PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE 

THIRD CIRCUIT

_____________

No. 09-2872

_____________

RODNEY BURNS, 

 Appellant

v.

PA DEPARTMENT OF CORRECTIONS; SCI -

GRATERFORD; *SECRETARY PENNSYLVANIA 

DEPARTMENT OF CORRECTIONS; DONALD 

WILLIAMSON; DAVID DIGUGLIELMO; THOMAS 

DOHMAN; MARY CANINO; JOHN DOE(S); 

CONFIDENTIAL INFORMANT #1; CONFIDENTIAL 

INFORMANT #2; ROBERT S. BITNER; LEVI HOSBAND; 

FRANK REGAN; TONY WOLFE

*(Pursuant to Rule 43(c), Fed. R. App. P.)

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(Civ. No. 2:05-CV-03462-BMS)

District Judge: Hon. Berle M. Schiller

_____________

Argued September 23, 2010

Before: McKEE, Chief Circuit Judge, AMBRO and 

CHAGARES, Circuit Judges

(Opinion filed: April 20, 2011 )

_____________
2

Richard E. Coe, Esq. [Argued]

Richard M. Haggerty, Esq. 

Drinker, Biddle & Reath, LLP

18th & Cherry Streets

One Logan Square

Philadelphia, PA 19103

Counsel for Appellants 

Thomas W. Corbett, Jr., Esq.

Claudia M. Tesoro, Esq. [Argued] 

Calvin R. Koons, Esq.

John G. Knorr, III, Esq.

Office of the Attorney General of Pennsylvania

21 South 12th St.

Third Floor

Philadelphia, PA 19107

Counsel for Appellees

_____________

OPINION OF THE COURT

McKEE, Chief Judge.

Rodney Burns appeals the district court‘s grant of 

summary judgment in favor of all defendants in the suit he 

brought against the Pennsylvania Department of Corrections 

(―DOC‖) and several Department employees pursuant to 42 

U.S.C. § 1983. For the reasons that follow, we will affirm in 

part and reverse in part.1

I. Facts and Procedural History

The background of this dispute has been described in 

detail by both this court and the district court. See Burns v. 

Penn. Dept. of Corr., 544 F.3d 279 (3d Cir. 2008) (―Burns

1‖); Burns v. Penn. Dept. of Corr., 2009 WL 1475274 

 

1

 The District Court had jurisdiction under 42 U.S.C. § 

1983 and 28 U.S.C. §§ 1341 and 1343. We have jurisdiction 

over this appeal under 28 U.S.C. § 1291.
3

(E.D.Pa. May 26, 2009); and Burns v. Penn. Dept. of Corr.,

2007 U.S. Dist. LEXIS 8679, (E.D. Pa. Feb. 6, 2007).

Accordingly, we will only set forth the facts that are relevant 

to this appeal. 

A. The Alleged Misconduct 

On February 14, 2005, a corrections officer at the State 

Correctional Institute at Graterford discovered that inmate

Charles Mobley had burns on his face that had been caused 

by another inmate throwing scalding water on him four days 

earlier. Although Mobley did not know the assailant, he 

initially said that the inmate who assaulted him occupied cell 

BA-1022. One of the two occupants of that cell, Ricky 

Holmes, was placed in administrative custody during the 

investigation that followed. 

SCI Graterford has a special hotline phone number that 

is given to a select number of inmates who can use it to 

provide confidential information to corrections officials. Two 

callers used the hotline to report that Burns, and not Holmes,

was responsible for the assault. Defendant Thomas Dohman, 

Captain of Security at SCI Graterford, believed this 

information to be credible because he recognized the voices 

and knew that the callers had previously provided reliable

information. Dohman therefore concluded that Mobley had 

mistakenly identified Holmes instead of Burns because they 

were similar in appearance and because Mobley, an older 

inmate, was ―semi-coherent‖ at times, making it plausible that 

his identification was simply wrong. 

Burns claims that when Dohman subsequently 

interviewed him, Dohman told him that the incident had been 

recorded on a video surveillance camera and that the 

videotape showed Burns committing the assault. Dohman 

disputes this account. He insists that the assault was not 

recorded and that he never told Burns otherwise. 

Although Burns denied any involvement, Dohman 

issued a misconduct report charging Burns with assaulting 

Mobley. That report stated that the charges were based on 

statements from two reliable confidential informants who had 

witnessed the assault as well as information from other 
4

inmates given to another corrections officer, Lt. Abdul 

Ansari. 

B. Pennsylvania Department of Corrections Disciplinary 

Scheme 

The Pennsylvania Administrative Code establishes a 

baseline policy for prisons to manage disciplinary infractions. 

See generally 37 Pa. Code § 93.10. As part of that policy, 

prisons must develop ―[w]ritten procedures which conform to 

established principles of law for inmate discipline‖ that 

include, at minimum, ―[w]ritten notice of charges,‖ a 

―[h]earing before an impartial hearing examiner,‖ an 

―[o]pportunity for the inmate to tell his story and to present 

relevant evidence,‖ ―[a]ssistance from an inmate or staff 

member at the hearing if the inmate is unable to collect and 

present evidence effectively,‖ a ―[w]ritten statement of the 

decision and reasoning of the hearing body, based upon the

preponderance of the evidence,‖ and an ―[o]pportunit[y] to 

appeal the misconduct decision in accordance with 

procedures in the Department of Corrections Inmate 

Handbook.‖ Id. 

The Administrative Code also lists types of sanctions 

that may be imposed if an inmate is convicted of a 

disciplinary infraction. 37 Pa. Code § 93.10(a). Depending 

on the type of misconduct, those sanctions include ―[c]hange 

of cell assignment, including placement in the restricted 

housing unit or restrictive confinement in a general 

population cell . . . [,]‖ ―[s]uspension of privileges for a 

specified period of time[,]‖ and ―[c]hange, suspension or 

removal from job.‖ Id. 

Additionally, an inmate found guilty of misconduct 

can be sanctioned for ―[p]ayment of the fair value of property 

lost or destroyed or for expenses incurred as a result of the 

misconduct.‖ Id. One type of ―expenses‖ that can be 

―incur[ed] as a result of the misconduct‖ is medical expenses. 

The Pennsylvania Administrative Code also establishes 

regulations for medical treatment of prisoners. See generally

37 Pa. Code § 93.12. While the Department of Corrections

provides some prisoner medical services for free, other

medical services incur a charge. The Administrative Code 

also provides that ―[t]he Department will charge a fee to an 
5

inmate for any of the following . . . (4) Medical service 

provided to another inmate as a result of assaultive conduct 

engaged in by an inmate to be charged the fee.‖ 37 Pa. Code § 

93.12(c). As a result, prisoners who are found guilty of 

assaults in which the victim needs medical treatment may be 

required to pay the cost of the treatment.

C. Burns’ Disciplinary Hearing

After Dohman issued the misconduct report, Burns 

responded by filing timely requests to call Mobley as a 

witness at his disciplinary hearing and to present the 

purported videotape of the incident.2 Both requests were 

consistent with the prison‘s disciplinary procedures. 

Burns renewed his request for the production of the 

videotape when his disciplinary hearing began. Mary Canino, 

the hearing officer, responded by continuing the hearing to 

investigate Burns‘ request. Five days later, Canino conducted 

an in camera proceeding during which Dohman told Canino 

that the incident had not been recorded. However, Canino did 

not attempt to view the relevant tapes in order to resolve the 

conflict between that representation and Burns‘ statement that 

Dohman had told him that the incident had been recorded.

3

Dohman also testified about the confidential informants 

 

2

The prison had a policy of retaining surveillance 

tapes for 60 days before reusing them. Based on that policy, 

and since Burns‘ request was within that 60 day window, we 

assume that the tape was still available when Burns made his 

request. 

3

In her deposition, Officer Canino stated that she 

could not remember if she viewed the videotape, the 

videotape did not exist, or if she relied upon Dohman‘s 

statement that there was nothing relevant on the videotape. 

Ex. 3 at 27-28 (Canino deposition). She did indicate, 

however, that it was her standard procedure to ask the prison 

official if an incident had been recorded. Ex. 3 at 27 (Canino 

deposition) (―Q. How would you determine [if there was a 

videotape to view]‖ A. . . . I would ask Captain Dohman was 

there a tape on this incident and he would say  ̳yes‘ or  ̳no.‘ If 

there was a tape on the incident, I would review the tape. 

And if the camera was pointed [away from the incident that 

occurred, she would indicate that in the record.]‖)
6

during the in camera proceeding. However, he did not reveal 

their names to Canino, and Canino did not receive any direct 

testimony from them, either in writing or in person. Canino 

also met with Mobley in camera, but he refused to testify 

either in camera or at the disciplinary hearing. Canino 

accepted Mobley‘s refusal to testify, and did not inquire into 

why Mobley refused.4 

Canino then reconvened the hearing with Burns 

present. She informed Burns that Mobley had refused to 

testify and that there was no videotape of the incident. She 

also informed Burns that she found the information from the 

confidential informants credible and reliable. She then found 

Burns guilty of the assault. As a result, she imposed the 

following sanctions: 180 days of disciplinary confinement in 

a restricted housing unit (―RHU‖), and loss of his prison job. 

Canino also assessed Burns‘ prison account for the amount of 

Mobley‘s medical expenses resulting from the assault. 

Despite the assessment, prison administrators did not deduct 

any part of Mobley‘s medical expenses from Burns‘ inmate 

account. Nevertheless, the threat of assessment remained for 

several years, and that continuing threat was the initial focus 

of this suit. 

D. Subsequent Procedural History

After his administrative appeals were unsuccessful, 

Burns filed this pro se § 1983 action in the district court 

claiming that the Pennsylvania Department of Corrections 

and certain officials violated his due process rights during the 

prison‘s disciplinary proceedings when it assessed his prison 

account.

5

The district court granted summary judgment in 

favor of the defendants on all counts after concluding that the 

assessment of Burns‘ account was not a sufficient liberty or 

property interest to support a claim under § 1983.

 

4

 Canino speculated that Mobley may have been 

concerned for his safety, but this speculation was not based 

on anything Mobley said.

5

 After Burns filed his suit pro se, counsel was 

appointed to represent him. 
7

Burns appealed that judgment, and we reversed and 

remanded.

6

 We held that ―the Department of Corrections‘ 

assessment of Burns‘ institutional account constituted the 

deprivation of a protected property interest for purposes of 

procedural due process‖ and ―[t]hat deprivation [was]

sufficient to trigger the protections of the Due Process 

Clause.‖ Burns, 544 F.3d at 291. However, we remanded the 

case so that the district court could determine what process 

Burns was due and whether the disciplinary hearing described 

above satisfied the procedural protections Burns was entitled 

to under the Due Process Clause. If the district court found 

that due process was violated, the question of remedies also 

needed to be addressed.

On remand, the district court found that Burns‘ due 

process rights had been violated by the hearing officer‘s 

failure to independently evaluate the credibility of the 

confidential informants, but it did not find that Burns‘ 

procedural due process rights were violated by the hearing 

officer‘s refusal to compel Mobley‘s testimony or by her 

failure to view the alleged videotape. Despite finding a due 

process violation, the court found that the state officials were 

protected by qualified immunity and that Burns could 

therefore not recover damages from them. Burns v. PA Dept. 

of Corr., 2009 WL 1475274, *5 (E.D. Pa. May 26, 2009). The 

court did, however, grant Burns‘ request for a declaration that 

his prison account could not be assessed. The district court 

denied all of Burns‘ other requests for injunctive relief.

Burns now argues that his right to due process was 

also violated by the hearing officer‘s failure to compel 

Mobley to testify as well as her failure to view the videotape, 

that the prison officials are not entitled to qualified immunity, 

and that the district court erred in denying his requests for 

 

6

 Following oral argument that occurred during the 

initial appeal, the DOC sent a letter to Burns declaring that it 

would not deduct money from his inmate account to assess 

him for expenses arising from the assault as allowed by the 

hearing officer's order. The DOC then argued that Burns' 

appeal was therefore moot. That claim of mootness was 

rejected. See Burns, 544 F.3d at 283.
8

relief for the harms he suffered as a result of the violation of 

due process.

II. Standards of Review

―We review an award of summary judgment de novo, 

applying the same test on review that the District Court 

should have applied.‖ MBIA Ins. Corp. v. Royal Indem. Co., 

426 F.3d 204, 209 (3d Cir. 2005). On summary judgment, we 

review ―the facts in the light most favorable to the nonmoving 

party and draw all inferences in that party‘s favor.‖ 

Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). 

We review the district court‘s grant of qualified immunity de 

novo as it raises a purely legal issue. Curley v. Klem, 298 F.3d 

271, 279 (3d Cir. 2002). 

We generally review a district court‘s grant of relief 

for abuse of discretion, but ―we must exercise a plenary 

review of the trial court's choice and interpretation of legal 

precepts and its application of those precepts to the historical 

facts.‖ Universal Minerals, Inc. v. C.A. Hughes & Co., 669 

F.2d 98, 103 (3d Cir. 1981).

III. Due Process

It is well established that ―[p]risoners . . . may not be 

deprived of life, liberty or property without due process of 

law.‖ Wolff v. McDonnell, 418 U.S. 539, 556 (1974). 

However, inmates are generally not entitled to procedural due 

process in prison disciplinary hearings because the sanctions 

resulting from those hearings do not usually affect a protected 

liberty interest. See Sandin v. Conner, 515 U.S. 472, 483-84

(1995) (holding that not all sanctions resulting from prison 

disciplinary hearings affect protected liberty interests). Burns 

does not assert here that any of the sanctions imposed by 

Hearing Officer Canino—including his prison transfer, his 

security level, and his 180-day sentence in the SHU—affects

any protected liberty interest. Nor does Burns have a 

property interest in his prison job.7

 

7 Burns does assert that he is entitled to remedies 

because of these sanctions based upon his contention that they 
9

We have already determined that Burns does have a 

protected property interest in the assessment of his prison 

account and was therefore entitled to due process prior to the 

assessment of his account. See Burns, 544 F.3d at 291 

(―[W]e are satisfied that the Department of Corrections‘ 

assessment of Burns‘ institutional account constituted the 

deprivation of a protected property interest for purposes of 

procedural due process.‖).

Pennsylvania‘s Administrative Code allows an 

inmate‘s account to be assessed in two different 

circumstances. First, the Code establishes that if an inmate is 

found to have engaged in misconduct, the ―sanction‖ may 

include ―[p]ayment of the fair value of property lost or 

destroyed or for expenses [including medical expenses] 

incurred as a result of the misconduct.‖ 97 Pa. Code § 

93.10(a). Elsewhere, the Code requires that the Department 

of Corrections ―will‖ charge that inmate‘s prison account for 

the costs of treating his victim‘s injuries.

As noted, we held in Burns I, that ―a disciplinary 

conviction directing that an inmate's institutional account be 

assessed for medical or other expenses implicates a property 

interest sufficient to trigger the protections of procedural due 

process. . .‖. 544 F.3d at 280. Thus, Burns was entitled to 

procedural due process at his disciplinary hearing because 

assessment of his inmate account for the costs of Mobley‘s 

medical expenses was a possible consequence of conviction 

of the infractions he was charged with. 

However, the parameters of that due due process are 

not readily defined because loss of liberty is a normal 

consequence of a criminal conviction. See Sandin, 515 U.S. 

at 487 (―The regime to which he was subjected as a result of 

the misconduct hearing was within the range of confinement 

to be normally expected for one serving [a prison sentence]‖).

On remand, the district court found that Hearing

Officer Canino had violated Burns‘ right to due process by 

relying on the statement of two unnamed confidential 

informants without independently evaluating their reliability 

 

were the result of a constitutionally flawed hearing. This 

issue is discussed more fully in Part V.
10

and credibility. Burns, 2009 WL 1475274, *13-14. The 

Commonwealth does not appeal that ruling. However, Burns 

appeals the district court‘s conclusion that Canino‘s refusal to 

personally view the videotape and her refusal to force Mobley 

to testify also violated Burns‘ due process rights. 

Burns claims that Wolff v. McDonnell, 418 U.S. 539 

(1974), should govern our due process inquiry into the 

procedural protection he was due in his prison disciplinary 

hearing. In Wolff, the Supreme Court outlined the basic 

process inmates are entitled to when prison officials seek to 

deprive them of good-time credits, a protected liberty interest. 

The district court‘s due process analysis was based on Wolff.

Burns, 2009 WL 1475274, *10. 

The Commonwealth argues that Wolff does not apply. 

It claims that ―no decision by the Supreme Court has found 

Wolff applicable in an inmate‘s deprivation-of-property case.‖ 

Appellee‘s Br. at 23. The Commonwealth thus attempts to 

distinguish between deprivations of liberty and deprivations 

of property and argues that Wolff only applies to the former

while two other Supreme Court cases - Paratt v. Taylor, 451 

U.S. 527 (1981), overruled in part by Daniels v. Williams, 

474 U.S. 327 (1986), and Hudson v. Palmer, 468 U.S. 517 

(1984) - apply to the latter.

We are not persuaded. Wolff itself notes that its due 

process analysis applies regardless of whether the deprivation 

is of liberty or property: ―This analysis as to liberty parallels 

the accepted due process analysis as to property. The Court 

has consistently held that some kind of hearing is required at 

some time before a person is finally deprived for his property 

interests. . . . We think a person‘s liberty is equally protected 

[as that of his or her property] . . . .‖ 418 U.S. at 557-58.

Moreover Paratt and Hudson only address postdeprivation remedies of unauthorized or unintentional 

deprivations of property. Unlike Wolff, which addresses the 

state‘s obligation to provide pre-deprivation notice and a 

hearing, Paratt involved a prisoner‘s mail packages being

negligently misplaced, 451 U.S. at 529, and the process due 

after that deprivation. Hudson extended this post-deprivation 

analysis to the process an inmate is due after a prison guard‘s 

unauthorized destruction of an inmate‘s property, 468 U.S. at 
11

520. Thus, neither case is helpful to our inquiry into the 

process that should have been afforded before the deprivation 

that occurred here, where pre-deprivation notice and 

opportunity to be heard were part of an established process.

―[W]e must balance the inmate‘s interest . . . against 

the needs of the prison, and some amount of flexibility and 

accommodation is required.‖ Wolff, 418 U.S. at 566. The 

district court began its analysis by reasoning that

[t]he newly recognized property interest at 

issue here – the security of a prisoner‘s 

account – is a less important private interest 

than the good time credits at issue in Wolff. . . 

. The reduction in the economic value of 

Burns‘ institutional account and the threat of 

appropriation, although it lasted three years, 

was so minor that the Court must conclude 

that this is a less weighty interest than a 

possible extension on a term of 

imprisonment[.]

Burns, 2009 WL 1475274, *11. In a footnote, the 

court further noted that ―[h]ad Burns‘ account 

actually been assessed, the maximum amount for 

which he could have been liable was $10.00.‖ Id. at 

19 n.7.

We do not fully agree with the court‘s framing of the 

issue. First, as both the Commonwealth and Burns recognize 

in their briefs, when Canino assessed Burns‘ account, she 

believed that the assessment could be much larger than 

$10.00, possibly including the costly prospect of covering 

plastic surgery Mobley may have needed.

8

See Appellant‘s 

 

8 Canino‘s deposition reads:

―Q. And you wrote here that you assessed the inmate‘s 

– to assess the inmate‘s account for medical or other 

expenses. That would be the medical expenses for Mr. 

Mobley?

A. Plastic surgery or whatever. I‘m not a doctor. 

Whatever it takes to make him right.
12

Br. at 46 n.15, Appellee‘s Br. at 16 n.18. Thus, although we 

now know that Burns‘ exposure was less than $10, the 

exposure appeared far more substantial at the time of the 

hearing. 

Second, although a prisoner‘s interest in freedom is 

certainly paramount, we are not willing to ignore his/her 

interest in property,9nor are we willing to say that it is so de 

minimus that the requirements of the Due Process Clause are 

substantially reduced. As we have already noted, the 

Supreme Court was careful to explain that ―a person‘s liberty 

is equally protected [as his or her property] . . . .‖ Wolff, 418 

U.S. at 557-58. 

Rather, we must balance the legitimate interests of 

both the state and the inmate while affording deference to the 

unique institutional concerns that arise in the prison setting. 

Wolff, 468 U.S. at 562. The appropriate balance must 

recognize these competing interests when determining what 

process is due. See Mathews v. Eldridge, 424 U.S. 319, 334-

35 (1976). 

A. Documentary Evidence

As noted earlier, during his disciplinary hearing, Burns 

requested that a videotape of the incident be presented as 

permitted under prison policy. The requested tape appeared 

relevant because Burns alleged that Dohman told him that the 

assault was recorded by surveillance cameras. Burns claims 

that the videotape would have exonerated him because it 

would have shown the real assailant. As also noted, Captain 

Dohman claims he never told Burns there was a videotape, 

and he told Hearing Officer Canino that the assault had not 

been recorded. Canino does not remember if she ever viewed 

the videotape. 

 

Q. Were there any other expenses you had in mind 

other than medical expenses. 

A. I think that was basically it.‖ 

Exhibit 3 at 79-80 (Canino deposition).

9

For example, an inmate‘s prison account may be the 

only means of paying for long distance phone calls to family 

or others in his/her support network. 
13

Because we are reviewing a grant of summary 

judgment, we must view the facts in the light most favorable 

to the nonmoving party. Armbruster v. Unisys Corp., 32 F.3d 

768, 777 (3d. Cir 1994). We must therefore assume that 

Canino did not view the videotape. However, we make no 

assumptions about what, if anything, was then recorded on 

the videotape. 

It is clearly established that due process requires that 

an inmate be permitted to ―present documentary evidence in 

his defense when permitting him to do so will not be unduly 

hazardous to institutional safety or correctional goals.‖ Wolff, 

418 U.S. at 566. Although prison officials are afforded 

deference regarding whether evidence might be unduly 

hazardous or undermine institutional safety or correctional

goals, ―the discretion afforded prison officials is not without 

limits.‖ Young v. Kann, 926 F.2d 1396, 1400 (3d Cir. 1991).

In Dalton v. Hutton, 713 F.2d 75 (4th Cir. 1983), the 

Court of Appeals for the Fourth Circuit dealt with a similar 

issue. Although that case is not ―on all fours‖ with the 

circumstances here, the court‘s analysis is helpful. There, an 

inmate asked two prison officials to testify in his behalf at 

disciplinary proceedings arising from a prison disturbance; 

both guards declined. Pursuant to the applicable prison 

regulations precluding inmates from calling any prison 

employees as witnesses, no efforts were made to compel their 

testimony.

10

 On appeal, the court found the regulation 

inconsistent with the inmate‘s right to due process because

[o]ne needs no  ̳right‘ to call a witness who 

voluntarily presents himself to testify. If 

there is preclusion of an entire class of 

witnesses (i.e., anyone who would rather not 

appear), the right is dissipated in a cloud of 

verbiage. An inmate granted the right, albeit 

qualified, to call witnesses in his behalf loses 

it altogether, in any meaningful employment 

of language, if any witness may refuse to 

testify for no reason whatsoever.

 

10 The court focused on the fact that the applicable regulation 

was a ―per se proscription against the calling of all but 

voluntary witnesses.‖ Dalton, 713 F.2d at 77.
14

Id. at 78.

An inmate‘s right to present documentary evidence is 

similarly undermined if prison officials can bar the inmate 

from presenting the evidence simply by denying that the 

evidence is relevant. If a disciplinary hearing is to have any 

substance, the hearing officer must determine relevance of 

evidence, not corrections officers or employees. See Young v. 

Kann, 926 F.2d 1396, 1402 (3d Cir. 1991) (discussing Helms 

v. Hewitt, 655 F.2d 487 (3d Cir. 1981), rev’d on other 

grounds, 459 U.S. 460 (1983), aff’d on remand, 712 F.2d 48 

(3d. Cir 1983)). Deferring such a determination to the 

charging corrections officer turns the disciplinary proceeding 

into little more than the administrative equivalent of a ―show 

trial.‖ A ―right‖ to present evidence is no right at all if the 

officer overseeing a disciplinary hearing can simply decide 

not to view the evidence based on a representation of the 

prosecuting corrections officer.

It is therefore troubling that the hearing officer here

appeared to rely entirely on the statements of Officer Dohman 

in determining whether the videotape was relevant. The 

problem is compounded by the fact that the record suggests 

that Officer Dohman may not even have been under oath 

when he told Canino about the videotape. 

 Burns was thus deprived of due process because his 

right to present evidence was completely undermined by the 

hearing officer‘s failure to independently determine whether 

the evidence was relevant. 

We therefore hold that an inmate‘s right to procedural 

due process is violated when a hearing examiner simply fails 

to view available evidence to determine its relevance and 

suitability for use at a disciplinary hearing. If such hearings 

are to have any substance, the hearing officer must 

independently assess whether the evidence is relevant and 

then determine whether there are legitimate penological 

reasons to deny the prisoner access to the evidence 

requested.

11 Although the government may have a very real 

 

11 This does not, of course, mean that prison officials 

must indefinitely preserve anything which may become 

evidence in a disciplinary proceeding. Rather, where, as here, 
15

interest in barring an inmate‘s access to certain documentary 

evidence, that interest is not implicated when it is provided 

only to the hearing officer, who can then independently assess

its probative value and weigh that against any institutional 

concerns that may counsel against allowing otherwise 

probative evidence to be used at the hearing.

B. Mobley’s Testimony

Burns also claims that he was denied procedural due 

process when Hearing Officer Canino denied his request to 

call Mobley as a witness. The prison‘s policy allows an 

inmate to call up to three relevant witnesses, including one 

staff member. Burns requested only Mobley‘s testimony. 

From what we have already stated, it should be clear 

that an ―inmate facing disciplinary proceedings should be 

allowed to call witnesses and present documentary evidence 

when permitting him to do so will not be unduly hazardous to 

institutional safety or correctional goals.‖ Wolff, 418 U.S. at 

566. The Supreme Court has cautioned, however, that 

inmates are not entitled to the full panoply of constitutional 

rights. Here again, the inmate‘s right must be balanced 

against concerns that are endemic to a situation of one inmate 

testifying against another: 

Relationships among the inmates are 

varied and complex and perhaps subject 

to the unwritten code that exhorts 

inmates not to inform on a fellow 

prisoner. It is against this background 

 

an institution‘s record retention policy suggests that 

documentary evidence exists, and an inmate properly requests 

that the evidence be produced at his/her disciplinary hearing, 

due process requires that the evidence be produced unless the 

hearing officer makes an independent determination that the 

evidence is not relevant, or if relevant, should not be 

introduced because of overriding penological concerns such 

as security of the institution or safety of prison personnel or 

other inmates. Here, the prison had a policy of retaining such 

tapes for 60 days, and the hearing was held well within that 

time frame. We must therefore assume that the tapes were 

available for Burns‘ hearing. 
16

that disciplinary proceedings must be 

structured by prison authorities; and it is 

against this background that we must 

make our constitutional judgments . . . . 

Id. at 562.

Here, Burns‘ desire to have Mobley testify was 

certainly reasonable since Mobley was the victim of the 

assault and presumably saw his assailant. Hearing Officer 

Canino appropriately responded by asking Mobley to testify.

However, as we have noted, Mobley refused to testify either 

at the hearing or in camera. He also refused to provide any 

kind of written testimony. Canino did not explain why 

Mobley refused to testify, and it is not clear that she even 

knew Mobley‘s reasons or inquired into them. Canino 

therefore conducted the hearing and rendered a decision 

without having the benefit of hearing what the victim knew 

about the identity of his attacker. 

The Supreme Court has explained that ―it would be 

useful for the [prison disciplinary hearing officer] to state [his 

or her] reason for refusing to call a witness, whether it be for 

irrelevance, lack of necessity, or the hazards presented in 

individual cases.‖ Wolff, 418 U.S. at 566. However, the

Court has also cautioned that institutional concerns, including 

the possibility of retaliation, may make it wholly impractical 

to compel an inmate‘s testimony at a disciplinary hearing. Id.

at 567.

We will therefore not conclude that a hearing officer 

must always record the reason for permitting an inmate to 

refuse to testify. That may sometimes be as problematic as 

reporting that an inmate refused to testify out of fear of 

retaliation. These institutional concerns override Burns‘ 

interest in being able to call Mobley as a witness. If Burns 

had been the assailant, Mobley would either have had to 

testify truthfully and risk retaliation or perjure himself and 

thereby become the vehicle by which his assailant would 

escape sanction.
17

In Dalton, the inmate wished to call prison officials to 

testify, but under prison policy they could not be compelled to 

testify— as noted earlier, all testimony had to be voluntary. 

Dalton, 713 F.2d at 77. While we agree with the Fourth 

Circuit that the right to call only voluntary witnesses is no 

right at all, we find no justification for extending this analysis 

so far that it would force a victim inmate to testify against 

his/her assailant, nor is Dalton to the contrary. The court was 

there concerned with a per se prohibition that did not allow 

for inmates to require testimony of anyone (including 

corrections officers), even when that testimony presented no 

institutional concerns that would have counseled against it.

The Commonwealth‘s interest in protecting Mobley 

and managing the difficult relationships within the prison 

setting far outweigh Burns‘ right to call Mobley as a witness. 

Wolff requires ―a case-by-case analysis of the calling of 

involuntary witnesses.‖ See Forbes v. Trigg, 976 F.2d 308, 

317 (7th Cir. 1992). Here, we conclude that the special 

circumstances involving an inmate victim, and the concerns 

about the ―unwritten code that exhorts inmates not to inform 

on a fellow prisoner,‖ Wolff, 418 U.S. at 562, outweigh the 

right Burns may have otherwise had to call an unwilling 

witness. Accordingly, we will affirm the district court‘s 

finding that there was no due process violation in allowing 

Mobley not to testify, but we will reverse the court‘s finding 

that Burns‘ due process right was not violated by the hearing 

examiner‘s failure to view the videotape that may have 

recorded the incident.

III. Qualified Immunity

Finding that prison officials violated Burns‘ due 

process rights does not end our inquiry, however. The 

question remains whether those officials have qualified 

immunity. Qualified immunity shields government officials 

from suit even if their actions were unconstitutional as long as

those officials‘ actions ―d[id] not violate clearly established 

statutory or constitutional rights of which a reasonable person 

would have known.‖ Harlow v. Fitzgerald, 457 U.S. 800, 

818 (1982). 

―Qualified immunity balances two important 

interests—the need to hold public officials accountable when 
18

they exercise power irresponsibly and the need to shield 

officials from harassment, distraction and liability when they 

perform their duties reasonably.‖ Pearson v. Callahan, ---

U.S. ---, 129 S.Ct. 808, 815 (2009). ―The general rule of 

qualified immunity is intended to provide government 

officials with the ability  ̳reasonably [to] anticipate when their 

conduct may give rise to liability for damages.‘‖ Anderson v. 

Creighton, 483 U.S. 634, 645 (1987) (quoting Davis v. 

Scherer, 468 U.S. 183, 195 (1984)) (alteration in original). 

The burden of establishing qualified immunity falls to the 

official claiming it as a defense. See Harlow, 457 U.S. at 819 

(describing qualified immunity as a defense and noting that 

―if the official pleading the defense claims extraordinary 

circumstances and can prove that he neither knew nor should 

have known of the relevant legal standard, the defense should 

be sustained‖) (emphasis added). 

For the official to have ―fair warning,‖ United States v.

Lanier, 520 U.S. 259, 270 (1997), that his or her actions 

violate a person‘s rights, ―[t]he contours of the right must be 

sufficiently clear that a reasonable official would understand 

that what he is doing violates that right.‖ Anderson v. 

Creighton, 483 U.S. 635, 640 (1987). However, ―[t]his is not 

to say that an official action is protected by qualified 

immunity unless the very action in question has previously 

been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.‖ Wilson v. 

Layne, 526 U.S. 603, 615 (1999).

The district court reasoned that, since our holding in 

Burns I (that Burns‘ property interest in his inmate account 

was protected under the Due Process Clause) rested upon 

sources other than our own case law, the right we recognized 

there was not ―clearly established‖ when the defendants 

assessed his account. The district court believed that, prior to 

our holding there, procedural due process only protected an 

inmate‘s account when it was debited, and no property 

interest was implicated by the ―mere‖ assessment of the 

account. Accordingly, the court reasoned that the defendants 

were entitled to qualified immunity pursuant to Saucier v.

Katz, 533 U.S. 194 (2001). Burns I, 2007 WL 442385, *5. 

Although we believe that the question of qualified immunity 
19

is a closer call than suggested by the district court‘s analysis,

we will nevertheless affirm that court‘s holding. 

The district court was correct in concluding that our 

holding in Burns I that a prisoner has an interest in the 

security of his or her prison account was a new understanding 

of property interests protected by due process rights. 

However, that does not end our qualified immunity inquiry

because ―officials can still be on notice that their conduct 

violates established law even in novel factual circumstances.‖ 

Hope v. Pelzer, 536 U.S. 730, 741 (2002). 

To determine whether a new scenario is sufficiently 

analogous to previously established law to warn an official 

that his/her conduct is unconstitutional, we ―inquir[e] into the 

general legal principles governing analogous factual 

situations . . . and . . . determin[e] whether the official 

should have related this established law to the instant 

situation.‖ Hicks v. Feeney, 770 F.2d 375, 380 (3d Cir. 

1985). ―This approach eliminates unexpected liability for 

public officials as well as prevents the occurrence of a mere 

 ̳factual wrinkle‘ in an area of clearly established law from 

barring suit altogether.‖ Id. (quoting People of Three Mile 

Island v. Nuclear Regulatory Commissioner, 747 F.2d 139, 

148 (3d Cir. 1984)).

Because qualified immunity is intended to protect

officials absent ―fair warning‖ that their conduct violates 

constitutional guarantees, we examine qualified immunity 

from the perspective of the official at the time of the 

violation. We must therefore determine ―whether reasonable 

officials in their positions, with the information then available 

to them, should have known that their actions or omissions 

violated clearly established law.‖ Ryan v Burlington County, 

860 F.2d 1199, 1204 (3d Cir. 1988).12 

 

12 See also Saucier v. Katz, 533 U.S. at 202 (―The 

relevant inquiry is whether it would be clear to a reasonable 

officer that his conduct was unlawful in the situation he 

confronted‖); Wilson v. Layne, 526 U.S. 603, 615 (1999) 

(inquiring ―whether a reasonable officer could have believed 

that [his or her action] was lawful, in light of clearly 

established law and the information that the officers 
20

Here, the question is ―whether reasonable officials in 

[Hearing Examiner Canino‘s] position, with the information 

then available to [her], should have known that their actions 

[in ordering an assessment of Burns‘ prison account under the 

circumstances here] violated clearly established law.‖ Ryan, 

860 F.2d at 1204.

At the time of Burns‘ disciplinary hearing, it was well 

established that ―[i]nmates have a property interest in funds 

held in prison accounts.‖ Reynolds v. Wagner, 128 F.3d 166, 

179 (3d. Cir. 1997) (citing Mahers v. Halford, 76 F.3d 951, 

954 (8th Cir. 1996); Campbell v. Miller, 787 F.2d 217, 222 

(7th Cir. 1986); Quick v. Jones, 754 F.2d 1521, 1523 (9th Cir. 

1985)). Accordingly, it was clearly established that ―inmates 

are entitled to due process with respect to any deprivation of 

this money.‖ Reynolds, 128 F.3d.at 179 (citing Mahers, 76 

F.3d at 954). To the extent that Burns I added a ―new twist,‖ 

it did so by concluding that the position of the Department of 

Corrections was similar to that of a judgment creditor when it 

assessed inmates‘ accounts even if the account was not 

debited until some point in the future.13

Under Pennsylvania law, after an inmate has been 

found responsible for an assault, ―[t]he Department [of 

Corrections] will charge a fee to an inmate for . . . [m]edical 

service provided to another inmate as a result of assaultive 

conduct engaged in by an inmate to be charged the fee.‖ 37 

Pa. Code § 93.12(c)(4). An ―assessment [i]s a statutorily 

 

possessed.‖); Anderson v. Creighton, 483 U.S. 634, 641 

(1987) (―The relevant question in this case, for example, is 

the objective (albeit fact-specific) question whether a 

reasonable officer could have believed [the] warrantless 

search to be lawful, in light of clearly established law and the 

information the searching officers possessed.‖)

13 In Burns 1, although we conceded that the ―analogy 

is technically imperfect,‖ we held that ―the legal right 

obtained by the Department of Corrections through its 

assessment of Burns' account mirrors the interest held by a 

Judgment Creditor under Pennsylvania law.‖ 544 F.3d at 588. 

We also noted that, the position of the Department of 

Corrections here was even stronger than that of a judgment 

creditor. Id.
21

authorized consequence of [a prisoner‘s] being found guilty 

of institution misconduct.‖ Brome v. Dept. of Corr., 756 A.2d 

87, 89 (Pa. Cmwlth. 2000); see also Greene v. Dept. of Corr., 

729 A.2d 652, 654 (Pa. Cmwlth. 1999).

The Commonwealth Court of Pennsylvania has 

previously found that the Department of Correction‘s 

procedures regarding the assessment of inmates‘ accounts 

violated due process. In Holloway v. Lehman, 671 A.2d 1179

(Pa. Cmwlth. 1996), the court noted that ―[i]t is beyond 

dispute that money is property. Private property cannot be 

taken by the government without due process.‖ Id. at 1181

(citations omitted). There, the court found the Department‘s 

policy of providing no opportunity for inmates to protest the 

amount of money to be deducted from the prisoner‘s account 

denied inmates due process of law. The court thus began 

requiring a hearing that has come to be known as a ―Holloway

hearing.‖ 

However, a Holloway hearing merely determines the 

amount of money to be assessed from a prisoner‘s account; it 

does not provide an opportunity to challenge the fact of the 

assessment in the first place. That determination is made at a 

misconduct hearing—such as the hearing over which Canino 

presided. 

A reasonable official at the time of Burns‘ misconduct 

hearing would have known, or should have known, that 

―inmates are entitled to due process with respect to any 

deprivation of‖ their prison accounts. Reynolds, 128 F.3d at 

179 (citing Mahers, 76 F.3d at 954). An official should also 

have realized that the hearing over which Canino presided is 

the only opportunity under Pennsylvania law for an inmate to 

challenge whether his or her prison account should be 

assessed (not merely the amount to be debited). Indeed, 

Pennsylvania officials should have been on heightened notice 

of the constitutional requirements with regard to such actions

because Pennsylvania courts have previously upheld inmates‘ 

due process challenges of the assessment procedures. See

Holloway, 671 A.2d 1179. 

Thus, we do not think it is unreasonable for prison 

officials at the time of Burns‘ hearing to have known that: (1) 

Burns had a property interest in his prison account, (2) he was 
22

entitled to due process before his account could be debited, 

(3) a later Holloway hearing would determine the amount of 

money to be deducted, but the actual disciplinary hearing was 

the only forum for determining if any money should be 

deducted at all, and (4) due process is violated when a 

determination to deprive an inmate of a protected interest is 

based solely on the uncorroborated statements of confidential 

informants. 

However, two matters give us pause in concluding that 

Burns is entitled to relief here. First, although it was not 

unreasonable for a government official to have realized that 

due process must be provided in adjudicating whether a 

prison account can be debited, Burns is the first case that 

clearly established that the assessment itself implicates a 

prisoner‘s protected property interests, even if the account is 

not actually debited. The devaluation in the property interest 

in the inmate‘s funds that results from such an assessment 

was not clearly established before Burns I, and we do not 

believe that a reasonable official could have foreseen the 

analogy to a judgment creditor that formed the basis of our 

holding in Burns I. Second, we think it understandable that 

the existence of a later Holloway hearing could have caused a 

reasonable prison official to believe that, because the 

Pennsylvania state courts have found that a Holloway hearing 

was necessary to satisfy due process, that hearing was also 

sufficient to satisfy due process. 

Although some officials may have been able to deduce 

that a Holloway hearing was insufficient to satisfy due 

process, we do not believe that a reasonable official in 

Canino‘s position would have had a ―fair warning‖ that an 

assessment of the account prior to the Holloway hearing was 

subject to due process protections. Prior to Burns I, inmates 

were only entitled to procedural due process before their 

accounts were debited. Neither this court, nor any 

Pennsylvania appellate courts had held that an inmate was 

also entitled to procedural due process before the account was 

assessed, even if the fund was not debited before we decided 

Burns I. 

Thus we cannot conclude that the circumstances here 

were sufficient to give prison officials ―fair warning‖ that 
23

their conduct was unconstitutional. United States v. Lanier, 

520 U.S. 259, 270 (1997). Accordingly, we hold that they are 

entitled to qualified immunity.

V. Remedies

Although qualified immunity bars Burns from seeking 

monetary compensation, he may still be entitled to injunctive 

relief. See Harris v. Pernsley, 755 F.2d 338, 343 (3d Cir. 

1985) (―The qualified immunity defense only applies, of 

course, to claims for money damages.‖).

Burns argues that the district court should have 

provided remedies for all of the injuries that flowed from the 

flawed hearing, and that the remedies should have included: 

reversing the finding that he assaulted Mobley; remedying the 

increased security clearance that followed the assault on 

Mobley; rescinding the order separating him and Mobley that 

resulted in his transfer; and compensating him for his lost job 

and wages, and his out-of-pocket expenses resulting from 

these actions.

However, Burns‘ ―wish list‖ is not the least bit helpful 

to our attempt to fashion an appropriate remedy. Prison 

officials would have been perfectly within their authority had 

they separated Mobley and Burns after the disciplinary 

hearing, regardless of its outcome. In fact, prudence may 

well have required separation even if Burns had been 

exonerated at the hearing. Prison authorities may still have 

had legitimate concerns that Burns would attempt to retaliate 

against Mobley because Mobley refused to exonerate him at 

the hearing. The same can be said for the order transferring 

Burns to a different institution. Burns certainly did not have 

any right to serve his sentence in any particular institution. 

Prison authorities routinely transfer inmates for reasons of 

security, convenience or available space. Burns surely did 

not acquire a vested right to remain where he was housed 

based upon this incident or the violations of his due process 

rights that followed. The same is true of his job. Job 

classifications are uniquely the province of prison authorities, 
24

not the courts, and Burns did not have any vested right to a 

particular job that a court could enforce.

14

The Commonwealth argues that because prison 

officials could have imposed all of these penalties without 

any process at all, the constitutional violation did not cause 

any injury to Burns. In the Commonwealth‘s view, since 

prisoners have no liberty interests in their prison location, 

Meachum v. Fano, 427 U.S. 215, 228-29 (1976), or 

placement in restricted housing units, Sandin, 515 U.S. at 

486, and no property interests in their jobs, prison officials 

were free to take these actions without any justification at all.

The argument is problematic for two reasons. First, it 

fails to recognize that these actions resulted from a 

constitutionally flawed hearing. Second, it assumes that

every remedy must be based upon a liberty or property 

interest. In fact, while the injury must have been proximately 

caused by a violation of a protected interest, there is no 

requirement that the remedy be limited solely to that property 

interest. See, e.g., Doe v. District of Columbia, 697 F.2d 

1115, 1124 (D.C. Cir. 1983) (finding prisoners whose Eighth 

Amendment right to be free from cruel and unusual 

punishment had been violated to be ―entitled to compensation 

for any physical injuries, pain and suffering, emotional 

distress, and impairment of their prospects for future 

employment proximately caused by the defendants' 

unconstitutional conduct‖ even though there is no property 

interest in employment prospects).

In order to determine what remedies are appropriate, 

the Commonwealth asks us to adopt the reasoning of the

district court and proceed as if the hearing did not implicate 

Burns‘ property interest and therefore did not require any 

constitutional protections. The district court posed the legal 

question as: ―if the hearing had not implicated Plaintiff‘s 

property interest in the security of his account, . . . would the 

 

14

 We do not, however, take any position on whether 

an inmate who loses a particular job or is transferred to a 

different institution in retaliation for his/her exercise of a 

constitutional right would have a remedy in that very different 

situation.
25

disciplinary determination and its subsequent effects be 

upheld?‖ Burns, 2009 WL 1475274, *8.

However, that does not advance our inquiry. We 

cannot erase unconstitutional actions in order to uphold steps 

that were taken because of them. The constitutional violation 

did occur, and the Commonwealth cannot put that genie back 

in the bottle.

Rather, we must approach this from the perspective of 

what would have happened had Burns been afforded the 

procedural protections to which he was entitled. In advancing 

their opposing arguments regarding the appropriate remedy, 

both parties rely on Carey v. Piphus, 435 U.S. 247, 260

(1978). The question there was not whether the state could 

have taken certain actions against a group of students without 

violating their constitutional right to due process. Rather, the 

Court considered whether the students would still have been 

suspended if they had been afforded procedural due process. 

See Carey v. Piphus, 435 U.S. at 260. 

Carey lays out a helpful burden shifting scheme for 

resolving the remedial issue here. See Carey, 435 U.S. at 260 

(describing and approving of the Court of Appeals burden 

shifting scheme). Under Carey, the plaintiff in a § 1983 case 

must prove that a constitutional violation has occurred, and 

that it was the proximate cause of his or her injuries. Once 

the plaintiff clears both hurdles, the burden shifts to the 

defendant, who then has an opportunity to prove that the same 

actions would have occurred even if due process had been 

provided. 

Here, as we have explained, Burns has established a 

procedural due process violation and has pointed to all of the 

sanctions that resulted from that action. Accordingly, the 

burden should have shifted to the Commonwealth to show 

that it would have taken the same steps if due process had 

been provided. For those actions the prison officials can 

establish would have been taken regardless of the flawed 

hearing, the plaintiff is entitled to no remedy, as any remedy 

would constitute a windfall. However, if the prison cannot 

establish that it would have taken the same steps even absent 

the constitutionally flawed hearing, the inmate is then entitled 

to relief. 
26

We believe that had due process been provided, at 

least one consequence of the flawed hearing would not have 

occurred: Burns would not have been convicted of 

misconduct on the evidence presented. The district court 

found that the evidence was insufficient to assess Burns‘ 

account and the state did not appeal that finding. 

SCI Graterford has one process for determining 

whether an inmate is guilty of misconduct and will have 

funds assessed because of that misconduct. The processes of 

finding guilt and allocating medical treatment costs are 

inseparably intertwined in a single proceeding with one 

adjudicator, one body of evidence, and the same burdens of 

proof. In fact, the punishment of allocating costs to an inmate 

appears to flow automatically from the result of the 

disciplinary proceeding because it appears that an assessment 

is a mandatory consequence of a disciplinary action if the 

inmate is convicted of the infraction. See 37 Pa. Code § 

93.12(c)(4) (―The Department [of Corrections] will charge a 

fee to an inmate for . . . [m]edical service provided to another 

inmate as a result of assaultive conduct engaged in by an 

inmate to be charged the fee.‖ (emphasis added)). This 

means that the prison could not have assessed Burns‘ prison 

account without a disciplinary conviction, but it also appears

that the prison had to assess his account once Burns was 

convicted of the infraction. 

We agree with the district court that there is simply not 

enough evidence in the record to support the assessment of 

Burns‘ account, and the Commonwealth has not appealed

that finding. Since the assessment is inextricably intertwined 

with the finding that Burns committed the charged infraction, 

we must also conclude that there is simply not enough 

evidence to support a finding that he was the one who 

assaulted Mobley. Therefore, we grant Burns‘ request that the 

disciplinary conviction be expunged.

Nevertheless, prison officials were entitled to have 

taken the other actions regardless of the outcome of the 

disciplinary hearing, and Burns‘ request to reverse those 

measures must be denied. As noted above, he would 

otherwise receive a windfall. He cannot rise above the 

legitimate institutional concerns of prison officials merely 
27

because they did not provide him with a proper hearing. The 

Commonwealth argues that prison officials may have been 

wise to impose such sanctions as the separation order and the 

job changes regardless of the outcome of the hearing for fear 

of retaliation or other concerns, and we agree. We are 

mindful that prison officials must make complicated and 

difficult decisions regarding inmate placement and privileges, 

and officials should clearly be afforded deference regarding 

such actions. We are also mindful that the Prison Litigation 

Reform Act (―PLRA‖) provides that ―[p]rospective relief in 

any civil action with respect to prison conditions shall extend 

no further than necessary to correct the violation of the 

Federal right‖ and that such relief should be ―narrowly 

drawn,‖ ―extend[] no further than necessary to correct the 

violation of the Federal right, and [be] the least intrusive 

means necessary to correct the violation of the Federal right.‖ 

18 U.S.C.A. § 3626(a)(1)(A). 

Moreover, our ―involvement . . . in the day-to-day 

management of prisons‖ must be limited. Sandin, 515 U.S. at 

482. Thus, our holding only disturbs the conviction that 

resulted from a constitutionally flawed hearing. Consistent 

with the PLRA, we do not interfere with the prison‘s day-today management of Burns.

VI. Conclusion

Accordingly, we will affirm the district court‘s finding 

that Mobley‘s refusal to testify did not constitute a due 

process violation, but we will reverse and hold that it is a due 

process violation for a prison hearing officer not to seek to 

view documentary evidence requested by an inmate unless 

there are legitimate institutional concerns that counsel against 

it. We will nevertheless affirm the district court‘s finding of 

qualified immunity. Finally, we will grant Burns‘ request to 

order the misconduct be expunged, but we deny his request 

for all other relief.