ALD-112 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 21-3357 

___________ 

VANN L. BAILEY, 

Appellant

v.

KEVIN KAUFFMAN, Superintendent; BYRON BRUMBAUGH, Deputy 

Superintendent for Facilities Management; SCOTT WALTERS, Deputy Superintendent 

for Centralized Services; SERGEANT YOHN, Correctional Officer #2 (C.O. #2) C.O. 

LOFFERTY, Correctional Officer #1 (C.O. #1) and S. ELLENBERGER, Hearing 

Examiner

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1:19-cv-01458)

District Judge: Honorable Martin C. Carlson

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or

Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

March 24, 2022

Before: JORDAN, RESTREPO, and SCIRICA, Circuit Judges

(Opinion filed April 14, 2022)

_________

OPINION*

_________

PER CURIAM

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

constitute binding precedent.
2

Vann Lamont Bailey, an inmate at State Correctional Institution – Huntingdon

proceeding pro se and in forma pauperis, appeals from the District Court’s order granting 

defendants’ motion to dismiss. For the reasons that follow, we will summarily affirm.

I.

In 2019, Bailey filed a civil rights action in the Court of Common Pleas of 

Huntingdon County, Pennsylvania, against defendants, who removed the case to the 

District Court for the Middle District of Pennsylvania. In his second amended complaint, 

which is the operative pleading, Bailey alleged violations of the First, Eighth, and 

Fourteenth Amendments. Specifically, Bailey alleged as follows: in 2018, defendants 

searched his property and seized a greeting card he received from his mother, which they 

tested for drugs using unreliable testing methods and erroneously found to contain the 

drug suboxone. Bailey was issued misconducts for possession of a controlled substance 

and possession of contraband. Throughout the disciplinary proceedings, Bailey requested 

that the greeting card be retested to disprove the presence of suboxone, but his requests 

were denied. As a result, Bailey was confined to disciplinary custody for 45 days and 

prohibited from visiting with his mother.1 

1

In his second amended complaint, Bailey alleged that he lost visitation rights with his 

“elderly sick mother.” See Second Am. Compl., District Ct. ECF No. 49. However, in 

his response to defendants’ motion to dismiss, Bailey referenced “visitation rights with 

his family.” See Response, District Ct. ECF No. 60; see also DOC Policy, District Ct. 

ECF No. 54-1, p 14 (providing for the suspension of visits for specified time periods for 

drug possession). Thus, it is not entirely clear whether he challenges the suspension of 

visitation with his mother specifically or a more general suspension of visitation. In 

either case, as explained below, Bailey’s claims fail.
3

Defendants filed a motion to dismiss and the District Court granted it, concluding, 

first, that Bailey failed to state a claim for the violation of his First Amendment right to 

association because the prison policy restricting visitation served a legitimate penological 

interest; second, that Bailey failed to state a claim for the violation of his Eighth 

Amendment rights because placement in disciplinary custody was not a dramatic 

departure from the accepted standards of confinement conditions; third, that Bailey failed 

to state an Equal Protection claim where he failed to allege that any particular defendant 

personally treated him differently than other similarly situated inmates and where there 

was a rational basis for his treatment; and fourth, that Bailey failed to state a procedural 

due process claim because he was afforded the required minimum procedural protections 

and the testing methods satisfied the burden of proof required in a prison disciplinary 

setting. This appeal follows.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and review the District Court’s

grant of a motion to dismiss under Rule 12(b)(6) de novo. See Newark Cab Ass’n v. City 

of Newark, 901 F.3d 146, 151 (3d Cir. 2018). A motion to dismiss under Rule 12(b)(6) 

tests the legal sufficiency of the complaint and, to survive such a motion, “a complaint 

must contain sufficient factual matter, accepted as true, to state a claim to relief that is 

plausible on its face.” Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010) 

(citations and quotation marks omitted). As a pro se litigant, Bailey is entitled to liberal 

construction of his complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per 

curiam). We may summarily affirm “on any basis supported by the record” if the appeal 
4

does not present a substantial question. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d 

Cir. 2011) (per curiam); 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

III.

First, the District Court properly dismissed Bailey’s First Amendment claim. An 

inmate “retains those First Amendment rights that are not inconsistent with his status as a 

prisoner or with the legitimate penological objectives of the corrections system.” 

Newman v. Beard, 617 F.3d 775, 781 (3d Cir. 2010) (quotation marks and citations 

omitted). The “freedom of association is among the rights least compatible with 

incarceration,” and “[s]ome curtailment of that freedom must be expected in the prison 

context.” Overton v. Bazzetta, 539 U.S. 126, 131 (2003) (quotation marks and citations 

omitted). “[W]hen a prison regulation impinges on inmates’ constitutional rights, the 

regulation is valid if it is reasonably related to legitimate penological interests.” Turner 

v. Safley, 482 U.S. 78, 89 (1987).

Bailey complained that his First Amendment right to freedom of association was 

violated when he was prohibited from visiting with his mother. Such a temporary 

suspension of visitation with one visitor does not violate “civilized standards of humanity 

and decency.” See Renchenski v. Williams, 622 F.3d 315, 338 (3d Cir. 2010) (quotation 

marks omitted). Moreover, to the extent that Bailey challenged a more general restriction 

on visitation, restricting visitation when he was found in possession of controlled 

substances circumstances “serves the legitimate goal of deterring the use of drugs and 

alcohol within the prisons” and constitutes “a proper and even necessary management 
5

technique to induce compliance with the rules of inmate behavior.” Overton, 539 U.S. at 

134.

IV.

Next, the District Court properly dismissed Bailey’s Eighth Amendment claim. In 

determining whether prison officials have violated the Eighth Amendment, we apply twoprong test: “(1) the deprivation must be objectively, sufficiently serious; a prison 

official’s act or omission must result in the denial of the minimal civilized measure of 

life’s necessities; and (2) the prison official must have been deliberately indifferent to 

inmate health or safety.” Porter v. Pennsylvania Dep’t of Corr., 974 F.3d 431, 441 (3d 

Cir. 2020) (cleaned up). “[P]unitive isolation is not necessarily unconstitutional, but it 

may be, depending on the duration of the confinement and the conditions.” Hutto v. 

Finney, 437 U.S. 678, 685 (1978) (cleaned up). 

Bailey does not allege that he was denied any of life’s necessities during his time 

in disciplinary custody. See Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997) (finding 

no Eighth Amendment violation where the inmate’s segregation was not accompanied by 

the denial of basic human needs, such as food, clothing, shelter, sanitation, medical care, 

or personal safety). Nor does he allege that he suffered the infliction of pain or injury, or 

a deliberate indifference to the risk that it might occur. Bailey’s 45 days in disciplinary 

custody were not a dramatic departure from accepted standards for conditions of 

confinement for inmates, and instead were typical of the disciplinary housing that a 

prisoner would reasonably anticipate receiving at some point during his incarceration. 

See Torres v. Fauver, 292 F.3d 141, 150 (3d Cir. 2002) (explaining that disciplinary 
6

detention is the sort of confinement that inmates should reasonably anticipate receiving 

during incarceration).2

V.

Finally, the District Court properly dismissed Bailey’s Fourteenth Amendment 

claims. First, because Bailey has not alleged membership in a protected class, his equal 

protection claim must be premised on a “class-of-one” theory, which requires him to 

allege, at a minimum, “that he was intentionally treated differently from others similarly 

situated by the defendant and that there was no rational basis for such treatment.” 

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008).

Bailey complained that he was intentionally treated differently from other inmates 

who were charged with controlled substance misconduct because he, unlike the other 

inmates, was prohibited from procuring a second drug test to confirm or dispute the 

accuracy of the initial test. To support his claim, Bailey presented affidavits from three 

inmates who tested positive for marijuana or suboxone via instant urine screen during 

May 2021 and who were provided a second urine test to verify the results. However, 

Bailey was not similarly situated with these other inmates: his misconduct occurred about 

three years before the other inmates’ and involved the possession of a greeting card he 

received in the mail that tested positive for suboxone via a Nark II reagent test, while the 

2 To the extent that Bailey alleged an Eighth Amendment violation related to the 

restriction of his visitation privileges, “[w]ithdrawing visitation privileges for a limited 

period in order to effect prison discipline is not a dramatic departure from accepted 

standards for confinement conditions.” Overton, 539 U.S. at 127.
7

other inmates’ misconduct involved the use of marijuana or suboxone as identified via a 

urine screen. Therefore, the District Court properly dismissed this claim.

Bailey also alleged that his due process rights were violated during the disciplinary 

proceedings because the decision-making body was not impartial and because he was 

unable to present evidence, including a retest of the greeting card and statements from 

other inmates who were exonerated after receiving a second drug test.

“To maintain a procedural due process claim, [a plaintiff] must show that: (1) 

Defendants deprived him of an individual liberty interest that is encompassed within the 

Fourteenth Amendment’s protection, and (2) the procedures Defendants made available 

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

2017).

A prisoner may be deprived of a liberty interest in 

violation of the Constitution in two ways: (1) when severe 

changes in conditions of confinement amount to a grievous loss 

that should not be imposed without the opportunity for notice 

and an adequate hearing; and (2) when state statutes and 

regulations create a liberty interest in freedom from restraint 

that imposes an atypical and significant hardship on the inmate 

in relation to the ordinary incidents of prison life, thereby 

triggering due process protection.

Williams, 622 F.3d at 325 (quotation marks and citation omitted). “[I]nmates 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.” Burns v. Pennyslvania Dep’t of Corr., 642 F.3d 163, 171 (3d Cir. 2011).

Here, Bailey’s punishment consisted of a 45-day period in disciplinary custody 

and the suspension of visitation with his mother. These sanctions were insufficient to 
8

trigger due process protections. See Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 

2002) (finding that “confinement in administrative or punitive segregation will rarely be 

sufficient, without more, to establish the kind of ‘atypical’ deprivation of prison life 

necessary to implicate a liberty interest”); Kentucky Dep’t of Corr. v. Thompson, 490 

U.S. 454, 461 (1989) (concluding that the denial of access to a particular visitor is within 

the terms of confinement ordinarily contemplated by a prison sentence and thus is not 

independently protected by the Due Process Clause) (quotation marks and citations 

omitted). Because Bailey was not deprived of a liberty interest encompassed within the 

Fourteenth Amendment’s protection, the District Court properly dismissed the claim.

VI.

Accordingly, we will affirm the judgment of the District Court. See 3d Cir. LAR 

27.4; I.O.P. 10.6.