Daniel L. Spuck v. Former Governor Thomas Ridge

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DLD-264 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1397
DANIEL L. SPUCK,
Appellant
v.
FORMER GOVERNOR THOMAS RIDGE; COMMONWEALTH OF
PENNSYLVANIA; PAUL STOWITSKY, SUPERINTENDENT, SRCF MERCER;
PA ATTORNEY GENERAL; DEPARTMENT OF CORRECTIONS;
ROBERT V BARTH, JR.
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 1-07-cv-00310)
District Judge: Honorable Sean J. McLaughlin
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
August 13, 2009
Before: BARRY, AMBRO AND SMITH, Circuit Judges
(Opinion filed: October 6, 2009)
OPINION
PER CURIAM

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Because Defendant Barth is a federal employee, the District Court construed the
claims against him as brought under Bivens.
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Appellant Daniel L. Spuck, a pro se prisoner, appeals from the District Court’s
order granting Defendants’ motions to dismiss. For the reasons set forth below, we will
summarily affirm. See I.O.P. 10.6.
I.
On November 6, 2007, Spuck, who is incarcerated at the State Regional
Correctional Facility at Mercer (“SRCF-Mercer”), filed a civil rights action under
42 U.S.C. § 1983 and/or Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). 1 Spuck named the following Defendants in his
complaint: Thomas Ridge, Former Governor of the Commonwealth of Pennsylvania
(“Ridge”); the Commonwealth of Pennsylvania (“Commonwealth”); Paul Stowitsky,
Superintendent at SRCF-Mercer (“Stowitsky”); the Pennsylvania Attorney General
(“AG”); Pennsylvania Department of Corrections (“DOC”); and Robert V. Barth, Jr.,
Clerk of Courts for the United States District Court for the Western District of
Pennsylvania (“Barth”).
In the complaint, Spuck alleged that around 1996, while he was imprisoned at
SCRF-Mercer, Defendants Ridge and the AG unlawfully permitted the DOC to change its
policy regarding inmate furloughs, such that prison officials could no longer grant inmate
furlough requests. Spuck further alleged that the policy which replaced it only allowed
inmates residing in Community Corrections Centers (“CCC”) to be furloughed. As a

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Defendant Ridge did not file a motion to dismiss as he was never served with the
complaint.
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result of the policy change, Spuck claims that his requests to be furloughed from SRCF-
Mercer have been repeatedly denied, in violation of his constitutional rights.
After Spuck filed his complaint, the Defendants moved to dismiss it under Rule
12(b)(6) of the Federal Rules of Civil Procedure.2 After reviewing the parties’
submissions, the District Court dismissed Spuck’s complaint as to all Defendants. Spuck
filed a timely notice of appeal.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of
the District Court's dismissal for failure to state a claim is plenary. Port Auth. of N.Y. &
N.J. v. Arcadian Corp., 189 F.3d 305, 311 (3d Cir. 1999). When considering a district
court's grant of a motion to dismiss under Rule 12(b)(6), we “accept all factual allegations
as true [and] construe the complaint in the light most favorable to the plaintiff.” Phillips
v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009).

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3
Spuck previously raised this identical claim in a habeas corpus action that he initiated
in the District Court in February 2005, which was denied on the merits. See Spuck v.
DeSuta, et al., No. 05-85J, 2006 U.S. Dist. LEXIS 32094 (W.D. Pa. May 22, 2006).
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III.
A. Ex Post Facto Claim
First, Spuck claimed that the 1996 changes in DOC policy have been applied to
him retroactively to deny him the ability to obtain a furlough, in violation of the Ex Post
Facto Clause contained in the United States Constitution.3 As the District Court properly
concluded, there is no ex post facto violation where the retroactively applied law does not
make one’s punishment more burdensome, but merely creates a disadvantage. See
Hameen v. Delaware, 212 F.3d 226, 236 (3d Cir. 2000). Spuck’s sentence was not
lengthened or made more severe by the new guidelines. The mere fact that furlough
opportunities are now not available to him does not make his punishment more onerous.
Accordingly, the District Court properly dismissed this claim.
B. Due Process Claims
Spuck also alleged that Defendant Stowitsky has unlawfully denied him pre-
release and has refused to place him in a CCC (in order to be eligible for a furlough)
because Spuck has failed to complete prescriptive programming. However, an inmate
does not have an inherent constitutional right to determine the place of his confinement,
nor does he have a state-created liberty interest which allows him to be incarcerated at an
institution of his choosing. See Olim v. Wakinekona, 461 U.S. 238 (1983). Moreover,

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Spuck’s related claim – that Stowitsky unlawfully demoted him to level 2 custody –
was also correctly dismissed as this claim similarly failed to implicate a protected liberty
interest. See Griffin v. Vaughn, 112 F.3d 703, 705-06 (3d Cir. 1997).
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inmates do not have a constitutional right to be furloughed. See Bowser v. Vose, 968
F.2d 105, 106-07 (1st Cir. 1992) ("It is clear that the denial of a furlough implicates no
inherent liberty interest"). Thus, Stowitsky’s decision to deny Spuck pre-release and/or
placement in a CCC does not implicate any protected liberty interest.4
C. Denial of Access to Courts Claim
Next, Spuck claimed that Defendant Barth unlawfully denied him access to the
courts: “[Barth] failed to file or return the Plaintiff’s writ of habeas corpus petition
appealing the November 1, 2005, Order from the Pennsylvania Supreme Court
challenging Ex Post Facto Clause violations involving furloughs from prisons in
Pennsylvania.” (See Plaintiff’s Complaint at Section IV.C). While inmates have the right
to adequate, effective, and meaningful access to the courts, see Bounds v. Smith, 430 U.S.
817, 828 (1977), the Supreme Court has restricted who may bring an access-to-courts
claim. See Lewis v. Casey, 518 U.S. 343, 355 (1996). In Lewis, the Court held that in
order to state a claim for denial of the right of access to the courts, a plaintiff must show
actual injury. Id. at 351-2. In this case, Spuck had to have demonstrated that he lost the
ability to present an “arguably actionable” claim. Id.
We agree with the District Court that Spuck was unable to meet that requirement.
The action that he claims Barth denied him the ability to pursue was a habeas corpus

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action wherein he raised the identical Ex Post Facto challenge to the DOC’s furlough
policy that had been previously raised and rejected on the merits in his prior habeas
proceeding. Accordingly, the District Court correctly dismissed this claim against
Defendant Barth.
D. Claim against Defendant Ridge
Finally, the District Court properly dismissed Spuck’s complaint as to Defendant
Ridge. Spuck failed to effect service of the complaint as to Ridge. A plaintiff is
responsible for serving a complaint within 120 days after the complaint is filed with the
court. Fed. R. Civ. P. 4(c)(1), (m). The District Court’s docket indicates that Spuck filed
his action on November 6, 2007, but the docket does not reflect that Ridge was ever
served with the complaint during the span in which the parties litigated the case. Thus,
the claims against Ridge are appropriately denied on those grounds.
As Spuck's appeal presents no substantial question, we will summarily affirm. See
Third Cir. LAR 27.4; I.O.P. 10.6. Spuck’s “motion to waive or suspend 20% deduction
of appellant’s inmate account and court appointment of counsel (pro bono)” is also
denied. See Porter v. Dep’t of Treasury, 564 F.3d 176, 179-80 (3d Cir. 2009); Tabron v.
Grace, 6 F.3d 147, 155-56 (3d Cir. 1993).

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