569 F. App'x 93

Daryl THOMAS, Appellant v. Robert BUECHELE, Assistant Superintendant, New Jersey Department of Corrections; S.G.T.F.N.U. Hicks, New Jersey Department of Corrections; S.G.T.C. Longo, New Jersey Department of Corrections; Hope Hall, operated as a Correctional Services Facility (“Halfway House”) In Camden, New Jersey; Yolanda Searles, an agent servant or employee of Hope Hall; Gladys Krascinski, an agent, *94servant or employee of Hope Hall; Volunteers of America Delaware Valley, Inc., operator of Hope Hall, Camden, New Jersey; John Oszvart.

No. 13-2169.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) March 6, 2014.

Opinion Filed: June 19, 2014.

Lawrence W. Lindsay, Esq., Justin T. Loughry, Esq., Loughry & Lindsay, Camden, NJ, for Appellant.

Daniela Ivancikova, Esq., Andrew J. Sarrol, Esq., Office of Attorney General of New Jersey, Trenton, NJ, Amelia M. Lolli, Esq., Michael S. Mikulski, II, Esq., Con-nor, Weber & Oberlies, Moorestown, NJ, for Robert Buechele, Assistant Superintendant, New Jersey Department of Corrections; S.G.T.F.N.U. Hicks, New Jersey Department of Corrections; S.G.T.C. Lon-go, New Jersey Department of Corrections; Hope Hall, operated as a Correctional Services Facility (“Halfway House”) In Camden, New Jersey; Yolanda Searles, an agent servant or employee of Hope Hall; Gladys Krascinski, an agent, servant or employee of Hope Hall; Volunteers of America Delaware Valley, Inc., operator of Hope Hall, Camden, New Jersey; John Oszvart.

Before: AMBRO, JORDAN, and ROTH, Circuit Judges.

OPINION

AMBRO, Circuit Judge.

Plaintiff Daryl Thomas was formerly an inmate in the custody of the New Jersey Department of Corrections. After he was terminated by his employer for purported violations of workplace rules, a disciplinary action (specifically, a “.257 charge”) was brought against him. As a result, he was removed from the halfway house where he was serving his sentence and returned to prison. He subsequently brought this action under 42 U.S.C. § 1983, alleging a variety of constitutional violations. The District Court granted summary judgment for the defendants and Thomas timely appealed. Because he has not alleged the violation of a protected liberty interest, we affirm.

The District Court exercised jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1343. We have jurisdiction under 28 U.S.C. § 1291. “Our review of the district court’s summary judgment order is plenary, and we apply the same test as the district court. Summary judgment is. appropriate when the moving party is entitled to judgment as a matter of law and there is no genuine dispute of material fact.” Hampton v. Borough of Tinton Falls Police Dep’t, 98 F.3d 107, 111-12 (3d Cir.1996) (internal citations omitted).

On appeal, Thomas argues that his return to full custody on the basis of the .257 charge was improper because he had not violated any rule of the halfway house, nor had any official alleged a specific rule he had broken.1 This improper removal, he argues, violated his constitutional right to due process.

*95Regardless of the procedure accorded Thomas, he cannot raise a genuine question of material fact as to a due process violation because he had no protected liberty interest in remaining in the halfway house rather than returning to full custody. In Asquith v. Department of Corrections, 186 F.3d 407 (3d Cir.1999), we held that the conditions of residing in a New Jersey halfway house “amount to institutional confinement.” Id. at 411. Because “[t] he Supreme Court has consistently held that while a prisoner remains in institutional confinement, the Due Process Clause does not protect his interest in remaining' in a particular facility[,]” we concluded that “removal from the halfway house did not trigger the protections of the Due Process Clause.” Id. For similar reasons, being moved from a halfway house to prison is not a deprivation of a state-created liberty interest under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Asquith, 186 F.3d at 412. Despite Thomas’s attempt to distinguish it, Asquith is squarely on point: a person serving a valid sentence has no protected liberty interest in being in a halfway house rather than prison. Therefore, regardless of procedures that were or were not followed, Thomas cannot state a due process claim based on being returned to full custody.

His arguments concerning the purported effect of the disciplinary charge on his subsequent parole hearing are unpersuasive for similar reasons. Thomas argues that, as a result of the purportedly erroneous .257 charge and his return to prison, he received parole later, and was subject to confinement in restrictive custodial programs longer, than would have occurred otherwise. Just as under Asquith there is no right to serve one’s sentence in a halfway house rather than prison, “[tjhere is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). While a person who has already been granted parole has a constitutional right to due process protection before that parole is revoked, see Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), at the time of the alleged deprivation here Thomas had not yet been granted parole.2 In any event, as the District Court rightly noted, he “was granted parole, and he was released from parole supervision two months earlier than his maximum release date.” Op. at 12. That his eventual parole came later than it might otherwise have does not create a constitutional violation.3

Taking his arguments together, Thomas has not alleged the deprivation of a protected liberty interest. Without such a deprivation, there can be no valid claim for violation of his due process rights. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (“The requirements of procedural due process apply only to the *96deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.”). Thus the District Court did not err in granting summary judgment for the defendants.4 We affirm.

Thomas v. Buechele
569 F. App'x 93

Case Details

Name
Thomas v. Buechele
Decision Date
Jun 19, 2014
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569 F. App'x 93

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United States

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