Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-28-2008
Alexander v. Forr
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4467
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Alexander v. Forr" (2008). 2008 Decisions. Paper 616.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/616
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4467
RAYMOND ALEXANDER,
Appellant
v.
JIM FORR; PHD JEFFREY BEARD; THOMAS JAMES; SHARON BURKS;
TSHANNA KYLER; DONALD WILLIAMSON; ROBERT BITNER;
ROBERT SHANNON; J. KERESTES; J.D. SHUTT; DAVID SEARFOSS;
KEVIN KANE; PETE DAMITER; RUSSELL SCHEUREN; CINDY WALASAVAGE;
DAVID POPEK; E. POGIRSKI; F. PATRICK DAVISON; C.O. MILLER;
CAPT. DURANT; CAPT MIZENKO; LT. POPSON; OFFICER O'DAY;
C.O. HARNER; C.O. KINTZEL; C.O. KIEFABOR; #1 JOHN DOE; #2 JOHN DOE;
#3 JOHN DOE; JOHN DOE 4; JOHN DOE #5; JOHN DOE #6;
WILLIAM WOLFE; RON BRYANT; CAROLYN CHEEK; DAN HENRY
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 04-cv-00370
(Honorable Thomas I. Vanaskie)
Submitted Under Third Circuit LAR 34.1(a)
August 2, 2007
Before: SCIRICA, Chief Judge, FUENTES and SMITH, Circuit Judges.
(Filed: August 28, 2008)
OPINION OF THE COURT
PER CURIAM.
Raymond Alexander, a prisoner at Mercer State Regional Correctional Facility,
appeals from the District Court’s order granting Defendants’ motion for summary
judgment. For the reasons that follow, we will affirm.
I
In 2004 Alexander filed a § 1983 complaint against Jim Forr, the former grievance
coordinator at SCI-Frackville, alleging that Forr had filed false misconduct charges in
retaliation against Alexander for filing grievances.1 Alexander later amended his
complaint to add retaliation claims against 35 other officials and employees of prisons in
which he has been housed, including six John Doe correction officers. He claims that in
addition to filing false misconduct charges the defendants have, inter alia, confiscated his
mail, transferred him to an inferior prison, placed him in administrative segregation, and
denied his grievances.
The defendants eventually moved for summary judgment. The Magistrate Judge
recommended dismissing the complaint against three of the defendants based on
Alexander’s failure to exhaust one of his claims; dismissing the complaint as to six named
defendants and all unnamed defendants based on their lack of personal involvement;
granting the motion or dismissing the action with regard to Alexander’s retaliation claims
based on his failure to show causation; granting the motion with regard to Alexander’s
1
Because the relevant facts of this case are set forth in the Magistrate Judge’s detailed
Report and Recommendation, we provide only a brief statement of the procedural and
factual background.
2
due process claim pursuant to Sandin v. Connor, 515 U.S. 472 (1995); and dismissing the
action against those defendants whom Alexander failed to serve. The District Court
overruled Alexander’s objections and rejected all of his claims on the merits (it thus had
no need to address exhaustion and service of process). The court adopted the Report and
Recommendation, granted the defendants’ motion for summary judgment, and dismissed
the action with regard to the John Doe defendants. This appeal followed.
II
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary
review of a District Court’s order granting summary judgment. See S&H Hardware &
Supply Co. v. Yellow Transp. Inc., 432 F.3d 550, 554 (3d Cir. 2005). Summary
judgment is appropriate when the record shows that there is no need of a trial because
“there is no genuine issue of material fact and []the moving party is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(c). As the Supreme Court has explained, “the
plain language of Rule 56(c) mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who 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 Corp. v. Catrett, 477 U.S.
317, 322 (1986). “[A]n adverse party may not rest upon the mere allegations or denials
of his pleading, but his response, by affidavits or as otherwise provided in this rule, must
set forth specific facts showing that there is a genuine issue for trial. If he does not so
respond, summary judgment, if appropriate, shall be entered against him.” Rule 56(e).
3
III
To state a claim under § 1983, Alexander must show that the defendants, acting
under color of state law, deprived him of a right secured by the Constitution or laws of the
United States. Moreover, “[a] defendant in a civil rights action must have personal
involvement in the alleged wrongs; liability cannot be predicated solely on the operation
of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). As
the Magistrate Judge explained, Alexander has provided no basis for concluding that
defendants Beard, James, Burks, Kyler, Bitner, Henry or the unidentified defendants were
personally involved in the alleged incidents. For example, the only support Alexander
provides for his retaliation claim against defendant Henry is an affidavit from
Alexander’s brother, William Hossbach, who states that he used to send hockey cards to
Alexander. Prior to October, 2002, the letters containing the cards were sometimes
confiscated, but Alexander would receive the cards if he made a written request to Henry.
After October 2002 the letters were returned to Hossbach undelivered. However, nothing
in the affidavit supports the conclusion that Henry was personally involved in the
confiscation or return of the letters. Alexander admits as much in his objections, where
he states that “[t]he causal link between Henry and the acts sworn to in the affidavit is
that he was the mailroom supervisor and was responsible for the acts.” Objections at 4.
But this is simply an assertion of respondeat superior and, thus, insufficient. Rode, supra.
IV
4
Henry’s example also demonstrates another dispositive flaw with Alexander’s
case: even if he had shown personal involvement on the part of all defendants, as the
District Court properly concluded he has not met all the elements required for a
successful retaliation claim. As we have explained, “government actions, which standing
alone do not violate the Constitution, may nonetheless be constitutional torts if motivated
in substantial part by a desire to punish an individual for the exercise of a constitutional
right.” Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000). To prevail on a
retaliation claim a prisoner must show all of the following: (1) that his conduct against
which the defendants allegedly retaliated was constitutionally protected; (2) that he
suffered some “adverse action” which would be sufficient to deter a person of ordinary
firmness from exercising his constitutional rights; and (3) that his exercise of a
constitutional right caused the defendants to take the adverse action against him. Rauser
v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). The third step involves a shifting burden of
proof: if the prisoner shows that his protected conduct was a substantial or motivating
factor in the retaliation, the defendants can avoid liability by showing by a preponderance
of the evidence that they would have taken the same action even without the protected
activity for reasons reasonably related to a legitimate penological interest. Id. at 333-334.
We will assume arguendo that Alexander satisfies the first two prongs of the
analysis. As the District Court explained, however, Alexander’s allegations of causation
typically amount to no more than unsupported assertions; indeed, he often appears to rely
on his unwarranted belief that causation is self-evident, at least where the defendants have
5
acknowledged that their actions had adverse consequences for him.2 At any rate,
Alexander has provided no evidence that the defendants denied his grievances or appeals
in retaliation rather than because they believed that the grievances had no merit.
Moreover, not only has Alexander failed to support his assertion that his transfer to S.C.I.
Frackville was retaliatory, but the defendants have provided plausible and independent
reasons for transferring him: it is undisputed that Alexander had requested a transfer from
his former prison and that S.C.I. Frackville is over 200 miles closer to his home. Much
the same analysis applies to his placement in administrative segregation: Alexander
reported that he had been threatened by another inmate and he was returned to general
population when the threat ended.
2
Alexander’s reliance on documentary support is typically of no avail. For example,
to support his allegations that defendant Pogirski retaliated by improperly withholding
mail, denying an outside purchase request, and diverting or destroying his grievances,
Alexander cites merely his own prison grievances containing the same allegations. (See
Declaration in Opposition to Summary Judgment at ¶ 7.) It goes without saying that
prison grievances are not evidence of the allegations they contain.
6
V
Finally, to the extent that Alexander’s claim against defendant Kane amounts to a
due process claim as well as a retaliation claim, it is barred by Sandin, supra, because
Alexander has not shown that the discipline involved imposed an “atypical and significant
hardship.” See Sandin, supra; Griffin v. Vaughan, 112 F.3d 703, 706 (3d Cir. 1997).
We have considered Alexander’s remaining arguments and conclude that they are
meritless. Accordingly, we affirm the judgment of the District Court.3
3
Alexander has filed a motion for sanctions against the Appellees in this Court
arguing that many of them perjured themselves in their affidavits in support of summary
judgment. We deny the motion.
7