IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MILTON CRUZ, )

Plaintiff )

)

v. ) C.A. No. 05-340 Erie

)

FCI MCKEAN STAFF, et al., ) District Judge Cohill

Defendants. ) Magistrate Judge Baxter

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that Defendants’ motion to dismiss, or in the alternative,

motion for summary judgment [Document # 16] be granted.

II. REPORT

On November 14, 2005, Plaintiff Milton Cruz, an inmate incarcerated at the Federal

Correctional Institution at McKean (“FCI-McKean”), filed this pro se civil rights action pursuant

to Bivens v. Six Unnamed Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). 

Named as Defendants are James F. Sherman, Warden at FCI McKean, as well as various

members of the staff at FCI-McKean, identified as: Ms. Murphy (“Murphy”); Mr. Shaffer

(“Shaffer”); and Mr. Grimm (“Grimm”). 

Plaintiff alleges that Defendants violated his due process rights when he was removed

from his prison job assignment as a sanction for violating prison rules. (Complaint at Section

IV.C). As a result, Plaintiff seeks injunctive relief to have the underlying incident report

removed from his record and to have him transferred to another institution.. 

Defendants have filed a motion to dismiss [Document #16] claiming that Plaintiff has

failed to state a claim upon which relief may be granted. Despite having been granted ample

time to respond to Defendants’ motion, Plaintiff has failed to do so. This matter is now ripe for

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consideration.

A. Relevant Factual History

On or about June 2, 2005, Plaintiff was in his housing unit A-A waiting to be released to

the cafeteria for his noon meal. (Incident Report attached as Exhibit 3 to Document # 17). At

approximately 11:35 a.m., Plaintiff asked Defendant Shaffer, a Corrections Officer, if he could

leave his unit early so that he could attend an open house at the Receiving and Diagnostic office.

(Id.). Defendant Shaffer denied Plaintiff’s request and informed Plaintiff that he could go to the

open house when he was released for his noon meal. (Id.). Nonetheless, shortly after denying

Plaintiff’s request, Defendant Shaffer observed Plaintiff sneaking out of his unit and attempting

to proceed through an adjoining housing unit. (Id.). Realizing that he was seen by Defendant

Shaffer, Plaintiff immediately returned to his housing unit. (Id.). That same day, Defendant

Shaffer completed an incident report, charging Plaintiff with “refusing to obey an order of any

Staff member.” (Id.). 

On June 3, 2005, the Unit Disciplinary Committee (“UDC”) convened to hear the

incident report. (Id.). During the hearing, Plaintiff admitted “[t]he report is true. I’m impatient. 

I did do it. When I returned, the officer gave me a verbal warning and I thought it was over.”

(Id.). As a result of Plaintiff’s rules violation, and his subsequent admission, the UDC

disciplined him by removing him from his job assignment as an Orderly in housing unit A-A “for

no less than 1 year.” (Id.). Nevertheless, four days later, on June 7, 2005, Plaintiff was assigned a

new position as an Orderly in the recreation department. (Declaration of Roberta Truman

attached as Exhibit 1 to Document # 17, at ¶ 5).

B. Standards of Review

1. Motion to Dismiss

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be

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viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the

complaint must be accepted as true. Neitzke v. Williams, 490 U.S. 319 (1989); Langford v. City

of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000). The motion cannot be granted unless the court

is satisfied “that no relief could be granted under any set of facts that could be proved consistent

with the allegations.” Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). See also

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). 

Rule 8(a) of the Federal Rules of Civil Procedure states that a pleading must set forth a

claim for relief which contains a short and plain statement of the claim showing that the pleader

is entitled to relief. The issue is not whether the plaintiff will prevail at the end but whether he

should be entitled to offer evidence in support of his claim. Neitzke v. Williams, 490 U.S. 319

(1989); Scheuer v. Rhodes, 419 U.S. 232 (1974). However, a court need not credit a complaint's

"bald assertions" or "legal conclusions" when deciding a motion to dismiss. Morse v. Lower

Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997) citing In re Burlington Coat Factory

Securities Litigation, 114 F.3d 1410, 1429-30 (3d Cir.1997). Therefore, in order to survive a

motion to dismiss for failure to state a claim, the complaint must only set forth sufficient

information to suggest that there is some recognized legal theory upon which relief can be

granted. See Swierkiewicz. 

2. Summary Judgment

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted

if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Rule 56(e) further provides that when a

motion for summary judgment is made and supported, “an adverse party may not rest upon the

mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is

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a genuine issue for trial. If the adverse party does not so respond, summary judgment, if

appropriate, shall be entered against the adverse party.” Id. 

A district court may grant summary judgment for the defendant when the plaintiff has

failed to present any genuine issues of material fact. See Fed.R.Civ.P. 56(c); Krouse v.

American Sterilizer Co., 126 F.3d 494, 500 n.2 (3d Cir. 1997). The moving party has the initial

burden of proving to the district court the absence of evidence supporting the non-moving party’s

claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v. Partnership

Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). Further, “[R]ule 56 enables

a party contending that there is no genuine dispute as to a specific, essential fact <to demand at

least one sworn averment of that fact before the lengthy process of litigation continues.’” Schoch

v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) quoting Lujan v. National

Wildlife Federation, 497 U.S. 871 (1990). 

The burden then shifts to the non-movant to come forward with specific facts showing a

genuine issue for trial. Matsushita Elec. Indus. Co. v Zenith Radio Corp., 475 U.S. 574 (1986);

Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the nonmovant must present affirmative evidence - more than a scintilla but less than a preponderance -

which supports each element of his claim to defeat a properly presented motion for summary

judgment). The non-moving party must go beyond the pleadings and show specific facts by

affidavit or by information contained in the filed documents (i.e., depositions, answers to

interrogatories and admissions) to meet his burden of proving elements essential to his claim. 

Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.

A material fact is a fact whose resolution will effect the outcome of the case under

applicable law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). Although the court

must resolve any doubts as to the existence of genuine issues of fact against the party moving for

summary judgment, Rule 56 “does not allow a party resisting the motion to rely merely upon

bare assertions, conclusory allegation or suspicions.” Firemen’s Ins. Co. of Newark, N.J. v.

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DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Summary judgment is only precluded if the dispute

about a material fact is “genuine,” i.e., if the evidence is such that a reasonable jury could return

a verdict for the non-moving party. Anderson, 477 U.S. at 247-249. 

3. Pro Se Pleadings

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if

it appears “<beyond a doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.’” Haines v. Kerner, 404 U.S. 519, 520-521(1972), quoting

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). If the court can reasonably read pleadings to state

a valid claim on which the litigant could prevail, it should be done so despite failure to cite

proper legal authority, confusion of legal theories, poor syntax and sentence construction, or

litigant’s unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982);

United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)(petition prepared

by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”); Smith

v. U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992); Freeman v. Department of Corrections, 949

F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all

allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d

Cir.1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P.

12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir.

1990)(same).

C. Discussion

Plaintiff claims that his right to due process was violated by Defendants’ actions. 

However, his assertions, taken as true, do not state a violation of his due process rights, either

procedurally or substantively. "Due process" is guaranteed through the fourteenth amendment to

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the United States Constitution. The pertinent language of the Amendment provides as follows.

Section 1. All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United States and the

State wherein they reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.

U.S. Const. Amend. XIV, § 1 (emphasis added).

The Due Process Clause was promulgated to secure the individual from the arbitrary

exercise of the powers of government. 

1. Procedural Due Process

The procedural aspect of the Due Process Clause guarantees the availability of certain

procedural mechanisms, typically the right to notice and a hearing, before the government can

deprive an individual of a liberty or property interest. To establish a procedural due process

violation, a person must demonstrate that he has been deprived of a constitutionally-protected

property or liberty interest. Daniels v. Williams, 474 U.S. 327, 339 (1986). If a person does not

have a constitutionally-protected interest, he or she is not entitled to the procedural protections

afforded by the Due Process Clause.

A constitutionally-protected interest may arise either from the Due Process Clause itself,

or from a statute, rule, or regulation. Hewitt v. Helms, 459 U.S. 460, 466 (1983). A liberty

interest "inherent" in the Constitution arises when a prisoner has acquired a substantial, although

conditional, freedom such that the loss of liberty entailed by its revocation is a serious

deprivation requiring that the prisoner be accorded due process. Gagnon v. Scarpelli, 411 U.S.

778, 781 (1973). It is well-settled within this Circuit that an inmate has no liberty or property

interest in his prison job assignment arising from the Due Process Clause itself, or from any

federal statute or prison regulations. James v. Quinlan, 866 F.2d 627, 630 (3d Cir. 1989); see

also Parke v. Guarini, 1997 WL 129015, at *3 (E.D.Pa. 1997). Furthermore, Plaintiff cannot

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See also Collins v. Harker Heights, 503 U.S. 115, 126 (1992) (the Due Process Clause was intended to prevent

government officials from abusing power, or employing it as an instrument of oppression); Wolff v.

McDonnell, 418 U.S. 539, 558 (1974) ("The touchstone of due process is protection of the individual against

arbitrary action of government.").

7

show that the loss of his prison job was an “atypical and significant hardship in relation to the

ordinary incidents of prison life,” such that a liberty interest was created. Sandin v. Conner, 515

U.S. 472, 484 (1995). Thus, Plaintiff cannot support a claim based upon a violation of his

procedural due process rights.

2. Substantive Due Process

The constitutional right to "substantive due process" protects individuals against arbitrary

governmental action, regardless of the fairness of the procedures used to implement them.1 The

Supreme Court has declined to set forth a precise rule that defines the scope of impermissible

"arbitrary" conduct for purposes of applying the substantive component of the Due Process

Clause. Nonetheless, the Court clarified that governmental conduct does not violate a person's

substantive due process rights unless it amounts to an abuse of official power that "shocks the

conscience." County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).

Liberally construed and taken as true, Plaintiff’s allegations contain no suggestion of

arbitrary or capricious behavior by the Defendants that would rise to the level of a constitutional

violation. Plaintiff does not allege that he was removed from his prison job assignment based on

unconstitutional criteria such as race, religion, or retaliation. In fact, Plaintiff was re-assigned to

another prison job only four days after he was removed from his previous job as a result of the

sanction he challenges here. Thus, Plaintiff has failed to demonstrate that he is entitled to relief

under the substantive prong of the Due Process Clause.

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III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that Defendants’ motion to

dismiss, or in the alternative, motion for summary judgment [Document # 16] be granted.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date

of service to file written objections to this Report and Recommendation. Any party opposing the

objections shall have seven (7) days from the date of service of objections to respond 

thereto. Failure to file timely objections may constitute a waiver of any appellate rights.

 

S/Susan Paradise Baxter 

SUSAN PARADISE BAXTER

Chief United States Magistrate Judge

Dated: December 13, 2006

cc: The Honorable Maurice B. Cohill 

United States District Judge

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