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GILMORE v. JEFFES

April 14, 1987

Lloyd Richard Gilmore, Plaintiff
v.
Glen R. Jeffes, et al., Defendants



The opinion of the court was delivered by: NEALON

 Plaintiff, an inmate at S.C.I.-Dallas, PA, instituted this action pursuant to 42 U.S.C. § 1983 on August 22, 1986 in the U. S. District Court for the Eastern District of Pennsylvania. The following individuals were named as defendants: Donald J. Dougherty, a correctional officer at S.C.I.-Dallas; J. Kevin Kane, a hearing examiner at S.C.I.-Dallas; Joseph M. Ryan, Superintendent of S.C.I.-Dallas; and Glen R. Jeffes, Commissioner of the Pennsylvania Bureau of Corrections. Plaintiff alleges in his Complaint that on May 7, 1986, defendant Dougherty searched his cell in an unreasonable manner and confiscated the following items under the ruse that they were contraband: a homemade blanket, a 24" x 3/8" metal rod, a pillow, pieces of wire and a file from a nail clipper. Plaintiff maintains that Dougherty's actions violated his rights under BC-ADM 203 and the Fourth, Fifth and Fourteenth Amendments to the United States Constitution.

 Plaintiff further avers that a disciplinary hearing was subsequently conducted by defendant Kane on May 12, 1986. Plaintiff asserts that this hearing violated his rights under BC-ADM 801 and the Fifth and Fourteenth Amendments because he was allowed to present oral testimony from only one witness and because the hearing was not conducted by a three-member panel. As a result of the hearing, plaintiff was deprived of certain privileges, including radio and television, for thirty (30) days. Finally, plaintiff alleges that defendants Ryan and Jeffes, through their inactivity, gave tacit approval for their subordinates to violate his rights.

 By Order dated August 22, 1986, plaintiff was granted leave to proceed in forma pauperis, and this case was transferred to the United States District Court for the Middle District of Pennsylvania. *fn1"

 On December 15, 1986, defendants filed a Motion to Dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6). They submitted a Brief in Support of their dispositive motion on December 31, 1986. Plaintiff filed a Traverse to Defendants' Motion to Dismiss and a Brief in Opposition to Defendants' Motion to Dismiss on December 23, 1986 and February 9, 1987, respectively.

 This matter is now ripe for disposition. For the reasons set forth below, the court will grant Defendants' Motion to Dismiss on the claims against defendants Dougherty, Ryan and Jeffes, but will deny their motion on the claims against defendant Kane.

 ANALYSIS

 A pro se complaint by a prisoner must be liberally construed. Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). A pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" and should only be dismissed for failure to state a claim if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 520. In ruling on a defendant's motion to dismiss, a district court should "accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to plaintiff. . . . [The court] may not dismiss the complaint unless the plaintiff can prove no set of facts which would entitle [him] to relief." Angelastro v. Prudential-Bache Securities, 764 F.2d 939, 944 (3d Cir.), cert. denied, 474 U.S. 935, 106 S. Ct. 267, 88 L. Ed. 2d 274 (1985).

 An action under 42 U.S.C. § 1983 permits a plaintiff to redress the deprivation, under color of state law, of his individual constitutional rights. In a § 1983 action, "the initial inquiry must focus on . . . (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981). In the present case, the focus is upon the second prong of the Parratt test, i.e., whether the facts alleged by plaintiff, if proven, can constitute a violation of rights under federal law.

 The Cell Search

 Plaintiff's primary complaint regarding the search of his cell is that defendant Dougherty's actions were unreasonable in violation of BC-ADM 203. "[A] state may create a liberty interest protected by the Due Process Clause through its enactment of certain statutory or regulatory measures." Hewitt v. Helms, 459 U.S. 460, 469, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). A state regulation transcends a mere procedural guideline when it uses "language of an unmistakable character," i.e., when it contains "the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates." Id. at 471-72. A state regulation creates a substantive right when it limits the discretion of its decisionmakers through "particularized standards" or "defined criteria." Olim v. Wakinekona, 461 U.S. 238, 249, 75 L. Ed. 2d 813, 103 S. Ct. 1741 (1983).

 This court has already determined that BC-ADM 203 merely establishes a procedural framework for prison personnel and does not confer any substantive rights upon prisoners. Williams v. Kyler, No. 86-0905, slip op. 3-4 (M.D. Pa. Dec. 4, 1986)(Nealon, C.J.). In that opinion, the court noted that the language of BC-ADM 203 is self-contradictory on the issue of whether it creates substantive rights. *fn2" The court declined to find that the directive creates substantive rights "in the absence of a clear expression of intent by the drafters of BC-ADM 203" to do so. Id. at 4. Thus, BC-ADM 203 cannot support plaintiff's § 1983 action. Parratt v. Taylor, supra.

 Plaintiff also asserts that the cell search violated his rights under the Fourth, Fifth and Fourteenth Amendments. The Supreme Court's decision in Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984), refutes his contention. In Hudson, a prisoner brought a § 1983 action, alleging that a correctional officer searched his cell in order to harass him and intentionally destroyed certain items of his noncontraband personal property. The Court concluded that prisoners enjoy no privacy right within their cells and that cell searches do not implicate the Fourth Amendment. The Court stated, "We hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell." Id. at 3200.

 The court in Hudson also held that the plaintiff's due process rights were not violated by the taking of his property because postdeprivation remedies were available under state tort laws and were sufficient to satisfy due process concerns. *fn3" In the present case, adequate postdeprivation remedies are likewise available to plaintiff under state law. 42 Pa. C.S.A. § 8522(b)(3) (exceptions to sovereign ...


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