UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KENNETH ZURICK, : CIVIL NO. 4:05-CV-1329

:

Plaintiff : (Judge McClure)

:

v. : (Magistrate Judge Smyser)

:

ROBERT SACAVAGE; :

RALPH REISH, a/k/a/ RICK; :

KRISTEN BROUSE; and :

DUSTIN HOUPT, :

:

Defendants :

REPORT AND RECOMMENDATION

The plaintiff, a prisoner proceeding pro se, commenced

this 42 U.S.C. § 1983 action by filing a complaint on July 1,

2005. 

The individuals named as defendants in the complaint

are: 1) Robert Sacavage, the Chairman of the Northumberland

County Prison Board; 2) Ralph Reish, the Warden of the

Northumberland County Prison; 3) Kristen Brouse, a sergeant

at the Northumberland County Prison; and 4) Dustin Houpt, a

corrections officer at the Northumberland County Prison. 

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The plaintiff alleges that on March 15, 2005, while he

was an inmate at the Northumberland County Prison on the work

release program, he was given a urine test. He alleges that

he was told by defendant Brouse that he had tested positive

for opiates and he was removed from the work release program

and placed in lock up. The plaintiff alleges that he was

given a copy of his misconduct report on March 15, 2005 but

that he had to wait nineteen days for a hearing. He alleges

that he was found guilty of the charges against him and

sanctioned to ninety days disciplinary segregation. He

alleges that he was not given a chance to question his

accuser (defendant Houpt), that he did not have the

assistance of a staff member, and that he did not receive a

report from the factfinder or committee.

The plaintiff alleges that he appealed his sanction to

defendant Reish and claimed that the urine test was not

administered correctly and that something he ate possibly

gave a false positive reading. He alleges that he never

received a response from defendant Reish. The plaintiff

alleges that he wrote to defendant Houpt asking for a copy of

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the policy for urine tests and asking about his training to

administer urine tests. He alleges that defendant Houpt did

not respond and that subsequent letters to defendants Reich

and Sacavage were ignored. 

The plaintiff is seeking compensatory damages as well

as injunctive relief. 

By an order dated July 13, 2005, we granted the

plaintiff’s request to proceed in forma pauperis, directed

the Clerk of Court to serve the plaintiff’s complaint, and

requested the defendants to waive service pursuant to

Fed.R.Civ.P. 4(d). 

On July 13, 2005, the plaintiff filed a motion for the

appointment of counsel.

On September 13, 2005, Robert G. Hanna, Jr., Esquire

entered his appearance on behalf of the defendants. On

December 15, 2005, a case management order was issued. 

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In reviewing the plaintiff’s motion for the appointment

of counsel, we determined that complaint in this case fails

to state a claim upon which relief may be granted. 

28 U.S.C. § 1915(e)(2) provides:

Notwithstanding any filing fee, or any

portion thereof, that may have been paid, the

court shall dismiss the case at any time if the

court determines that - 

(A) the allegation of poverty is untrue; or 

(B) the action or appeal -

 (i) is frivolous or malicious;

 (ii) fails to state a claim on which

relief may be granted; or

 (iii) seeks monetary relief against a

defendant who is immune from such relief. 

We construe the complaint as raising a claim that the

plaintiff was denied due process in connection with his

removal from the work release program and confinement in

disciplinary segregation for ninety days. 

The Fourteenth Amendment due process clause provides

that no state shall “deprive any person of life, liberty, or

property, without due process of law.” A due process claim

requires a two part analysis. First, the court must

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determine whether the interest asserted by the plaintiff is

within the scope of protection of life, liberty, or property

found in the due process clause. Shoats v. Horn, 213 F.3d

140, 143 (3d Cir. 2000). Second, if the interest is

protected by the due process clause, “the question then

becomes what process is due to protect it.” Id.

In the past, in determining whether prison regulations

created liberty interests, courts examined the regulations

for explicitly mandatory language and specific substantive

predicates giving rise to a reasonable expectation that an

event would not occur unless the circumstances identified in

the regulations were met. Hewitt v. Helms, 459 U.S. 460, 472

(1983).

In Sandin v. Conner, 515 U.S. 472 (1995), the United

States Supreme Court, addressing the question of when state

prison regulations can create liberty interests protected by

the Due Process Clause, modified the Hewitt analysis. The

Court held that:

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States may under certain circumstances create

liberty interests which are protected by the Due

Process Clause. But these interests will be

generally limited to freedom from restraint

which, while not exceeding the sentence in such

an unexpected manner as to give rise to

protection by the Due Process Clause of its own

force, nonetheless imposes atypical and

significant hardship on the inmate in relation to

the ordinary incidents of prison life.

Id. at 483-84. 

 In Sandin, the inmate was sentenced to thirty days of

disciplinary confinement in the Special Holding Unit. As a

result of the prisoner’s disciplinary segregation he "had to

spend his entire time alone in his cell (with the exception

of 50 minutes each day on average for brief exercise and

shower periods, during which he nonetheless remained isolated

from other inmates and was constrained by leg irons and waist

chains.)" Id. at 494 (Breyer, J. dissenting). The Court

concluded that the inmate’s thirty days in the Special

Holding Unit did not impose the type of atypical significant

deprivation in which the state may conceivably create a

liberty interest. Id. at 486. The Court noted that in that

case disciplinary confinement at the prison in question, with

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only insignificant exceptions, mirrored conditions imposed on

inmates in administrative and protective custody; that based

on a comparison of inmates inside of and outside of

disciplinary segregation, placement in segregation for thirty

days did not work a major disruption in the inmate’s

environment; that disciplinary action did not inevitably

affect the duration of the inmate’s sentence; and that the

"regime to which he was subjected was within the range of

confinement to be normally expected for one serving an

indeterminate term of 30 years to life." Id. at 486-87.

In the instant case, the plaintiff alleges that he was

sentenced to disciplinary segregation for ninety days and

that he was removed from the work release program. 

We first address whether the plaintiff’s disciplinary

confinement implicates a liberty interest protected by the

due process clause. “In deciding whether a protected liberty

interest exists under Sandin, we consider the duration of the

disciplinary confinement and the conditions of that

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confinement in relation to other prison conditions.” Mitchell

v. Horn, 318 F.3d 523, 532 (3d Cir. 2003). 

We conclude that the confinement alleged by the

plaintiff in this case does not implicate a liberty interest

protected by the due process clause. The duration of the

plaintiff’s disciplinary segregation - ninety days - does

not implicate a protected liberty interest. See Smith v.

Messinger, 293 F.3d 641, 653 (3d Cir. 2002)(seven months in

disciplinary confinement did not implicate a liberty

interest). The plaintiff has not alleged that the conditions

he was subjected to in disciplinary segregation imposed

atypical and significant hardships on him in relation to the

ordinary incidents of prison life nor has he alleged facts

from which it could reasonably be inferred that the

conditions he was subjected to in disciplinary segregation

imposed atypical and significant hardships on him in relation

to the ordinary incidents of prison life. 

We note that in Mitchell, supra, the Third Circuit

reversed the district court’s sua sponte dismissal of a

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prisoner’s claim that he was denied due process in connection

with confinement in disciplinary custody for several months

including four days in a cell that was smeared with feces and

infested with flies and in which he could not eat, drink or

sleep. 318 F.3d at 526. The Third Circuit determined that

the record was not sufficiently developed to conduct the

fact-intensive inquiry implied by Sandin. Id. at 532-33. The

court remanded the case to the district court for development

of the record and noted that the district court will need to

consider whether the deplorable conditions of Mitchell’s cell

during a portion of his disciplinary confinement implicated a

protected liberty interest. Id. at 533 n.6. 

Unlike the prisoner in Mitchell, the plaintiff in this

case has not made any allegations regarding the conditions

under which he was confined. Accordingly, there is no basis

to infer that the conditions to which the plaintiff was

subjected in disciplinary segregation imposed atypical and

significant hardships on him in relation to the ordinary

incidents of prison life. Thus, we conclude that the

plaintiff has failed to allege that his disciplinary

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confinement implicated a liberty interest protected by the

due process clause.

The plaintiff also alleges that he was removed from the

work release program. 

In Asquith v. Department of Corrections, 186 F.3d 407,

412 (3d Cir. 1999), the Third Circuit held that an inmate

does not have a liberty interest protected by the due process

clause in remaining in a halfway house under a work release

program. The court reasoned that removal from a work

release program and return to prison does not implicate a

liberty interest independently protected by the due process

clause because the prisoner had no expectation that he would

remain in the program once charged with a major violation.

Id. at 411. The court also reasoned that since an inmate is

normally incarcerated in prison, the prisoner’s return to

prison did not impose an atypical and significant hardship on

him in relation to ordinary incidents of prison life and,

therefore, did not deprive him of a protected liberty

interest. Id. at 412.

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Pursuant to Asquith, supra, the plaintiff did not have

a liberty interest in remaining in the work release program. 

Based on the foregoing, by an order dated October 4,

2005, we concluded that the complaint fails to state a claim

upon which relief may be granted, and we denied the

plaintiff’s motion for the appointment of counsel. Before

recommending that the complaint be dismissed for failure to

state a claim upon which relief may be granted, we granted

the plaintiff leave to amend his complaint. See Grayson v.

Mayview State Hospital, 293 F.3d 103, 114 (3rd Cir.

2002)(holding that before dismissing a complaint for failure

to state a claim upon which relief may be granted pursuant to

the screening provisions of 28 U.S.C. § 1915A, the court must

grant the plaintiff leave to amend his complaint unless

amendment would be inequitable or futile). We noted that if

the plaintiff were to alleges facts from which it could

reasonably be inferred that the conditions he was subjected

to in disciplinary segregation imposed atypical and

significant hardships on him in relation to the ordinary

incidents of prison life, he may state a due process claim

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upon which relief may be granted. We granted the plaintiff

leave to file an amended complaint to attempt, if

appropriate, to state a due process claim upon which relief

may be granted. The plaintiff was granted until November 4,

2005 to file an amended complaint.

On October 25, 2005, the plaintiff filed what he titled

as an amended complaint. The amended complaint is a

combination of factual allegations and legal arguments. The

plaintiff continues to assert that he was denied due process

but he has made not allegations regarding the conditions

under which he was confined. 

In accordance with the discussion above, we conclude

that the plaintiff does not have a liberty interest protected

by the due process clause, and, therefore, the amended

complaint fails to state a claim upon which relief may be

granted.

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Based on the foregoing, it is recommended that this

case be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)

and that the case file be closed.

/s/ J. Andrew Smyser 

J. Andrew Smyser

Magistrate Judge

Dated: November 1, 2005. 

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