MARK MITCHELL v. MARTIN F. HORN, et al.
No. 98-1932
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
January 29, 2003
Precedential
Opinions of the United States Court of Appeals for the Third Circuit
1-29-2003
Mitchell v. Horn
Precedential or Non-Precedential: Precedential
Docket 98-1932
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Recommended Citation
“Mitchell v. Horn” (2003). 2003 Decisions. Paper 811. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/811
Filed January 29, 2003
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 98-1932
MARK MITCHELL, Appellant v. MARTIN F. HORN, et al.
Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 98-cv-04742) District Judge: Honorable Edmund V. Ludwig
Argued August 1, 2002
Before: ROTH, RENDELL and AMBRO, Circuit Judges
(Opinion filed: January 29, 2003)
Gregg H. Levy, Esquire Kevin C. Newsom, Esquire (Argued) Covington & Burling 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Attorneys for Appellant
D. Michael Fisher, Esquire J. Bart DeLone, Esquire (Argued) Calvin R. Koons, Esquire John G. Knorr, III, Esquire Office of Attorney General Appellate Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Attorneys for Amicus The Commonwealth of Pennsylvania
OPINION OF THE COURT
AMBRO, Circuit Judge:
Mark Mitchell, a Pennsylvania inmate acting pro se, filed this suit under
I. Factual Background and Procedural History
On appeal from the dismissal of a complaint, we assume the allegations in the complaint to be true. See Ray v. Kertes, 285 F.3d 287, 291 (3d Cir. 2002); Micklus v. Carlson, 632 F.2d 227, 230 (3d Cir. 1980).
On October 5, 1996, while Mitchell was an inmate in the Drug and Alcohol Unit at the Graterford Correctional Institution in Pennsylvania (“Graterford“), prison officials entered his living area to conduct a search. During the search, they found a folded brown paper napkin containing drugs and U.S. currency taped under Mitchell‘s locker. Mitchell denied owning or knowing about the contraband, and his urinalysis tested negative for drugs. At the security office, Mitchell asked a correctional officer to preserve the tape that had affixed the contraband under his locker so that it could be fingerprinted. Although Mitchell offered to pay for the fingerprint analysis, the prison denied his request. Pending a hearing on the contraband charges, prison officials placed him in the Restricted Housing Unit (“RHU“).
The next day, prison officials brought Mitchell to the institution‘s security unit for questioning. Lieutenant Kowalski told Mitchell that he had information suggesting that Officer Ronald Wilson, the officer regularly assigned to the Drug and Alcohol Unit, framed Mitchell. Mitchell concurred that he had been set up and again requested fingerprint testing to prove his innocence. Kowalski offered to look into the matter, and Mitchell was returned to the RHU.
Two days after the officers discovered the contraband, Mitchell was called to a disciplinary hearing, in preparation for which he was permitted five minutes to confer with an inmate assistant. During the hearing, Mitchell argued that someone had set him up. He noted that the area in which the officers found the contraband was easily accessible to others, requested that the hearing examiner inquire when that area had last been searched, and asked again for a fingerprint test. His requests were denied. Finding Mitchell guilty of contraband charges and of lying to a prison employee, the hearing examiner sentenced him to ninety days in disciplinary custody.
Mitchell complained to prison officials about his conditions to no avail. He sought to file an administrative grievance protesting the conditions of his confinement, but prison officials denied him an inmate grievance form. Prison regulations provide that a grievance form is “the proper form to be used for submission of a grievance and it should be completed according to the directions provided.” Commonwealth of Pa., Dep‘t of Corr., Consolidated Inmate Grievance Review System, Policy Statement DC-ADM 804 V(B) (Oct. 20, 1994). Additionally, inmate grievances must be “in writing and in the format provided on the forms supplied by the institution.” Id. 804(VI)(A)(1) (internal citation omitted). After four days, during which Mitchell alleges he did not eat, drink, or sleep, the Program Review Committee, in the course of fulfilling its mandate to “interview all disciplinary custody cases every thirty (30) days,” Commonwealth of Pa., Dep‘t of Corr., Inmate Disciplinary and Restricted Housing Procedures, Policy Statement DC-ADM 801 VI(D)(9) (Sept. 20, 1994), confirmed that his cell was unfit for human habitation. He was transferred to Huntingdon Correctional Institution on December 4, 1996.1
In January 1998, Mitchell returned to Graterford to face criminal drug-possession charges stemming from the October 5, 1996 contraband incident and was again placed in the RHU. At a preliminary hearing held after Mitchell‘s return to Graterford, all criminal charges against Mitchell were dismissed. Nonetheless, Graterford officials kept him segregated in the RHU for another two months, explaining that his return to the general Graterford population was “not an option.” After numerous complaints, Mitchell was transferred back to Huntingdon on April 1, 1998.
On September 29, 1998, Mitchell filed the current complaint in the United States District Court for the
This timely appeal followed. Because the District Court dismissed this case before the defendant was served, the defendant -- Commissioner of the Pennsylvania Department of Corrections -- was not technically a party to this suit. Therefore, we requested that the Commonwealth of Pennsylvania file a brief as amicus curiae.2
II. Jurisdiction
The District Court‘s dismissal of Mitchell‘s retaliation and due process claims as frivolous is appealable under
III. Discussion
This case raises four questions, which we address in the following order: (1) whether Mitchell exhausted the available administrative remedies on his Eighth Amendment conditions-of-confinement claim; (2) is his retaliation claim frivolous; (3) whether his due process claim is frivolous; and (4) has Mitchell alleged a physical injury sufficient to support his emotional injury claims. Throughout we bear in mind that, “however inartfully pleaded,” the “allegations of [a] pro se complaint [are held] to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).
A. Exhaustion
Before filing suit, prisoners must exhaust their available administrative remedies.
The District Court dismissed Mitchell‘s conditions-of-confinement claim, which asserts that he spent four days in a filthy cell in which he could not eat, drink, or sleep, because he “does not allege that he filed any grievances regarding the conditions of his cell.” Mitchell argues that he did not file a grievance because prison officials denied him the necessary grievance forms and, as a result, he lacked “available” administrative remedies. The Commonwealth concedes this point. Accord Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (“[A] remedy that prison officials prevent a prisoner from ‘utiliz[ing]’ is not an ‘available’ remedy under
Even absent the prison‘s precluding Mitchell‘s grievance, the District Court erred procedurally. Failure to exhaust administrative remedies is an affirmative defense for the defendant to plead. Ray, 285 F.3d at 295. Under
B. Retaliation claim
The District Court dismissed as frivolous Mitchell‘s retaliation claim -- that Officer Wilson planted illegal drugs under Mitchell‘s locker in retaliation for Mitchell‘s complaints against him -- reasoning that “[t]he filing of a false or unfounded misconduct charge against an inmate does not constitute a deprivation of a constitutional right.”
To be frivolous, a claim must rely on an “indisputably meritless legal theory” or a “clearly baseless” or “fantastic or delusional” factual scenario. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); Wilson, 878 F.2d at 774; see, e.g., Deutch v. United States, 67 F.3d 1080, 1091-92 (3d Cir. 1995) (holding frivolous a suit alleging that prison officials took an inmate‘s pen and refused to give it back). We exercise plenary review over a dismissal for frivolousness. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999); accord McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997). We are especially careful when assessing frivolousness in the case of in forma pauperis complaints, for “prisoners often must rely on the courts as the only available forum to redress their grievances, even when those grievances seem insignificant to one who is not so confined.” See Deutch, 67 F.3d at 1090.
In dismissing Mitchell‘s retaliation claim, the District Court failed to recognize that “[g]overnment actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right.” Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999) (en banc)). A prisoner alleging retaliation must show (1) constitutionally protected conduct, (2) an adverse action by prison officials ” ‘sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights,’ ” and (3) “a causal link between the exercise of his constitutional rights and the adverse action taken against him.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Allah, 229 F.3d at 225) (alteration in original).
Mitchell‘s allegation that he was falsely charged with misconduct in retaliation for filing complaints against Officer Wilson implicates conduct protected by the First Amendment. See Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002) (“We have . . . held that falsifying misconduct reports in retaliation for an inmate‘s resort to legal process is a violation of the First Amendment‘s guarantee of free access to the courts.“); Allah, 229 F.3d at 225 (holding that
Although Mitchell‘s retaliation claim may ultimately not succeed on the merits, it is not “indisputably meritless,” “fantastic or delusional,” “of little or no weight,” or “trivial.” Neitzke, 490 U.S. at 325, 327; Deutch, 67 F.3d at 1089. And while we would prefer that Mitchell‘s complaint be more detailed, we take seriously our charge to construe pro se complaints nonrestrictively. Haines, 404 U.S. at 520. To leave no doubt, the Commonwealth, in its role as amicus, agrees that the District Court erred in overlooking Mitchell‘s retaliation claim.
While Mitchell has stated a nonfrivolous retaliation claim, the Supreme Court recently clarified in Porter v. Nussle, 534 U.S. 516, 532 (2002), that 1997e(a) requires a prisoner to exhaust his administrative remedies when alleging “particular episodes” of misconduct -- which would include an act of retaliation. On appeal the Commonwealth‘s amicus brief acknowledges that “Mitchell appealed the hearing examiner‘s decision to the various levels available through the Inmate Disciplinary Procedure.” Commonwealth‘s Br. at 5 (emphasis added).
C. Due Process
Mitchell‘s due process claim alleges that he received only five minutes to confer with an inmate assistant before his disciplinary hearing, that he was denied a fair opportunity to review the evidence against him, and that the hearing itself was conducted unfairly.
Mitchell‘s procedural due process rights are triggered by deprivation of a legally cognizable liberty interest. 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.” Sandin v. Conner, 515 U.S. 472, 484 (1995).4 Lesser restraints on a
prisoner‘s freedom are deemed to fall “within the expected perimeters of the sentence imposed by a court of law.” Id. If Mitchell had no protected liberty interest in remaining free of disciplinary custody, then the state owed him no process before placing him in disciplinary confinement. We therefore must decide whether Mitchell‘s contention that he had a protected liberty interest in avoiding disciplinary custody is frivolous. This is a question of constitutional fact over which we exercise independent appellate review “in order to preserve the precious liberties established and ordained by the Constitution.” Fabulous Assoc., Inc. v. Pa. Pub. Util. Comm‘n, 896 F.2d 780, 783 (3d Cir. 1990) (quoting Bose Corp. v. Consumers Union, 466 U.S. 485, 511 (1984)).
The District Court, citing Sandin, dismissed Mitchell‘s claim as frivolous because “prison regulations on confinement of inmates do not create a liberty interest enforceable in a § 1983 action.” However, Sandin did not pronounce a per se rule, as the District Court‘s opinion implies. In Sandin, to determine whether the prisoner‘s treatment -- thirty days disciplinary segregation for resisting a strip search -- implicated a liberty interest, the Supreme Court carefully compared the circumstances of the prisoner‘s confinement with those of other inmates. It found no liberty interest implicated because the prisoner‘s “disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody” in that “conditions at [the prison] involve[d] significant amounts of ‘lockdown time’ even for inmates in the general population.” Sandin, 515 U.S. at 486. But the Court left open the possibility that a liberty interest will be implicated by conditions that impose an “atypical and significant hardship.” Id. at 484.
In deciding whether a protected liberty interest exists under Sandin, we consider the duration of the disciplinary confinement and the conditions of that confinement in relation to other prison conditions. See Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000). Not surprisingly, our cases engaging in this inquiry have reached differing outcomes, reflecting the fact-specific nature of the Sandin test. Compare Leamer v. Fauver, 288 F.3d 532, 545 (3d Cir. 2002) (denial of the right to participate in a sex offender treatment program that was “mandated and promised” by New Jersey law implicated a protected liberty interest, and
This case appears to bear some similarity to Griffin, which also involved a Graterford inmate. We held that Griffin, who was detained for fifteen months in administrative custody under restrictions comparable to those here, did not have a liberty interest in avoiding that confinement. See id. The differences Mitchell has thus far raised between his case and Griffin appear, without more, constitutionally insignificant. For example, inmates in disciplinary custody5 like Mitchell are permitted only one visitor every month and one pack of cigarettes every two weeks, DC-ADM 801 VI(D)(2), (4), whereas inmates in administrative custody like Griffin are allowed one visitor and two packs of cigarettes per week, Commonwealth of Pa., Dep‘t of Corr., Administrative Custody Procedures, Policy Statement DC-ADM 802 V(A)(1), (3) (Oct. 29, 1992). This marginal difference does not appear to cross the constitutional line. Moreover, the prisoner in Sandin, whom the Supreme Court held did not bear “atypical and significant hardship,” Sandin, 515 U.S. at 484, was, like Mitchell, in disciplinary custody.
However, apparent similarities between Griffin and this case notwithstanding, given this case‘s procedural posture and the fact that Mitchell prepared his complaint pro se, the record is not sufficiently developed for us to determine whether there were other features of Mitchell‘s confinement that meaningfully distinguished his situation from that in Griffin. See Perkins v. Kan. Dep‘t of Corr., 165 F.3d 803, 809 (10th Cir. 1999) (reversing district court‘s sua sponte dismissal because the court “did not have the evidence
D. Emotional Injury
Section 803(d) of the Prison Litigation Reform Act, codified at
1. The Scope of § 1997e(e)
Section 1997e(e)‘s requirement that a prisoner demonstrate physical injury before he can recover for mental or emotional injury applies only to claims for compensatory damages. Claims seeking nominal or punitive damages are typically not “for” mental or emotional injury but rather “to vindicate constitutional rights” or “to deter or punish egregious violations of constitutional rights,” respectively. See Allah v. Al-Hafeez, 226 F.3d 247, 252 (3d Cir. 2000). Accordingly, regardless how we construe
2. Physical injury requirement
The Commonwealth argues that Mitchell‘s allegations that he was deprived of food, drink, and sleep for four days do not describe a physical injury. Mitchell counters that physical injury -- including starvation, dehydration, unconsciousness, pain, and hypoglycemia -- follow inevitably from the conditions he alleges, and that he should not be penalized for inartful pleading. He notes also that his complaint alleged that these deprivations placed his “life and health in jeopardy.” Finally, he argues that, if necessary, he could easily amend his complaint to state physical injuries.
Loss of food, water, and sleep are not themselves physical injuries. However, physical injuries could result from such deprivation after four days. While no physical injuries were alleged in Mitchell‘s complaint, to the extent that they can be included in good faith in an amended complaint, Mitchell is permitted that opportunity to amend.
If in an amended complaint Mitchell sufficiently alleges physical injury, an additional issue occurs: under § 1997e(e), must that physical injury be more than de minimis before he can assert emotional injury? As this is a question of statutory interpretation, it is subject to plenary review. See Gibbs v. Cross, 160 F.3d 962, 964 (3d Cir. 1998).
Other courts of appeals have read 1997e(e) to require a less-than-significant-but-more-than-de minimis physical injury as a predicate to allowing the successful pleading of an emotional injury. See Oliver v. Keller, 289 F.3d 623, 626-28 (9th Cir. 2002); Harris, 190 F.3d at 1286-87; Siglar v. Hightower, 112 F.3d 191, 193-94 (5th Cir. 1997).11 In Siglar, the Fifth Circuit based its holding on the fact that the Circuit‘s Eighth Amendment jurisprudence requires more than a de minimis, but not a significant, physical injury. Siglar, 112 F.3d at 193. The Eleventh Circuit in Harris followed Siglar. The Harris Court also found significant that, in enacting 1997e(e), Congress sought to curtail frivolous prisoner litigation. Reading 1997e(e) to find any allegation of physical injury sufficient would “undermine the statute‘s essential purpose.” Harris, 190 F.3d at 1286. It would also make “no sense in light of our basic understanding that ‘routine discomfort is part of the penalty that criminal offenders pay for their offenses against society.’ ” Id. (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)). The Oliver Court reached the same conclusion, but rejected the Fifth and Eleventh Circuits’ reliance on Eighth Amendment jurisprudence.12 Oliver, 289 F.3d at 628. Rather, Oliver found persuasive that Congress intended to reduce the volume of frivolous prisoner suits, id. at 627-28, and rejected the notion that 1997e(e)‘s plain meaning is clear, see id. at 628 n.6.
Two canons of statutory construction drive our analysis. First, “the starting point for interpreting a statute is the language of the statute itself.” Smith v. Fid. Consumer Disc. Co., 898 F.2d 907, 909 (3d Cir. 1990) (quoting Consumer Prod. Safety Comm‘n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). We do not look past the plain meaning unless it produces a result “demonstrably at odds with the intentions of its drafters,” BFP v. Resolution Trust Corp., 511 U.S. 531, 563 (1994) (internal quotation marks omitted), or an outcome “so bizarre that Congress could not have intended it,” Demarest v. Manspeaker, 498 U.S. 184, 191 (1991) (internal quotation marks omitted). Second, we
We believe that reading 1997e(e) to allow a plaintiff to allege any physical injury, no matter how minor, would produce an unintended (indeed absurd) result. Were we not to read 1997(e) as requiring more than a de minimis physical injury, we would turn its physical injury prerequisite into a mere pleading requirement, thereby rendering the requirement meaningless as a practical matter. Another prisoner might be able to assert an emotional injury by pleading that he received a paper cut, for example. This result runs counter to Congress‘s intent “to curtail frivolous and abusive prisoner litigation.” Harris, 190 F.3d at 1286 (quoting Alexander v. Hawk, 159 F.3d 1321, 1324 (11th Cir. 1998)); see 141 Cong. Rec. S7525 (daily ed. May 25, 1995) (statement of Senator Dole). In so doing, Congress noted that, “unlike physical injuries, emotional injuries are inherently difficult to verify and therefore tend to be concocted for frivolous suits.” Dawes v. Walker, 239 F.3d 489, 496 (2d Cir. 2001) (Walker, J.). On the other hand, we do not adopt a test that would prevent those experiencing real physical injury at the hands of government officials from pursuing their rights. We therefore follow the approach of the Fifth, Ninth, and Eleventh Circuits in requiring a less-than-significant-but-more-than-de minimis physical injury as a predicate to allegations of emotional injury.13
Because this case has come to us at the pleading stage, and because Mitchell‘s complaint does not specifically describe the extent of his physical injuries, we are not able to determine whether his injuries are more than de minimis. Thus, the District Court will need to address on remand this question as well. Mitchell‘s amending his complaint to allege more specifically the physical injuries he suffered might facilitate this inquiry.
IV. Conclusion
Mitchell has exhausted the available administrative remedies on his conditions-of-confinement claim as required by
Teste:
Clerk of the United States Court of Appeals for the Third Circuit