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UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

WILLIAM R. PERKINS, :

:

Plaintiff :

:

v. : CIVIL NO. 4:CV-05-1225

:

JEFFREY A. BEARD, ET AL., : (Judge McClure)

:

Defendants :

MEMORANDUM AND ORDER

August 15, 2005

Background

This pro se civil rights action pursuant to 42 U.S.C. § 1983 was initiated by

William Richard Perkins (“Plaintiff”), an inmate currently confined at the Retreat State

Correctional Institution, Hunlock Creek, Pennsylvania (“SCI-Retreat”). Along with his

complaint, Plaintiff has submitted an application requesting leave to proceed in forma

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1. Perkins completed this Court's form application to proceed in forma pauperis and

authorization to have funds deducted from his prison account. The Court then issued

an Administrative Order directing the Superintendent at SCI-Retreat to commence

deducting the full filing fee from Plaintiff's prison trust fund account.

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pauperis.

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 For the reasons outlined below, Perkins’ complaint will be dismissed

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

Named as Defendants are SCI-Retreat Superintendent Charles Erickson;

Secretary Jeffrey A. Beard and Diagnostic and Classification Coordinator Donald

Williamson of the Pennsylvania Department of Corrections (“DOC”). Plaintiff states

that during April, 2003, he was approved for an “Incentive/promotional transfer” to the

State Correctional Institution, Graterford, Pennsylvania (“SCI-Graterford”). Record

document no. 1, ¶ V. Perkins notes that his request for transfer was granted on the

basis of his good conduct and that SCI-Graterford was located closer to his family. 

However, the request for transfer was subsequently denied by the DOC due to the

placement of “a cap on class level II status inmates.” Id. Thereafter, Perkins was

transferred to other state correctional facilities including his current place of

incarceration, SCI-Retreat which is: further away from his home, caused a decrease in

his salary from institutional employment, and prevented him from self medicating. 

Specifically, rather then being allowed to keep his HIV medications in his cell, Perkins

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states that he must now wait in line three times daily in order to obtain his medicine. 

His complaint additionally notes that two fellow inmates were transferred to SCIGraterford.

Plaintiff contends that because he had earned a transfer, the subsequent

denial of his request violated DOC policy as well as his constitutional equal protection

and due process rights. Perkins seeks injunctive relief, specifically, a transfer to SCIGraterford, reinstatement of his self-medication privileges and Class Level II status. 

He is also requesting monetary compensation for his lost institutional wages.

Discussion

28 U.S.C. § 1915 imposes obligations on prisoners who file civil actions in

federal court and wish to proceed in forma pauperis under 28 U.S.C. § 1915, e.g., the

full filing fee ultimately must be paid (at least in a non-habeas suit). 

§ 1915(e)(2)provides:

(2) 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.

When considering a complaint accompanied by a motion to proceed in

forma pauperis, a district court may rule that process should not be issued if the

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complaint is malicious, presents an indisputably meritless legal theory, or is predicated

on clearly baseless factual contentions. Neitzke v. Williams, 490 U.S. 319, 327-28

(1989); Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989). Indisputably meritless

legal theories are those "in which either it is readily apparent that the plaintiff's

complaint lacks an arguable basis in law or that the defendants are clearly entitled to

immunity from suit . . . ." Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990) (quoting

Sultenfuss v. Snow, 894 F.2d 1277, 1278 (11th Cir. 1990)). 

The United States Court of Appeals for the Third Circuit has added that "the

plain meaning of ‘frivolous’ authorizes the dismissal of in forma pauperis claims that 

. . . are of little or no weight, value, or importance, not worthy of serious 

consideration, or trivial." Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir.

1995). It also has been determined that "the frivolousness determination is a

discretionary one," and trial courts "are in the best position" to determine when an

indigent litigant's complaint is appropriate for summary dismissal. Denton, 504 U.S. at

33.

Custody Classification/Transfer

With respect to the purported change in Perkins’ custody classification, the

United States Supreme Court has held that inmates have “no legitimate statutory or

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constitutional entitlement” to any particular custodial classification even if a new

classification would cause that inmate to suffer a “grievous loss.” Moody v. Daggett,

429 U.S. 78, 88 n.9 (1976); James v. Reno, 39 F. Supp. 2d 37, 40 ( D.D.C.

1999)(citation omitted)(a federal inmate “has no liberty interest in his security

classification”). Consequently, the complaint to the extent that it seeks reinstatement

of the Plaintiff’s DOC class level II designation is subject to dismissal.

It is equally well-settled that a prisoner has no justifiable expectation that he

will be incarcerated in a particular prison. Olim v. Wakinekona, 461 U.S. 238 (1983). 

In Montanye v. Haymes, 427 U.S. 236, 242 (1976), the Supreme Court held that “[a]s

long as the conditions or degree of confinement to which the prisoner is subjected is

within the sentence imposed upon him and is not otherwise violative of the

Constitution, the Due Process Clause does not in itself subject an inmate's treatment

by prison authorities to judicial oversight.” Id. at 242. 

On the same day, the Supreme Court decided the seminal case of Meachum

v. Fano, 427 U.S. 215, 216, reh'g denied, 429 U.S. 873 (1976), holding that no liberty

interest under the Due Process Clause of the Fourteenth Amendment is infringed upon

when an inmate is transferred, with or without a hearing, to another state correctional

institution with substantially less favorable conditions. The Court added that where

the state does not provide a liberty interest in being housed at a particular institution,

prison officials may transfer an inmate "for whatever reason or for no reason at all." 

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Meachum, 427 U.S. at 228. Pennsylvania law leaves the housing of inmates in

particular institutions to the discretion of state officials. See 37 Pa. Code § 93.11(a);

Hannon v. Terra, 1995 WL 129219 at *11 (E.D. Pa. 1995). Accordingly, an inmate

can only state a claim if a transfer was made for some constitutionally impermissible

reason such as retaliation against the prisoner’s exercise of constitutionally protected

rights. See, e.g., Jackson v. Cain, 864 F.2d 1235, 1248 (5th Cir. 1989). 

Likewise, placement in a correctional facility which is far from family and

friends does not implicate a constitutionally protected interest. Simply put,

Pennsylvania state inmates have no right to a transfer to a prison for the purpose of

being near family members. See Davis v. Carlson, 837 F.2d 1318, 1319 (5th Cir.

1988); Jackson v. Johnson, 15 F. Supp. 2d 341, 366-67 (S.D.NY 1998)(no

constitutional right for a prisoner to be held in a prison near his residence). Perkins

did not enjoy a constitutional right to be housed in a particular state correctional facility

and there are no assertions of retaliation set forth in the complaint. Consequently, the

DOC’s denial of Plaintiff’s request to be transferred to a prison closer to home does

not assert a cognizable § 1983 claim.

Institutional Employment

An inmate does not have a protected liberty or property interest in continued

prison employment. James v. Quinlan, 866 F.2d 627, 629-30 (3d Cir.), cert. denied,

493 U.S. 870 (1989); Bryan v. Werner, 516 F.2d 233, 240 (3d Cir. 1975). The right to

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earn wages while incarcerated is a privilege, not a constitutionally guaranteed right. In

Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court held that while under

certain circumstances, states may create liberty interests protected by the Due Process

Clause,

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 484 (citations omitted). Furthermore, although Sandin "did not instruct on the

correct methodology for determining when prison regulations create a protected

property interest[,]" as opposed to a liberty interest, the "law is well established . . .

that an inmate's expectation of keeping a specific prison job, or any job, does not

implicate a protected property interest." Bulger v. United States Bureau of Prisons, 65

F.3d 48, 50 (5th Cir. 1995). See also Coakley v. Murphy, 884 F.2d 1218, 1221 (9th

Cir. 1989) (holding inmates have no property interest in continuing in work-release

program); Ingram v. Papalia, 804 F.2d 595, 596 (10th Cir. 1986) (finding Constitution

does not create a property interest in prison employment).

Pursuant to the above discussion, the Plaintiff’s request for compensation

due to a decrease in the amount of his salary from institutional employment does not

set forth a valid claim of constitutional misconduct.

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Medical Treatment

Pursuant to the Supreme Court's decision in Estelle v. Gamble, 429 U.S. 97

(1976), an inmate plaintiff must demonstrate that prison officials have breached the

standard of medical treatment to which he was entitled. The government has an

"obligation to provide medical care for those whom it is punishing by incarceration." 

Id. at 103. However, a constitutional violation does not arise unless there is "deliberate

indifference to serious medical needs of prisoners" which constitutes "unnecessary

and wanton infliction of pain." Id. at 104 (citation omitted). A later decision by the

Supreme Court established that the proper analysis for deliberate indifference is

whether a prison official "acted or failed to act despite his knowledge of a substantial

risk of serious harm." Farmer v. Brennan, 511 U.S. 825, 841 (1994). 

Thus, a complaint that a physician or a medical department "has been

negligent in diagnosing or treating a medical condition does not state a valid claim of

medical mistreatment under the Eighth Amendment [as] medical malpractice does not

become a constitutional violation merely because the victim is a prisoner." Estelle, 429

U.S. at 106. Where a prisoner has actually been provided with medical treatment, one

cannot always conclude that, if such treatment was inadequate, it was no more than

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mere negligence. See Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993). It is true,

however, that if inadequate treatment results simply from an error in medical judgment,

there is no constitutional violation. See id.

In the present case, there are no allegations that the Plaintiff was denied

medical care or that needed treatment was improperly delayed. Rather, Perkins alleges

only that due to his transfer to a different state correctional facility he must now wait in

line in order to obtain his medication. Based on an application of the standards set

forth in Farmer and Estelle, this allegation simply does not rise to the level of a viable

constitutional claim.

Since Perkins’ complaint is "based on an indisputably meritless legal theory,"

it will be dismissed, without prejudice, as legally frivolous. Wilson, 878 F.2d at 774. 

Under the circumstances, this Court is confident that service of process is not only

unwarranted, but would waste the increasingly scarce judicial resources that § 1915 is

designed to preserve. See Roman, 904 F.2d at 195 n.3. Consequently, 

IT IS HEREBY ORDERED THAT:

1. Plaintiff’s in forma pauperis motion is construed as a motion to

proceed without full prepayment of fees and costs and the motion is

granted.

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2. The complaint is dismissed, without prejudice, as frivolous, pursuant

to 28 U.S.C. § 1915(e)(2)(B)(i).

3. The Clerk of Court shall close this case.

4. Any appeal taken from this order will be deemed frivolous, without

probable cause, and not taken in good faith.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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