim needs medical treatment may be

required to pay the cost of the treatment.

C. Burns’ Disciplinary Hearing

After Dohman issued the misconduct report, Burns

responded by filing timely requests to call Mobley as a

witness at his disciplinary hearing and to present the

purported videotape of the incident.2 Both requests were

consistent with the prison‘s disciplinary procedures.

Burns renewed his request for the production of the

videotape when his disciplinary hearing began. Mary Canino,

the hearing officer, responded by continuing the hearing to

investigate Burns‘ request. Five days later, Canino conducted

an in camera proceeding during which Dohman told Canino

that the incident had not been recorded. However, Canino did

not attempt to view the relevant tapes in order to resolve the

conflict between that representation and Burns‘ statement that

Dohman had told him that the incident had been recorded.3

Dohman also testified about the confidential informants

2

The prison had a policy of retaining surveillance

tapes for 60 days before reusing them. Based on that policy,

and since Burns‘ request was within that 60 day window, we

assume that the tape was still available when Burns made his

request.

3

In her deposition, Officer Canino stated that she

could not remember if she viewed the videotape, the

videotape did not exist, or if she relied upon Dohman‘s

statement that there was nothing relevant on the videotape.

Ex. 3 at 27-28 (Canino deposition). She did indicate,

however, that it was her standard procedure to ask the prison

official if an incident had been recorded. Ex. 3 at 27 (Canino

deposition) (―Q. How would you determine [if there was a

videotape to view]‖ A. . . . I would ask Captain Dohman was

there a tape on this incident and he would say ‗yes‘ or ‗no.‘ If

there was a tape on the incident, I would review the tape.

And if the camera was pointed [away from the incident that

occurred, she would indicate that in the record.]‖)

5

during the in camera proceeding. However, he did not reveal

their names to Canino, and Canino did not receive any direct

testimony from them, either in writing or in person. Canino

also met with Mobley in camera, but he refused to testify

either in camera or at the disciplinary hearing. Canino

accepted Mobley‘s refusal to testify, and did not inquire into

why Mobley refused.4

Canino then reconvened the hearing with Burns

present. She informed Burns that Mobley had refused to

testify and that there was no videotape of the incident. She

also informed Burns that she found the information from the

confidential informants credible and reliable. She then found

Burns guilty of the assault. As a result, she imposed the

following sanctions: 180 days of disciplinary confinement in

a restricted housing unit (―RHU‖), and loss of his prison job.

Canino also assessed Burns‘ prison account for the amount of

Mobley‘s medical expenses resulting from the assault.

Despite the assessment, prison administrators did not deduct

any part of Mobley‘s medical expenses from Burns‘ inmate

account. Nevertheless, the threat of assessment remained for

several years, and that continuing threat was the initial focus

of this suit.

D. Subsequent Procedural History

After his administrative appeals were unsuccessful,

Burns filed this pro se § 1983 action in the district court

claiming that the Pennsylvania Department of Corrections

and certain officials violated his due process rights during the

prison‘s disciplinary proceedings when it assessed his prison

account.5 The district court granted summary judgment in

favor of the defendants on all counts after concluding that the

assessment of Burns‘ account was not a sufficient liberty or

property interest to support a claim under § 1983.

4

Canino speculated that Mobley may have been

concerned for his safety, but this speculation was not based

on anything Mobley said.

5

After Burns filed his suit pro se, counsel was

appointed to represent him.

6

Burns appealed that judgment, and we reversed and

remanded.6 We held that ―the Department of Corrections‘

assessment of Burns‘ institutional account constituted the

deprivation of a protected property interest for purposes of

procedural due process‖ and ―[t]hat deprivation [was]

sufficient to trigger the protections of the Due Process

Clause.‖ Burns, 544 F.3d at 291. However, we remanded the

case so that the district court could determine what process

Burns was due and whether the disciplinary hearing described

above satisfied the procedural protections Burns was entitled

to under the Due Process Clause. If the district court found

that due process was violated, the question of remedies also

needed to be addressed.

On remand, the district court found that Burns‘ due

process rights had been violated by the hearing officer‘s

failure to independently evaluate the credibility of the

confidential informants, but it did not find that Burns‘

procedural due process rights were violated by the hearing

officer‘s refusal to compel Mobley‘s testimony or by her

failure to view the alleged videotape. Despite finding a due

process violation, the court found that the state officials were

protected by qualified immunity and that Burns could

therefore not recover damages from them. Burns v. PA Dept.

of Corr., 2009 WL 1475274, *5 (E.D. Pa. May 26, 2009). The

court did, however, grant Burns‘ request for a declaration that

his prison account could not be assessed. The district court

denied all of Burns‘ other requests for injunctive relief.

Burns now argues that his right to due process was

also violated by the hearing officer‘s failure to compel

Mobley to testify as well as her failure to view the videotape,

that the prison officials are not entitled to qualified immunity,

and that the district court erred in denying his requests for

6

Following oral argument that occurred during the

initial appeal, the DOC sent a letter to Burns declaring that it

would not deduct money from his inmate account to assess

him for expenses arising from the assault as allowed by the

hearing officer's order. The DOC then argued that Burns'

appeal was therefore moot. That claim of mootness was

rejected. See Burns, 544 F.3d at 283.

7

relief for the harms he suffered as a result of the violation of

due process.

II. Standards of Review

―We review an award of summary judgment de novo,

applying the same test on review that the District Court

should have applied.‖ MBIA Ins. Corp. v. Royal Indem. Co.,

426 F.3d 204, 209 (3d Cir. 2005). On summary judgment, we

review ―the facts in the light most favorable to the nonmoving

party and draw all inferences in that party‘s favor.‖

Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994).

We review the district court‘s grant of qualified immunity de

novo as it raises a purely legal issue. Curley v. Klem, 298 F.3d

271, 279 (3d Cir. 2002).

We generally review a district court‘s grant of relief

for abuse of discretion, but ―we must exercise a plenary

review of the trial court's choice and interpretation of legal

precepts and its application of those precepts to the historical

facts.‖ Universal Minerals, Inc. v. C.A. Hughes & Co., 669

F.2d 98, 103 (3d Cir. 1981).

III. Due Process

It is well established that ―[p]risoners . . . may not be

deprived of life, liberty or property without due process of

law.‖ Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

However, inmates 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. See Sandin v. Conner, 515 U.S. 472, 483-84

(1995) (holding that not all sanctions resulting from prison

disciplinary hearings affect protected liberty interests). Burns

does not assert here that any of the sanctions imposed by

Hearing Officer Canino—including his prison transfer, his

security level, and his 180-day sentence in the SHU—affects

any protected liberty interest. Nor does Burns have a

property interest in his prison job.7

7

Burns does assert that he is entitled to remedies

because of these sanctions based upon his contention that they

8

We have already determined that Burns does have a

protected property interest in the assessment of his prison

account and was therefore entitled to due process prior to the

assessment of his account. See Burns, 544 F.3d at 291

(―[W]e are satisfied that the Department of Corrections‘

assessment of Burns‘ institutional account constituted the

deprivation of a protected property interest for purposes of

procedural due process.‖).

Pennsylvania‘s Administrative Code allows an

inmate‘s account to be assessed in two different

circumstances. First, the Code establishes that if an inmate is

found to have engaged in misconduct, the ―sanction‖ may

include ―[p]ayment of the fair value of property lost or

destroyed or for expenses [including medical expenses]

incurred as a result of the misconduct.‖ 97 Pa. Code §

93.10(a). Elsewhere, the Code requires that the Department

of Corrections ―will‖ charge that inmate‘s prison account for

the costs of treating his victim‘s injuries.

As noted, we held in Burns I, that ―a disciplinary

conviction directing that an inmate's institutional account be

assessed for medical or other expenses implicates a property

interest sufficient to trigger the protections of procedural due

process. . .‖. 544 F.3d at 280. Thus, Burns was entitled to

procedural due process at his disciplinary hearing because

assessment of his inmate account for the costs of Mobley‘s

medical expenses was a possible consequence of conviction

of the infractions he was charged with.

However, the parameters of that due due process are

not readily defined because loss of liberty is a normal

consequence of a criminal conviction. See Sandin, 515 U.S.

at 487 (―The regime to which he was subjected as a result of

the misconduct hearing was within the range of confinement

to be normally expected for one serving [a prison sentence]‖).

On remand, the district court found that Hearing

Officer Canino had violated Burns‘ right to due process by

relying on the statement of two unnamed confidential

informants without independently evaluating their reliability

were the result of a constitutionally flawed hearing. This

issue is discussed more fully in Part V.

9

and credibility. Burns, 2009 WL 1475274, *13-14. The

Commonwealth does not appeal that ruling. However, Burns

appeals the district court‘s conclusion that Canino‘s refusal to

personally view the videotape and her refusal to force Mobley

to testify also violated Burns‘ due process rights.

Burns claims that Wolff v. McDonnell, 418 U.S. 539

(1974), should govern our due process inquiry into the

procedural protection he was due in his prison disciplinary

hearing. In Wolff, the Supreme Court outlined the basic

process inmates are entitled to when prison officials seek to

deprive them of good-time credits, a protected liberty interest.

The district court‘s due process analysis was based on Wolff.

Burns, 2009 WL 1475274, *10.

The Commonwealth argues that Wolff does not apply.

It claims that ―no decision by the Supreme Court has found

Wolff applicable in an inmate‘s deprivation-of-property case.‖

Appellee‘s Br. at 23. The Commonwealth thus attempts to

distinguish between deprivations of liberty and deprivations

of property and argues that Wolff only applies to the former

while two other Supreme Court cases - Paratt v. Taylor, 451

U.S. 527 (1981), overruled in part by Daniels v. Williams,

474 U.S. 327 (1986), and Hudson v. Palmer, 468 U.S. 517

(1984) - apply to the latter.

We are not persuaded. Wolff itself notes that its due

process analysis applies regardless of whether the deprivation

is of liberty or property: ―This analysis as to liberty parallels

the accepted due process analysis as to property. The Court

has consistently held that some kind of hearing is required at

some time before a person is finally deprived for his property

interests. . . . We think a person‘s liberty is equally protected

[as that of his or her property] . . . .‖ 418 U.S. at 557-58.

Moreover Paratt and Hudson only address post-

deprivation remedies of unauthorized or unintentional

deprivations of property. Unlike Wolff, which addresses the

state‘s obligation to provide pre-deprivation notice and a

hearing, Paratt involved a prisoner‘s mail packages being

negligently misplaced, 451 U.S. at 529, and the process due

after that deprivation. Hudson extended this post-deprivation

analysis to the process an inmate is due after a prison guard‘s

unauthorized destruction of an inmate‘s property, 468 U.S. at

10

520. Thus, neither case is helpful to our inquiry into the

process that should have been afforded before the deprivation

that occurred here, where pre-deprivation notice and

opportunity to be heard were part of an established process.

―[W]e must balance the inmate‘s interest . . . against

the needs of the prison, and some amount of flexibility and

accommodation is required.‖ Wolff, 418 U.S. at 566. The

district court began its analysis by reasoning that

[t]he newly recognized property interest at

issue here – the security of a prisoner‘s

account – is a less important private interest

than the good time credits at issue in Wolff. . .

. The reduction in the economic value of

Burns‘ institutional account and the threat of

appropriation, although it lasted three years,

was so minor that the Court must conclude

that this is a less weighty interest than a

possible extension on a term of

imprisonment[.]

Burns, 2009 WL 1475274, *11. In a footnote, the

court further noted that ―[h]ad Burns‘ account

actually been assessed, the maximum amount for

which he could have been liable was $10.00.‖ Id. at

19 n.7.

We do not fully agree with the court‘s framing of the

issue. First, as both the Commonwealth and Burns recognize

in their briefs, when Canino assessed Burns‘ account, she

believed that the assessment could be much larger than

$10.00, possibly including the costly prospect of covering

plastic surgery Mobley may have needed. 8 See Appellant‘s

8

Canino‘s deposition reads:

―Q. And you wrote here that you assessed the inmate‘s

– to assess the inmate‘s account for medical or other

expenses. That would be the medical expenses for Mr.

Mobley?

A. Plastic surgery or whatever. I‘m not a doctor.

Whatever it takes to make him right.

11

Br. at 46 n.15, Appellee‘s Br. at 16 n.18. Thus, although we

now know that Burns‘ exposure was less than $10, the

exposure appeared far more substantial at the time of the

hearing.

Second, although a prisoner‘s interest in freedom is

certainly paramount, we are not willing to ignore his/her

interest in property,9 nor are we willing to say that it is so de

minimus that the requirements of the Due Process Clause are

substantially reduced. As we have already noted, the

Supreme Court was careful to explain that ―a person‘s liberty

is equally protected [as his or her property] . . . .‖ Wolff, 418

U.S. at 557-58.

Rather, we must balance the legitimate interests of

both the state and the inmate while affording deference to the

unique institutional concerns that arise in the prison setting.

Wolff, 468 U.S. at 562. The appropriate balance must

recognize these competing interests when determining what

process is due. See Mathews v. Eldridge, 424 U.S. 319, 334-

35 (1976).

A. Documentary Evidence

As noted earlier, during his disciplinary hearing, Burns

requested that a videotape of the incident be presented as

permitted under prison policy. The requested tape appeared

relevant because Burns alleged that Dohman told him that the

assault was recorded by surveillance cameras. Burns claims

that the videotape would have exonerated him because it

would have shown the real assailant. As also noted, Captain

Dohman claims he never told Burns there was a videotape,

and he told Hearing Officer Canino that the assault had not

been recorded. Canino does not remember if she ever viewed

the videotape.

Q. Were there any other expenses you had in mind

other than medical expenses.

A. I think that was basically it.‖

Exhibit 3 at 79-80 (Canino deposition).

9

For example, an inmate‘s prison account may be the

only means of paying for long distance phone calls to family

or others in his/her support network.

12

Because we are reviewing a grant of summary

judgment, we must view the facts in the light most favorable

to the nonmoving party. Armbruster v. Unisys Corp., 32 F.3d

768, 777 (3d. Cir 1994). We must therefore assume that

Canino did not view the videotape. However, we make no

assumptions about what, if anything, was then recorded on

the videotape.

It is clearly established that due process requires that

an inmate be permitted to ―present documentary evidence in

his defense when permitting him to do so will not be unduly

hazardous to institutional safety or correctional goals.‖ Wolff,

418 U.S. at 566. Although prison officials are afforded

deference regarding whether evidence might be unduly

hazardous or undermine institutional safety or correctional

goals, ―the discretion afforded prison officials is not without

limits.‖ Young v. Kann, 926 F.2d 1396, 1400 (3d Cir. 1991).

In Dalton v. Hutton, 713 F.2d 75 (4th Cir. 1983), the

Court of Appeals for the Fourth Circuit dealt with a similar

issue. Although that case is not ―on all fours‖ with the

circumstances here, the court‘s analysis is helpful. There, an

inmate asked two prison officials to testify in his behalf at

disciplinary proceedings arising from a prison disturbance;

both guards declined. Pursuant to the applicable prison

regulations precluding inmates from calling any prison

employees as witnesses, no efforts were made to compel their

testimony.10 On appeal, the court found the regulation

inconsistent with the inmate‘s right to due process because

[o]ne needs no ‗right‘ to call a witness who

voluntarily presents himself to testify. If

there is preclusion of an entire class of

witnesses (i.e., anyone who would rather not

appear), the right is dissipated in a cloud of

verbiage. An inmate granted the right, albeit

qualified, to call witnesses in his behalf loses

it altogether, in any meaningful employment

of language, if any witness may refuse to

testify for no reason whatsoever.

10

The court focused on the fact that the applicable regulation

was a ―per se proscription against the calling of all but

voluntary witnesses.‖ Dalton, 713 F.2d at 77.

13

Id. at 78.

An inmate‘s right to present documentary evidence is

similarly undermined if prison officials can bar the inmate

from presenting the evidence simply by denying that the

evidence is relevant. If a disciplinary hearing is to have any

substance, the hearing officer must determine relevance of

evidence, not corrections officers or employees. See Young v.

Kann, 926 F.2d 1396, 1402 (3d Cir. 1991) (discussing Helms

v. Hewitt, 655 F.2d 487 (3d Cir. 1981), rev’d on other

grounds, 459 U.S. 460 (1983), aff’d on remand, 712 F.2d 48

(3d. Cir 1983)). Deferring such a determination to the

charging corrections officer turns the disciplinary proceeding

into little more than the administrative equivalent of a ―show

trial.‖ A ―right‖ to present evidence is no right at all if the

officer overseeing a disciplinary hearing can simply decide

not to view the evidence based on a representation of the

prosecuting corrections officer.

It is therefore troubling that the hearing officer here

appeared to rely entirely on the statements of Officer Dohman

in determining whether the videotape was relevant. The

problem is compounded by the fact that the record suggests

that Officer Dohman may not even have been under oath

when he told Canino about the videotape.

Burns was thus deprived of due process because his

right to present evidence was completely undermined by the

hearing officer‘s failure to independently determine whether

the evidence was relevant.

We therefore hold that an inmate‘s right to procedural

due process is violated when a hearing examiner simply fails

to view available evidence to determine its relevance and

suitability for use at a disciplinary hearing. If such hearings

are to have any substance, the hearing officer must

independently assess whether the evidence is relevant and

then determine whether there are legitimate penological

reasons to deny the prisoner access to the evidence

requested.11 Although the government may have a very real

11

This does not, of course, mean that prison officials

must indefinitely preserve anything which may become

evidence in a disciplinary proceeding. Rather, where, as here,

14

interest in barring an inmate‘s access to certain documentary

evidence, that interest is not implicated when it is provided

only to the hearing officer, who can then independently assess

its probative value and weigh that against any institutional

concerns that may counsel against allowing otherwise

probative evidence to be used at the hearing.

B. Mobley’s Testimony

Burns also claims that he was denied procedural due

process when Hearing Officer Canino denied his request to

call Mobley as a witness. The prison‘s policy allows an

inmate to call up to three relevant witnesses, including one

staff member. Burns requested only Mobley‘s testimony.

From what we have already stated, it should be clear

that an ―inmate facing disciplinary proceedings should be

allowed to call witnesses and present documentary evidence

when permitting him to do so will not be unduly hazardous to

institutional safety or correctional goals.‖ Wolff, 418 U.S. at

566. The Supreme Court has cautioned, however, that

inmates are not entitled to the full panoply of constitutional

rights. Here again, the inmate‘s right must be balanced

against concerns that are endemic to a situation of one inmate

testifying against another:

Relationships among the inmates are

varied and complex and perhaps subject

to the unwritten code that exhorts

inmates not to inform on a fellow

prisoner. It is against this background

an institution‘s record retention policy suggests that

documentary evidence exists, and an inmate properly requests

that the evidence be produced at his/her disciplinary hearing,

due process requires that the evidence be produced unless the

hearing officer makes an independent determination that the

evidence is not relevant, or if relevant, should not be

introduced because of overriding penological concerns such

as security of the institution or safety of prison personnel or

other inmates. Here, the prison had a policy of retaining such

tapes for 60 days, and the hearing was held well within that

time frame. We must therefore assume that the tapes were

available for Burns‘ hearing.

15

that disciplinary proceedings must be

structured by prison authorities; and it is

against this background that we must

make our constitutional judgments . . . .

Id. at 562.

Here, Burns‘ desire to have Mobley testify was

certainly reasonable since Mobley was the victim of the

assault and presumably saw his assailant. Hearing Officer

Canino appropriately responded by asking Mobley to testify.

However, as we have noted, Mobley refused to testify either

at the hearing or in camera. He also refused to provide any

kind of written testimony. Canino did not explain why

Mobley refused to testify, and it is not clear that she even

knew Mobley‘s reasons or inquired into them. Canino

therefore conducted the hearing and rendered a decision

without having the benefit of hearing what the victim knew

about the identity of his attacker.

The Supreme Court has explained that ―it would be

useful for the [prison disciplinary hearing officer] to state [his

or her] reason for refusing to call a witness, whether it be for

irrelevance, lack of necessity, or the hazards presented in

individual cases.‖ Wolff, 418 U.S. at 566. However, the

Court has also cautioned that institutional concerns, including

the possibility of retaliation, may make it wholly impractical

to compel an inmate‘s testimony at a disciplinary hearing. Id.

at 567.

We will therefore not conclude that a hearing officer

must always record the reason for permitting an inmate to

refuse to testify. That may sometimes be as problematic as

reporting that an inmate refused to testify out of fear of

retaliation. These institutional concerns override Burns‘

interest in being able to call Mobley as a witness. If Burns

had been the assailant, Mobley would either have had to

testify truthfully and risk retaliation or perjure himself and

thereby become the vehicle by which his assailant would

escape sanction.

16

In Dalton, the inmate wished to call prison officials to

testify, but under prison policy they could not be compelled to

testify— as noted earlier, all testimony had to be voluntary.

Dalton, 713 F.2d at 77. While we agree with the Fourth

Circuit that the right to call only voluntary witnesses is no

right at all, we find no justification for extending this analysis

so far that it would force a victim inmate to testify against

his/her assailant, nor is Dalton to the contrary. The court was

there concerned with a per se prohibition that did not allow

for inmates to require testimony of anyone (including

corrections officers), even when that testimony presented no

institutional concerns that would have counseled against it.

The Commonwealth‘s interest in protecting Mobley

and managing the difficult relationships within the prison

setting far outweigh Burns‘ right to call Mobley as a witness.

Wolff requires ―a case-by-case analysis of the calling of

involuntary witnesses.‖ See Forbes v. Trigg, 976 F.2d 308,

317 (7th Cir. 1992). Here, we conclude that the special

circumstances involving an inmate victim, and the concerns

about the ―unwritten code that exhorts inmates not to inform

on a fellow prisoner,‖ Wolff, 418 U.S. at 562, outweigh the

right Burns may have otherwise had to call an unwilling

witness. Accordingly, we will affirm the district court‘s

finding that there was no due process violation in allowing

Mobley not to testify, but we will reverse the court‘s finding

that Burns‘ due process right was not violated by the hearing

examiner‘s failure to view the videotape that may have

recorded the incident.

III. Qualified Immunity

Finding that prison officials violated Burns‘ due

process rights does not end our inquiry, however. The

question remains whether those officials have qualified

immunity. Qualified immunity shields government officials

from suit even if their actions were unconstitutional as long as

those officials‘ actions ―d[id] not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.‖ Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982).

―Qualified immunity balances two important

interests—the need to hold public officials accountable when

17

they exercise power irresponsibly and the need to shield

officials from harassment, distraction and liability when they

perform their duties reasonably.‖ Pearson v. Callahan, ---

U.S. ---, 129 S.Ct. 808, 815 (2009). ―The general rule of

qualified immunity is intended to provide government

officials with the ability ‗reasonably [to] anticipate when their

conduct may give rise to liability for damages.‘‖ Anderson v.

Creighton, 483 U.S. 634, 645 (1987) (quoting Davis v.

Scherer, 468 U.S. 183, 195 (1984)) (alteration in original).

The burden of establishing qualified immunity falls to the

official claiming it as a defense. See Harlow, 457 U.S. at 819

(describing qualified immunity as a defense and noting that

―if the official pleading the defense claims extraordinary

circumstances and can prove that he neither knew nor should

have known of the relevant legal standard, the defense should

be sustained‖) (emphasis added).

For the official to have ―fair warning,‖ United States v.

Lanier, 520 U.S. 259, 270 (1997), that his or her actions

violate a person‘s rights, ―[t]he contours of the right must be

sufficiently clear that a reasonable official would understand

that what he is doing violates that right.‖ Anderson v.

Creighton, 483 U.S. 635, 640 (1987). However, ―[t]his is not

to say that an official action is protected by qualified

immunity unless the very action in question has previously

been held unlawful, but it is to say that in the light of pre-

existing law the unlawfulness must be apparent.‖ Wilson v.

Layne, 526 U.S. 603, 615 (1999).

The district court reasoned that, since our holding in

Burns I (that Burns‘ property interest in his inmate account

was protected under the Due Process Clause) rested upon

sources other than our own case law, the right we recognized

there was not ―clearly established‖ when the defendants

assessed his account. The district court believed that, prior to

our holding there, procedural due process only protected an

inmate‘s account when it was debited, and no property

interest was implicated by the ―mere‖ assessment of the

account. Accordingly, the court reasoned that the defendants

were entitled to qualified immunity pursuant to Saucier v.

Katz, 533 U.S. 194 (2001). Burns I, 2007 WL 442385, *5.

Although we believe that the question of qualified immunity

18

is a closer call than suggested by the district court‘s analysis,

we will nevertheless affirm that court‘s holding.

The district court was correct in concluding that our

holding in Burns I that a prisoner has an interest in the

security of his or her prison account was a new understanding

of property interests protected by due process rights.

However, that does not end our qualified immunity inquiry

because ―officials can still be on notice that their conduct

violates established law even in novel factual circumstances.‖

Hope v. Pelzer, 536 U.S. 730, 741 (2002).

To determine whether a new scenario is sufficiently

analogous to previously established law to warn an official

that his/her conduct is unconstitutional, we ―inquir[e] into the

general legal principles governing analogous factual

situations . . . and . . . determin[e] whether the official

should have related this established law to the instant

situation.‖ Hicks v. Feeney, 770 F.2d 375, 380 (3d Cir.

1985). ―This approach eliminates unexpected liability for

public officials as well as prevents the occurrence of a mere

‗factual wrinkle‘ in an area of clearly established law from

barring suit altogether.‖ Id. (quoting People of Three Mile

Island v. Nuclear Regulatory Commissioner, 747 F.2d 139,

148 (3d Cir. 1984)).

Because qualified immunity is intended to protect

officials absent ―fair warning‖ that their conduct violates

constitutional guarantees, we examine qualified immunity

from the perspective of the official at the time of the

violation. We must therefore determine ―whether reasonable

officials in their positions, with the information then available

to them, should have known that their actions or omissions

violated clearly established law.‖ Ryan v Burlington County,

860 F.2d 1199, 1204 (3d Cir. 1988).12

12

See also Saucier v. Katz, 533 U.S. at 202 (―The

relevant inquiry is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted‖); Wilson v. Layne, 526 U.S. 603, 615 (1999)

(inquiring ―whether a reasonable officer could have believed

that [his or her action] was lawful, in light of clearly

established law and the information that the officers

19

Here, the question is ―whether reasonable officials in

[Hearing Examiner Canino‘s] position, with the information

then available to [her], should have known that their actions

[in ordering an assessment of Burns‘ prison account under the

circumstances here] violated clearly established law.‖ Ryan,

860 F.2d at 1204.

At the time of Burns‘ disciplinary hearing, it was well

established that ―[i]nmates have a property interest in funds

held in prison accounts.‖ Reynolds v. Wagner, 128 F.3d 166,

179 (3d. Cir. 1997) (citing Mahers v. Halford, 76 F.3d 951,

954 (8th Cir. 1996); Campbell v. Miller, 787 F.2d 217, 222

(7th Cir. 1986); Quick v. Jones, 754 F.2d 1521, 1523 (9th Cir.

1985)). Accordingly, it was clearly established that ―inmates

are entitled to due process with respect to any deprivation of

this money.‖ Reynolds, 128 F.3d.at 179 (citing Mahers, 76

F.3d at 954). To the extent that Burns I added a ―new twist,‖

it did so by concluding that the position of the Department of

Corrections was similar to that of a judgment creditor when it

assessed inmates‘ accounts even if the account was not

debited until some point in the future.13

Under Pennsylvania law, after an inmate has been

found responsible for an assault, ―[t]he Department [of

Corrections] will charge a fee to an inmate for . . . [m]edical

service provided to another inmate as a result of assaultive

conduct engaged in by an inmate to be charged the fee.‖ 37

Pa. Code § 93.12(c)(4). An ―assessment [i]s a statutorily

possessed.‖); Anderson v. Creighton, 483 U.S. 634, 641

(1987) (―The relevant question in this case, for example, is

the objective (albeit fact-specific) question whether a

reasonable officer could have believed [the] warrantless

search to be lawful, in light of clearly established law and the

information the searching officers possessed.‖)

13

In Burns 1, although we conceded that the ―analogy

is technically imperfect,‖ we held that ―the legal right

obtained by the Department of Corrections through its

assessment of Burns' account mirrors the interest held by a

Judgment Creditor under Pennsylvania law.‖ 544 F.3d at 588.

We also noted that, the position of the Department of

Corrections here was even stronger than that of a judgment

creditor. Id.

20

authorized consequence of [a prisoner‘s] being found guilty

of institution misconduct.‖ Brome v. Dept. of Corr., 756 A.2d

87, 89 (Pa. Cmwlth. 2000); see also Greene v. Dept. of Corr.,

729 A.2d 652, 654 (Pa. Cmwlth. 1999).

The Commonwealth Court of Pennsylvania has

previously found that the Department of Correction‘s

procedures regarding the assessment of inmates‘ accounts

violated due process. In Holloway v. Lehman, 671 A.2d 1179

(Pa. Cmwlth. 1996), the court noted that ―[i]t is beyond

dispute that money is property. Private property cannot be

taken by the government without due process.‖ Id. at 1181

(citations omitted). There, the court found the Department‘s

policy of providing no opportunity for inmates to protest the

amount of money to be deducted from the prisoner‘s account

denied inmates due process of law. The court thus began

requiring a hearing that has come to be known as a ―Holloway

hearing.‖

However, a Holloway hearing merely determines the

amount of money to be assessed from a prisoner‘s account; it

does not provide an opportunity to challenge the fact of the

assessment in the first place. That determination is made at a

misconduct hearing—such as the hearing over which Canino

presided.

A reasonable official at the time of Burns‘ misconduct

hearing would have known, or should have known, that

―inmates are entitled to due process with respect to any

deprivation of‖ their prison accounts. Reynolds, 128 F.3d at

179 (citing Mahers, 76 F.3d at 954). An official should also

have realized that the hearing over which Canino presided is

the only opportunity under Pennsylvania law for an inmate to

challenge whether his or her prison account should be

assessed (not merely the amount to be debited). Indeed,

Pennsylvania officials should have been on heightened notice

of the constitutional requirements with regard to such actions

because Pennsylvania courts have previously upheld inmates‘

due process challenges of the assessment procedures. See

Holloway, 671 A.2d 1179.

Thus, we do not think it is unreasonable for prison

officials at the time of Burns‘ hearing to have known that: (1)

Burns had a property interest in his prison account, (2) he was

21

entitled to due process before his account could be debited,

(3) a later Holloway hearing would determine the amount of

money to be deducted, but the actual disciplinary hearing was

the only forum for determining if any money should be

deducted at all, and (4) due process is violated when a

determination to deprive an inmate of a protected interest is

based solely on the uncorroborated statements of confidential

informants.

However, two matters give us pause in concluding that

Burns is entitled to relief here. First, although it was not

unreasonable for a government official to have realized that

due process must be provided in adjudicating whether a

prison account can be debited, Burns is the first case that

clearly established that the assessment itself implicates a

prisoner‘s protected property interests, even if the account is

not actually debited. The devaluation in the property interest

in the inmate‘s funds that results from such an assessment

was not clearly established before Burns I, and we do not

believe that a reasonable official could have foreseen the

analogy to a judgment creditor that formed the basis of our

holding in Burns I. Second, we think it understandable that

the existence of a later Holloway hearing could have caused a

reasonable prison official to believe that, because the

Pennsylvania state courts have found that a Holloway hearing

was necessary to satisfy due process, that hearing was also

sufficient to satisfy due process.

Although some officials may have been able to deduce

that a Holloway hearing was insufficient to satisfy due

process, we do not believe that a reasonable official in

Canino‘s position would have had a ―fair warning‖ that an

assessment of the account prior to the Holloway hearing was

subject to due process protections. Prior to Burns I, inmates

were only entitled to procedural due process before their

accounts were debited. Neither this court, nor any

Pennsylvania appellate courts had held that an inmate was

also entitled to procedural due process before the account was

assessed, even if the fund was not debited before we decided

Burns I.

Thus we cannot conclude that the circumstances here

were sufficient to give prison officials ―fair warning‖ that

22

their conduct was unconstitutional. United States v. Lanier,

520 U.S. 259, 270 (1997). Accordingly, we hold that they are

entitled to qualified immunity.

V. Remedies

Although qualified immunity bars Burns from seeking

monetary compensation, he may still be entitled to injunctive

relief. See Harris v. Pernsley, 755 F.2d 338, 343 (3d Cir.

1985) (―The qualified immunity defense only applies, of

course, to claims for money damages.‖).

Burns argues that the district court should have

provided remedies for all of the injuries that flowed from the

flawed hearing, and that the remedies should have included:

reversing the finding that he assaulted Mobley; remedying the

increased security clearance that followed the assault on

Mobley; rescinding the order separating him and Mobley that

resulted in his transfer; and compensating him for his lost job

and wages, and his out-of-pocket expenses resulting from

these actions.

However, Burns‘ ―wish list‖ is not the least bit helpful

to our attempt to fashion an appropriate remedy. Prison

officials would have been perfectly within their authority had

they separated Mobley and Burns after the disciplinary

hearing, regardless of its outcome. In fact, prudence may

well have required separation even if Burns had been

exonerated at the hearing. Prison authorities may still have

had legitimate concerns that Burns would attempt to retaliate

against Mobley because Mobley refused to exonerate him at

the hearing. The same can be said for the order transferring

Burns to a different institution. Burns certainly did not have

any right to serve his sentence in any particular institution.

Prison authorities routinely transfer inmates for reasons of

security, convenience or available space. Burns surely did

not acquire a vested right to remain where he was housed

based upon this incident or the violations of his due process

rights that followed. The same is true of his job. Job

classifications are uniquely the province of prison authorities,

23

not the courts, and Burns did not have any vested right to a

particular job that a court could enforce.14

The Commonwealth argues that because prison

officials could have imposed all of these penalties without

any process at all, the constitutional violation did not cause

any injury to Burns. In the Commonwealth‘s view, since

prisoners have no liberty interests in their prison location,

Meachum v. Fano, 427 U.S. 215, 228-29 (1976), or

placement in restricted housing units, Sandin, 515 U.S. at

486, and no property interests in their jobs, prison officials

were free to take these actions without any justification at all.

The argument is problematic for two reasons. First, it

fails to recognize that these actions resulted from a

constitutionally flawed hearing. Second, it assumes that

every remedy must be based upon a liberty or property

interest. In fact, while the injury must have been proximately

caused by a violation of a protected interest, there is no

requirement that the remedy be limited solely to that property

interest. See, e.g., Doe v. District of Columbia, 697 F.2d

1115, 1124 (D.C. Cir. 1983) (finding prisoners whose Eighth

Amendment right to be free from cruel and unusual

punishment had been violated to be ―entitled to compensation

for any physical injuries, pain and suffering, emotional

distress, and impairment of their prospects for future

employment proximately caused by the defendants'

unconstitutional conduct‖ even though there is no property

interest in employment prospects).

In order to determine what remedies are appropriate,

the Commonwealth asks us to adopt the reasoning of the

district court and proceed as if the hearing did not implicate

Burns‘ property interest and therefore did not require any

constitutional protections. The district court posed the legal

question as: ―if the hearing had not implicated Plaintiff‘s

property interest in the security of his account, . . . would the

14

We do not, however, take any position on whether

an inmate who loses a particular job or is transferred to a

different institution in retaliation for his/her exercise of a

constitutional right would have a remedy in that very different

situation.

24

disciplinary determination and its subsequent effects be

upheld?‖ Burns, 2009 WL 1475274, *8.

However, that does not advance our inquiry. We

cannot erase unconstitutional actions in order to uphold steps

that were taken because of them. The constitutional violation

did occur, and the Commonwealth cannot put that genie back

in the bottle.

Rather, we must approach this from the perspective of

what would have happened had Burns been afforded the

procedural protections to which he was entitled. In advancing

their opposing arguments regarding the appropriate remedy,

both parties rely on Carey v. Piphus, 435 U.S. 247, 260

(1978). The question there was not whether the state could

have taken certain actions against a group of students without

violating their constitutional right to due process. Rather, the

Court considered whether the students would still have been

suspended if they had been afforded procedural due process.

See Carey v. Piphus, 435 U.S. at 260.

Carey lays out a helpful burden shifting scheme for

resolving the remedial issue here. See Carey, 435 U.S. at 260

(describing and approving of the Court of Appeals burden

shifting scheme). Under Carey, the plaintiff in a § 1983 case

must prove that a constitutional violation has occurred, and

that it was the proximate cause of his or her injuries. Once

the plaintiff clears both hurdles, the burden shifts to the

defendant, who then has an opportunity to prove that the same

actions would have occurred even if due process had been

provided.

Here, as we have explained, Burns has established a

procedural due process violation and has pointed to all of the

sanctions that resulted from that action. Accordingly, the

burden should have shifted to the Commonwealth to show

that it would have taken the same steps if due process had

been provided. For those actions the prison officials can

establish would have been taken regardless of the flawed

hearing, the plaintiff is entitled to no remedy, as any remedy

would constitute a windfall. However, if the prison cannot

establish that it would have taken the same steps even absent

the constitutionally flawed hearing, the inmate is then entitled

to relief.

25

We believe that had due process been provided, at

least one consequence of the flawed hearing would not have

occurred: Burns would not have been convicted of

misconduct on the evidence presented. The district court

found that the evidence was insufficient to assess Burns‘

account and the state did not appeal that finding.

SCI Graterford has one process for determining

whether an inmate is guilty of misconduct and will have

funds assessed because of that misconduct. The processes of

finding guilt and allocating medical treatment costs are

inseparably intertwined in a single proceeding with one

adjudicator, one body of evidence, and the same burdens of

proof. In fact, the punishment of allocating costs to an inmate

appears to flow automatically from the result of the

disciplinary proceeding because it appears that an assessment

is a mandatory consequence of a disciplinary action if the

inmate is convicted of the infraction. See 37 Pa. Code §

93.12(c)(4) (―The Department [of Corrections] will charge a

fee to an inmate for . . . [m]edical service provided to another

inmate as a result of assaultive conduct engaged in by an

inmate to be charged the fee.‖ (emphasis added)). This

means that the prison could not have assessed Burns‘ prison

account without a disciplinary conviction, but it also appears

that the prison had to assess his account once Burns was

convicted of the infraction.

We agree with the district court that there is simply not

enough evidence in the record to support the assessment of

Burns‘ account, and the Commonwealth has not appealed

that finding. Since the assessment is inextricably intertwined

with the finding that Burns committed the charged infraction,

we must also conclude that there is simply not enough

evidence to support a finding that he was the one who

assaulted Mobley. Therefore, we grant Burns‘ request that the

disciplinary conviction be expunged.

Nevertheless, prison officials were entitled to have

taken the other actions regardless of the outcome of the

disciplinary hearing, and Burns‘ request to reverse those

measures must be denied. As noted above, he would

otherwise receive a windfall. He cannot rise above the

legitimate institutional concerns of prison officials merely

26

because they did not provide him with a proper hearing. The

Commonwealth argues that prison officials may have been

wise to impose such sanctions as the separation order and the

job changes regardless of the outcome of the hearing for fear

of retaliation or other concerns, and we agree. We are

mindful that prison officials must make complicated and

difficult decisions regarding inmate placement and privileges,

and officials should clearly be afforded deference regarding

such actions. We are also mindful that the Prison Litigation

Reform Act (―PLRA‖) provides that ―[p]rospective relief in

any civil action with respect to prison conditions shall extend

no further than necessary to correct the violation of the

Federal right‖ and that such relief should be ―narrowly

drawn,‖ ―extend[] no further than necessary to correct the

violation of the Federal right, and [be] the least intrusive

means necessary to correct the violation of the Federal right.‖

18 U.S.C.A. § 3626(a)(1)(A).

Moreover, our ―involvement . . . in the day-to-day

management of prisons‖ must be limited. Sandin, 515 U.S. at

482. Thus, our holding only disturbs the conviction that

resulted from a constitutionally flawed hearing. Consistent

with the PLRA, we do not interfere with the prison‘s day-to-

day management of Burns.

VI. Conclusion

Accordingly, we will affirm the district court‘s finding

that Mobley‘s refusal to testify did not constitute a due

process violation, but we will reverse and hold that it is a due

process violation for a prison hearing officer not to seek to

view documentary evidence requested by an inmate unless

there are legitimate institutional concerns that counsel against

it. We will nevertheless affirm the district court‘s finding of

qualified immunity. Finally, we will grant Burns‘ request to

order the misconduct be expunged, but we deny his request

for all other relief.

27