Vann L. Bailey v. KEVIN KAUFFMAN, Superintendent

ALD-112 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-3357
___________
VANN L. BAILEY,
Appellant
v.
KEVIN KAUFFMAN, Superintendent; BYRON BRUMBAUGH, Deputy
Superintendent for Facilities Management; SCOTT WALTERS, Deputy Superintendent
for Centralized Services; SERGEANT YOHN, Correctional Officer #2 (C.O. #2) C.O.
LOFFERTY, Correctional Officer #1 (C.O. #1) and S. ELLENBERGER, Hearing
Examiner
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1:19-cv-01458)
District Judge: Honorable Martin C. Carlson
____________________________________
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 24, 2022
Before: JORDAN, RESTREPO, and SCIRICA, Circuit Judges
(Opinion filed April 14, 2022)
_________
OPINION*
_________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Vann Lamont Bailey, an inmate at State Correctional Institution – Huntingdon
proceeding pro se and in forma pauperis, appeals from the District Court’s order granting
defendants’ motion to dismiss. For the reasons that follow, we will summarily affirm.
I.
In 2019, Bailey filed a civil rights action in the Court of Common Pleas of
Huntingdon County, Pennsylvania, against defendants, who removed the case to the
District Court for the Middle District of Pennsylvania. In his second amended complaint,
which is the operative pleading, Bailey alleged violations of the First, Eighth, and
Fourteenth Amendments. Specifically, Bailey alleged as follows: in 2018, defendants
searched his property and seized a greeting card he received from his mother, which they
tested for drugs using unreliable testing methods and erroneously found to contain the
drug suboxone. Bailey was issued misconducts for possession of a controlled substance
and possession of contraband. Throughout the disciplinary proceedings, Bailey requested
that the greeting card be retested to disprove the presence of suboxone, but his requests
were denied. As a result, Bailey was confined to disciplinary custody for 45 days and
prohibited from visiting with his mother.1
1 In his second amended complaint, Bailey alleged that he lost visitation rights with his
“elderly sick mother.” See Second Am. Compl., District Ct. ECF No. 49. However, in
his response to defendants’ motion to dismiss, Bailey referenced “visitation rights with
his family.” See Response, District Ct. ECF No. 60; see also DOC Policy, District Ct.
ECF No. 54-1, p 14 (providing for the suspension of visits for specified time periods for
drug possession). Thus, it is not entirely clear whether he challenges the suspension of
visitation with his mother specifically or a more general suspension of visitation. In
either case, as explained below, Bailey’s claims fail.

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Defendants filed a motion to dismiss and the District Court granted it, concluding,
first, that Bailey failed to state a claim for the violation of his First Amendment right to
association because the prison policy restricting visitation served a legitimate penological
interest; second, that Bailey failed to state a claim for the violation of his Eighth
Amendment rights because placement in disciplinary custody was not a dramatic
departure from the accepted standards of confinement conditions; third, that Bailey failed
to state an Equal Protection claim where he failed to allege that any particular defendant
personally treated him differently than other similarly situated inmates and where there
was a rational basis for his treatment; and fourth, that Bailey failed to state a procedural
due process claim because he was afforded the required minimum procedural protections
and the testing methods satisfied the burden of proof required in a prison disciplinary
setting. This appeal follows.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and review the District Court’s
grant of a motion to dismiss under Rule 12(b)(6) de novo. See Newark Cab Ass’n v. City
of Newark, 901 F.3d 146, 151 (3d Cir. 2018). A motion to dismiss under Rule 12(b)(6)
tests the legal sufficiency of the complaint and, to survive such a motion, “a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010)
(citations and quotation marks omitted). As a pro se litigant, Bailey is entitled to liberal
construction of his complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). We may summarily affirm “on any basis supported by the record” if the appeal

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does not present a substantial question. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d
Cir. 2011) (per curiam); 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
III.
First, the District Court properly dismissed Bailey’s First Amendment claim. An
inmate “retains those First Amendment rights that are not inconsistent with his status as a
prisoner or with the legitimate penological objectives of the corrections system.”
Newman v. Beard, 617 F.3d 775, 781 (3d Cir. 2010) (quotation marks and citations
omitted). The “freedom of association is among the rights least compatible with
incarceration,” and “[s]ome curtailment of that freedom must be expected in the prison
context.” Overton v. Bazzetta, 539 U.S. 126, 131 (2003) (quotation marks and citations
omitted). “[W]hen a prison regulation impinges on inmates’ constitutional rights, the
regulation is valid if it is reasonably related to legitimate penological interests.” Turner
v. Safley, 482 U.S. 78, 89 (1987).
Bailey complained that his First Amendment right to freedom of association was
violated when he was prohibited from visiting with his mother. Such a temporary
suspension of visitation with one visitor does not violate “civilized standards of humanity
and decency.” See Renchenski v. Williams, 622 F.3d 315, 338 (3d Cir. 2010) (quotation
marks omitted). Moreover, to the extent that Bailey challenged a more general restriction
on visitation, restricting visitation when he was found in possession of controlled
substances circumstances “serves the legitimate goal of deterring the use of drugs and
alcohol within the prisons” and constitutes “a proper and even necessary management

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technique to induce compliance with the rules of inmate behavior.” Overton, 539 U.S. at
134.
IV.
Next, the District Court properly dismissed Bailey’s Eighth Amendment claim. In
determining whether prison officials have violated the Eighth Amendment, we apply two-
prong test: “(1) the deprivation must be objectively, sufficiently serious; a prison
official’s act or omission must result in the denial of the minimal civilized measure of
life’s necessities; and (2) the prison official must have been deliberately indifferent to
inmate health or safety.” Porter v. Pennsylvania Dep’t of Corr., 974 F.3d 431, 441 (3d
Cir. 2020) (cleaned up). “[P]unitive isolation is not necessarily unconstitutional, but it
may be, depending on the duration of the confinement and the conditions.” Hutto v.
Finney, 437 U.S. 678, 685 (1978) (cleaned up).
Bailey does not allege that he was denied any of life’s necessities during his time
in disciplinary custody. See Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997) (finding
no Eighth Amendment violation where the inmate’s segregation was not accompanied by
the denial of basic human needs, such as food, clothing, shelter, sanitation, medical care,
or personal safety). Nor does he allege that he suffered the infliction of pain or injury, or
a deliberate indifference to the risk that it might occur. Bailey’s 45 days in disciplinary
custody were not a dramatic departure from accepted standards for conditions of
confinement for inmates, and instead were typical of the disciplinary housing that a
prisoner would reasonably anticipate receiving at some point during his incarceration.
See Torres v. Fauver, 292 F.3d 141, 150 (3d Cir. 2002) (explaining that disciplinary

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detention is the sort of confinement that inmates should reasonably anticipate receiving
during incarceration).2
V.
Finally, the District Court properly dismissed Bailey’s Fourteenth Amendment
claims. First, because Bailey has not alleged membership in a protected class, his equal
protection claim must be premised on a “class-of-one” theory, which requires him to
allege, at a minimum, “that he was intentionally treated differently from others similarly
situated by the defendant and that there was no rational basis for such treatment.”
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008).
Bailey complained that he was intentionally treated differently from other inmates
who were charged with controlled substance misconduct because he, unlike the other
inmates, was prohibited from procuring a second drug test to confirm or dispute the
accuracy of the initial test. To support his claim, Bailey presented affidavits from three
inmates who tested positive for marijuana or suboxone via instant urine screen during
May 2021 and who were provided a second urine test to verify the results. However,
Bailey was not similarly situated with these other inmates: his misconduct occurred about
three years before the other inmates’ and involved the possession of a greeting card he
received in the mail that tested positive for suboxone via a Nark II reagent test, while the
2 To the extent that Bailey alleged an Eighth Amendment violation related to the
restriction of his visitation privileges, “[w]ithdrawing visitation privileges for a limited
period in order to effect prison discipline is not a dramatic departure from accepted
standards for confinement conditions.” Overton, 539 U.S. at 127.

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other inmates’ misconduct involved the use of marijuana or suboxone as identified via a
urine screen. Therefore, the District Court properly dismissed this claim.
Bailey also alleged that his due process rights were violated during the disciplinary
proceedings because the decision-making body was not impartial and because he was
unable to present evidence, including a retest of the greeting card and statements from
other inmates who were exonerated after receiving a second drug test.
“To maintain a procedural due process claim, [a plaintiff] must show that: (1)
Defendants deprived him of an individual liberty interest that is encompassed within the
Fourteenth Amendment’s protection, and (2) the procedures Defendants made available
to him did not provide due process of law.” Steele v. Cicchi, 855 F.3d 494, 507 (3d Cir.
2017).
A prisoner may be deprived of a liberty interest in
violation of the Constitution in two ways: (1) when severe
changes in conditions of confinement amount to a grievous loss
that should not be imposed without the opportunity for notice
and an adequate hearing; and (2) when state statutes and
regulations create a liberty interest in freedom from restraint
that imposes an atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life, thereby
triggering due process protection.
Williams, 622 F.3d at 325 (quotation marks and citation omitted). “[I]nmates are
generally not entitled to procedural due process in prison disciplinary hearings because
the sanctions resulting from those hearings do not usually affect a protected liberty
interest.” Burns v. Pennyslvania Dep’t of Corr., 642 F.3d 163, 171 (3d Cir. 2011).
Here, Bailey’s punishment consisted of a 45-day period in disciplinary custody
and the suspension of visitation with his mother. These sanctions were insufficient to

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trigger due process protections. See Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir.
2002) (finding that “confinement in administrative or punitive segregation will rarely be
sufficient, without more, to establish the kind of ‘atypical’ deprivation of prison life
necessary to implicate a liberty interest”); Kentucky Dep’t of Corr. v. Thompson, 490
U.S. 454, 461 (1989) (concluding that the denial of access to a particular visitor is within
the terms of confinement ordinarily contemplated by a prison sentence and thus is not
independently protected by the Due Process Clause) (quotation marks and citations
omitted). Because Bailey was not deprived of a liberty interest encompassed within the
Fourteenth Amendment’s protection, the District Court properly dismissed the claim.
VI.
Accordingly, we will affirm the judgment of the District Court. See 3d Cir. LAR
27.4; I.O.P. 10.6.

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