Daniel A. Heleva v. Sgt. Joseph Kramer

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-3408
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DANIEL A. HELEVA,
Appellant
v.
SGT. JOSEPH KRAMER;
MICHAEL TAEBERRY, Director of Treatment;
DEPUTY WARDEN PAUL JENNINGS;
WARDEN DAVID KEENHOLD
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 05-cv-1139)
District Judge: Honorable Christopher C. Conner
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Submitted Pursuant to Third Circuit LAR 34.1(a)
May 21, 2009
Before: BARRY, SMITH and GARTH, Circuit Judges
(Opinion filed : May 22, 2009)
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OPINION
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PER CURIAM

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Daniel A. Heleva, pro se, appeals from the District Court’s grant of the appellees’
motion for summary judgment. For the reasons that follow, we shall affirm the District
Court’s order.
Heleva is currently incarcerated at SCI-Albion. He filed a 42 U.S.C. § 1983
complaint, alleging that the appellees violated his First Amendment right to exercise his
religion and unfairly administered the prison grievance procedures during his
incarceration at another facility. Heleva alleged in particular that they had intentionally
deprived him for a period of at least eight months of two books sent to him by his sister
entitled Survival Kit: 5 Ways to Spiritual Growth and The Power of a Praying Parent.
Heleva argued that he needed those books to “learn to pray constructively and offer [his]
concerns to the grace of his God.” The appellees argued that the prison had a policy of
only accepting books that were directly shipped from publishers or that contained the
publisher’s invoice, which reduces the amount of contraband coming into the prison.
They maintained that Heleva did not receive his books because the invoice was missing.
The District Court, finding that Heleva had not stated a free exercise claim under
the First Amendment, dismissed his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
The Court also determined that Heleva’s alleged obstruction of prison grievances did not
give rise to an independent constitutional claim. On appeal, this Court affirmed in part
and reversed in part. Heleva v Kramer, 214 Fed. Appx. 244 (3d Cir. 2007). We found
that Heleva had in fact stated a free exercise claim under the First Amendment but agreed

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that there was no separate claim for violation of prison grievances. We also instructed the
District Court to evaluate whether Heleva’s claims implicated the Religious Land Use and
Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc to 2000cc-5.
On remand, the District Court granted the defendants’ motion for summary
judgment on the First Amendment and RLUIPA claims. The District Court found that the
prison’s policy did not violate Heleva’s First Amendment rights under Turner v. Safley,
482 U.S. 78, 89 (1987). The District Court also held that the prison had not violated
RLUIPA because Heleva did not show that his religious exercise had been burdened
substantially by the challenged conduct. Heleva filed a timely appeal.
Because summary judgment is appropriate only where there is no issue of material
fact and judgment is appropriate as a matter of law, our review of a grant of summary
judgment is plenary. Rosen v. Bezner, 996 F.2d 1527, 1530 (3d Cir. 1993) (citing
Jefferson Bank v. Progressive Cas. Ins. Co., 965 F.2d 1274, 1276 (3d Cir. 1992). After
reviewing the record, we will affirm the District Court’s grant of summary judgment.
To establish a free exercise violation, Heleva must show that the appellees
burdened the practice of his religion by preventing him from engaging in conduct
mandated by his faith without any justification reasonably related to legitimate
penological interests. Turner, 482 U.S. at 89. The Turner test requires that:
First, there must be a valid, rational connection between the
prison regulation and the legitimate governmental interest put
forward to justify it, and this connection must not be so
remote as to render the policy arbitrary or irrational. Second, a

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A policy similar to the MCCF’s publisher’s only policy was held to be constitutional1
by the Supreme Court in Bell v. Wolfish, 441 U.S. 520, 548-55 (1979); see also Hurd v.
Williams, 755 F.2d 306 (3d Cir. 1985).
Heleva does not challenge the prison’s policy. He complains that Sergeant Kramer2
did not deliver the books promptly as a matter of personal dislike. Accepting this
allegation as true, as we must in a summary judgment context, we nevertheless affirm the
District Court’s holding.
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court must consider whether inmates retain alternative means
of exercising the circumscribed right. Third, a court must take
into account the costs that accommodating the right would
impose on other inmates, guards, and prison resources
generally. And fourth, a court must consider whether there are
alternatives to the regulation that fully accommodate[ ] the
prisoner’s rights at de minimis cost to valid penological
interests.
DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000)(internal footnotes and citations omitted).
After reviewing the record, we agree with the District Court’s holding. The prison policy
is clearly a legitimate one, meant to serve the purpose of reducing prison contraband. As1
defendants Kramer and Jennings stated in their depositions, the reason Heleva did not
receive his books is because they did not come with an invoice from the publisher. As2
soon as it was determined that the invoices were received, Heleva’s books were delivered
to him. Furthermore, even though Heleva experienced a significant delay in the delivery
of those books, he still had access to many other similar books of a religious nature
through the prison library system.
The District Court next determined that the appellees were entitled to summary
judgment under RLUIPA. Under RLUIPA, “[a] plaintiff-inmate bears the burden to

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show that a prison institution’s policy or official practice has substantially burdened the
practice of that inmate’s religion.” Washington v. Klem, 497 F.3d 272, 278 (3d
Cir. 2007). A substantial burden exists where: “1) a follower is forced to choose between
following the precepts of his religion and forfeiting benefits otherwise generally available
to other inmates versus abandoning one of the precepts of his religion in order to receive
a benefit; OR 2) the government puts substantial pressure on an adherent to substantially
modify his behavior and to violate his beliefs.” Id. at 280. Heleva argued that “Sgt.
Kramers actions imposed that burden by refusing literature designed to uphold and
strengthen petitioners faith in God and find solace in the fact that his children would be
protected.” Although an eight-month delay is undoubtedly a burden, Heleva does not
demonstrate that the prison policy resulted in a substantial burden under RLUIPA and
Washington. At no point did Heleva have to abandon one of the precepts of his Christian
religion, nor did the government put pressure on him to substantially modify his behavior
or violate his beliefs.
Finally, we note that Heleva requested the appointment of counsel, which the
District Court denied. The District Court’s authority to appoint counsel to represent an
indigent litigant in a civil case derives from 28 U.S.C. § 1915(e)(1), which gives district
courts broad discretion to request an attorney to represent an indigent civil litigant. Such
litigants have no statutory right to appointed counsel. Tabron v. Grace, 6 F.3d 147, 153
(3d Cir. 1993). In light of our decision on the merits of Heleva’s claims, we conclude that

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the District Court did not abuse its discretion in denying the request for counsel.
In conclusion, we will affirm the District Court’s grant of summary judgment.

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