2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-18-2009

John Perry v. Lackawanna Cty Children & Yout

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2403

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Recommended Citation

"John Perry v. Lackawanna Cty Children & Yout" (2009). 2009 Decisions. Paper 639.

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BLD-306 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2403

___________

JOHN JOSEPH PERRY,

 Appellant

v.

LACKAWANNA COUNTY CHILDREN & YOUTH SERVICES;

LT. JODI SMITH, of SCI Waymart; LAURA BANTA, Prison Hearing Examiner at SCI

Waymart; SUPERINTENDENT JOSEPH NISH, at SCI Waymart

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 3:09-cv-00675)

District Judge: Honorable William J. Nealon

____________________________________

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

for Possible Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6

September 17, 2009

Before: MCKEE, FISHER AND CHAGARES, Circuit Judges

(Opinion filed: September 18, 2009)

_________

 OPINION

_________

PER CURIAM

Appellant John Joseph Perry seeks review of the District Court’s order dismissing
 Perry alleged that the letter was in Kuehner’s purse when Pierro stole it, and that 1

Kuehner reported the theft to the Scranton Police Department. 

2

his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). We conclude that the appeal does

not present a substantial question. Although we rest our decision in part on different

grounds, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R.

27.4; I.O.P. 10.6.

I.

Perry, an inmate at SCI-Waymart, initiated a pro se civil action pursuant to 42

U.S.C. § 1983 against Lackawanna County Children & Youth Services (“CYS”) and three

SCI-Waymart officials: Jodi Smith, Laura Banta, and Joseph Nish. In the complaint,

Perry alleged that an individual named Joseph Pierro stole a letter Perry had sent to his

girlfriend, Karen Marie Kuehner. According to Perry, Pierro provided the letter to 1

Lackawanna County Children & Youth Services (“CYS”) and reported that the letter

showed that “strong sexual contact” had occurred between Perry and Kuehner during an

October 4, 2008, visit at which Perry’s two minor children were present. 

Based upon the information in the letter, CYS allegedly contacted SCI-Waymart

and requested an investigation into Perry’s behavior. Perry claimed that officials at SCIWaymart wrongfully put a copy of the letter into his disciplinary file and used it as a basis

to punish him. Specifically, Perry alleged that SCI-Waymart employee Jodi Smith

viewed a videotape of the October 4, 2008, visit between Kuehner and Perry, and

observed no rule infractions. However, based upon the contents of the letter and Smith’s
 Perry also alleged that SCI-Waymart provided the misconduct report to CSY, which 2

initiated its own investigation concerning the welfare of Perry’s minor children during

visits to SCI-Waymart. Ultimately, CSY found no evidence of neglect, although Perry

complains that “the report has been added to [his] file . . . and can be used in the family

court for any proceeding pertinent to the plaintiff’s custody of his minor children.”

 Perry also alleged that he filed two grievances and a request for review of the 3

videotaped visits. SCI-Waymart officials denied the requests.

3

review of a videotape of an October 11, 2008, visit between Kuehner and Perry at which

no children were present, Smith concluded that “strong sexual contact” likely occurred as

reported, and accordingly issued a misconduct report against Perry.2

According to the complaint, SCI-Waymart granted Perry a formal hearing

concerning the misconduct report. Perry allegedly wished to enter a plea of not guilty, 3

but the hearing examiner, Laura Banta, proceeded as if Perry had entered a guilty plea. 

Without honoring Perry’s request for Banta to review the videotapes of the October 4 and

11 visits, Banta sanctioned Perry to 30 days of solitary confinement, 60 days without

visiting privileges, and loss of institutional employment. Perry appealed to the prison

review committee, the superintendent, and the chief hearing examiner, but the appeals

were all denied based on Perry’s purported guilty plea.

Based upon these events, Perry claimed to have suffered violations of his

constitutional rights. As relief, he sought to have his “record cleared of all reports

concerning this claim,” criminal prosecution concerning “all false reports made against”
 Although Perry sought to have criminal charges brought against the defendants, such 4

relief may not be obtained in a civil action under 42 U.S.C. § 1983. 

 Although the District Court dismissed Perry’s complaint without prejudice, we have 5

jurisdiction because the dismissal was pursuant to § 1915(e) and because any amendment

of the complaint would be futile. See Deutsch v. United States, 67 F.3d 1080, 1083 (3d

Cir. 1995).

4

him, and recovery of his costs and fees. 4

Because the District Court granted Perry permission to proceed in forma pauperis

(“IFP”), it reviewed the complaint under the Prison Litigation Reform Act of 1995

(“PLRA”), 28 U.S.C. § 1915. On April 28, 2009, prior to service, the District Court

concluded that Perry’s complaint was frivolous and dismissed it without prejudice

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). This timely pro se appeal followed.

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our standard 5

of review is plenary. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). 

Because Perry is proceeding IFP, we must dismiss the appeal under 28 U.S.C.

§ 1915(e)(2)(B) if it lacks an arguable basis in fact or law. Neitzke v. Williams, 490 U.S.

319, 325 (1989). We may summarily affirm if the appeal presents no substantial

question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. We may affirm on grounds different from

those relied upon by the District Court. See Morse v. Lower Merion School Dist., 132

F.3d 902, 904 (3d Cir. 1997).

To establish a § 1983 civil rights claim, a claimant must show: “(1) that the
5

conduct complained of was committed by a person acting under color of state law; and

(2) that the conduct deprived a person of rights, privileges, or immunities secured by the

Constitution or laws of the United States.” Robb v. City of Philadelphia, 733 F.2d 286,

290-91 (3d Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). Liberally

construing Perry’s pro se complaint, see Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.

2003), we conclude that Perry failed to state a § 1983 claim. 

A.

CYS is an agency of Lackawanna County, Pennsylvania. To state a § 1983 claim

against such a local governing body, Perry was required to allege that CYS had an

established policy or custom that resulted in the alleged constitutional violations. See

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978); see also Marran v. Marran,

376 F.3d 143, 155-56 (3d Cir. 2004) (a prima facie claim against a county or its agency

must involve an allegation of a policy or custom that directed or caused the constitutional

deprivation). Perry’s complaint cannot be read to identify any custom or policy by CYS

to satisfy the Monell requirement. Accordingly, dismissal was appropriate.

B.

We therefore turn to Perry’s claims against the three named SCI-Waymart

officials, Smith, Banta, and Nish. Perry’s claims against the officials focus primarily on

his personal letter to Kuehner: he contends that the officials should have known that the

letter was stolen and should not have considered it, and that because the letter did not
6

specify a date and location of the “strong sexual contact,” it did not provide “probable

cause” for the investigation or disciplinary action against him. 

Even affording Perry’s allegations the liberal construction they are due, we fail to

see how Perry’s allegations concerning his letter to Kuehner can support a § 1983 claim

against the SCI-Waymart officials. Perry specifically invoked the First, Fourth, and Ninth

Amendments of the Constitution. With regard to the Fourth Amendment, Perry did not

allege that anything was seized from him, and in any event, it is well established that “the

Fourth Amendment proscription against unreasonable searches does not apply within the

confines of the prison cell.” Hudson v. Palmer, 468 U.S. 517, 526 (1984). With regard to

the First Amendment, Perry did not claim any interference with his constitutionallyprotected right to reasonable correspondence with the outside world, see Procunier v.

Martinez, 416 U.S. 396, 418 (1974), overruled on other grounds, Thornburgh v. Abbott,

490 U.S. 401 (1989), and a single instance of interference with his mail would not have

been sufficient to constitute a First Amendment violation in any event. See Bieregu v.

Reno, 59 F.3d 1445, 1452 (3d Cir. 1995), overruled on other grounds, Lewis v. Casey,

518 U.S. 343 (1996). Finally, we are not aware of any support for Perry’s claim that the

Ninth Amendment protects against any of the events described in his complaint. Indeed,

the Ninth Amendment does not independently provide a source of individual

constitutional rights. See, e.g., Jenkins v. C.I.R., 483 F.3d 90, 92 (2d Cir. 2007);

Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991). 
7

Based upon our review, we conclude that the only potential § 1983 claim that

Perry might have raised against the SCI-Waymart officials would be a procedural due

process claim relating to the disciplinary proceedings against him. In that regard, we

have given particular consideration to Perry’s allegations that he sought to plead “not

guilty” to the disciplinary infraction, but the SCI-Waymart officials failed to consider his

proposed evidence (i.e., review of the October 4 and 11 videotapes), imposed sanctions

upon him, and denied his appeals, all based upon a purported guilty plea.

Not all disciplinary or punitive measures taken in a prison environment implicate a

prisoner’s constitutional right to procedural due process. Rather, due process rights are

only triggered where the prison “imposes atypical and significant hardship on the inmate

in relation to the ordinary incidents of prison life.” Mitchell v. Horn, 318 F.3d 523, 531

(3d Cir. 2003) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Prisoners generally

do not have inherent liberty interests in particular modes, places, or features of their

confinement. See Hewitt v. Helms, 459 U.S. 460, 466-68 (1983), abrogated by Sandin,

515 U.S. at 483. 

Perry alleged that, as a result of the disciplinary proceedings, he was sanctioned to

30 days of solitary confinement, 60 days without visiting privileges, and loss of his

institutional employment. These sanctions do not qualify as an “atypical or significant

hardship” under Sandin. Thirty days of solitary confinement is not atypical. See Sandin,

515 U.S. at 486. In addition, prisoners do not have constitutionally-protected interests in
prison visitation or in holding a job. See Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454,

460 (1989); Block v. Rutherford, 468 U.S. 576, 588 (1984); James v. Quinlan, 866 F.2d

627, 629 (3d Cir. 1989). Because the sanctions imposed upon Perry were insufficient to

trigger due process protections, Perry cannot state a procedural due process claim against

the SCI-Waymart officials based upon his disciplinary proceedings.

III.

We have reviewed the record in this matter and conclude that there is no

substantial question to be presented on appeal. Accordingly, we will summarily affirm

the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

8