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Nunez v. Renda

September 3, 2008

GERSON NUNEZ, PLAINTIFF
v.
MARC RENDA, DEFENDANT



The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge

(JUDGE VANASKIE)

MEMORANDUM

I. Introduction

Former federal inmate Gerson Nunez's*fn1 sole remaining claims in this Bivens action*fn2 concern interference with legal mail and retaliation. The sole remaining defendant is Marc Renda. At all times relevant to this action Nunez was housed at the Canaan Federal Prison Camp ("FPC-Canaan"), in Waymart, Pennsylvania. Nunez claims Renda sanctioned the opening of his legal mail outside his presence and removed him from his a prison law clerk job in retaliation for his filing of an institutional grievance about the legal mail matter.

Presently pending before the Court is Renda's motion for summary judgment. (Dkt. Entry 172.) For the reasons that follow, Renda's motion will be granted insofar as Nunez seeks to recover damages from him in his official capacity, and granted as to Nunez's claim concerning opening of legal mail, but denied with respect to the retaliation claim.

II. Procedural History

On August 30, 2005, Nunez filed a "Motion for Preliminary Injunction Relief" (Dkt. Entry 1), alleging that he was removed from his law library job in retaliation for his use of the prison's grievance system to challenge the institution's practice of photographing inmate visitors and the opening of his legal mail outside his presence. (Id.) Nunez acknowledged in this document that he had not yet exhausted administrative remedies relevant to the claims raised at the time of filing. (Id.) Given Nunez's pro se status, the Court construed the submission as a Complaint and directed service on the named Defendants. (See Dkt. Entry 11.) Plaintiff then sought allowance to file an Amended Complaint, citing that "Plaintiff filed a motion for injunctive relief while pending resolution of administrative remedies to avoid retaliation or intimidation by Defendants while remedies were pending. Administrative remedies are exhausted and to avoid dismissal of Plaintiff's complaint for failure to exhaust remedies this court should grant this motion to amend." (Dkt. Entry 18.) The Court granted Nunez's motion pursuant to Federal Rules of Civil Procedure 15(a). (Dkt. Entry 20.) Nunez's Amended Complaint was filed on February 14, 2006, raising the identical claims presented in his "Motion for Preliminary Injunction," but adding additional parties. (Dkt. Entry 30.) Pursuant to the authority conferred by 28 U.S.C. § 1915(e)(2)(B)(ii), the Court dismissed the Bureau of Prisons ("BOP") and FPC-Canaan as defendants, and directed service on the following defendants: Broton, Dodrill, Mecca, Nicklin, Renda, Roberts and Watts. (Dkt. Entry 41.)

On June 8, 2006, in lieu of an Answer, defendants filed a motion for summary judgment based on Nunez's alleged failure to exhaust his available administrative remedies. (Dkt. Entry 63.) On November 8, 2006, the Court granted in part, and denied in part, defendants' motion. (Dkt. Entry 105.) Following the resolution of the summary judgment motion, the following claims remained: (1) Nunez's alleged retaliatory discharge from his prison job; and (2) the alleged improper opening of his legal mail outside his presence. (Id.)

On February 13, 2008, Defendants Watts, Dodrill, Lindsay, Roberts, Nicklin, Broton and Mecca filed a Motion to Dismiss seeking the dismissal of Nunez's claim that his legal mail was improperly opened outside his presence. (Dkt. Entry 162.) On August 11, 2008, the Court granted defendants' motion due to Nunez's failure to properly exhaust administrative remedies prior to filing his amended complaint. (See Dkt. Entry 188.)

On March 10, 2008, Defendant Renda moved for summary judgment. (Dkt. Entry 172.) A supporting brief, exhibits, and statement of undisputed facts were also filed. Renda claims entitlement to summary judgment on the following grounds: (1) he had no personal involvement in Nunez's claim regarding the alleged improper opening of his legal mail; (2) sovereign immunity; and (3) Nunez's failure to establish a prima facie claim of retaliation. Nunez then filed an opposition brief and counter statement of material facts. Defendant filed a reply brief on May 14, 2008. Without seeking permission of the Court, Nunez filed a sur reply brief on June 9, 2008. The matter is ripe for decision.

III. Factual Background

At all time relevant to the Amended Complaint, Defendant Marc Renda served as a Case Manager at FPC-Canaan. (Dkt. Entry 178, Defendant's Statement of Material Facts ("DSMF") at ¶ 2.) Renda's duties included responding to "Inmate Request to Staff Member" forms, and, in the absence of the Corrections Counselor, making inmate work assignments.

Id. at ¶¶ 5-6.)

Nunez arrived at FPC-Canaan on July 20, 2005, and shortly thereafter was assigned to work in the institution's Education Department, which includes a satellite law library. (Id. at ¶¶ 9, 12-13.) On August 16, 2005, Nunez submitted an Inmate Request to Staff form complaining that his legal mail was opened outside his presence. (DSMF at ¶ 16.) On November 26, 2005, Nunez filed an Attempt at ...


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