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WILSON v. SHANNON

November 14, 1997

RICHARD WILSON, Plaintiff,
v.
ROBERT SHANNON, et al., Defendants.



The opinion of the court was delivered by: KATZ

 AND NOW, this 14th day of November, 1997, upon consideration of defendants' Motion for Summary Judgment, and the response thereto, it is hereby ORDERED that defendants' motion is GRANTED.

 I. Factual Background

 Plaintiff Richard Wilson is a prisoner at SCI-Frackville. On April 26, 1997, Wilson was moved from the lower tier on "seven block" to the upper tier. Def. Mot. Ex. 1, at 5. After being moved, Wilson requested to see one of the defendants, Captain Burke, because he wanted to retrieve his legal materials from his cell. Id. at 6-7. Captain Burke then proceeded to identify the envelope to several correctional officers, and these defendant officers then went to Wilson's old cell and began reading his legal materials. Id. at 8, 11; P1. Resp. Exs. 2, 3. Wilson made another request to receive his legal materials from another Frackville official, Major Kerestes. Def. Mot. Ex. 1, at 8. Wilson eventually received his legal materials on May 21, 1997.

 At some time prior to receiving his materials, Wilson was scheduled to go to the mini law library in the restricted housing unit (RHU), and he refused to be strip searched prior to entry; the strip search is standard procedure at the mini-library. Id. at 15. Wilson did not enter the library on that day. Id. On another day, Wilson also wanted two copies made in the prison library, but he had no money in his account, and defendant Domalkes, the librarian, refused to make the copies for him because he did not have the money in the account. Id.

 On May 25, 1997, Cooney, O'Donnell, and Clemson entered Wilson's cell for a security search and ordered him to strip, and Wilson complied. Id. at 21. At no time during the search did Cooney, Clemson or O'Donnell physically place their hands on Wilson, although they mocked Wilson and left him alone in a shower, handcuffed, for twenty minutes. Id. at 21-22. On July 14, 1997, Wilson received a misconduct from Heidlebaugh for using obscene language with an employee and refusing to obey an order. Def. Mot. Ex. 2. As a result of this misconduct, Wilson was placed on exercise restriction by Captain Lorady as of July 15, 1997. Id. On July 23, 1997, Wilson was removed from exercise restrictions by Captain Boyle. Id.1; Pl. Resp. Ex. 7.

 II. Discussion

 A. Right of Access to the Courts

 Wilson claims that the defendants have interfered with his right of access to the courts by keeping his legal materials from him for almost a month, by not making copies for him at the law library when he had insufficient funds in his account, and by subjecting him to strip searches prior to entry to the law library. Def. Mot. Ex. 1 at 6-21. While prisoners do have a constitutional right of access to the courts, in order to establish a violation of that right, Wilson must demonstrate some actual injury, such as the loss or rejection of a legal claim. See Lewis v. Casey, 518 U.S. 343, 135 L. Ed. 2d 606, 116 S. Ct. 2174, 2179 (1996). Wilson has alleged such injury, but he has made no such showing of actual injury other than through his stated allegations. See. e.g., Def. Mot. Ex. 1, at 30. Accordingly, summary judgment is appropriate on these particular claims.

 B. Retaliation

 Wilson alleges that he has been strip searched, placed on disciplinary status, and harassed as a result of his actions as a jailhouse lawyer on his own behalf and on behalf of other inmates and for filing grievances. Def. Mot. Ex. 1, 17-19, 35-36; Pl. Resp. Exs. 8B, 9. It is well-settled that prison officials cannot take retaliatory action against a prisoner who has exercised his First Amendment rights. Cf. Brooks v. Andolina, 826 F.2d 1266, 1268-69 (3d Cir. 1987) (disciplinary action for letter writing to outsiders); Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir. 1981) (disciplinary action for instituting lawsuit); Hill v. Blum, 916 F. Supp. 470, 473 (E.D. Pa. 1996) (loss of employment for filing administrative grievance); Quinn v. Cunningham, 879 F. Supp. 25, 27-28 (E.D. Pa. 1995), aff'd, 85 F.3d 612 (3d Cir. 1996) (denial of extra work hours for filing grievance). Wilson has complained of verbal abuse and harassment, however, and these particular actions, while not laudatory behavior, do not rise to the level of a constitutional violation. See Murray v. Woodburn, 809 F. Supp. 383, 384 (E.D. Pa. 1992).

 C. Strip Searches

 Wilson also alleges that he was subjected to repeated strip searches, both at the law library and as a result of a security check of his cell. Def. Mot. Ex. A. He claims that the strip searches caused him emotional distress and headaches, as well as mental anguish. Id. An inmate has some constitutional protection under the Fourth Amendment against unreasonable searches, but an inmate's rights are limited by the need to maintain prison security, and by the inmate's own reduced expectation of privacy. See Bell v. Wolfish, 441 U.S. 520, 558-60, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). A strip search or a visual bodily cavity search must be conducted in a reasonable manner. Id. at 560. The record does not indicate that the searches themselves were done in an unreasonable matter, even though Wilson alleges the searches to be unnecessary.

 If Wilson's claim is read as an excessive force claim, he has not met his burden under Hudson v. McMillian, 503 U.S. 1, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992). In order for a prisoner to state an Eighth Amendment claim for the excessive use of force by a prison official, he must establish that the force was not applied in a good-faith effort to maintain or restore discipline, but that it was maliciously and sadistically used to cause harm. See Hudson v. McMillian, 503 U.S. 1, 7, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992). Under Hudson, the absence of a serious injury to the inmate is relevant to this court's inquiry, but does not end it. Id. However, the Eighth Amendment's prohibition excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not "repugnant to the conscience of mankind." Id. at 10. *fn2" Wilson has not met his burden under ...


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