United States District Court, M.D. Pennsylvania
December 14, 2005.
KENNETH ZURICK, Plaintiff,
ROBERT SACAVAGE; RALPH REISH, a/k/a RICK; KRISTEN BROUSE; and DUSTIN HOUPT, Defendants.
The opinion of the court was delivered by: JAMES McCLURE JR., District Judge
Kenneth Zurick, proceeding pro se, filed this civil rights
action under 42 U.S.C. § 1983 on July 1, 2005. The named
defendants are all associated with Northumberland County Prison:
Robert Sacavage, Chairman of the Prison Board; Ralph Reish,
Warden; Kristen Brouse, a sergeant at the Prison; and Dustin
Houpt, a corrections officer. Zurick claims that he unjustly
spent thirteen weeks in segregation at the Northumberland County
Prison due to an allegedly faulty urine test that returned a
positive reading for opiates. Zurick claims that he was denied
his right to due process in connection with his removal from the
work release program and confinement in disciplinary segregation
for ninety days as a result of the drug test. The case was initially referred to United States Magistrate
Judge J. Andrew Smyser. The magistrate judge granted Zurick's
motion to proceed in forma pauperis on July 13,
2005.*fn1 Also on July 13, 2005, Zurick filed a motion for
the appointment of counsel. On October 14, 2005, the magistrate
judge denied the plaintiff's motion for the appointment of
counsel, and determined that the complaint failed to state a
claim upon which relief could be granted. (Rec. Doc. No. 13.)
However, the magistrate judge granted Zurick leave to file an
amended complaint, which he did on October 25, 2005. (Rec. Doc.
Now before the court is the Report and Recommendation of
Magistrate Judge Smyser. (Rec. Doc. No. 15.) For the following
reasons, we will adopt the Report in full, and dismiss the case
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and
42 U.S.C. § 1997e(c)(1).*fn2 BACKGROUND:
Kenneth Zurick is a former inmate of Northumberland County and
Columbia County Prisons in the Commonwealth of Pennsylvania. On
March 15, 2005, while an inmate in Northumberland County Prison
on the work release program, Zurick was administered a urine test
that returned a positive reading for opiates. As a result of this
positive test, Zurick was removed from work release and placed in
the disciplinary segregation unit at the Prison.
Zurick claims that he waited 19 days before a hearing on the
matter and was denied the assistance of a staff member in
preparing his case. Zurick also argues that the hearing committee
was defective because Sergeant Kristen Brouse, the official who
initially removed Zurick from the work release program, sat on
the committee. Zurick further complains that he was not given the
opportunity to question his accuser (defendant Houpt, who
administered the urine test). At the hearing, Zurick pled not
guilty. The committee found Zurick guilty and sanctioned him to
90 days in disciplinary segregation.
Zurick appealed to the warden, arguing that the urine test was
flawed in its administration. Zurick also states that any
positive reading for opiates in his urine could only be the result of tampering or the fact that he ate a
poppy seed bagel prior to the unscheduled test. Finally, Zurick
states that he never received a decision from the warden on his
appeal and never received a written decision from the hearing
committee. As a result of his time in segregation and the
subsequent alleged due process violations, Zurick claims to have
lost a total of $5,644.97. Zurick seeks compensatory damages and
A district court reviews de novo those portions of a
magistrate judge's report and recommendation to which a party
objects. L.R. 72.3. The court may "accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge." Id. No objections were filed to this
Report,*fn3 but we nevertheless examine the magistrate's
The magistrate judge construed the complaint as alleging a
denial of due process in connection with the plaintiff's removal from the work
release program and confinement in disciplinary segregation for
ninety days. The Due Process Clause of the Fourteenth Amendment
provides that no state shall "deprive any person of life,
liberty, or property, without due process of law." U.S. Const.
amend. IV, § 1.
In analyzing a procedural due process claim, we employ a
two-step analysis. First, we must determine whether the interest
asserted by the plaintiff is one contemplated by the "liberty or
property" language of the Fourteenth Amendment. Shoats v. Horn,
213 F.3d 140, 143 (3d Cir. 2000). Second, if the asserted
interest is protected by the Due Process Clause, "the question
then becomes what process is due to protect it." Id. The
magistrate judge properly applied this analysis to Zurick's
claims regarding the ninety days of disciplinary segregation and
removal from the work release program.
1. Zurick's confinement for ninety days in disciplinary
segregation did not implicate a liberty interest protected by the
Due Process Clause.
The magistrate judge correctly applied the Supreme Court
holding of Sandin v. Conner, 515 U.S. 472 (1995) to the instant
case. In Sandin, an inmate was charged with multiple
disciplinary infractions. His request to produce certain
witnesses at his hearing was refused by the hearing committee
because the witnesses were unavailable. The committee found the inmate guilty
of the charged misconduct and sentenced him to thirty days in
segregated confinement. The inmate subsequently brought a § 1983
action claiming that the hearing did not satisfy the requirements
of due process. See Sandin, 515 U.S. at 475-76.
The Supreme Court disagreed, and held that while States "may
under certain circumstances create liberty interests which are
protected by the Due Process Clause," those interests are
"generally limited to freedom from restraint which, while not
exceeding the sentence in such an unexpected manner as to give
rise to protection by the Due Process Clause of its own force,
nonetheless imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life."
Id. at 483-84 (citations omitted). Therefore, "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." Smith v.
Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (citing Sandin,
515 U.S. at 486).
The Third Circuit has instructed that "[i]n deciding whether a
protected liberty interest exists under Sandin, we consider the
duration of the disciplinary confinement and the conditions of
that confinement in relation to other prison conditions."
Mitchell v. Horn, 318 F.3d 523, 532 (3d Cir. 2003). This is a
fact-specific inquiry. Id.
The magistrate judge correctly concluded that the ninety days
Zurick spent in disciplinary segregation does not implicate a
protected liberty interest. In Mensinger, the Third Circuit
held that seven months disciplinary confinement "does not, on its
own, violate a protected liberty interest as defined in
Sandin." 293 F.3d at 654. To avoid dismissal, Zurick would have
to allege facts from which it could reasonably be inferred that
he was subjected to conditions during disciplinary segregation
that imposed atypical and significant hardships on him in
relation to the ordinary incidents of prison life.
Zurick has not alleged such facts, even after the magistrate
judge opened the door in his order granting leave to amend the
complaint. Zurick only complains that his property was removed
and that he could not order regular commissary. (Rec. Doc. No.
14, at 2.). These grievances do not rise to the level of an
atypical or significant hardship imposed upon Zurick. See,
e.g., Leon v. Schaaff, No. 05-CV-4296, 2005 WL 2397241, at *3
(D.N.J. Sept. 23, 2005) (Kugler, J.) (lost commissary and
telephone privileges and placement in disciplinary confinement
for 120 days do not impose atypical and significant hardship upon
an inmate). Because there is no basis to infer that the
conditions to which the plaintiff was subjected while in
disciplinary segregation imposed atypical and significant hardships upon him, we agree with the magistrate judge that
Zurick has failed to allege that his disciplinary confinement
implicated a liberty interest protected by the Due Process
2. Zurick did not have a liberty interest protected by the Due
Process Clause to remain in the work release program.
Zurick also complains of his removal from the work release
program. We agree with the magistrate judge that Asquinth v.
Dep't of Corrs., 186 F.3d 407 (3d Cir. 1999) controls the issue.
In Asquinth, the Third Circuit held that because an inmate is
normally incarcerated in prison, the plaintiff's return to prison
from a halfway house and work release program "did not impose
atypical and significant hardship upon him in relation to the
ordinary incidents of prison life and, therefore, did not deprive
him of a protected liberty interest." Id. at 412. Because
Zurick had no protected liberty interest in remaining in the work
release program, his claim fails.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. United States Magistrate Judge J. Andrew Smyser's
Report and Recommendation is adopted in full. (Rec.
Doc. No. 15.)
2. The plaintiff's Amended Complaint is dismissed for
failure to state a claim upon which relief can be granted. (Rec. Doc.
3. The clerk is directed to close the case file.
4. Any appeal from this order would not be taken in
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