Solan v. Ranck , 326 F. App'x 97 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-8-2009
Solan v. Ranck
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4571
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Recommended Citation
"Solan v. Ranck" (2009). 2009 Decisions. Paper 1388.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4571
___________
DAVID SOLAN,
Appellant
v.
Ms. RANCK, nee Hursh; LIEUTENANT CLARKSON,
former Lieutenant, FCI Allenwood; MR. BITTENBENDER,
Disciplinary Hearing Officer, FCI Allenwood;
LIEUTENANT SHEPARD, Lieutenant, FCI Allenwood;
MS. LEVI, former Unit 4 Manager, FCI Allenwood;
LT. FELTMAN, SIS Officer, FCI Allenwood;
WARDEN TROY WILLIAMSON, former Warden, FCI
Allenwood; all other unnamed FCI Allenwood
correctional personnel, currently unknown to
Plaintiff, who either participated
in the 6/10/05 attack on Plaintiff, and/or who
participated after in retaliatory measures against
Plaintiff to punish, dissuade, or
sabotage him; all in their individual capacities
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 06-CV-00049)
District Judge: Honorable William W. Caldwell
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 27, 2009
Before: McKEE, HARDIMAN and ROTH, Circuit Judges
(Opinion filed : May 8, 2009)
___________
OPINION
___________
PER CURIAM
Pro se appellant David Solan, currently an inmate at FCC-Petersburg, Petersburg,
Virginia, filed a civil rights action for various events occurring while he was an inmate at
FCI-Allenwood, White Deer, Pennsylvania. He appeals the decisions of the District
Court granting summary judgment in favor of the Defendant-Appellees as to all claims
and denying him both injunctive relief and permission to amend his complaint.1
I
Solan alleges that in June 2005, while he was an inmate at FCI-Allenwood, the
prison was placed on lockdown following a riot. Two days after the riot, the prison
restored limited access to showers and prisoners were given between four and five
minutes each to use the showers. Solan claims that although he complied with the time
1
We have jurisdiction pursuant to 28 U.S.C. § 1291. We may affirm on any
grounds supported by the record. See Hughes v. Long, 242 F.3d 121, 122 n.1 (3d Cir.
2001).
When reviewing a district court’s grant of summary judgment, we exercise plenary
review, viewing the facts in the light most favorable to the non-moving party. Dee v.
Borough of Dunmore, 549 F.3d 225, 229 (3d Cir. 2008). We apply the same standard that
governs in district court proceedings, under which a party is entitled to summary
judgment “if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
2
limitations placed on the showers, he was forcibly removed from a shower stall and,
while still nude, dragged to his cell in front of numerous guards, several of whom were
female, and at least 100 other prisoners. He does not allege that he suffered physical
injuries.
Appellees maintain that Solan did not comply with the restricted shower policy and
was walked back to his cell as a result. They concede that his body may have been
exposed when he was returned to the cell, but claim that he was permitted to have a
towel, which he was simply unable to keep around his waist with his hands cuffed.
Soon after the shower incident, Solan initiated (and subsequently exhausted)
administrative remedy procedures. A few days later, he learned that a request to transfer
him to USP-Canaan, a new federal prison, had been approved. Solan alleges that this
transfer was made in retaliation for filing a complaint. Although the record demonstrates
that he was initially recommended for transfer six months prior to the shower incident,
Solan alleges that the first transfer recommendation had been abandoned and that the new
recommendation was retaliatory. Appellees contend that he had been selected for transfer
to the new prison because that institution needed a larger population and Solan is
regarded as a non-violent prisoner.
On July 3, 2005, Solan broke his left arm while playing handball. He was taken to
the hospital that day, informed that he would have a follow-up appointment on July 7, and
returned to the prison. Rather than returning him to his cell, BOP officials placed him in
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the Secure Housing Unit (SHU). Solan alleges that the prison has a general policy of
returning inmates who leave the prison for brief medical visits back to their assigned
cells, and that his placement in SHU was done in retaliation for complaining about the
shower incident. Appellees contend that placement in SHU was appropriate because he
knew of his upcoming appointment date and that this knowledge posed a security risk.
On July 7, 2005, Solan underwent surgery on his arm. Prior to his departure, he
alleges that his unit manager promised to reserve his cell assignment, which included a
bottom bunk in a two-man cell. Upon his return to the prison, however, he was
reassigned to a dirty top bunk in a six-person cell. Solan refused the bed assignment and
was placed in SHU. Following his stay in SHU, Solan was given a bottom bunk in a six-
man cell. Solan alleges that the prison has a policy of reserving bunk assignments for
inmates who temporarily leave the prison and that his new bed assignment and
subsequent SHU confinement are further examples of retaliation. Appellees argue that
prison officials tried to reassign Solan his original bed, but that an influx of prisoners
from SHU (i.e., prisoners who had been confined since the June riots) resulted in that bed
being occupied. Solan’s subsequent placement in SHU simply resulted from his refusal
to accept the bed offered to him.
II
In granting the Appellees’ motion for summary judgment, the District Court
concluded that the facts of the shower incident, as alleged by Solan, established an Eighth
4
Amendment violation. Doc. No. 154, 19.2 However, the court determined that the
Defendants are entitled to qualified immunity because the right recognized by the court is
not “clearly established.” See id. at 23-25.
A defendant is entitled to qualified immunity “insofar as [his] conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Miller v. Clinton County, 544 F.3d 542, 547 (3d Cir. 2008) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Where there is no binding case law
recognizing a constitutional right within a federal circuit, and the extent or existence of
such a right is debated among other federal circuits, the right is not “clearly established.”
See Wilson v. Layne, 526 U.S. 603, 618 (1999); Murphy v. Dowd, 975 F.2d 435, 437 (8th
Cir. 1992).3
We need not address at this time whether Solan demonstrated a constitutional
violation because, assuming arguendo that he did, we agree that the right is not clearly
established. As the District Court noted, we have not considered whether a claim alleging
mere psychological harm resulting from forced observation of one’s nude body implicates
the Eighth Amendment. Moreover, those courts which have do not agree. Compare
2
Because Solan did not include an appendix with his brief, references to District Court
documents are identified by District Court docket entry numbers.
3
We note that the United States Supreme Court’s recent decision in Pearson v.
Callahan, 555 U.S. ___ (2009), which re-examines the two-prong qualified immunity test
articulated in Saucier v. Katz, 533 U.S. 194 (2001), does not affect our analysis in the
instant case.
5
Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003) (strip search of male inmate in
front of female guards would violate Constitution if conducted to inflict psychological
pain), with Somers v. Thurman, 109 F.3d 614, 622-23 (9th Cir. 1997) (psychological
harm incurred from cross-gender searches does not implicate Eighth Amendment).
Accordingly, summary judgment as to the claim against Ranck, Bittenbender, and
Clarkson was appropriate.
III
Solan alleges that Ms. Levi, a former unit manager, and Troy Williamson, the
former warden at FCI-Allenwood, violated his First Amendment rights to the extent that
they authorized his transfer to USP-Canaan, a move he claims was done in retaliation for
his filing a grievance about the shower incident. “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). “Personal involvement can be shown through allegations of
personal direction or of actual knowledge and acquiescence.” Id. The District Court
granted summary judgment as to both Defendants, reasoning that Solan failed to allege
either official’s personal involvement in his transfer. See Doc. No. 76, 14-16.
We agree with the District Court that Solan failed to allege Ms. Levi’s personal
involvement in his transfer. His bare allegation that Levi “probably” had something to do
with his transfer based on her position of authority fails to set forth facts indicating that
6
Levi personally directed or knew of and acquiesced in his transfer for retaliatory reasons.
See Evancho v. Fisher, 423 F.3d 347, 353-54 (3d Cir. 2005).
However, we disagree with the District Court’s reasoning as to Warden
Williamson. In order to satisfy the “personal involvement” requirement, a § 1983
complaint need only allege the conduct, time, place, and person responsible. See id. at
353 (citing Boykins v. Ambridge Area Sch. Dist., 621 F.2d 75, 80 (3d Cir. 1980)). Here,
Solan argued that Warden Williamson, possessed of the knowledge of Solan’s complaint
regarding the shower incident, approved of the transfer in retaliation for Solan’s protected
conduct. See Appellant’s Br. at 13-17, 24. “From the facts alleged we can weigh the
substantiality of the claim. No more is required.” Boykins, 621 F.2d at 80.
Nevertheless, summary judgment in favor of Warden Williamson was appropriate.
In order to establish a retaliation claim, a prisoner must show that he engaged in a
constitutionally protected activity, that he suffered an adverse action at the hands of
prison officials, and that there was a causal link between the two. See Rauser v. Horn,
241 F.3d 330, 333 (3d Cir. 2001). Here, Solan has not shown a “causal link between the
exercise of his constitutional rights and the adverse action taken against him.” Id.Although Solan alleges that Warden Williamson knew of the shower incident and related
complaint at the time of the transfer, the record shows that Solan’s BP-9 administrative
remedy request was received on June 28, 2005, see Exs. 2 and 3 to Doc. No. 1, whereas
Solan’s transfer was approved on June 24, 2005. See Lavella Decl., ¶¶ 9-12 (Ex. 18 to
7
Doc. No. 117). Solan does not present any other evidence that the warden knew of the
incident and/or any staff member’s alleged retaliatory motive for the transfer prior to
obtaining Solan’s BP-9 request. As such, summary judgment as to Warden Williamson
was appropriate.
To the extent that Solan’s retaliatory transfer implicates other BOP personnel,
summary judgment was appropriate for two reasons. First, Solan has not explained how
officers Bittenbender, Ranck, Clarkson, Feltman, or Shepard were personally involved in
retaliatory conduct. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
Second, the Appellees have demonstrated a legitimate penological reason for the transfer:
the need to build the prison population at USP-Canaan. See Rauser, 241 F.32 at 333.
IV
Solan claims that following his return from arm surgery, BOP officials assigned
him to an improper bunk in a six-person cell, even though he had been promised that he
could return to the two-man cell he occupied before the surgery, and that his refusal to
accept the reassignment resulted in SHU placement. Solan alleges that this reassignment
was made in retaliation for his grievances. Appellees argue that although prison officials
try to reassign inmates who return from medical visits to their original cells, such
reassignment is not guaranteed and inmates are assigned wherever space is available. We
agree that the causation prong of Rauser is not satisfied here, as the evidence –
uncontested by Solan – demonstrates that BOP officials actually tried to reassign Solan to
8
his original bed, but that it was unavailable. See Ex. 16 to Doc. No. 117. Accordingly,
summary judgment as to the retaliatory cell reassignment claim was appropriate.
V
We have reviewed Solan’s remaining arguments on appeal and conclude that they
are meritless and warrant no further discussion. Accordingly, and for the foregoing
reasons, we will affirm the judgment of the District Court. In light of this disposition,
Solan’s “Motion to Compel Medical Care and/or an Extension of Time” is denied.
9