by Christopher Zoukis

The United States Court of Appeals for the Third Circuit has denied a parolable prisoner's due process claim, but upheld his claim of retaliation by a prison guard.

The prisoner, Phillip Lee Fantone, was confined to the State Correctional Institution-Pittsburgh (SCI-Pittsburgh). He was granted parole in March 2012, but charged with a disciplinary infraction for "cupping" methadone prior to his release on parole. After a hearing, Fantone was placed in the restrictive housing unit (RHU) for 35 days. As a result of this infraction, the parole board rescinded Fantone's release on parole.

Fantone alleged that prison guard Joe Burger threatened to "bury [Fantone] in this hole and you'll never see population here and then I'll have you shipped so far away you'll never get a visit." Ultimately, Fantone alleged that Burger made good on his threats, and that he remained in the RHU until he was shipped to another institution. Fantone filed a grievance against Burger for retaliation. The disciplinary infractions against Fantone were ultimately overturned in the administrative appeals process.

Fantone filed a federal lawsuit, alleging that his detention in the RHU and ultimate loss of parole resulted from unlawful actions, and thus violated his right to due process of law. Essentially, Fantone alleged that "he went from the verge of release to being denied parole and being confined in the RHU," and that this interfered with his liberty interest because the rescission of his parole lengthened his sentence.

The Third Circuit did not buy this argument. The court noted that "where state law provides parole authorities with complete discretion to rescind a grant of parole before an inmate's release, the inmate does not have a constitutionally protected liberty interest in being paroled before his actual release."

Even in a situation where subsequently overturned misconduct allegations probably caused the rescission of parole, the court found no liberty interest that could be violated because the parole board had total discretion. The court's decision is a good example of just how difficult it is for a prisoner to establish an unconstitutional deprivation of a liberty interest.

"Fantone's circumstances do not present hardship that is atypical and significant when compared to the ordinary incidents of prison life, so it cannot be said that defendant's actions infringed his liberty interests," noted the court.

The court stated that it did not overlook the fact that Fantone was ultimately cleared of the charges which led to the rescission of his parole. Given this statement, it is clear that in the Third Circuit, it is not atypical or significant for a prisoner to suffer a longer incarceration based on unfounded disciplinary charges. Because that is exactly what happened to Fantone.

"Fantone did not have a liberty interest that defendants could have infringed because the misconduct determinations, his time in the RHU, and the rescission of his parole did not, either alone or in combination, create atypical and significant hardship in relation to the ordinary incidents of prison life," said the court.

The court did leave intact Fantone's claim of retaliation against Burger. The court found that Fantone was exercising constitutionally protected free speech rights when he wrote his grievance against Burger. The court also found that Fantone's refusal to write a confession when threatened with retaliatory action was a proper exercise of his Fifth Amendment right to not incriminate himself.

Fantone was represented by Tarah E. Ackerman, Thomas S. Jones and Peter D. Laun of Jones Day, Pittsburgh.

See: Fantone v. Latini, 780 F.3d 184 (3d Cir. 2015).

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