1Recently, McKettrick filed a civil rights case pursuant to Bivens v. Six Unknown Named

Agents of Fed. Bur. of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). See McKettrick v.

Williamson, 06-0329, M.D. Pa. In his Bivens action, McKettrick essentially raises the same

claims as he does in this habeas petition, i.e. his placement in the SMU at USP-Lewisburg

without any notice and without a hearing, and without any BOP standards or criteria violated

his due process rights. We have issued a separate Report and Recommendation regarding

McKettrick’s Bivens action. 

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KENNETH RAYMOND McKETTRICK : CIVIL ACTION NO. 4:CV-06-0543 

:

Plaintiff : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

WARDEN TROY WILLIAMSON, :

 :

:

Defendant :

 REPORT AND RECOMMENDATION

I. Background. 

The Petitioner, Kenneth Raymond McKettrick, an inmate at the United States Penitentiary

at Lewisburg (“USP-Lewisburg”), Pennsylvania, filed, pro se, this Petition for Writ of Habeas Corpus1

pursuant to 28 U.S.C. § 2241, on March 15, 2006. (Doc. 1). Petitioner names as Respondent an

individual employed by the Federal Bureau of Prisons (“BOP”) at USP-Lewisburg, namely Warden

Williamson. Plaintiff paid the filing fee in full. We give preliminary consideration to McKettrick’s

Habeas Petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the U.S. District

Courts, 28 U.S.C. foll. § 2254 (1977) (applicable to § 2241 petitions under Rule 1 (b)). See Patton

Case 4:06-cv-00543-JFM Document 2 Filed 03/22/06 Page 1 of 18
2Rule 4 provides in relevant part: “If it plainly appears from the face of the petition and

any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the

judge shall make an order for its summary dismissal and cause the petitioner to be notified.”

2

v. Fenton, 491 F. Supp. 156, 158-59 (M.D. Pa. 1979).2 

II. Claims of Habeas Petition. 

Petitioner does not challenge the legality of his prison confinement, nor does he challenge

the duration of his confinement. He does not claim that his judgment of conviction was invalid or

that he is being confined in prison unlawfully. He does not seek release from prison, nor does he

seek to be released sooner from prison. Rather, Petitioner claims that his placement and continued

confinement in the SMU at USP-Lewisburg, without any notice and hearing, and without any BOP

policy, standards or criteria, violates his due process rights. Petitioner does not specify the relief he

seeks, but based on Petitioner’s prior Bivens case, it is presumed to be released from placement in

the SMU program and to be returned to the general population at the prison. Significantly,

Petitioner does not seek relief that would shorten the length of this current sentence and

incarceration in prison. Nor does Petitioner seek release from prison by attacking the legality of his

judgment of conviction. 

Petitioner states that he is challenging the lack of a BOP SMU policy, and he claims that this

violates his Constitutional rights, i.e. there is no approved BOP standard or criteria governing an

inmate’s placement into the SMU program. (Doc. 1, p. 4). Petitioner also claims that his placement

into the SMU program constitutes an atypical and significant hardship, and implicates a liberty

interest. As such, Petitioner claims that his placement into the SMU program without any notice and

without a hearing violated his due process rights. Plaintiff seemingly claims that the named

Case 4:06-cv-00543-JFM Document 2 Filed 03/22/06 Page 2 of 18
3Based on McKettrick’s pleading filed in his referenced Bivens action, we note that he

has averred that his placement into the SMU program at USP-Lewisburg occurred on or about

January 20, 2006, and that to date he is still placed in the SMU program. 

3

Respondent, Warden Williamson, violated his due process rights by permitting his placement into

the SMU program at the prison without any criteria for said confinement.3

Plaintiff indicates that he challenges BOP’s policy regarding the placement of inmates in the

SMU program since it violates his Constitutional rights because it lacks any approved standard or

criteria, and since he was denied a hearing prior to being classified and placed into the SMU

program. (Id.). 

This case is construed as a Fifth Amendment due process claim of SMU confinement. It is

not a case in which core habeas claims are raised. Rather, it is a Bivens case that is basically

duplicative of McKettrick’s previously filed Bivens action. Thus, we shall recommend that this case

be construed as a Bivens suit, and, to the extent that McKettrick has claimed that he has been placed

in the SMU program as retaliation due to his race and his grievances which he filed, that it be

consolidated with McKettricks’ prior Bivens action currently pending before this Court. See

McKettrick v. Williamson, 06-0329, M.D. Pa. To the extent that the instant case claims a violation

of due process, it should be dismissed for failure to state a claim. 

In the present case, as stated, McKettrick claims that he was denied his due process rights

with respect to his SMU program placement since he was denied notice as to the reason for his

placement in this program, that he was denied the opportunity to present mitigating evidence

opposing his classification in this program, and that he was not given a hearing and allowed to

Case 4:06-cv-00543-JFM Document 2 Filed 03/22/06 Page 3 of 18
4

In the case of Portley-El v. Brill, 288 F.3d 1063 (8th Cir. 2002), the Court held that when

an inmate is challenging issues which affect the length of sentence, a habeas corpus petition and

not a civil rights action is the exclusive federal remedy.

The Supreme Court has held that a civil rights action is a proper remedy for a prisoner

who claims that his conditions of confinement violate the constitution, but is not challenging the 

duration or length of his custody in prison. Preiser v. Rodriguez, 411 U.S. 475, 499, 93 S.Ct.

1827 (1973). McKettrick, in the present case, does not attack the duration of his incarceration

and does not seek an earlier release from prison. Rather, he only challenges the lack of

procedures regarding his placement in the SMU program, i.e. without notice and without a

hearing. He has not requested relief that would alter the term of his confinement. Therefore,

McKettrick’s action is a civil rights suit, and not a petition for habeas corpus relief pursuant to 

28 U.S.C. § 2241. See Muhammad v. Close, ___ U.S. ___, 124 S.Ct. 1303, 1304 (2004) (Per

Curiam) (civil rights action not Heck barred where inmate did not seek to expunge misconduct

4

appeal his placement in the SMU program. (Doc. 1, p. 4). McKettrick’s claims of no notice and

hearing prior to his SMU program placement sound as a civil rights action under Bivens, as opposed

to a § 2241 habeas petition. In fact, as stated, McKettrick makes no specific request for relief in his

filing. Thus, McKettrick is deemed as only challenging his conditions of confinement at USPLewisburg regarding his lack of notice and hearing, and thus his action is a Bivens action. McKettrick

is not seeking relief that would affect the length of his confinement, nor is he challenging the legality

of his incarceration in prison. Accordingly, his action should not be a habeas petition. As stated,

McKettrick makes no request for relief in this case challenging the duration of his confinement. 

McKettrick’s due process claims are thus properly raised as a § 1331 Bivens action. In fact,

as mentioned McKettrick has already filed a Bivens action raising the same due process claims as he

now raises in his Habeas Petition. His claims do not fall within the core of habeas corpus because

there is no relief request seeking release from confinement in prison, and there is no request that

would necessarily imply that McKettrick’s incarceration will be shortened if he succeeds in his

present action.

4

 

Case 4:06-cv-00543-JFM Document 2 Filed 03/22/06 Page 4 of 18
charge since it could not be construed as seeking a judgment at odds with inmate’s conviction

or calculation of time to be served on underlying sentence). 

A writ of habeas corpus pursuant to 28 U.S.C. § 2241 is the vehicle for a federal inmate

incarcerated under a federal judgment of sentence to challenge the duration of his custody. 

Conversely, the general remedy for prisoners challenging their conditions of confinement, as

McKettrick is doing here, is through the filing of a civil rights action. Preiser, supra.;

Muhammad, supra.

5

McKettrick’s instant claims regarding the legality of his SMU program placement are claims

regarding the conditions of his confinement at USP-Lewisburg, and do not relate to a speedier

release from confinement and are not at the core of a habeas petition. As such, McKettrick’s stated

habeas claims are cognizable as Bivens claims under 28 U.S.C. § 1331. See Wilkinson v. Dotson, 125

S. Ct. 1242, 1248 (2005); Carson v. Johnson, 112 F. 3d 818, 820-821 (5th Cir. 1997) (“If a favorable

determination ... would not automatically entitle [Petitioner] to accelerated release, the proper

vehicle is a § 1983 [civil rights] suit.”) (citations omitted). 

Here, as stated, McKettrick makes no claim for restoration of lost good conduct time credits,

and he does not implicate the duration of his confinement. Rather, he only challenges the legality

of his SMU placement by claiming that he was not given notice, he was not allowed to present

evidence, and that the BOP did not conduct a hearing as required by due process. 

In reviewing the instant filing, we have determined that McKettrick‘s due process claim

regarding his SMU placement without any criteria and without due process has been found as not

implicating a liberty interest by this Court. Thus, we find that McKettrick’s action is indeed a Bivens

action, based on the face of his pleading, and that it fails to state a Fifth Amendment claim. Thus,

we shall recommend that to the extent McKettrick’s attempts to raise a due process claim, it should

be dismissed. Further, since we found in McKettrick’s prior Bivens action that, with respect to his

Case 4:06-cv-00543-JFM Document 2 Filed 03/22/06 Page 5 of 18
6

retaliatory SMU transfer claim, i.e. retaliatory transfer to the SMU due to his race and grievances,

McKettrick should be permitted to amend his pleading for this claim to raise it against the

responsible prison staff members, we shall recommend that the present case be consolidated with

the 06-0329 case of McKettrick. 

III. Motion to Dismiss Standard.

In considering whether a pleading states an actionable claim, the court must accept all

material allegations of the complaint as true and construe all inferences in the light most favorable

to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A complaint should not be dismissed

for failure to state a claim unless it appears “beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 44-46

(1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). A complaint that sets out facts

which affirmatively demonstrate that the plaintiff has no right to recover is properly dismissed

without leave to amend. Estelle v. Gamble, 429 U.S. 97, 107-108 (1976). 

IV. Bivens. 

Under Bivens, the District Court has federal question jurisdiction pursuant to 28 U.S.C. 

§ 1331 to entertain an action brought to redress alleged federal constitutional or statutory violations

by a federal actor under Bivens, supra. Pursuant to Bivens, “a citizen suffering a compensable injury

to a constitutionally protected interest could invoke the general federal question jurisdiction of the

district court to obtain an award of monetary damages against the responsible federal official.” Butz

v. Economou, 438 U.S. 478, 504 (1978). A Bivens-style civil rights claim is the federal equivalent of

an action brought pursuant to 42 U.S.C. § 1983 and the same legal principles have been held to

Case 4:06-cv-00543-JFM Document 2 Filed 03/22/06 Page 6 of 18
7

apply. See, Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975); Veteto v. Miller, 829 F.Supp. 1486,

1492 (M.D. Pa. 1992); Young v. Keohane, 809 F.Supp. 1185, 1200 n. 16 (M.D. Pa. 1992). In order

to state an actionable Bivens claim, a plaintiff must allege that a person has deprived him of a federal

right, and that the person who caused the deprivation acted under color of federal law. See West

v. Atkins, 487 U.S. 42, 48 (1988); Young v. Keohane, 809 F.Supp. 1185, 1199 (M.D. Pa. 1992). 

V. Discussion.

As discussed above, McKettrick is challenging his placement into the SMU program. He

challenges BOP’s policy as being without any standard or criteria. We construe this claim as a Bivens

claim and not as a habeas claim. 

1. Fifth Amendment Due Process Claim 

As discussed, McKettrick alleges that as a result of the application of an illegal prison policy,

he was placed in the SMU program at the prison. In his prior Bivens action, McKettrick alleged that

on January 20, 2006, he was transferred to the SMU program. He also stated that he was transferred

to the SMU based on retaliation premised on his race and the grievances he filed. 

In our prior Report and Recommendation, we recommended that McKettrick be permitted

to amend his Bivens pleading to state the personal involvement of the prison staff implicated in the

alleged retaliatory transfer by Plaintiff. Plaintiff did not allege that the named Defendants in his prior

case retaliated against him due to his race and his grievances by placing him into the SMU program.

(Doc. 1, Att. A & Att. B, pp. 1-2, ¶ 2., # 06-0329). We also recommend that McKettrick’s due

process claim be dismissed for failure to state a claim. 

As in our prior Report and Recommendation regarding McKettrick’s Bivens action,

Case 4:06-cv-00543-JFM Document 2 Filed 03/22/06 Page 7 of 18
8

McKettrick, in the instant case, has not alleged that he had a “protected liberty interest” that was

infringed by Williamson’s actions. “[T]hese interests will generally be limited to freedom from

restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to

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.” Sandin v. Conner, 515 U.S. 472, 484

(1995). “[T]he baseline for determining what is ‘atypical and significant’--the ‘ordinary incidents of

prison life’--is ascertained by what a sentenced inmate may reasonably expect to encounter as a

result of his conviction in accordance with due process of law.” Griffin v. Vaughan, 112 F.3d 703,

706 (3d Cir. 1997) quoting Sandin, 515 U.S. at 486. 

McKettrick avers that the BOP’s SMU placement policy caused him atypical and significant

hardship, presumably by depriving him of his general population status, without any approved

standard or criteria and without any notice or hearing. Thus, he claims that his due process rights

were violated. 

In Griffin, the Court found that confinement of a prisoner in restrictive housing for fifteen (15)

months did not implicate a constitutionally protected liberty interest. In our prior Report and

Recommendation, we stated that based on Sandin and Griffin, McKettrick’s Bivens Complaint as

against Defendant Williamson failed to state a claim, since his forty-eight (48) (as of March 9, 2006)

days SMU detention did not give rise to a protected liberty interest. Further, we stated that no

liberty interest is implicated by McKettrick because he had no right to a particular prison

classification, i.e. general population classification. It is well-settled that an inmate has no

recognizable constitutional right to a particular custody status. See Wilson v. Horn, 971 F. Supp. 943,

Case 4:06-cv-00543-JFM Document 2 Filed 03/22/06 Page 8 of 18
5

 In Stotts, this Court found that federal inmates' placement in the SMU following a riot

incident did not violate their due process rights, that inmates’ placement in the SMU was not

punitive in nature, and that inmates were not entitled to the procedural safeguards.

9

947 (E.D. Pa. 1997). 

We also found that McKettrick was requesting relief in the form of Court intervention and

management while he is in prison, i.e. a change in his custody status level and/or security housing

level in the prison by transferring him out of the SMU program and back into the general population.

We stated that the Court will not generally interfere with prison administration matters such as the

prison’s decision to place an inmate in a particular security level. We indicated that the Court

should give significant deference to judgments of prison officials regarding prison regulations and

prison administration. See Fraise v. Terhune, 283 F.3d 506 (3d Cir. 2002). 

Moreover, we stated that based on this Court’s decisions in Francis v. Dodrill, 2005 WL

2216582 (M.D. Pa.), and Stotts v. Dodrill, Civ. No. 04-0043, M.D. Pa.,5 we found that McKettrick’s

placement in the SMU did not implicate his due process rights. As this Court in Francis stated: 

The defendants also argue that Francis’ placement in the

SMU does not implicate his due process rights. We agree. A due

process liberty interest “in avoiding particular conditions of confinement

may arise from state policies or regulations.” Wilkinson v. Austin,

___ U.S. ___, ___, 125 S.Ct. 2384, 2393, 162 L.Ed.2d 174 (2005).

The Due Process Clause protects a prisoner’s right 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 in relation to the ordinary incidents of prison

life.” Id. at 2394 (quoting Sandin v. Connor, 515 U.S. 472, 484,

115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)).

The proper focus for determining whether prison conditions give

Case 4:06-cv-00543-JFM Document 2 Filed 03/22/06 Page 9 of 18
10

rise to a due process liberty interest is the nature of the conditions,

not mandatory language in prison regulations. Sandin, 515 U.S. 

at 484. In Sandin, an inmate was charged with violating prison

regulations. Id. at 475. At a hearing, the hearing committee

refused the inmate’s request to present witnesses. Id. The

committee found the inmate guilty and sentenced him to

disciplinary segregation. Id. The inmate sought review, and a 

deputy administrator found some of the charges unfounded and

expunged his disciplinary record. Id. at 476. Thereafter, the

inmate filed suit pursuant to 42 U.S.C. § 1983 for a deprivation

of procedural due process during the disciplinary hearing. Id.

The Tenth Circuit found that he had a protected liberty interest

because it interpreted the prison regulations to require that the

committee find substantial evidence of misconduct before

imposing segregation. Id. at 477. The Supreme Court reversed,

finding no liberty interest. Id. at 484. In doing so, it rejected an

approach that focused on whether the prison regulations “went beyond

issuing mere procedural guidelines and has used ‘language of an

unmistakably mandatory character’ such that the incursion on 

liberty would not occur ‘absent specified substantive predicates.”’

Id. at 480 (quoting Hewitt v. Helms, 459 U.S. 460, 471-72, 103 

S.Ct. 864, 74 L.Ed.2d 675 (1983)). The Court found this approach

undesirable because it created a disincentive for prison

administrators to codify prison management procedures and because

it “led to the involvement of federal courts in the day-to-day

management of prisons, often squandering judicial resources with

little offsetting benefit to anyone.” Id. at 482. Thus, the Court held

liberty 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 484. In applying this test, the Court observed,

“[discipline by prison officials in response to a wide range of

misconduct falls within the expected perimeters of the sentence 

imposed by a court of law.” Id. at 485. The Court then found that

the inmate’s disciplinary segregation “did not present a dramatic

departure from the basic conditions of Conner’s indeterminate 

sentence” because the conditions of disciplinary segregation were

similar to those faced in administrative and protective custody.

Id. at 486.

Case 4:06-cv-00543-JFM Document 2 Filed 03/22/06 Page 10 of 18
11

In Wilkinson v. Austin, ___ U.S. ___, ___, 125 S.Ct. 2384, 2393,

162 L.Ed.2d 174 (2005), the Court applied the Sandin test

and found that the plaintiff’s due process rights were implicated

when he was placed in a program where:

almost all human contact is prohibited, even to the point

that conversation is not permitted from cell to cell; the light,

though it may be dimmed, is on for 24 hours; exercise is for 1

hour per day, but only in a small indoor room ... [P]lacement ...

is indefinite and, after an initial 30 day review, is reviewed just 

annually . . . . [P]lacement disqualifies an otherwise eligible

inmate for parole consideration.

Id. at 2394-95.

The court found that these harsh conditions “give rise to a 

liberty interest in their avoidance.”

Id. at 2395.

Fraise v. Terhune, 283 F.2d 506 (3d Cir.2002) applied the

Sandin test and found that avoiding placement in the Security

Threat Group Management Unit (STGMU) in the New Jersey prison

system is not a protected liberty interest. Inmates who the

prison deemed members of groups that posed a security threat

were placed in the STGMU. Id. at 509. “An inmate assigned to

the STGMU remains in maximum custody until the inmate

successfully completes a three-phase behavior modification

program.” Id. at 511. The Court found that despite the

additional restrictions, prisoners have no liberty interest in

avoiding placement in the STGMU. Id.; see also Griffin v. Vaughn,

112 F.3d 703, 706 (3d Cir. 1997) (finding that additional

restrictions in administrative custody for a period of fifteen

months does not deprive prisoners of protected liberty

interests).

We find that the conditions in the [USP-Lewisburg] SMU do 

not remotely approach the severity of the conditions

Wilkinson found to give rise to a protected liberty interest, and

are comparable to the conditions in cases such as Sandin,

Fraise, and Griffin, which found no protected liberty interest.

Id., pp. *3-*4.

Case 4:06-cv-00543-JFM Document 2 Filed 03/22/06 Page 11 of 18
12

The Francis Court concluded that the restrictions in the SMU in federal prison at USPLewisburg were no greater than the restrictions placed on the inmate in Griffin. Id. * 5. We stated

in our prior Report and Recommendation that McKettrick did not allege any greater restrictions in

the SMU at USP-Lewisburg than were placed on the inmates in Francis, who were also in the very

same SMU program at USP-Lewisburg. 

The Francis Court then stated: 

Inmates have no due process right to a facility of their choosing.

Young v. Quinlan, 960 F.2d 351, 358 n. 16 (3d Cir. 1992). The

Bureau of Prisons retains sole discretion over where to place an

inmate. 18 U.S.C. § 3621. Inmates do, however, have a liberty

interest in avoiding transfer to facilities where the conditions

impose “atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Sandin, 515 U.S.

at 484. This is not such a transfer. We find that these conditions

and the conditions overall in the SMU are reasonable and

proportionate to those in other prisons in the federal system and

across the country and do not impose an atypical and significant

hardship in relation to the ordinary incidents of prison life. Using

restrictions to promote prosocial behavior falls within the parameters

of a sentence imposed by a court of law. While Francis clearly

would prefer not to be housed in the SMU, his preference is not

a liberty interest protected by the Due Process Clause.

Id. 

Further, the Court in Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997), stated:

Applying the precepts of Sandin to the circumstances before

us, we conclude that the conditions experienced by Griffin in 

administrative custody did not impose on him “atypical and significant

hardship,” that he was thus deprived of no state created liberty

interest, and that he failure to give him a hearing prior to his

transfer to administrative custody was not a violation of the

procedural due process guaranteed by the United States

Constitution.

Case 4:06-cv-00543-JFM Document 2 Filed 03/22/06 Page 12 of 18
13

The Griffin Court concluded that, considering the reasons to transfer inmates from general

population to administrative custody, such as inmates deemed to be security risks, stays in

administrative custody for many months (i.e. as long as 15 months) are not uncommon. Id. at p.

708. Thus, the Griffin Court held that the inmate Griffin’s transfer to and confinement in

administrative custody “did not deprive him of a liberty interest, and that he was not entitled to

procedural due process protection.” Id. 

We previously indicated that this Court in Francis, supra at * 2, stated that “A violation of

the Due Process Clause involves the following three elements: ‘1) the claimant must be ‘deprived

of a protectable interest; 2) that deprivation must be due to some governmental action; and 3) the

deprivation must be without due process.’” (citation omitted). The Francis Court, as stated, found

that placement of its Plaintiff, a federal inmate at USP-Lewisburg, in the SMU did not implicate his

due process rights. Id. * 3. Based on Griffin and Francis, we found that McKettrick‘s placement in

the SMU for about forty-eight (48) days (i.e. January 20, 2006 to March 9, 2006) (now about 59

days) does not give rise to a protected liberty interest. 

In Thorpe v. Dohman, 2004 WL 2397399 * 2 (E.D. Pa.), the Court considered whether

Plaintiff inmate’s placement in the SCI-Graterford RHU on administrative custody status for 15 days

without receiving a hearing violated due process. The Court stated that its Plaintiff was entitled to

a hearing if he had a liberty interest in remaining in the prison’s general population. The Thorpe

Court found that, based in part on Griffin, supra, the 15-day delay in giving plaintiff an administrative

hearing did not violate due process. Id. * 3. The Thorpe Court then cited Whittington v. Vaughn,

289 F. Supp. 2d 621, 626 (E. D. Pa. 2003), and quoted it as follows: “The courts of this circuit have

Case 4:06-cv-00543-JFM Document 2 Filed 03/22/06 Page 13 of 18
14

repeatedly held that temporary transfer to SCI Graterford’s RHU, whether for administrative or

disciplinary reasons, does not impose [atypical and significant] hardship.” 

Therefore, we found that none of McKettrick‘s due process rights were violated by the BOP

or the Warden. We stated that this conclusion was supported by several additional cases dealing

with state inmates, including the following cases. 

In Fraise v. Terhune, 283 F. 3d 506, 522 (3d Cir. 2002), the Court held that the DOC did not

violate the due process rights of state inmates who were transferred to the prison Security Threat

Group Management Unit (SGTMU) without notice since inmates were not deprived of a protected

liberty interest. The Fraise Court concluded that:

Here, the plaintiffs were not subjected to confinement that 

exceeded the sentences imposed upon them or that otherwise 

violated the Constitution, and therefore no liberty interest created by 

the Due Process Clause itself was impinged. See Hewitt, 459 U.S. at 

468, 103 S.Ct. 864 (It is plain that the transfer of an inmate to 

less amenable and more restrictive quarters for nonpunitive reasons 

is well within the terms of confinement ordinarily contemplated 

by a prison sentence.). 

Id. 

 

The Fraise Court found that the inmates could not show that they were deprived of a statecreated liberty interest. The Court went on to state:

Although inmates who are transferred to the STGMU face additional 

restrictions, we hold that the transfer to the STGMU does not impose 

an atypical and significant hardship in relation to the ordinary incidents of 

prison life. See Griffin, 112 F.3d at 706-08 (15 months in administrative 

segregation not atypical and significant hardship); see also, e.g., 

Jones v. Baker, 155 F.3d 810, 813 (6th Cir.1998) (confinement 

in administrative segregation for two and one-half years is not 

atypical and significant hardship); Pichardo v. Kinker, 73 F.3d 612, 

613 (5th Cir.1996)(rejecting as frivolous a claim that classification 

Case 4:06-cv-00543-JFM Document 2 Filed 03/22/06 Page 14 of 18
15

as gang member and placement in administrative segregation unit 

deprived inmate of a protected liberty interest). Thus, the plaintiffs 

lack a protected liberty interest and their due process claim must fail. 

Id. 522-23. 

 

In Bey v. PA DOC, 98 F. Supp. 2d 650, 661, n. 25 (E.D. Pa. 2000), the Court noted

 that:

 plaintiff's ten-month confinement in administrative custody at 

[SCI] Greene does not represent such an “atypical and significant 

hardship on [plaintiff] in relation to the ordinary incidents of 

prison life” so as to trigger due process protection. See, e.g. Griffin 

v. Vaughn, 112 F.3d 703, 706 (3d Cir.1997) (citing Sandin v. Conner,

515 U.S. 472, 483, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), 

and finding that plaintiff's fifteen-month confinement in 

administrative custody did not deprive plaintiff of any “state created 

liberty interest, and that the failure to give [plaintiff] an administrative 

hearing prior to his transfer to administrative custody was not a 

violation of the procedural due process guaranteed by

the United States Constitution”); Wilson v. Horn, 971 F.Supp. 943, 

947 (E.D.Pa.1997) (stating that inmate “has no federal 

constitutional right to a particular custody status); Smith v. Luciani,

Nos. CIV.A. 97-3037 and 97-3613, 1998 WL 151803, at (E.D.Pa. 

Mar. 31, 1998) (Prisoners, however, have no constitutional right to 

a hearing before a term of seven months administrative custody is 

imposed, because it is not atypical of the types of deprivations 

expected while in prison) (citing Griffin ).

 

Based on the foregoing and the well-settled case law, as we found in our prior Report and

Recommendation, we again find that McKettrick’s action fails to state a due process claim. We also

find that to the extent that McKettrick is again alleging that his transfer to the SMU program was

retaliatory based on his race and the grievances he filed, that this claim should be consolidated with

McKettrick’s case # 06-0329. Thus, we shall recommend that this case be construed as a Bivens civil

rights action, and that the due process claim be dismissed. 

Case 4:06-cv-00543-JFM Document 2 Filed 03/22/06 Page 15 of 18
6As we noted in our Report and Recommendation in case # 06-0329, notwithstanding

McKettrick’s pro se status, we do not recommend that he be permitted to amend his Complaint

regarding his due process claim since we find that based on well-settled case law his due

process claim fails to state a constitutional violation. Thus, we again find futility of any

amendment of this claim, and we shall not recommend Plaintiff be granted leave to amend his

due process claim. See Forman v. Davis, 371 U.S. 178, 182 (1982); Shane v. Fauver, 213 F.3d

113, 115 (3d Cir. 2000) (The futility exception means that a complaint, as amended, would fail

to state a claim upon which relief can be granted); Alston v. Parker, 363 F. 3d 229, 236 (3d Cir.

2004). 

16

VI. Recommendation. 

Based on the foregoing, it is respectfully recommended that McKettrick’s Habeas Corpus

Petition be construed as a Bivens civil rights action, and that insofar as it raises a due process claim,

it be dismissed for failure to state a claim.6 It is also recommended that the present case, to the

extent that McKettrick has raised a First Amendment retaliation claim, be consolidated with his

previous case, # 06-0329. 

 

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT

United States Magistrate Judge

Dated: March 22, 2006 

Case 4:06-cv-00543-JFM Document 2 Filed 03/22/06 Page 16 of 18
17

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KENNETH RAYMOND McKETTRICK : CIVIL ACTION NO. 4:CV-06-0543 

:

Plaintiff : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

WARDEN TROY WILLIAMSON, :

 :

:

Defendant :

 NOTICE

 

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing

Report and Recommendation dated March 22, 2006. 

Any party may obtain a review of the Report and Recommendation pursuant to 

Rule 72.3, which provides:

Any party may object to a magistrate judge’s proposed findings, 

recommendations or report addressing a motion or matter described in 

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within ten (10)

days after being served with a copy thereof. Such party shall file

with the clerk of court, and serve on the magistrate judge and all

parties, written objections which shall specifically identify the

portions of the proposed findings, recommendations or report to which

objection is made and the basis for such objections. The briefing

requirements set forth in Local Rule 72.2 shall apply. A judge shall

make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection

is made and may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge. The judge, however,

need conduct a new hearing only in his or her discretion or where 

required by law, and may consider the record developed before the

Case 4:06-cv-00543-JFM Document 2 Filed 03/22/06 Page 17 of 18
18

magistrate judge, making his or her own determination on the basis

of that record. The judge may also receive further evidence, recall

witnesses or recommit the matter to the magistrate judge with

instructions.

 s/ Thomas M. Blewitt 

THOMAS M. BLEWITT 

United States Magistrate Judge 

Dated: March 22, 2006 

Case 4:06-cv-00543-JFM Document 2 Filed 03/22/06 Page 18 of 18