John Joseph Perry v. Lackawanna County Children & Youth Services

BLD-306 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2403
___________
JOHN JOSEPH PERRY,
Appellant
v.
LACKAWANNA COUNTY CHILDREN & YOUTH SERVICES;
LT. JODI SMITH, of SCI Waymart; LAURA BANTA, Prison Hearing Examiner at SCI
Waymart; SUPERINTENDENT JOSEPH NISH, at SCI Waymart
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3:09-cv-00675)
District Judge: Honorable William J. Nealon
____________________________________
Submitted Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
for Possible Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
September 17, 2009
Before: MCKEE, FISHER AND CHAGARES, Circuit Judges
(Opinion filed: September 18, 2009)
_________
OPINION
_________
PER CURIAM
Appellant John Joseph Perry seeks review of the District Court’s order dismissing

-- 1 of 8 --

Perry alleged that the letter was in Kuehner’s purse when Pierro stole it, and that1
Kuehner reported the theft to the Scranton Police Department.
2
his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). We conclude that the appeal does
not present a substantial question. Although we rest our decision in part on different
grounds, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R.
27.4; I.O.P. 10.6.
I.
Perry, an inmate at SCI-Waymart, initiated a pro se civil action pursuant to 42
U.S.C. § 1983 against Lackawanna County Children & Youth Services (“CYS”) and three
SCI-Waymart officials: Jodi Smith, Laura Banta, and Joseph Nish. In the complaint,
Perry alleged that an individual named Joseph Pierro stole a letter Perry had sent to his
girlfriend, Karen Marie Kuehner. According to Perry, Pierro provided the letter to1
Lackawanna County Children & Youth Services (“CYS”) and reported that the letter
showed that “strong sexual contact” had occurred between Perry and Kuehner during an
October 4, 2008, visit at which Perry’s two minor children were present.
Based upon the information in the letter, CYS allegedly contacted SCI-Waymart
and requested an investigation into Perry’s behavior. Perry claimed that officials at SCI-
Waymart wrongfully put a copy of the letter into his disciplinary file and used it as a basis
to punish him. Specifically, Perry alleged that SCI-Waymart employee Jodi Smith
viewed a videotape of the October 4, 2008, visit between Kuehner and Perry, and
observed no rule infractions. However, based upon the contents of the letter and Smith’s

-- 2 of 8 --

Perry also alleged that SCI-Waymart provided the misconduct report to CSY, which2
initiated its own investigation concerning the welfare of Perry’s minor children during
visits to SCI-Waymart. Ultimately, CSY found no evidence of neglect, although Perry
complains that “the report has been added to [his] file . . . and can be used in the family
court for any proceeding pertinent to the plaintiff’s custody of his minor children.”
Perry also alleged that he filed two grievances and a request for review of the3
videotaped visits. SCI-Waymart officials denied the requests.
3
review of a videotape of an October 11, 2008, visit between Kuehner and Perry at which
no children were present, Smith concluded that “strong sexual contact” likely occurred as
reported, and accordingly issued a misconduct report against Perry.2
According to the complaint, SCI-Waymart granted Perry a formal hearing
concerning the misconduct report. Perry allegedly wished to enter a plea of not guilty,3
but the hearing examiner, Laura Banta, proceeded as if Perry had entered a guilty plea.
Without honoring Perry’s request for Banta to review the videotapes of the October 4 and
11 visits, Banta sanctioned Perry to 30 days of solitary confinement, 60 days without
visiting privileges, and loss of institutional employment. Perry appealed to the prison
review committee, the superintendent, and the chief hearing examiner, but the appeals
were all denied based on Perry’s purported guilty plea.
Based upon these events, Perry claimed to have suffered violations of his
constitutional rights. As relief, he sought to have his “record cleared of all reports
concerning this claim,” criminal prosecution concerning “all false reports made against”

-- 3 of 8 --

Although Perry sought to have criminal charges brought against the defendants, such4
relief may not be obtained in a civil action under 42 U.S.C. § 1983.
Although the District Court dismissed Perry’s complaint without prejudice, we have5
jurisdiction because the dismissal was pursuant to § 1915(e) and because any amendment
of the complaint would be futile. See Deutsch v. United States, 67 F.3d 1080, 1083 (3d
Cir. 1995).
4
him, and recovery of his costs and fees.4
Because the District Court granted Perry permission to proceed in forma pauperis
(“IFP”), it reviewed the complaint under the Prison Litigation Reform Act of 1995
(“PLRA”), 28 U.S.C. § 1915. On April 28, 2009, prior to service, the District Court
concluded that Perry’s complaint was frivolous and dismissed it without prejudice
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). This timely pro se appeal followed.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our standard5
of review is plenary. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).
Because Perry is proceeding IFP, we must dismiss the appeal under 28 U.S.C.
§ 1915(e)(2)(B) if it lacks an arguable basis in fact or law. Neitzke v. Williams, 490 U.S.
319, 325 (1989). We may summarily affirm if the appeal presents no substantial
question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. We may affirm on grounds different from
those relied upon by the District Court. See Morse v. Lower Merion School Dist., 132
F.3d 902, 904 (3d Cir. 1997).
To establish a § 1983 civil rights claim, a claimant must show: “(1) that the

-- 4 of 8 --

5
conduct complained of was committed by a person acting under color of state law; and
(2) that the conduct deprived a person of rights, privileges, or immunities secured by the
Constitution or laws of the United States.” Robb v. City of Philadelphia, 733 F.2d 286,
290-91 (3d Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). Liberally
construing Perry’s pro se complaint, see Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.
2003), we conclude that Perry failed to state a § 1983 claim.
A.
CYS is an agency of Lackawanna County, Pennsylvania. To state a § 1983 claim
against such a local governing body, Perry was required to allege that CYS had an
established policy or custom that resulted in the alleged constitutional violations. See
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978); see also Marran v. Marran,
376 F.3d 143, 155-56 (3d Cir. 2004) (a prima facie claim against a county or its agency
must involve an allegation of a policy or custom that directed or caused the constitutional
deprivation). Perry’s complaint cannot be read to identify any custom or policy by CYS
to satisfy the Monell requirement. Accordingly, dismissal was appropriate.
B.
We therefore turn to Perry’s claims against the three named SCI-Waymart
officials, Smith, Banta, and Nish. Perry’s claims against the officials focus primarily on
his personal letter to Kuehner: he contends that the officials should have known that the
letter was stolen and should not have considered it, and that because the letter did not

-- 5 of 8 --

6
specify a date and location of the “strong sexual contact,” it did not provide “probable
cause” for the investigation or disciplinary action against him.
Even affording Perry’s allegations the liberal construction they are due, we fail to
see how Perry’s allegations concerning his letter to Kuehner can support a § 1983 claim
against the SCI-Waymart officials. Perry specifically invoked the First, Fourth, and Ninth
Amendments of the Constitution. With regard to the Fourth Amendment, Perry did not
allege that anything was seized from him, and in any event, it is well established that “the
Fourth Amendment proscription against unreasonable searches does not apply within the
confines of the prison cell.” Hudson v. Palmer, 468 U.S. 517, 526 (1984). With regard to
the First Amendment, Perry did not claim any interference with his constitutionally-
protected right to reasonable correspondence with the outside world, see Procunier v.
Martinez, 416 U.S. 396, 418 (1974), overruled on other grounds, Thornburgh v. Abbott,
490 U.S. 401 (1989), and a single instance of interference with his mail would not have
been sufficient to constitute a First Amendment violation in any event. See Bieregu v.
Reno, 59 F.3d 1445, 1452 (3d Cir. 1995), overruled on other grounds, Lewis v. Casey,
518 U.S. 343 (1996). Finally, we are not aware of any support for Perry’s claim that the
Ninth Amendment protects against any of the events described in his complaint. Indeed,
the Ninth Amendment does not independently provide a source of individual
constitutional rights. See, e.g., Jenkins v. C.I.R., 483 F.3d 90, 92 (2d Cir. 2007);
Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991).

-- 6 of 8 --

7
Based upon our review, we conclude that the only potential § 1983 claim that
Perry might have raised against the SCI-Waymart officials would be a procedural due
process claim relating to the disciplinary proceedings against him. In that regard, we
have given particular consideration to Perry’s allegations that he sought to plead “not
guilty” to the disciplinary infraction, but the SCI-Waymart officials failed to consider his
proposed evidence (i.e., review of the October 4 and 11 videotapes), imposed sanctions
upon him, and denied his appeals, all based upon a purported guilty plea.
Not all disciplinary or punitive measures taken in a prison environment implicate a
prisoner’s constitutional right to procedural due process. Rather, due process rights are
only triggered where the prison “imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.” Mitchell v. Horn, 318 F.3d 523, 531
(3d Cir. 2003) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Prisoners generally
do not have inherent liberty interests in particular modes, places, or features of their
confinement. See Hewitt v. Helms, 459 U.S. 460, 466-68 (1983), abrogated by Sandin,
515 U.S. at 483.
Perry alleged that, as a result of the disciplinary proceedings, he was sanctioned to
30 days of solitary confinement, 60 days without visiting privileges, and loss of his
institutional employment. These sanctions do not qualify as an “atypical or significant
hardship” under Sandin. Thirty days of solitary confinement is not atypical. See Sandin,
515 U.S. at 486. In addition, prisoners do not have constitutionally-protected interests in

-- 7 of 8 --

prison visitation or in holding a job. See Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454,
460 (1989); Block v. Rutherford, 468 U.S. 576, 588 (1984); James v. Quinlan, 866 F.2d
627, 629 (3d Cir. 1989). Because the sanctions imposed upon Perry were insufficient to
trigger due process protections, Perry cannot state a procedural due process claim against
the SCI-Waymart officials based upon his disciplinary proceedings.
III.
We have reviewed the record in this matter and conclude that there is no
substantial question to be presented on appeal. Accordingly, we will summarily affirm
the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
8

-- 8 of 8 --