United States District Court, W.D. Pennsylvania
August 24, 2005.
DAVID BROWN, Plaintiff,
PHILIP L. JOHNSON, et al., Defendants.
The opinion of the court was delivered by: THOMAS HARDIMAN, District Judge
Plaintiff David Brown (Brown), an inmate formerly incarcerated
at the State Correctional Institution at Greene (SCI-Greene),
filed this action pursuant to 42 U.S.C. § 1983. Defendants are
nine current and former employees of the Pennsylvania Department
of Corrections (DOC) at SCI-Greene. Brown alleged initially that
Defendants violated his rights under the First, Eighth, and
Fourteenth Amendments to the United States Constitution when they
confiscated items in his cell and transferred him to the
Restricted Housing Unit (RHU) because of his alleged membership
in a security threat group known as the United Nation of
Islam-KAM (UNOI-KAM). The Defendants have twice moved for summary
judgment, and the Court has dismissed the great majority of
Brown's constitutional claims. Now pending is Defendants' third
motion for summary judgment, in which they seek dismissal of
Brown's sole remaining claim, namely that Defendants retaliated
against him for exercising his First Amendment right to practice
his religion and to seek redress of grievances. I. Procedural History
Plaintiff commenced this action in July 1999, and Defendants
first moved for summary judgment in November 2000. On May 2,
2001, Magistrate Judge Ila Jeanne Sensenich filed a Report and
Recommendation (R&R) dismissing Brown's due process claim
concerning the confiscation of items in his cell and the DOC
grievance system, including his claims against Defendant Beerman
(now D'Eletto), and his Eighth Amendment claim concerning
conditions of his confinement. It was also recommended that
Defendant Harouse be dismissed from the case. The R&R denied
summary judgment on Brown's First Amendment claims and his due
process claim concerning his continued confinement in the RHU.
This Court adopted the R&R on July 6, 2001.*fn1
In February 2003, the Defendants sought and received leave to
file a second motion for summary judgment, based on new evidence
from Brown's deposition and the announcement of a new rule of law
relating to the doctrine of qualified immunity. In a July 1, 2003
Memorandum Opinion and Order, the Court granted Defendants'
motion with regard to Brown's First Amendment free exercise and
access to courts claims and his remaining due process claims, but
denied the motion with regard to his First Amendment retaliation
In April 2004, this Court appointed attorney Mark Rush to
represent Brown at trial. While preparing for trial, however,
attorney Rush and his colleagues were provided with confidential
documents that precluded them from simultaneously representing
Mr. Brown and discharging their ethical duties under the
Pennsylvania Rules of Professional Conduct. Counsel filed a motion to withdraw, which was granted, and Defendants
again sought leave to file a motion for summary judgment based
upon the new documents. Because the internal prison reports
relied upon a confidential informant, however, the Defendants
refused to produce the documents to Brown and instead requested
this Court to decide the motion based upon an in camera review.
The Court conducted an in camera review, but rejected
Defendants' request that the Court consider the classified
documents in ruling on the motion. Nevertheless, the Court
permitted Defendants to file a motion for summary judgment based
upon newly discovered non-classified documents. Defendants filed
their third motion for summary judgment on January 10, 2005, and
Brown responded on April 7, 2005, and that motion is now ripe for
II. Standard of Review
As the Defendants have acknowledged, a court generally will not
re-examine issues that have been decided previously. However, a
court may reconsider a prior holding in some limited
circumstances. "Commonly recognized exceptions permit
reconsideration of an issue previously resolved in the same case
if: (1) the right to move for reconsideration would be
effectively denied; (2) new evidence is available; (3) a
supervening new rule of law is announced; or (4) the decision was
clearly erroneous and would work a manifest injustice." Bridge
v. United States Parole Commission, 981 F.2d 97, 103 (3d Cir.
Rule 56 requires the entry of summary judgment against a party
on an issue or a claim when "the pleadings, depositions, answers
to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986);
Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001).
"Summary judgment procedure is properly regarded not as a
disfavorable procedural shortcut, but rather as an integral part
of the Federal Rules as a whole, which are designed to secure the
just, speedy and inexpensive determination of every action."
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal
quotation marks omitted).
In resolving a motion for summary judgment, courts should not
weigh conflicting evidence or make factual findings but, rather,
should "consider all evidence in the light most favorable to the
non-moving party" to determine whether "the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party." Schnall v. Amboy Nat'l Bank, 279 F.3d 205, 209 (3d Cir.
2002). The parties have a duty to present evidence; neither
statements of counsel in briefs or at oral argument nor
speculative or conclusory allegations satisfy this duty.
Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238, 252 (3d
Cir. 1999). Summary judgment is appropriate when a party "fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex,
477 U.S. at 322-23.
A. First Amendment Retaliation
A First Amendment retaliation claim requires a plaintiff to
prove that: 1) he was engaged in constitutionally protected
conduct; 2) he suffered adverse action at the hands of prison
officials; and 3) a causal connection exists such that the
protected activity was a substantial or motivating factor for the
decision to discipline. Rauser v. Horn, 241 F.3d 330, 333 (3d
Cir. 2001). Only if the plaintiff proves his prima facie case does
the burden shift to defendant to show that the same decision
would have been made for legitimate penological reasons absent
the protected conduct. Carter v. McGrady, 292 F.3d 152, 158 (3d
Here, Defendants assert that Brown has failed to show a causal
connection between his protected activity and the decision to
discipline him. They also assert that their actions were
reasonably related to a legitimate penological interest because
Brown was a member of UNOI-KAM, which has been identified as a
security threat group. The Magistrate's R&R adopted by this Court
found that the causation element could be plausibly inferred by
the temporal proximity of Brown's protected conduct and
Defendants' alleged retaliation, as well as the statements
allegedly made by the Defendants. (R&R 19-22). The Magistrate's
R&R also rejected Defendants' argument regarding a legitimate
penological interest, holding that there was a genuine issue of
material fact as to whether Brown was in fact a member of
UNOI-KAM. (R&R 19-25). The Magistrate's R&R pointed out that
Brown denied membership in UNOI-KAM, that Defendant Kingston's
"investigation" of Brown's activities consisted primarily of
reviewing past reports, and that some of the Defendants,
including Kingston, had been reprimanded in the past for placing
false information in prisoners' files. (R&R 24-25).
Defendants have submitted no new evidence to question the R&R's
factual conclusions, and no cases to suggest that its legal
conclusions were clearly erroneous or contrary to new law. Brown
rightly points out that Defendant Kingston's October 3, 1998
security report (Attachment AA) and Lieutenant Fisher's November
3, 1999 security report (Attachment BB) were included in
Defendants' prior summary judgment motions. Lieutenant David
Grainey's April 25, 1999 security review (Attachment CC) was not
included in prior motions, but there is no indication that this review was any more thorough or reliable than previous
security reviews, and it does not prove unequivocally that Brown
was in fact a member of UNOI-KAM. Nor do notices of parole
denials from the Pennsylvania parole board demonstrate that Brown
was a member of UNOI-KAM. (See Attachments DD and EE). Finally,
Defendants' argument that temporal proximity alone is
insufficient to demonstrate a causal connection, see Allah v.
Al-Hafeez, 208 F.Supp.2d 520, 525 (E.D. Pa. 2002), ignores the
fact that the Magistrate's R&R also relied upon statements
allegedly made by the Defendants around the time of Brown's
placement in the RHU. (R&R 20-22). Accordingly, Defendants'
motion for summary judgment on Brown's First Amendment
retaliation claim will be denied.
B. Qualified Immunity
The Defendants have also sought dismissal of Brown's claim on
the basis of qualified immunity. However, the Defendants have
provided no new evidence or precedent to suggest that the Court's
original rejection of their qualified immunity argument was
clearly erroneous. In fact, Defendants' qualified immunity
argument in support of this motion is nearly identical to that
proferred in support of their second summary judgment motion.
Therefore, Defendants' qualified immunity argument must again be
C. Personal Involvement
Finally, all Defendants except Muccino seek dismissal under
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988),
because they were not personally involved in the alleged
misconduct. The R&R rejected this argument as to Defendants
Muccino and Johnson (R&R, 25-26, 37-40), yet proceeded to dismiss
Defendant Harouse for lack of personal involvement, even though
the Defendants apparently had not raised the argument as to him.
(R&R 40-42). Defendants have provided no argument to suggest that the R&R's
failure to dismiss other Defendants for lack of personal
involvement was clearly erroneous or contrary to the evidence.
Furthermore, Brown has pointed to sufficient record evidence to
create a material issue of fact as to the personal involvement of
the remaining Defendants. Therefore, Defendants' reliance upon
Dellarciprete is unavailing.
The newly discovered evidence provided by Defendants, exclusive
of that submitted for in camera review, is largely duplicative
of evidence already in the record, and falls well short of
conclusively establishing that Brown was a member of UNOI-KAM.
Furthermore, Defendants' arguments regarding qualified immunity
and lack of personal involvement have been thoroughly considered
by this Court, and nothing presented in their most recent motion
for summary judgment suggests that the Court's rejection of these
arguments was clearly erroneous. Accordingly, Defendants' motion
for summary judgment will be denied.
An appropriate order follows. ORDER
AND NOW, this 24th day of August, 2005 upon due
consideration of Defendant Motion for Summary Judgment (Doc. No.
IT IS HEREBY ORDERED, ADJUDGED and DECREED that said motion is
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