NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-2750

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JOHNNY MARTINEZ, 

 Appellant

v.

WARDEN GOLDEN GROVE CORRECTIONAL FACILITY;

DIRECTOR VIRGIN ISLANDS BUREAU OF CORRECTIONS;

TERRITORY OF THE VIRGIN ISLANDS; WARDEN RED ONION STATE PRISON

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On Appeal from the District Court 

of the Virgin Islands

(D.C. Civil No. 1-13-cv-00102)

District Judge: Wilma A. Lewis

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 14, 2017

Before: SMITH, Chief Judge, MCKEE, and SCIRICA, Circuit Judges

(Filed: December 11, 2018)

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OPINION*

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 * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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SCIRICA, Circuit Judge.

In March 2013, Johnny Martinez was transferred from a minimum security Virgin 

Islands prison to Red Onion State Prison, a supermax facility in Virginia, without notice 

or a hearing. Martinez, who was released from prison on parole on July 28, 2017, 

challenged this initial transfer through a counseled habeas petition in which he also 

sought, among other things, damages under 42 U.S.C. § 1983 for denial of procedural 

due process. The trial court dismissed the petition and denied leave to amend as futile, 

concluding the facts alleged by Martinez were not an “atypical and significant 

hardship . . . in relation to the ordinary incidents of prison life” necessary to trigger due 

process protections. Sandin v. Conner, 515 U.S. 472, 484 (1995). We will affirm. 

I.

A.1

Johnny Martinez pleaded guilty to second degree murder for his role in the 1997 

death of Ean Pemberton and was sentenced to 35 years’ imprisonment. He was 

incarcerated at Golden Grove Adult Correctional Facility in the Virgin Islands from the 

late 1990s until March 2013. 

Golden Grove has lenient security procedures. Inmates may wear personal clothes 

rather than uniforms, they may move freely around the facility without being searched, 

 1 The following factual allegations are drawn from Martinez’s First Amended 

Petition/Complaint and his proposed Second Amended Petition/Complaint. In denying 

Martinez’s motion to file this Second Amended Petition/Complaint, the trial court 

considered the additional proposed factual allegations and concluded amendment was 

futile. For the purposes of this appeal, we assume all facts alleged in the First and Second 

Amended Petition/Complaint are true. See In re Lipitor Antitrust Litig., 868 F.3d 231, 

249 (3d Cir. 2017).
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and gates between housing units may be left unlocked. By all accounts, Martinez was a 

responsible prisoner at Golden Grove. He had no disciplinary record, and multiple 

correctional officers signed affidavits attesting to his good behavior. 

In March 2013, Martinez was transferred to Red Onion State Prison in Virginia. 

Since as early as 2001, the Virginia Department of Corrections has contracted with the 

Virgin Islands to house Virgin Islands prisoners. Martinez was one of approximately 65 

Virgin Islands prisoners placed in Virginia prisons under this contract. Red Onion is a 

supermax prison described by the Washington Post as housing the “worst of the worst” 

inmates. J.A. 86. Martinez was neither provided notice of his transfer nor given 

opportunity to contest it.

B.

As noted, Martinez challenged his transfer by filing a counseled 28 U.S.C. § 2241 

Petition for a Writ of Habeas Corpus on November 1, 2013. He thereafter filed a First 

Amended Petition/Complaint which, among other things, added claims for damages 

under 42 U.S.C. § 1983 for denial of procedural due process. 

On July 3, 2014, a Magistrate Judge issued a Report and Recommendation 

concluding Martinez’s habeas petition should be denied. The Report and 

Recommendation reasoned Martinez could not bring a consolidated habeas and § 1983 

action. Relying on our decision in Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002), 

the Report and Recommendation explained that Martinez’s case did not sound in habeas 

because it did not challenge the validity of his sentence but instead attacked the 

conditions of his confinement. Notwithstanding this conclusion, the Report and 
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Recommendation found merit in Martinez’s § 1983 procedural due process claim. The 

Magistrate Judge recommended that Martinez be allowed to file an independent 

complaint containing his § 1983 procedural due process claim. 

Martinez filed objections to the Report and Recommendation and also filed a 

motion for leave to file a Second Amended Petition/Complaint.2 On March 17, 2015, the 

trial court adopted in part the Report and Recommendation, dismissed Martinez’s 

petition, and denied leave to amend as futile. Although the trial court agreed with much 

of the Report and Recommendation’s analysis, it concluded Martinez had failed to state a 

claim under § 1983 for denial of procedural due process. And though the court 

considered the additional facts alleged in Martinez’s proposed Second Amended 

Petition/Complaint, it concluded these facts were insufficient to state a claim because 

they failed to allege an “atypical and significant hardship . . . in relation to the ordinary 

incidents of prison life” necessary to trigger due process protections. J.A. 44 (quoting 

Sandin, 515 U.S. at 484). The court accordingly denied the proposed amendment as futile 

and dismissed the case with prejudice.

Martinez moved for reconsideration and simultaneously sought leave to file a 

proposed Third Amended Complaint on March 31, 2015. The Third Amended Complaint 

alleged––for the first time––details about Martinez’s conditions of confinement. For 

 2 Thereafter, on January 6, 2015, Martinez filed a petition for a writ of mandamus in 

the Third Circuit asking us to order the trial court to rule on his pending motion for 

preliminary injunction. We denied the mandamus petition on February 19, 2015, without 

prejudice to his ability to file a new mandamus petition if the trial court had not ruled on 

his motion within 60 days. See In re Martinez, 594 F. App’x 96 (Mem) (3d Cir. 2015). 
5

example, the proposed complaint asserted that Martinez had been “held in extremely 

restrictive isolation continuously since October 2014” and “ha[d] been denied recreation 

time continuously since October 2014.” J.A. 140. We will not, however, consider these 

facts in analyzing the trial court’s dismissal of the case and denial of leave to amend. 

These facts were not alleged in either the original habeas petition, the First Amended 

Petition/Complaint, or the proposed Second Amended Petition/Complaint. Rather, they 

appeared only after the trial court’s order dismissing the First Amended Petition and 

denying leave to amend as futile. These alleged conditions were known or capable of 

being known when the original Petition was filed and could have been included in either 

the first or second attempts at amendment, but they were not. 

Regardless, this proposed Third Amended Complaint is not properly before us on 

appeal. The trial court denied the motion for reconsideration on March 31, 2016, and 

Martinez timely appealed before the trial court acted on the motion for leave to amend. 

Accordingly, the trial court was divested of jurisdiction before it could rule on the motion 

for leave to file a Third Amended Complaint, and we will not consider it on appeal. 

Martinez appeals only three things: (1) the dismissal of the First Amended 

Petition/Complaint; (2) the denial of leave to amend to file the Second Amended 

Petition/Complaint; and (3) the denial of his motion for reconsideration.3

 

 3 Although Martinez filed a notice of appeal as to the motion for reconsideration, he 

did not raise this issue in his opening brief. Accordingly, this argument is forfeited. See

Halle v. W. Penn Allegheny Health Sys. Inc., 842 F.3d 215, 230 n.17 (3d Cir. 2016); see 

also Hamer v. Neighborhood Hous. Serv. of Chi., 138 S. Ct. 13, 17 n.1 (2017) (explaining 

the difference between waiver and forfeiture).
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II.

The trial court had jurisdiction over Martinez’s § 2241 habeas petition under 48 

U.S.C. § 1612(a) and 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291 

because a certificate of appealability is not required to appeal from the denial of a § 2241 

petition. See Vasquez v. Strada, 684 F.3d 431, 433 (3d Cir. 2012). Our review of the trial 

court’s decision to dismiss Martinez’s § 2241 petition is plenary. See Cradle v. United 

States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). And we review a trial court’s 

denial of leave to amend for futility for abuse of discretion. See Fallon v. Mercy Catholic 

Med. Ctr. of Se. Pa., 877 F.3d 487, 493–94 (3d Cir. 2017). 

III.

On appeal, Martinez asserts he pleaded sufficient facts to state a claim for denial 

of procedural due process and, alternatively, the trial court abused its discretion when it 

failed to grant his motion for leave to amend. In addition to these merits issues, Martinez 

contends his conditions of confinement challenge was properly brought as a § 2241 

petition (rather than a § 1983 complaint) and the trial court incorrectly concluded it 

lacked jurisdiction over one of the defendants, the Warden of Red Onion State Prison. 

In their brief, Appellees assert the case is moot because Martinez was transferred 

to Wallens Ridge State Prison in Virginia on April 10, 2015. On August 3, 2017, 

Appellees filed a motion to dismiss the appeal as moot because Martinez was granted 

parole and released from custody on July 28, 2017. In keeping with our obligations to 

assure ourselves of our jurisdiction, see Seneca Res. Corp. v. Twp. of Highland, Elk Cty., 

Pa., 863 F.3d 245, 252 (3d Cir. 2017), we reject Appellees’ mootness arguments. This 
7

case is not moot because Martinez seeks damages for his alleged procedural due process 

injury. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 

(2007).

We may affirm the trial court for any reason supported by the record, MRL Dev. I, 

LLC v. Whitecap Inv. Corp., 823 F.3d 195, 202 (3d Cir. 2016), and because we agree 

with the trial court’s disposition on the merits of this case, we need not address any of the 

parties’ remaining arguments.

A.

In order to state a claim for denial of procedural due process, Martinez must show 

that: “(1) [Appellees] deprived him of an individual liberty interest that is encompassed 

within the Fourteenth Amendment’s protection, and (2) the procedures [Appellees] made 

available to him did not provide due process of law.” Steele v. Cicchi, 855 F.3d 494, 507 

(3d Cir. 2017) (citing Hill v. Borough of Kutztown, 455 F.3d 225, 233–34 (3d Cir. 2006)). 

Martinez alleged he received no process respecting his transfer to Red Onion, so our 

focus is on the first factor––whether he was deprived of a liberty interest. This liberty 

interest “may arise from the Constitution itself, by reason of guarantees implicit in the 

word ‘liberty,’” or it “may arise from an expectation or interest created by state laws or 

policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citations omitted).

1.

The Supreme Court has held that “the Constitution itself does not give rise to a 

liberty interest in avoiding transfer to more adverse conditions of confinement.” 

Wilkinson, 545 U.S. at 221 (citing Meachum v. Fano, 427 U.S. 215, 225 (1976)). “As 
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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.” Powell v. Weiss, 757 F.3d 338, 342 (3d Cir. 2014) 

(quoting Montanye v. Haymes, 427 U.S. 236, 242 (1976)). Thus, on these facts, Martinez 

cannot show deprivation of a liberty interest guaranteed by the Constitution based on his 

transfer to a more restrictive prison. This does not end our inquiry, however, because a 

state-created liberty interest could still trigger due process protections. 

2.

To establish the existence of a state-created liberty interest triggering due process 

protections, the right alleged must confer “freedom from restraint which . . . imposes 

atypical and significant hardship on the inmate in relation to the ordinary incidents of 

prison life.” Williams v. Sec’y Pa. Dep’t of Corr., 848 F.3d 549, 559 (2017) (quoting 

Sandin, 515 U.S. at 484). To determine if something is an “atypical and significant 

hardship,” we consider two factors: “(1) the duration of the challenged conditions; and 

(2) whether the conditions overall imposed a significant hardship in relation to the 

ordinary incidents of prison life.” Id. at 560 (citing Shoats v. Horn, 213 F.3d 140, 144 (3d 

Cir. 2000)). “In this inquiry, we do not compare the prisoner’s own life before and after 

the deprivation. Rather, the 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 or her conviction in accordance with due 

process of law.” Powell, 757 F.3d at 344 (quotation marks and citations omitted). 
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The Supreme Court established the “atypical and significant hardship” test in 

Sandin v. Conner, 515 U.S. 472, 484 (1995). There, the Court held there was no liberty 

interest where an inmate was placed in solitary confinement for thirty days as discipline 

for disruptive behavior because it did not “present a dramatic departure from the basic 

conditions of [the inmate’s] sentence.” Id. at 486. 

Nevertheless, ten years later in Wilkinson v. Austin, the Court held there was a 

liberty interest where inmates were placed indefinitely in a supermax facility in Ohio. 545 

U.S. 209, 224 (2005). Inmates at the facility in question were held in solitary 

confinement, prohibited from almost all human contact, and allowed outside of their cells

for just one hour a day. See id. Two additional factors distinguished the Ohio supermax 

from other solitary confinement facilities: (1) inmates were indefinitely placed in the 

facility with only an annual review; and (2) placement in the facility disqualified an 

otherwise eligible inmate for parole consideration. See id. “While any of these conditions 

standing alone might not be sufficient to create a liberty interest,” the Court explained 

that “taken together they impose an atypical and significant hardship within the 

correctional context.” Id. 

Martinez’s First Amended Petition/Complaint and proposed Second Amended 

Petition/Complaint are devoid of any factual allegations regarding his conditions of 

confinement. He describes only the size of the cells and asserts that Red Onion is a 

supermax facility. He never describes his own confinement, e.g., whether he was isolated, 

under what conditions he was confined, or whether these conditions were indefinite. 

Martinez instead relies on Wilkinson and Red Onion’s status as a supermax facility to 
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claim he has a liberty interest at stake. But without factual allegations concerning 

Martinez’s conditions of confinement, the trial court could not have reasonably inferred 

that he faced an atypical, significant hardship. Accordingly, Martinez has failed to allege 

a liberty interest in his condition of confinement triggering due process protections. See 

Sandin, 515 U.S. at 484.4

B.

The trial court did not abuse its discretion in denying leave to amend. Martinez 

filed a counseled habeas petition and later filed a First Amended Petition/Complaint. 

After a Magistrate Judge issued a Report and Recommendation, Martinez sought leave to 

file a Second Amended Petition/Complaint. The trial court considered the proposed 

Second Amended Petition/Complaint and correctly concluded amendment would be 

 4 In his brief, Martinez also relies on Virgin Islands regulations for transferring 

prisoners, which he alleges were violated when he was abruptly moved from Golden 

Grove to Red Onion. As an initial matter, Martinez did not include these allegations in 

his First or Second Amended Petition/Complaint. They appeared for the first time in his 

proposed Third Amended Complaint, which, as explained above, he filed only after the 

trial court dismissed the case with prejudice. 

Regardless, when the Supreme Court established the “atypical and significant 

hardship” standard in Sandin, it criticized the prior regime in which courts closely 

examined state prison regulations. 515 U.S. at 484. This prior method for analyzing 

liberty interests created a “disincentive for States to promulgate procedures for prison 

management” and squandered judicial resources because it led to the involvement of “the 

federal courts in the day-to-day management of prisons.” Wilkinson, 545 U.S. at 222. 

“After Sandin, it is clear that the touchstone of the inquiry into the existence of a 

protected, state-created liberty interest in avoiding restrictive conditions of confinement 

is not the language of regulations regarding those conditions but the nature of those 

conditions themselves ‘in relation to the ordinary incidents of prison life.’” Id. (quoting 

Sandin, 515 U.S. at 484); cf. Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 225 (3d 

Cir. 2015) (“Although the [New Jersey Department of Corrections] does have policies 

regarding custodial placements, these policies and the Due Process Clause do not give an 

inmate a liberty interest in being housed in a particular institution or at a particular 

custody level.”). 
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futile for the reasons discussed above. This was not an abuse of discretion as the facts 

alleged in the proposed Second Amended Petition/Complaint fail to state a liberty interest 

entitled to due process protections.

IV.

For the foregoing reasons, we will affirm the trial court’s dismissal of Martinez’s 

§ 2241 petition.