United States District Court, W.D. Virginia, Roanoke Division
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE
Max Roman, a federal prisoner proceeding pro se, commenced
this action pursuant to Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388. 389
(1971). Plaintiff names Christopher Zych, a former Warden of
the United States Penitentiary in Lee County, Virginia
("USP Lee"), as the sole defendant. Plaintiff
alleges that Zych violated due process by upholding a prison
disciplinary conviction that was later expunged on appeal.
Zych filed a motion for summary judgment, to which Plaintiff
responded, making this matter ripe for
disposition. After reviewing the record, I grant
Zych's motion for summary judgment.
April 19, 2015, Plaintiff was moved into segregation at USP
Lee while staff investigated whether Plaintiff had downloaded
pornography onto a prison computer. Plaintiff was found
guilty and sanctioned with the loss of commissary privileges
for thirty days. On appeal, Zych upheld the conviction after
purportedly reviewing "records and video evidence."
This evidence allegedly showed that Plaintiff had logged into
the computer and that at least one other inmate accessed
Plaintiffs account while Plaintiff was not in the room.
next appeal was successful, and the charge was remanded for a
reinvestigation. Plaintiff was again convicted of the charge,
and he was released from segregation and transferred to a
federal penitentiary in Kentucky.
successfully appealed the new conviction, and it was vacated
and expunged. Plaintiff argues that the charge must have been
false since it was ultimately expunged, and thus, he
concludes that Zych violated due process by affirming the
filed a motion for summary judgment, arguing that he is
entitled to qualified immunity. Qualified immunity permits
"government officials performing discretionary functions
... [to be] shielded from liability for civil damages insofar
as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known." Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). Once a defendant raises the
qualified immunity defense, a plaintiff bears the burden to
show that a defendant's conduct violated the plaintiffs
right. Bryant v. Muth. 994 F.2d 1082, 1086 (4th Cir.
is entitled to summary judgment if the pleadings, the
disclosed materials on file, and any affidavits show that
there is no genuine dispute as to any material fact.
Fed.R.Civ.P. 56(a). Material facts are those necessary to
establish the elements of a party's cause of action.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A genuine dispute of material fact exists if, in
viewing admissible evidence and all reasonable inferences
drawn therefrom in a light most favorable to the non-moving
party, a reasonable fact-finder could return a verdict for
the non-movant. Id. The moving party has the burden
of showing-"that is, pointing out to the district court
- that there is an absence of evidence to support the
nonmoving party's case." Celotex Corp. v.
Catrett 477 U.S. 317, 325 (1986). If the movant
satisfies this burden, then the non-movant must set forth
specific facts that demonstrate the existence of a genuine
dispute of fact for trial. Id. at 322-24. A party is
entitled to summary judgment if the admissible evidence as a
whole could not lead a rational trier of fact to find in
favor of the non-movant. Williams v. Griffin. 952
F.2d 820, 823 (4th Cir. 1991). "Mere unsupported
speculation ... is not enough to defeat a summary judgment
motion." Ennis v. Nat'l Ass'n of Bus. &
Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A
plaintiff cannot use a response to a motion for summary
judgment to amend or correct a complaint challenged by the
motion for summary judgment. Cloaninger v. McDevitt
555 F.3d 324, 336 (4th Cir. 2009).
dissatisfaction with the adjudication of the institutional
charge and the time spent in segregation implicates the Due
Process Clause of the Fifth Amendment. Nevertheless, I find
that Zych is entitled to qualified immunity and summary
state a due process claim, an inmate must show that he was
deprived of "life, liberty, or property" by
governmental action. Beverati v. Smith, 120 F.3d
500, 502 (4th Cir. 1997). When a disciplinary penalty does
not cause an inmate's original sentence to be enhanced,
protected interests are generally limited to freedom from
restraint that imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison
life. See Sandin v. Conner, 515 U.S. 472, 484 (1995)
(holding that disciplinary segregation did not present the
type of atypical, significant deprivation in which a state
might create a liberty interest). Unless the inmate proves a
deprivation of a protected interest, he has no federal right
to particular protections. See Superintendent, Mass.
Corr. Inst, v. Hill 472 U.S. 445, 454 (1985) (noting
substantive requirement for prison discipline proceedings
implicating the Due Process Clause); Wolff v.
McDonnell, 418 U.S. 539, 556 (1974) (noting the same
about procedural requirements).
stay in segregation for approximately three months, the
temporary loss of commissary privileges, or the transfer to
Kentucky implicates an interest protected by the Due Process
Clause. Plaintiff fails to establish that the consequences of
the charge imposed an atypical and significant hardship on
him in comparison to the ordinary incidents of prison
life.See, e.g., Sandin, 515 U.S. at
484; see also Freeman v. Rideout808 F.2d 949, 951
(2d Cir. 1986) (holding that a claim of a false disciplinary
charge cannot serve as the basis for a constitutional claim).
"[Administrative segregation is the sort of confinement
that inmates should reasonably anticipate receiving at some
point in their incarceration." Hewitt v. Helms,
459 U.S. 460, 468 (1983). Changes "in a prisoner's
location, variations of daily routine, changes in conditions
of confinement (including administrative segregation), and
the denial of privileges [are] matters which every prisoner
can anticipate [and which] are contemplated by his original
sentence to prison." Gaston v. Taylor, 946 F.2d
340, 343 (4th Cir. 1991); see Meachum v. Fano, 427
U.S. 215 (1976) (noting an inmate does not have a
constitutional right to be housed in any particular prison).
Plaintiffs dissatisfaction with Zych's administrative
review for a ...