2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-3-2013

Linwood Wilkerson v. Charles Samuels

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-4125

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Recommended Citation

"Linwood Wilkerson v. Charles Samuels" (2013). 2013 Decisions. Paper 871.

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BLD-203 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-4125

___________

LINWOOD WILKERSON,

Appellant

v.

CHARLES E. SAMUELS, JR., Director, Federal Bureau of Prisons; SMOKER, 

Correctional Officer, LSCI-Allenwood; SOLOMON, Factory Manager, LSCI-Allenwood

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 12-cv-01462)

District Judge: Honorable Robert D. Mariani

____________________________________

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

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

April 18, 2013

Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

(Opinion filed: May 3, 2013)

_________

OPINION

_________

PER CURIAM

Pro se Appellant Linwood Wilkerson, a federal inmate, appeals the District 

Court’s order dismissing his civil rights suit seeking compensatory and punitive damages 

under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 
2

388 (1971), as well as his claims for a hostile work environment, sexual harassment, and 

retaliatory discharge under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.

For the reasons that follow, we will affirm in part, vacate in part, and remand the matter.

We have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s 

dismissal of the complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim

is plenary. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). 

In his Bivens action, Wilkerson alleged that Appellee Smoker, a supervisor in the 

UNICOR factory in which Wilkerson worked at the Low Security Correctional 

Institution Allenwood (“LSCI Allenwood”), verbally harassed him. In response, 

Wilkerson filed a hostile work environment complaint with prison officials. He 

maintained that the complaint was ignored and that Smoker retaliated by filing a false 

incident report against him, resulting in disciplinary proceedings; Wilkerson was found 

guilty of the incident and lost his UNICOR job for six months. He also alleged that he

was transferred to a higher custody institution as a result of the disciplinary proceedings. 

“A Bivens action, which is the federal equivalent of the § 1983 cause of action 

against state actors, will lie where the defendant has violated the plaintiff’s rights under 

color of federal law.” Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001). To 

sustain a retaliation claim under Bivens, an inmate must demonstrate that (1) he engaged 

in constitutionally protected conduct; (2) he suffered adverse action; and (3) the 

constitutionally protected conduct was “a substantial or motivating factor” for the adverse 

response. See Carter v. McGrady, 292 F.3d 152, 157-58 (3d Cir. 2002); see also Rauser 
3

v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). 

The District Court determined that Wilkerson’s Bivens claim was barred under 

Heck v. Humphrey, 512 U.S. 477 (1994), and Edwards v. Balisok, 520 U.S. 641, 646-47 

(1997). In Heck, the Supreme Court held that a prisoner may not pursue a § 1983 action 

which would implicitly question the validity of the conviction or duration of sentence, 

unless first demonstrating that the conviction or sentence has already been invalidated. 

Heck, 512 U.S. at 486-87. The Court extended Heck’s “favorable termination” rule to 

prison disciplinary sanctions which alter the duration of a prisoner’s term of 

incarceration. Edwards, 520 U.S. at 646-48. The rule does not, however, bar a prisoner 

from bringing an action which does not implicate the fact or duration of confinement. 

See Muhammad v. Close, 540 U.S. 749, 751 (2004); Peralta v. Vasquez, 467 F.3d 98, 

104 (2d Cir. 2006). While we agree with the District Court that a favorable outcome on 

Wilkerson’s claim would necessarily imply the invalidity of the disciplinary proceedings, 

it would not invalidate the underlying conviction or sentence and, therefore, is not barred

under Heck or Edwards. The sanctions imposed as a result of the disciplinary 

proceedings did not affect the duration of Wilkerson’s sentence, only the location where 

it was to be served. Accordingly, the claim could not be dismissed on this basis. 

We also disagree with the District Court’s alternative ground for dismissal that the 

retaliation claim was time barred. The basis of the retaliation claim is not the comments 

which allegedly led to the false misconduct report, but the report itself which was made 

on October 21, 2010, and resulted in the disciplinary proceeding; the complaint was filed 
4

on July 30, 2012, within the two year statute of limitations. See 42 Pa. Cons. Stat. Ann. 

§ 5524 (two-year statute of limitations for personal injury actions); see also Napier v. 

Thirty or More Unidentified Fed. Agents, 855 F.2d 1080, 1087 n.3 (3d Cir. 1988) (Bivens

actions governed by forum state’s statute of limitations for personal injury actions). 

Wilkerson’s allegation that he was falsely charged with misconduct in retaliation

for filing complaints against Smoker may state a cognizable First Amendment claim. See

Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); see also Sprouse v. Babcock, 870

F.2d 450, 452 (8th Cir. 1989) (citing cases). Although Wilkerson has no constitutional 

right to his job, Rhodes v. Chapman, 452 U.S. 337, 348 (1981), and no constitutionally 

protected liberty interest in being incarcerated in any particular prison, see Olim v. 

Wakinekona, 461 U.S. 238, 245 & n. 6 (1983), retaliation for the exercise of his

constitutional right is itself a violation of the Constitution. See White v. Napoleon, 897 

F.2d 103, 111-12 (3d Cir. 1990). Although Wilkerson’s retaliation claim may ultimately 

not succeed on the merits,

1

The District Court properly dismissed Wilkerson’s Title VII claims. In 

determining whether Title VII protections apply, the focus is on the employment 

relationship. See Nelson v. Upsala College, 51 F.3d 383, 387 (3d Cir. 1995). It is well 

it was improperly dismissed under § 1915(e)(2)(B)(ii) for the 

reasons stated by the District Court. 

 1

 It is unclear whether Wilkerson exhausted his administrative remedies as 

required under 42 U.S.C. § 1997e(a). See Nyhius v. Reno, 204 F.3d 65, 69 (3d Cir. 

2000) (the PLRA’s exhaustion requirement applies to federal prisoners seeking 
5

established that a prisoner is not an employee under the Fair Labor Standards Act 

(FLSA), because the relationship is not one of employment, but arises out of the 

prisoner’s status as an inmate. See Tourscher v. McCullough, 184 F.3d 236, 243 (3d Cir. 

1999); see also Vanskike v. Peters, 974 F.2d 806, 809 (7th Cir. 1992). Similarly, for 

purposes of Title VII, Wilkerson’s relationship with UNICOR is one of a prisoner, not an 

employee. See Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991); see also E.E.O.C. 

Dec. No. 86-7, *3, 40 Fair Empl. Prac. Cas. (BNA) 1892 (1986) (finding no employment 

relationship between the prison and prisoner under Title VII, noting that the primary 

purpose of their association was incarceration, not employment). Accordingly, he cannot 

claim the protections afforded under Title VII.

For the foregoing reasons, we will summarily affirm the District Court’s order as 

to the Title VII claims, summarily vacate the District Court’s order as to the dismissal of 

the Bivens claim, and remand the matter for proceedings consistent with this opinion. 

 

relief through a Bivens action). On remand, the District Court may wish to 

consider whether Wilkerson has complied with the exhaustion requirements.