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FRANKENBERRY v. WILLIAMS

January 26, 1988

Joseph Peter Frankenberry, Plaintiff
v.
John E. Williams, Chief Correctional Supervisor; R. Wagner, Chief of Case Management; and R. Hinderliter, Duty Officer, Defendants


Sylvia H. Rambo, Judge.


The opinion of the court was delivered by: RAMBO

Sylvia H. Rambo, Judge

 Before the court is defendants' motion to dismiss or, in the alternative, for summary judgment. The motion has been briefed and is ripe for disposition.

 Background

 The following facts are not in dispute. *fn1" Plaintiff, an inmate at the Lewisburg Federal Penitentiary at the time he initiated this action, was required to submit a urine sample to prison officials on April 4, 1986 in accordance with that institution's program of testing for illegal drug use through the means of urine surveillance. Plaintiff's urine sample was tested by PharmChem Laboratories ("PharmChem") which subsequently reported to Lewisburg officials that plaintiff's urine sample contained traces of tetrahydrocannabinol ("THC"), an ingredient of marijuana. Upon receiving the PharmChem report, a Lewisburg official filed an incident report charging plaintiff with the "possession or use of any marijuana or drugs not authorized by the Medical Department." Defendants' Exhibit 1 at para. 8.

 On May 15, 1986 plaintiff was summoned before the Unit Discipline Committee for an initial hearing. The Unit Discipline Committee referred the matter to the Institution Discipline Committee ("IDC"), which initially scheduled a hearing for May 22, 1986. The hearing was postponed once for thirty days and then a second time, upon plaintiff's request, so that plaintiff would have an opportunity to gather certain evidence. On July 21, 1986 the IDC hearing was conducted, and the IDC found that plaintiff had committed the act with which he was charged in the May 13, 1986 incident report. The Committee issued a written statement of its finding and summarized therein the evidence on which it had relied. As a result of its determination of guilt, the IDC sanctioned plaintiff by taking away two hundred fifty days of "statutory good time" and by committing plaintiff to thirty days of disciplinary segregation. The thirty days of disciplinary segregation were suspended for "six months clear conduct." Defendants' Exhibit 4.

 On September 5, 1986 plaintiff initiated this action against John Williams, Richard Wagner, and Ronald Hinderliter, the members of the IDC which sanctioned plaintiff. Plaintiff's complaint consists essentially of the following claims: that defendants violated plaintiff's procedural due process rights by denying plaintiff or his representative a copy of an investigative report which pertained to the incident report filed against plaintiff, that defendants violated plaintiff's procedural due process rights by refusing to consider the evidence plaintiff presented at the IDC hearing, and that defendants violated plaintiff's procedural due process rights by reaching a decision contrary to the greater weight of the evidence. *fn2" Defendants have moved the court to dismiss the complaint or, in the alternative, to enter summary judgment in their favor.

 In support of their motion defendants have submitted unsworn declarations and other documents which present to the court matters outside the pleading. Because the court will consider these matters in disposing of defendants' motion, the motion must be treated as one for summary judgment. Fed. R. Civ. P. 12(b). The entry of summary judgment is appropriate only if the pleadings, admissions, and unsworn declarations *fn3" show that there is no genuine issue as to any material fact and that defendants are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Because defendants supported their motion with declarations and exhibits to the declarations, plaintiff was obligated to support his response with similar materials and to show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, , 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A material fact is one which may affect the outcome of the suit under governing law. Id.

 In light of these standards the issues which the court must consider in disposing of defendants' motion are as follows: whether there is a genuine issue of material fact with respect to the procedure which led to the imposition of sanctions on plaintiff, and, if not, whether defendants are entitled to judgment as a matter of law.

 Discussion

 The fifth amendment of the United States Constitution provides, in part, that no person shall "be deprived of life, liberty, or property, without due process of law . . . ." The Supreme Court has held that application of the identical provision of the fourteenth amendment requires a two-part analysis. "We must first ask whether the asserted individual interests are encompassed within the Fourteenth Amendment's protection of 'life, liberty or property'; if protected interests are implicated, we then must decide what procedures constitute 'due process of law.'" Ingraham v. Wright, 430 U.S. 651, 672, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977). In the context of the Ingraham analysis the court will resolve the issues presented by defendants' motion.

 A. Protected Interests

 "To qualify as a constitutionally protected liberty interest, the prisoner's interest must be assured by statute, judicial decree, or regulation." Becker v. Smith, 554 F. Supp. 767, 769 (M.D.Pa. 1982), citing Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). In the case at bar, it is clear that plaintiff's interest in remaining in the general population of the penitentiary is assured by a Bureau of Prisons' regulation. Strict requirements must be met to justify placing an inmate in disciplinary segregation. 28 C.F.R. § 541.20(a). Therefore, plaintiff's interest in not being committed to disciplinary segregation is a protected liberty interest. Defendants do not dispute this, and this conclusion is in accord with the holding regarding state prisoners in Hewitt v. Helms, 459 U.S. 460, 472, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983).

 Plaintiff's interest in accumulating credits for "good time" is assured by statute, 18 U.S.C. § 4161, and is therefore also a protected liberty interest. Again, defendants do not dispute this, and this conclusion is in accord with the Supreme Court's decision in Wolff v. McDonnell, 418 U.S. 539, 557, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). See also Jackson v. Carlson, 707 F.2d 943, 947 (7th Cir. 1983), cert. denied, 464 ...


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