1Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388, 91 S.Ct.

1999 (1971). 

2On March 15, 2006, McKettrick filed a § 2241 habeas corpus petition naming Warden

Williamson as the Respondent, Civil No. 06-0543, M.D. Pa. In his Habeas Petition, McKettrick

essentially raises the same claim as he does in the instant Bivens suit, namely that his placement

in the Special Management Unit (“SMU”) at USP-Lewisburg without notice and a hearing, and

without a Bureau of Prisons policy or criteria governing the SMU program, violates his due

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KENNETH RAYMOND McKETTRICK : CIVIL ACTION NO. 4:CV-06-0329 

:

Plaintiff : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

TROY WILLIAMSON, et al., :

 :

:

Defendants :

 REPORT AND RECOMMENDATION

I. Background. 

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

Lewisburg (“USP-Lewisburg”), Pennsylvania, filed, pro se, this Bivens1 action pursuant to 28 U.S.C.

§ 1331, on February 14, 2006. Plaintiff names as Defendants two individuals employed by the

Federal Bureau of Prisons (“BOP”), one named person at USP-Lewisburg, namely Warden

Williamson, and the other an unknown John Doe Defendant who is the BOP Northeast Regional

Director. While Plaintiff originally filed an in forma pauperis request (Doc. 2), he later paid the filing

fee in full (Doc. 6).2 

Case 4:06-cv-00329-JFM Document 7 Filed 03/21/06 Page 1 of 20
process rights. By separate Report and Recommendation, we shall recommend that

McKettrick’s Habeas Corpus Petition be construed as a Bivens action, and that it be

consolidated with the present Bivens action.

2

II. Allegations of Complaint. 

Attached to his form Complaint (Doc. 1), Plaintiff has included a handwritten statement of

claim, Att. A, and his Affidavit, Att. B. With respect to his John Doe Defendant, Plaintiff does not

allege any personal involvement necessary to name this unidentified BOP official as a Defendant.

(Doc. 1, pp. 1-3). Plaintiff seemingly includes the unnamed John Doe Defendant based on

respondeat superior, and this is not permissible in a Bivens action. Plaintiff states as to Defendant

John Doe that he is challenging the procedural application of BOP’s SMU policy that 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, Att. A, attached handwritten statement of claim).

Plaintiff states that he is challenging the procedural application of BOP policy which lacks any

approved standard or criteria with respect to the placement of inmates into the SMU program.

Plaintiff does not specify how the John Doe Defendant is personally involved with his placement

into the SMU program at USP-Lewisburg. Plaintiff claims that the named Defendant, Warden

Williamson, violated his due process rights by permitting his placement into the SMU program at the

prison on January 20, 2006 without any criteria for said confinement, and because he was racially

profiled as a Native American, a group which has been unlawfully classified as a disruptive gang.

(Doc. 1,pp. 2-3 & Att. A, attached handwritten statement of claim). 

In his Affidavit attached to his Complaint, Plaintiff states that not only did Defendants violate

his due process rights, but that after his transfer to USP-Lewisburg, on December 8, 2005, when he

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3

It is well-settled that the Plaintiff must exhaust his administrative remedies prior to filing

a civil rights suit. Id. at 230. In Porter v. Nussle, 534 U.S. 516, 532 (2002), the Supreme Court

reiterated that the exhaustion requirement under § 1997e(a) applies to all actions regarding

3

asked for BOP Administrative remedy form BP-8, he was threatened by prison staff with the SMU

if he filed his grievance. (Doc. 1, Att. B, ¶ 2). Plaintiff states that on January 12, 2006, SIS told him

that he was not put in for a Transfer Referral, as he was previously told he would, but that a SMU

Referral was made for him due to his pursuit of Administrative remedies. and due to his Native

American race. (Id., ¶ 2, p. 2). Plaintiff does not allege the personal involvement of Defendant

Williamson or the John Doe Defendant in the claimed retaliatory transfer to the SMU due to his race

and filing grievances. (Doc. 1, att. A & Att. B). 

As relief, Plaintiff requests an injunction in the form of this Court ordering his SMU program

classification to be null and void, to order the BOP to remove Native Americans as a disruptive

group, to order BOP to establish a policy statement with due process for the placement of inmates

into the SMU program, and to release him back into general population. (Doc. 1, p. 3). Plaintiff

does not specifically request any monetary damages. (Id.). 

Plaintiff claims 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, it is an extension of disciplinary sanctions, and it is arbitrarily and capriciously applied by

BOP staff. (Id.). 

Plaintiff also states that he exhausted his administrative remedies regarding his present claims

against the BOP and our Defendants “as far as I can” since he has filed a BP-8 and BP-9, but the

BOP personnel do not respond. (Id., p. 2, ¶ II.).3 

Case 4:06-cv-00329-JFM Document 7 Filed 03/21/06 Page 3 of 20
prisons conditions, including § 1983 actions or actions brought pursuant to any other federal

law. The Porter Court held that “the PLRA’s exhaustion requirement applies to all inmate suits

about prison life, whether they involve general circumstances or particular episodes, and

whether they allege excessive force or some other wrong.” Id. However, Defendants have the 

burden to plead exhaustion as an affirmative defense. See Ray v. Kertes, 285 F.3d 287, 295 (3d

Cir. 2002). 

4Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996).

5As stated above, Plaintiff completed an application to proceed in forma pauperis, but he 

 later paid the full filing fee. (Docs. 2 & 6). 

4

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

the two individual Defendants, as well as a First Amendment retaliation claim. 

III. PLRA.

Notwithstanding Plaintiff’s payment of the filing fee, the Prison Litigation Reform Act of 1995

(the “PLRA”)4 obligates the Court to engage in a screening process.5 Specifically, even though

Plaintiff paid the filing fee for a civil rights action, we must still screen his complaint pursuant to 

28 U.S.C. §1915A. See Vega v. Kyler, C.A. No. 03-1936 (3d Cir. 2004) 2004 WL 229073 (nonprecedential) (If prisoner pays filing fee, civil rights complaint is subject to review under 28 U.S.C.

§ 1915A(b) and not 28 U.S.C. § 1915(e)(2)(B)). 

 Section 1915A provides:

(a) Screening.- The court shall review, before docketing if feasible or, 

in any event, as soon as practicable after docketing, a complaint in a 

civil action in which a prisoner seeks redress from a governmental 

entity or officer or employee of a governmental entity. 

(b) Grounds for dismissal.- On review, the court shall identify 

cognizable claims or dismiss the complaint, or any portion of the 

complaint, if the complaintCase 4:06-cv-00329-JFM Document 7 Filed 03/21/06 Page 4 of 20
5

(1) is frivolous, malicious, or fails to state a claim upon which 

relief may be granted; or

(2) seeks monetary relief against a defendant who 

is immune from such relief.

In reviewing the complaint under 28 U.S.C. §1915A(b), we have determined that the Plaintiff

does not state the personal involvement of either Defendant Williamson or John Doe Defendant

with respect to his retaliatory SMU transfer claim, and that Plaintiff‘s due process claim regarding

his SMU placement without any criteria as against our Defendants has been found as not implicating

a liberty interest by this Court. Thus, we find that Plaintiff’s Bivens action, based on the face of his

pleading, fails to state a Fifth Amendment claim. We also find that under §1915A(b)(2), the Plaintiff

cannot proceed as against the John Doe Defendant since he cannot be served, and since there is no

personal involvement in Plaintiff‘s placement in the SMU alleged with respect to this unnamed

Defendant. Thus, we shall recommend that the John Doe Defendant be dismissed. Further, we find

that since no personal involvement of our Defendants is alleged with respect to Plaintiff’s retaliatory

transfer claim, Plaintiff should be permitted to amend his pleading for this claim to raise it against

the responsible prison staff members. 

IV. 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

Case 4:06-cv-00329-JFM Document 7 Filed 03/21/06 Page 5 of 20
6

(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). 

V. 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

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).

VI. Discussion.

1. No Personal Involvement of John Doe Defendant 

As discussed above, there is no personal involvement alleged with respect to the John Doe

and Plaintiff‘s challenged placement into the SMU program. Plaintiff only challenges BOP’s policy

as being without any standard or criteria. This does not suffice to name the BOP Northeast Regional

Case 4:06-cv-00329-JFM Document 7 Filed 03/21/06 Page 6 of 20
7

Director as a Defendant in this action. Respondeat superior is not an acceptable basis to hold a BOP

official as a Defendant in a Bivens action, as mentioned above. Further, Plaintiff does not state that

this John Doe Defendant had anything to with his alleged retaliatory transfer to the SMU program

due to his race and filing of grievances. 

Each named defendant must be shown, through the complaint’s allegations, to have been

personally involved in the events or occurrences upon which Plaintiff’s claims are based. As the

Court stated in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998):

A defendant in a civil rights action must have personal involvement

in the alleged wrongs . . . . [P]ersonal involvement can be shown

through allegations of personal direction or of actual knowledge and

acquiescence. Allegations of participation or actual knowledge

and acquiescence, however, must be made with appropriate

particularity. (Citations omitted).

A civil rights complaint must state time, place, and responsible persons. Id. Courts have also

held that an allegation seeking to impose liability on a defendant based on supervisory status,

without more, will not subject the official to liability. See Rode, 845 F.2d at 1208. 

 A Defendant prison official cannot be held liable for the actions of others since the doctrine

of respondeat superior is not an acceptable basis for civil rights liability. See Durmer v. O’Carroll, 991

F. 2d 64, 69 (3d Cir. 1993). Liability may only be based upon Defendant’s personal involvement

in conduct amounting to a constitutional violation. Hampton v. Holmesburg Prison Officials, 547 F.

2d 1077 (3d Cir. 1976). 

With respect to the John Doe Defendant named in Plaintiff‘s Complaint, but not mentioned

in the body of the pleading (Doc. 1, pp. 2-3, Att. A & Att. B), we find no claims against this

unnamed supervisory BOP Defendant. Further, there is nothing in a civil rights action to allow

Case 4:06-cv-00329-JFM Document 7 Filed 03/21/06 Page 7 of 20
6

If the Plaintiff is able to identify the John Doe Defendant and to state the personal

involvement of this Defendant in the placement of Plaintiff in the SMU and in Plaintiff’s alleged

retaliatory transfer, he may request leave to amend his pleading. See Fed. R. Civ. P. 15(a) (leave

to amend “shall be freely given”). 

8

service on an unnamed Defendant. The Court does not have the ability to direct service on this

Defendant due to Plaintiff‘s failure to specifically identify him, and this warrants dismissal of the

claims against the unnamed Defendant. See Vollmer v. Bowles, 1997 WL 102476 at * 2 (N.D. Tex

1997); Siguradson v. DelGuercio, 241 F. 2d 480, 482 (9th Cir. 1956) (claims against John Doe

Defendants dismissed as frivolous because federal rules make no provision for joining fictitious

Defendants in an action under a federal statute). 

Therefore, we shall recommend that Defendant John Doe,BOP Northeast Regional Director,

be dismissed.6 

2. Fifth Amendment Due Process Claim 

As discussed, Plaintiff alleges that Defendant Williamson allowed the application of an illegal

prison policy that caused him to be placed him in the SMU program on January 20, 2006,

presumably to the present. Plaintiff also states that he was transferred to the SMU based on

retaliation premised on his race and the grievances he filed. However, Defendant Williamson’s

personal involvement is not implicated in this alleged retaliatory transfer by Plaintiff. 

In a Supplement to his Complaint filed on February 14, 2006, Plaintiff submits a copy of a

letter to Defendant Williamson dated February 13, 2006, in which he states that he filed a BP-9 on

January 19, 2006 regarding his illegal placement in the SMU, and was not given a receipt. Plaintiff

states that he cannot get any reply to his Administrative remedies. (Doc. 3). Plaintiff states that he

Case 4:06-cv-00329-JFM Document 7 Filed 03/21/06 Page 8 of 20
9

has filed all of his possible Administrative remedies and has no recourse but to ask for the Court’s

help. A prison official’s response or lack thereof to an inmate’s Administrative remedies is not

sufficient alone to hold the official liable in a civil rights action. The law is well-settled that there is

no constitutional right to a grievance procedure. See Jones v. North Carolina Prisoners’ Labor Union,

Inc. 433 U.S. 119, 137-138 (1977). This very Court has also recognized that grievance procedures

are not constitutionally mandated. See Chimenti v. Kimber, Civil No. 3:CV-01-0273, slip op. at p.

18 n. 8 (March 15, 2002) (Vanaskie, C.J.), reversed in part, C.A. No. 03-2056 (3d Cir. June 8,

2005)(Non-Precedential). Even if the prison provides for a grievance procedure, as the BOP does,

violations of those procedures do not amount to a civil rights cause of action. Mann v. Adams, 855

F. 2d 639, 640 (9th Cir 1988), cert denied, 488 U.S. 898 (1988); Hoover v. Watson, 886 F. Supp.

410, 418 (D. Del. 1995), aff’d 74 F. 3d 1226 (3d Cir. 1995). See also Burnside v. Moser, Civil No.

04-2485, 12-16-04 Order, p. 3, J. Muir, M.D. Pa. (Even “[i]f the state elects to provide a grievance

mechanism, violations of its procedures do not ... give rise to a [constitutional] claim.”) (citations

omitted). Thus, even if the prison official allegedly failed to process the prisoner’s grievances, no

constitutional claim is stated. Burnside, supra. 

Plaintiff has not stated a First Amendment retaliation claim against Defendants Williamson

and John Doe. In Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001), the Court stated that “a

prisoner litigating a retaliation claim must show that he suffered some ‘adverse action’ at the hands

of the prison officials.” To establish a retaliation claim, the Plaintiff must also show that there exists

a causal nexus between the Plaintiff’s constitutionally protected conduct and the adverse action.

Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). We find that this nexus does not exist with

Case 4:06-cv-00329-JFM Document 7 Filed 03/21/06 Page 9 of 20
10

respect to either of our Defendants. Plaintiff does not allege that our Defendants 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.). 

Moreover, Plaintiff has not alleged that he had a “protected liberty interest” that was infringed

by Defendant 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. 

The Plaintiff avers that the BOP’s SMU placement policy caused him to lose his general

population status as well as caused him to be placed in the SMU program since January 20, 2006

without any approved standard or criteria. 

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. Based on Sandin and Griffin,

the Plaintiff‘s Complaint as against Defendants Williamson and John Doe fails to state a claim, since

his forty-eight (48) (as of March 9, 2006) days SMU detention does not give rise to a protected liberty

interest. Further, no liberty interest is implicated by the Plaintiff because he had no right to a

particular prison classification, i.e. general population classification. It is well-settled that an inmate

Case 4:06-cv-00329-JFM Document 7 Filed 03/21/06 Page 10 of 20
7

 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.

11

has no recognizable constitutional right to a particular custody status. See Wilson v. Horn, 971 F.

Supp. 943, 947 (E.D. Pa. 1997). 

We also find that the Plaintiff is 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. The Court will not generally interfere with prison administration matters such as the

prison’s decision to place Plaintiff in a particular security level. 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, 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.,7 we find that Plaintiff’s placement in the SMU does

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)).

Case 4:06-cv-00329-JFM Document 7 Filed 03/21/06 Page 11 of 20
12

The proper focus for determining whether prison conditions give

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-00329-JFM Document 7 Filed 03/21/06 Page 12 of 20
13

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.

Case 4:06-cv-00329-JFM Document 7 Filed 03/21/06 Page 13 of 20
14

Id., pp. *3-*4.

 The Francis Court concluded that the restrictions in the SMU in federal prison at USP-Lewisburg

were no greater than the restrictions placed on the inmate in Griffin. Id. * 5. In our case, Plaintiff

does not allege any greater restrictions in the SMU at USP-Lewisburg than were placed on the

inmates in Francis, who were also in the SMU 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.

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15

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. 

Moreover, 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, Plaintiff‘s placement in the SMU for about forty-eight (48) days

(i.e. January 20, 2006 to March 9, 2006) 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

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

Case 4:06-cv-00329-JFM Document 7 Filed 03/21/06 Page 15 of 20
16

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

Therefore, we find that none of our Plaintiff‘s due process rights were violated by the

Warden. Our conclusion is supported by several additional cases, 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

state-created 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 

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. 

Case 4:06-cv-00329-JFM Document 7 Filed 03/21/06 Page 16 of 20
17

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, we find that Plaintiff’s action fails to

state a due process claim. We also find that Plaintiff has failed to allege any personal involvement

of the Defendant Warden in his retaliatory transfer to the SMU program claim. Thus, we shall

recommend that this case be dismissed as against Defendant Warden Williamson.

VII. Recommendation. 

Based on the foregoing, it is respectfully recommended that Plaintiff’s Bivens action be

dismissed as to both Defendants for failure to allege their personal involvement in his claims, and

Case 4:06-cv-00329-JFM Document 7 Filed 03/21/06 Page 17 of 20
8Notwithstanding 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 against the Defendants fails to state a constitutional violation.

Thus, we 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). 

18

for failure to state a claim against them. 8 It is also recommended that Plaintiff be granted leave to

amend his Complaint only with respect to his First Amendment retaliation claim against the

responsible prison staff members. Further, it is recommended that this case be remanded to the

undersigned for further proceedings. 

 

 

s/ Thomas M. Blewitt

THOMAS M. BLEWITT

United States Magistrate Judge

Dated: March 21, 2006 

Case 4:06-cv-00329-JFM Document 7 Filed 03/21/06 Page 18 of 20
19

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KENNETH RAYMOND McKETTRICK : CIVIL ACTION NO. 4:CV-06-0329 

:

Plaintiff : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

TROY WILLIAMSON, et al., :

 :

:

Defendants :

 NOTICE

 

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing

Report and Recommendation dated March 21, 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-00329-JFM Document 7 Filed 03/21/06 Page 19 of 20
20

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 21, 2006 

Case 4:06-cv-00329-JFM Document 7 Filed 03/21/06 Page 20 of 20