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    Alan Presbury v. Michael Wenerowicz, 3rd Cir. (2012)

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    This document is a court opinion from the United States Court of Appeals for the Third Circuit regarding a civil rights complaint filed by Alan Presbury against various Pennsylvania prison officials. The District Court had dismissed Presbury's complaint for failure to state a claim. The Third Circuit affirmed the District Court's dismissal, finding that Presbury did not have a protected liberty or property interest in his prison job, his Eighth Amendment rights were not violated by the temporary suspension of his wife's visitation privileges, and he did not allege his First Amendment rights were violated. The Third Circuit concluded the appeal did not raise a substantial question.

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    Alan Presbury v. Michael Wenerowicz, 3rd Cir. (2012)

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    This document is a court opinion from the United States Court of Appeals for the Third Circuit regarding a civil rights complaint filed by Alan Presbury against various Pennsylvania prison officials. The District Court had dismissed Presbury's complaint for failure to state a claim. The Third Circuit affirmed the District Court's dismissal, finding that Presbury did not have a protected liberty or property interest in his prison job, his Eighth Amendment rights were not violated by the temporary suspension of his wife's visitation privileges, and he did not allege his First Amendment rights were violated. The Third Circuit concluded the appeal did not raise a substantial question.

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    Filed: 2012-03-21 Precedential Status: Non-Precedential Docket: 11-4586

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    This document is a court opinion from the United States Court of Appeals for the Third Circuit regarding a civil rights complaint filed by Alan Presbury against various Pennsylvania prison officials. The District Court had dismissed Presbury's complaint for failure to state a claim. The Third Circuit affirmed the District Court's dismissal, finding that Presbury did not have a protected liberty or property interest in his prison job, his Eighth Amendment rights were not violated by the temporary suspension of his wife's visitation privileges, and he did not allege his First Amendment rights were violated. The Third Circuit concluded the appeal did not raise a substantial question.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    106 views4 pages

    Alan Presbury v. Michael Wenerowicz, 3rd Cir. (2012)

    Uploaded by

    Scribd Government Docs
    This document is a court opinion from the United States Court of Appeals for the Third Circuit regarding a civil rights complaint filed by Alan Presbury against various Pennsylvania prison officials. The District Court had dismissed Presbury's complaint for failure to state a claim. The Third Circuit affirmed the District Court's dismissal, finding that Presbury did not have a protected liberty or property interest in his prison job, his Eighth Amendment rights were not violated by the temporary suspension of his wife's visitation privileges, and he did not allege his First Amendment rights were violated. The Third Circuit concluded the appeal did not raise a substantial question.

    Copyright:

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    of 4

    BLD-127

    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 11-4586
    ___________
    ALAN PRESBURY,
    Appellant
    v.

    MICHAEL WENEROWICZ; JAY LANE; ETTA G. WILLIAMS; JOHN DOE


    BOONE; JOSEPH YODIS; FRANK REGAN; MICHAEL CUNNINGHAM;
    DORINA VARNER; SKIP FIELDS
    ____________________________________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (E.D. Pa. Civil No. 11-cv-03701)
    District Judge: Honorable Edmund V. Ludwig
    ____________________________________
    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
    March 1, 2012
    Before: SCIRICA, SMITH and CHAGARES, Circuit Judges
    (Opinion filed: March 21, 2012)
    _________
    OPINION
    _________

    PER CURIAM
    1

    Alan Presbury, a Pennsylvania prisoner proceeding pro se, appeals an order


    of the United States District Court for the Eastern District of Pennsylvania
    dismissing his civil rights complaint against various prison officials and
    employees. For the reasons that follow, we will affirm the judgment of the District
    Court.
    In his complaint, Presbury alleged that Captain Etta Williams harassed him
    and his wife, who visited him in prison. Presbury averred Williams told him on
    May 7, 2010, that she wanted him released from his prison job. Presbury further
    averred that he was then ordered to report for a support team hearing at which he
    was accused of stealing t-shirts, poor attendance at his job, and extortion. He
    alleged that he was not permitted to present evidence at the hearing and that he was
    removed from his job on May 24, 2010. He also averred that on June 7, 2010, he
    learned that his wifes visitation privileges were suspended. Presbury claimed
    violations of his Eighth and Fourteenth Amendment rights and attached to his
    complaint copies of his grievance documents and other correspondence purporting
    to support his claims.
    The District Court granted the defendants motion to dismiss Presburys
    complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

    Regarding

    Presburys due process claim arising from the loss of his prison job, the District
    Court held that Presbury had failed to exhaust his administrative remedies. The
    2

    District Court also stated that, even if it were to reach the merits of the claim,
    dismissal would be required because Presbury has no constitutionally-protected
    interest in a prison job. The District Court further ruled that Presbury did not have
    a cognizable Eighth Amendment claim based on the suspension of his wifes
    visitation privileges. This appeal followed.
    We need not decide whether Presbury exhausted his administrative remedies
    with respect to his due process claim because, even if he had exhausted his
    remedies, Presbury does not state a constitutional claim based on the loss of his
    prison job. We have held that there is no liberty interest in a prison job arising
    from the Due Process Clause. James v. Quinlan, 866 F.2d 627, 629 (3d Cir. 1989).
    Presbury also cannot show that he was deprived of any state-created liberty interest
    because the alleged deprivation does not impose atypical and significant hardship
    . . . in relation to the ordinary incidents of prison life. Torres v. Fauver, 292 F.3d
    141, 151 (3d Cir. 2002) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
    Presbury also does not have a protected property interest in his prison job which
    would support a due process claim. See Quinlan, 866 F.2d at 630. Absent a
    constitutionally-protected interest, Presbury does not state a due process claim.
    See id. at 629.
    We also agree with the District Court that dismissal was warranted on
    Presburys claim that his Eighth Amendment rights were violated based on the
    3

    temporary suspension of his wifes visitation privileges. See Overton v. Bazzetta,


    539 U.S. 126, 137 (2003) (holding regulation restricting visitation for certain
    inmates did not violate Eighth Amendment). Finally, to the extent Presbury claims
    Williams retaliated against him in violation of his First Amendment rights, he does
    not state a claim for relief because he does not contend that Williams alleged
    actions were in response to any constitutionally-protected activity. See Miller v.
    Mitchell, 598 F.3d 139, 147 (3d Cir. 2010) (setting forth elements of retaliation
    claim).
    Accordingly, because this appeal does not raise a substantial question, we
    will affirm the judgment of the District Court. 1

    The District Court did not afford Presbury an opportunity to amend his complaint,
    but we find no prejudice in this case because the documents attached to the
    complaint show that providing an opportunity to amend would have been futile.
    See Grayson v. Mayview State Hosp., 293 F.3d 103, 111 (3d Cir. 2002).
    4

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