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Burns v. PA Dep't of Correction

September 19, 2008


On appeal from the United States District Court for the Eastern District of Pennsylvania District Court No. 05-cv-3462 District Judge: The Honorable Berle M. Schiller.

The opinion of the court was delivered by: Smith, Circuit Judge.


Argued April 9, 2008

Before: SMITH, HARDIMAN, and COWEN, Circuit Judges.


The Hohfeldian issue presented in this appeal requires us to determine whether a disciplinary conviction directing that an inmate's institutional account be assessed for medical or other expenses implicates a property interest sufficient to trigger the protections of procedural due process.*fn1 Appellant Rodney Burns ("Burns"), while an inmate at SCI-Graterford, a Pennsylvania prison, was accused of assaulting fellow inmate Charles Mobley. At the conclusion of a prison misconduct proceeding, Hearing Examiner Mary Canino determined that Burns had committed the assault in question and ordered him to serve 180 days in disciplinary custody and to forfeit his prison job. Additionally, and of primary interest on appeal, she assessed Burns' inmate account "for Medical or other Expenses" associated with Mobley's condition after the assault.

Burns unsuccessfully appealed the disciplinary decision to a three-member Program Review Committee, to the Superintendent of the facility, and finally to the Chief Hearing Examiner in the Office of Chief Counsel. On July 6, 2005, Burns filed a pro se complaint asserting due process and retaliation claims against the Pennsylvania Department of Corrections and certain named prison officials (collectively, the "Department of Corrections") arising out of the prison's disciplinary proceedings. The District Court appointed counsel and, on January 5, 2007, the parties filed cross-motions for Summary Judgment. On February 6, 2007, the District Court denied Burns' motion for Partial Summary Judgment and granted the Department of Corrections' motion for Summary Judgment.

The District Court stressed that it had "serious concerns that Defendants' actions would not satisfy even those minimal due process requirements [guaranteed to persons in prison]." Burns v. PA Dept. of Corrections, No. 05-cv-3462, 2007 WL 442385, at *7 n.2 (E.D. Pa. 2007). Nonetheless, the Court held that Burns was not entitled to such due process protections because he failed to show a deprivation of a cognizable liberty or property interest. This timely appeal followed.

Because we believe that the Department of Corrections' assessment of Burns' inmate account constituted the impairment of a cognizable property interest, we will reverse the District Court's February 6, 2007 order granting summary judgment and remand the case for further proceedings.*fn2


In February of 2005, Burns was accused of assaulting a fellow inmate, Charles Mobley ("Mobley"), by throwing scalding water at Mobley's face. Prison officials did not become aware of Mobley's injuries until four days after they occurred, when corrections officers noticed that Mobley had sustained minor burns to his face. A nurse at the facility treated Mobley's injuries, cleaned his burn, applied triple antibiotic ointment, and administered a Tetanus shot. The record does not indicate that Mobley received or requested any additional medical attention.

After he received treatment for his injuries, Mobley originally identified his assailant as one of the inmates in BA-1022, a cell shared by Ricky Holmes and Walter Dixon. During the investigation that followed, the facility's Security Captain, Thomas Dohman ("Dohman"), interviewed Holmes and placed him in Administrative Custody status while the investigation continued. Thereafter, the Security Department at the facility received two "hotline" calls regarding the incident through a special phone line set up to allow trusted inmates to relay sensitive information. Both of these confidential informants stated that Holmes was not responsible for the assault and that Burns had thrown hot water on Mobley after Mobley engaged in shadow-boxing around Burns.

Dohman indicated that he viewed these reports as credible because (1) he recognized the informants' voices and had received reliable information from them in the past; and (2) Lt. Abdul Ansari ("Ansari") separately told him that other inmates had reported to Ansari that Burns was responsible for the assault. After receiving this information, Dohman interviewed Burns and concluded that Mobley-who was apparently "semi-incoherent" at times-had mixed up Holmes and Burns in his original identification. Accordingly, Dohman placed Burns in Administrative Custody and continued the investigation. At that point, Dohman received an anonymous letter saying that he had locked up the "right guy." The record does not reflect who wrote the letter, but Dohman believed it was someone other than the two confidential informants who originally identified Burns as the assailant.

On March 7, 2005, Dohman issued a Misconduct Report that charged Burns with assault in connection with the February 10, 2005 incident. The Misconduct Report alerted Burns to the charges against him and indicated that they were primarily based upon information from confidential informants who witnessed him commit the assault. The Report also stated that other inmates had informed Lt. Ansari that Burns had committed the assault. Consistent with facility procedure, prison officials provided Burns with blank forms, along with the Misconduct Report itself, to allow him to request the presence of up to three hearing witnesses (one of whom could be a staff member) and draft his own version of events. Burns submitted a witness request form asking Mobley to testify.

On March 10, 2005, Hearing Examiner Mary Canino convened Burns' misconduct hearing. Burns pleaded not guilty to all charges and submitted his written version of events, which denied any involvement in the assault and requested a review of the Day Room videotapes where the assault occurred. Examiner Canino adjourned the hearing to obtain the videotapes, which she ultimately discovered did not exist. Canino then spoke with Dohman, in camera, to determine the reliability of the confidential informants whose information figured in the Misconduct Report. Canino did not request the direct testimony of the informants, nor did she review their written statements. Canino summoned Mobley to testify, but Mobley indicated he was unwilling to do so, even in camera.

Canino reconvened the proceedings against Burns and informed him that (1) she was satisfied that the confidential informants' information referenced in the misconduct report was credible based upon her in camera conversation with Dohman; (2) no videotapes existed; and (3) Mobley had refused to testify. Burns, who contends that he was in a state of disbelief, did not offer any further defense. Canino then issued a four-page handwritten decision, in which she determined-by a preponderance of the evidence-that Burns had committed the assault in question. Accordingly, she ordered him to serve 180 days in Disciplinary Custody and to forfeit his prison job. Additionally, she assessed his inmate account "for [Mobley's] Medical or other Expenses."


Before we address the merits of Burns' appeal, we must consider our own jurisdiction. On April 10, 2008, following oral argument in the case, the Department of Corrections sent a letter to Burns purporting to declare that it would not take any steps to deduct any money from his inmate account as a result of the Mobley incident. The Department of Corrections thus contends that we lack appellate jurisdiction because any due process claim was rendered moot after this letter was issued.

Such assurances, they argue, eliminated any "cloud" that lingered over Burns' inmate account, and therefore also addressed the "basis for Burns' argument to this court, regarding the alleged impairment of his right to security in his inmate account." We cannot agree.

Article III of the U.S. Constitution provides that the "judicial Power shall extend to... Cases... [and] to Controversies." U.S. CONST. ART. III, § 2. As we have explained, "[t]his grant of authority embodies a fundamental limitation restricting the federal courts to the adjudication of'actual, ongoing cases or controversies.'" County of Morris v. Nationalist Movement,273 F.3d 527, 533 (3d Cir. 2001) (citations omitted). "'[A] case is moot when the issues presented are no longer'live' or the parties lack a legally cognizable interest in the outcome.'" Donovan ex rel. Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 216 (3d Cir. 2003) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). Further, a "court's ability to grant effective relief lies at the heart of the mootness doctrine. That is,'[i]f developments occur during the course of adjudication that eliminate a plaintiff's personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief, the case must be dismissed as moot.'" Id. (citations omitted).

"[A]s a general rule, [however,]'voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.'" Los Angeles County v. Davis, 440 U.S. 625, 631 (1979) (internal citations omitted). To be sure, "jurisdiction, properly acquired, may abate if... (1) it can be said with assurance that'there is no reasonable expectation...' that the alleged violation will recur, and (2) interim relief or events that have completely eradicated the effects of the alleged violation." Id. However, it is only "[w]hen both [these] conditions are satisfied... that the case is moot...." Id.

The Department of Corrections argues that its voluntary promise to refrain from the future seizure of funds from Burns' inmate account, in a letter submitted more than three years after it originally assessed that account for medical and other fees, obviates Burns' interest in the case. Such an argument fundamentally misreads the nature of Burns' due process claims. "In procedural due process claims, the deprivation by state action of a constitutionally protected interest in'life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such interest without due process of law." Zinermon v. Burch, 494 U.S. 113, 125 (1990). Accordingly, a procedural due process violation is complete at the moment an individual is deprived of a liberty or property interest without being afforded the requisite process. In this case, Burns' injury was therefore complete at the time that his account was originally assessed if we assume that (1) the Department of Corrections impaired a cognizable property interest by virtue of the assessment and (2) the disciplinary process failed to afford him sufficient process.

On that basis alone, the Department of Corrections' suggestion of mootness fails. A completed violation, if proven, would entitle Burns to at least an award of nominal damages. Moreover, because of the belated nature of the assurance-which was offered more than three years after the original disciplinary hearing and only after oral argument was heard in this case-it is possible that Burns is entitled to a more than nominal award as compensation for the time that his inmate account operated under a cloud. At most, the Department of Corrections' April 10, 2008 letter serves to stop the clock on potential damages. As such, we see no evidence that the Appellees' assurances "have completely eradicated the effects of the alleged violation." Davis, 440 U.S. at 631.

Additionally, the timing and content of the Commonwealth's letter give us pause in considering whether "'there is no reasonable expectation...' that the alleged violation will recur...." Id. Again, the Department of Corrections' assurances were provided exceedingly late in the game. This by no means establishes that it would resume pursuit of the assessment at the conclusion of litigation. But we are more skeptical of voluntary changes that have been made long after litigation has commenced. See DeJohn v. Temple University,No. 07-cv-2220, 2008 WL 2952777, at *3 (3d Cir. 2008). That is especially true where, as here, an assertion of mootness would serve to preserve a party's favorable ruling before the District Court. As the Supreme Court has instructed, "[o]ur interest in preventing litigants ...

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