holding that a prison superintendent was not legally responsible merely by reviewing the prisoner’s grievances for the alleged retaliatory acts of his staff against a prisoner, when the prisoner did not demonstrate the superintendent’s actual knowledge of the retaliation
How later courts described this case
- holding that a prison superintendent was not legally responsible merely by reviewing the prisoner’s grievances for the alleged retaliatory acts of his staff against a prisoner, when the prisoner did not demonstrate the superintendent’s actual knowledge of the retaliation
- holding that a prison superintendent was not legally responsible merely by reviewing a prisoner’s grievances for his staff’s alleged retaliatory acts against the prisoner, when the prisoner did not aver the superintendent’s actual knowledge of the retaliation
- holding that superintendent did not have actual knowledge of employee’s alleged unlawful conduct based on his response to grievance denials, and that his liability cannot be predicated on operation of respondeat superior
- rejecting an inmate’s claims that a superintendent had actual knowledge of or acquiesced in impermissible retaliatory acts through the superintendent’s review of the appeals of the denials of the inmate’s grievances
Written by the judges who cited it.
The opinion
DISSENTING OPINION BY
Judge SIMPSON.
Because I would affirm the decision of the Court of Common Pleas of Schuylkill County (trial court) which sustained preliminary objections to the complaint filed by inmate Peter T. Bush (Inmate), representing himself, I respectfully dissent. In particular, I disagree with two aspects of the majority opinion: 1) that Inmate stated a claim for violation of procedural due process when his prison job was taken away; and, 2) that Inmate stated a claim for retaliation for filing grievances.
1. Due Process
The majority concludes that even though Inmate has no property interest in his prison job, he nevertheless stated a claim for deprivation of due process because he did not receive the process due under the Inmate Handbook. 1 I disagree with this resolution for two reasons.
First, I disagree with the conclusion of the majority that the Inmate Handbook, which is neither cited by Inmate nor discussed by the respected trial court, promises more process than Inmate received. The majority relies on Section VIII(D) of the Inmate Handbook. This provision deals generally with rules for misconducts, and it includes a sanction of up to seven days loss of “specific privileges.” Id. However, the specific privileges which can be lost for up to seven days are enumerated elsewhere in the provision, and they do not include prison jobs. 2 Thus, this provision is inapplicable to Inmate’s claim.
Instead, the loss of a prison job is addressed in a different part of the Inmate Handbook, Section XI. Subsection E(2) *987 specifically relates to work assignments, and it allows removal “from a work assignment by a Unit Management Team action or misconduct proceeding.” Id. at 48. This provision controls the loss of a prison job for misconduct, and the procedure described by Inmate here conformed to this provision in the Inmate Handbook. Under this provision of the Inmate Handbook, Inmate received the process due.
Second, and more broadly, the Inmate Handbook provisions relating to prison jobs do not create rights which can be enforced in courts. Procedural due process rights are triggered by deprivation of a legally cognizable liberty interest. Brown v. Blaine, 833 A.2d 1166 (Pa. Cmwlth.2003) (Pellegrini, J.). For a prisoner, such a deprivation occurs when the prison imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Id. at 1172 (quoting Sandin v. Conner, 515 U.S. 472, 484 , 115 S.Ct. 2293 , 132 L.Ed.2d 418 (1995)); see also Weaver v. Dep’t of Corr., 829 A.2d 750 (Pa.Cmwlth.2003) (holding prison regulation which did not impose atypical and significant hardship did not create enforceable right). Lesser restraints on a prisoner’s freedom are deemed to fall within the expected perimeters of the sentence imposed by a court of law. Brown .
I conclude that the loss of a prison job for misconduct is not an atypical and significant hardship on an inmate in relation to the ordinary incidents of prison life. Therefore, Inmate Handbook provisions relating to prison jobs do not create rights enforceable in court. Because there is no set of facts which Inmate could plead to cure this problem, I discern no error in the trial court sustaining the preliminary objection and dismissing this claim.
2. Retaliation
The majority also concludes that Inmate stated a claim for retaliation because he was warned to stop filing grievances if he wanted cell searches to stop. I respectfully disagree.
To state a retaliation claim, an inmate must allege that he engaged in constitutionally protected conduct, that prison officials took adverse action and that the protected conduct was a substantial or motivating factor for the action. Yount v. Dep’t of Corr., 600 Pa. 418 , 966 A.2d 1115 (2009). Adverse action is one which is sufficient to deter a person of ordinary firmness from exercising his constitutional rights. Id.
Accepting as true the well-pleaded aver-ments of Inmate’s complaint, it is clear that the cell searches referenced by Inmate did not amount to adverse action as a matter of fact. This is because Inmate was not deterred from exercising his right to file grievances; rather, he continued to file them.
Moreover, I conclude that cell searches are not an “adverse action” as a matter of law. This is because inmates are aware that they and their cells may be subject to searches. Inmate Handbook § 11(D). Indeed, the Fourth Amendment provides no protection for inmates against searches and seizures in their cells. Hudson v. Palmer, 468 U.S. 517, 525-26 , 104 S.Ct. 3194 , 82 L.Ed.2d 393 (1984) (“society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell”); Thomas v. Holtz, 707 A.2d 569 (Pa. Cmwlth.1998) (Pellegrini, Kelley, JJ., & Narick, S.J.) (prisoner has no reasonable expectation of privacy in his prison cell entitling him to protection against unreasonable searches; imprisonment carries with it the loss of many rights as being necessary to accommodate the institutional objective of prison facilities); Johnson v. Desmond, 441 Pa.Super. 632 , 658 A.2d 375 *988 (1995) (inmate had no reasonable expectation of privacy in his prison cell entitling him to protection of Fourth Amendment); see Willis v. Artuz, 301 F.3d 65 (2d Cir. 2002) (an inmate does not have a legitimate expectation of privacy in his prison cell); Booth v. King, 346 F.Supp.2d 751 (E.D.Pa.2004) (same); DeBlasio v. Pignoli, 918 A.2d 822 (Pa.Cmwlth.2007) (Simpson, J.) (same); Commonwealth v. Rathfon, 705 A.2d 448 (Pa.Super.1997); Dep’t of Pub. Welfare, Farview State Hosp. v. Kallinger, 134 Pa.Cmwlth. 415 , 580 A.2d 887 (1990) (Pellegrini, J.) (same); Commonwealth v. Boyd, 397 Pa.Super. 468 , 580 A.2d 393 (1990) (same). In other words, an “adverse action” does not include cell searches, which are necessary to accommodate the institutional objective of prison facilities. Thomas .
Based on the discussion above, I would affirm the trial court sustaining preliminary objections and dismissing Inmate’s compliant with prejudice.
. The Inmate Handbook (2009 ed.), appears on the Department of Corrections’ official website, available at http://www.cor.state.pa. us/portal/server .pVcommunity/ depart-ment_oLcorrections/4604.
. "Privileges include television, radio, telephone, and commissary for up to 180 days, visiting suspension or restriction for up to 60 days, yard and blockout.” Inmate Handbook, § VIII(D) at 38.