Thomas Jordan v. MARTIN HORN, Secretary, Department of Corrections

DPS-61 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3541
THOMAS JORDAN,
Appellant
v.
MARTIN HORN, Secretary, Department of Corrections;
WILLIAM LOVE; JOHN DOE, 1; JOHN DOE, 2; ROBERT BITNER,
Chief Hearing Examiner; FREDERICK A. ROSEMEYER;
JAMES C. HENDERSON; DAVID W. PITKINS; JOHN PAUL;
NICHOLAS PONCHIONE; CAPTAIN JOHN WILLIAMS; MICHAEL FLYNN;
VICKIE VISH; SERGEANT TSIKALAS; JAMES BENCH;
LIEUTENANT HILER; LIEUTENANT MCGUFF; LIEUTENANT CORRAN;
OFFICER CRISSEY; RAYMOND J. SOBINA; DEPUTY FILINO;
SYLVIA GIBSON; JOSEPH H. ROLLINS; KERRI CROSS;
LIEUTENANT WIRECK; CAPTAIN PAPUGA; SUSAN DARR;
CORRECTIONAL OFFICER DOYKA; CORRECTIONAL OFFICER VIGAS;
CORRECTIONAL OFFICER GOTTSCHALK
_______________________________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 00-CV-00036J)
District Judge: Honorable David Stewart Cercone
______________________________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
December 1, 2005
Before: ROTH, FUENTES AND VAN ANTWERPEN, CIRCUIT JUDGES
(Filed February 9, 2006 )

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_________________________________
OPINION
_________________________________
PER CURIAM
Thomas Jordan, a Pennsylvania prisoner, filed this § 1983 action alleging
violations of his rights under the First, Eighth, and Fourteenth Amendments, arising
primarily out of an incident in June, 1999. Jordan alleges that he was verbally threatened
and harassed with racial comments by Correctional Officer Flynn at S.C.I. Laurel
Highlands (the “Flynn incident”).
The factual and procedural background of the case is well known to the parties and
is fully set forth in the Magistrate Judge’s Report entered July 1, 2003. We affirmed the
District Court’s order entered June 29, 2001 to the extent that it dismissed Jordan’s race
discrimination, disproportionate disciplinary sanctions, procedural due process, denial of
access to the courts, and retaliatory transfer and mail confiscation claims. See Jordan v.
Horn, C.A. No. 01-2843 (3d Cir. Oct. 17, 2002). We vacated the order as to two claims
that certain defendants retaliated against Jordan for pursuing a complaint to the Warden
and prison grievance concerning the Flynn incident by subjecting him to false disciplinary
charges on June 23, 1999 and July 9, 1999, and his claim that certain legal and non-legal
property was lost or destroyed upon his transfer to S.C.I. Somerset without procedural due
process (the “destruction of property claim”). On remand, the District Court adopted the
Magistrate Judge’s Report and granted summary judgment in the defendants’ favor,
dismissing the destruction of property claim and one of the retaliation claims. Jordan

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timely appealed. We remanded for consideration of the remaining retaliatory discipline
claim, but retained jurisdiction. The District Court has granted summary judgment on
that claim.
We exercise plenary review over the District Court’s grant of summary judgment
pursuant to Fed. R. Civ. P. 56(c). Public Interest Research of N.J. v. Powell Duffryn
Terminals, Inc., 913 F.2d 64, 71 (3d Cir. 1990). Because this appeal presents “no
substantial question,” 3d Cir. LAR 27.4 and I.O.P. 10.6, we will summarily affirm the
District Court’s orders entered August 18, 2003, and September 15, 2005.
We conclude that the District Court properly granted summary judgment as to both
of Jordan’s retaliation claims for the reasons set forth in the Magistrate Judge’s Report
issued on July 1, 2003, and by the District Court in its Memorandum Opinion entered
September 15, 2005. With respect to the destruction of property claim, the Magistrate
Judge determined that the DOC conducted an independent investigation of Jordan’s
lost/destroyed property grievances which showed that the property was inventoried at
both prison sites and that Jordan signed the appropriate inventory sheets acknowledging
that this property and his legal materials had been returned to him. Because the DOC had
investigated the grievance and responded to Jordan, the Magistrate Judge concluded that
the absence of a final response to Jordan’s appeal of the denial of his grievance did not
render inadequate an otherwise adequate post-deprivation remedy. Jordan did not submit
any evidence contradicting the substance of the DOC investigation. We agree with the
Magistrate Judge’s conclusion that the defendants were entitled to summary judgment on

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We find this case factually distinguishable from Freeman v. Dep’t of1
Corrections, 949 F.2d 360 (10 Cir. 1991). There, Freeman had no meaningful access toth
any post-deprivation remedy because the defendant prison officials actively thwarted
Freeman’s attempts to grieve the loss of his stereo player through the prison grievance
system and they caused him to drop his civil court lawsuit on their false promise that his
stereo player would be returned to him. In Freeman’s case, even the court failed to
respond to his numerous requests regarding the status of his lawsuit.
the destruction of property claim. Although the failure of the Central Office to render a
decision on Jordan’s appeal is not commendable, we cannot say that such a failure
deprived Jordan of any meaningful access to a post-deprivation remedy, based on the
undisputed facts in this case. Therefore, the District Court properly granted summary1
judgment with respect to this claim.
Accordingly, we will affirm the judgment of the District Court.

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