Evaristus Mackey v. JOSEPH SMITH, Warden

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5119
EVARISTUS MACKEY,
Appellant
v.
JOSEPH SMITH, Warden
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 05-cv-1837
(Honorable A. Richard Caputo)
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 24, 2007
Before: SCIRICA, Chief Judge, FUENTES and SMITH, Circuit Judges
(Filed August 7, 2007 )
OPINION OF THE COURT
PER CURIAM.
Evaristus Mackey, an inmate at the United States Penitentiary (USP) in Bruceton
Mills, West Virginia (USP-Hazleton), appeals the dismissal of his civil rights complaint

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At the time he filed his complaint, Mackey was an inmate at USP-Lewisburg in1
Pennsylvania.
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.2
388 (1971).
Although Mackey titled his complaint as arising under the Federal Employer’s3
Liability Act (FELA), the FELA creates a cause of action for tort claims by injured
railway workers and is inapplicable here. See 45 U.S.C. § 51.
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by the United States District Court for the Middle District of Pennsylvania. For the1
reasons below, we will affirm the District Court’s judgment.
In September 2005, Mackey filed a pro se Bivens complaint, alleging that he was2
being punished at USP-Lewisburg for an “incident on 10-9-03” that occurred while
Mackey was an inmate at USP-Pollock, and that the punishment was excessive. Mackey3
protested his placement in the Special Housing Unit (SHU) and the Special Management
Unit Program (SMU) at USP-Lewisburg; he sought a transfer to another institution,
monetary damages, and any other appropriate relief.
The District Court granted Mackey’s application for leave to proceed in forma
pauperis and dismissed the complaint for failure to state a claim for relief. The District
Court determined that Mackey was not being punished excessively because his placement
in the SHU was due to a 2005 misconduct and his refusal to participate in the SMU
program, rather than the “incident on 10-9-03.” This conclusion was based upon an
exhibit attached to the complaint, which contradicted allegations made in the complaint.
The exhibit, a letter from National Appeals Administrator Harrell Watts, states that

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Mackey’s last incident of misconduct occurred on June 30, 2005, and that Mackey’s
refusal to participate in the SMU program warranted his placement in the SHU at USP-
Lewisburg.
Mackey timely appealed from the District Court’s order. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review is plenary. See
Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).
Mackey argues that his placement in the SMU program at USP-Lewisburg violated
his constitutional rights. As we have explained, a protected liberty interest can arise
either from the Due Process Clause itself or from state law. Asquith v. Department of
Corrections, 186 F.3d 407, 409 (3d Cir. 1999). No liberty interest arising from the Due
Process Clause is implicated here because the conditions of confinement to which
Mackey was subjected were within the sentence imposed upon him and did not otherwise
violate the Constitution. See Fraise v. Terhune, 283 F.3d 506, 522 (3d Cir. 2002).
The question then is whether Mackey was deprived of any state-created liberty
interest. To implicate such an interest, a placement in restricted housing must impose an
“atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Placement in a restricted
housing program will not be considered an atypical and significant hardship if it is what a
prisoner “may reasonably expect to encounter as a result of his or her conviction.”
Asquith v. Dep’t of Corrections, 186 F.3d 407, 412 (3d Cir. 1999). Mackey contends that

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As described in the first exhibit to Appellant’s complaint, and clarified by Appellee in4
his brief, the SMU program is designed to teach inmates self-discipline and social values,
and to facilitate their ability to co-exist with other inmates. An inmate who follows the
program will complete it in twelve to eighteen months. Progress in the program results in
a decrease in restrictions and, ultimately, a return to the general population. An inmate’s
failure to comply with the program results in greater restrictions and increased duration of
the program.
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he was placed in the SMU from May 17, 2004, to October 3, 2005. See Appellant’s Br. at
2. Inmates in the program are restricted to five hours of recreation per week, three
showers per week, and one telephone call in a thirty-day period. See Appellee’s Br. at 8.4
These conditions do not impose an atypical and significant hardship in relation to the
ordinary incidents of prison life, and Mackey has not been deprived of a protected liberty
interest by his placement in the SMU program. See Fraise, 283 F.3d at 522-23 (prisoner’s
placement in special management unit did not impose atypical and significant hardship).
Mackey’s placement in the SHU at USP-Lewisburg also was within “the ordinary
incidents of prison life” and thus did not violate his constitutional rights. See Torres v.
Fauver, 292 F.3d 141, 150-51 (3d Cir. 2002); Griffin v. Vaughn, 112 F.2d 703, 706-08
(3d Cir. 1997). Mackey’s refusal to participate in the SMU program at USP-Lewisburg
resulted in his receiving incident reports which, in turn, caused his placement in the SHU.
Although Mackey contends that he was being punished for an incident that occurred in
2003 at USP-Pollock, documents that Mackey submitted to the District Court show that
Mackey’s refusal to participate in the SMU program and his latest misconduct, which
occurred in June 2005, led to his placement in the SHU.

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Accordingly, we will affirm the judgment of the District Court.

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