Corliss v. Varner ( 2007 )


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  •                                                                                                                            Opinions of the United
    2007 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    9-17-2007
    Corliss v. Varner
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 06-2328
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    Recommended Citation
    "Corliss v. Varner" (2007). 2007 Decisions. Paper 428.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2007/428
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 06-2328
    ________________
    JUSTIN M. CORLISS,
    Apellant
    v.
    SUPERINTENDENT BEN VARNER;
    JOHN CRIDER; DAVID WAKEFIELD;
    CAPT. ROBERT GLENNY;
    TIM MCCAULEY; GUARD LEAR; R. JOHNS
    ____________________________________
    On Appeal From the United States District Court
    For the Middle District of Pennsylvania
    (D.C. Civil No. 02-cv-00282)
    District Judge: Honorable John E. Jones, III
    _______________________________________
    Submitted Under Third Circuit LAR 34.1(a)
    May 16, 2007
    Before: BARRY, CHAGARES AND ROTH, CIRCUIT JUDGES
    (Filed: September 17, 2007)
    _______________________
    OPINION
    _______________________
    PER CURIAM
    Justin Corliss appeals the grant of summary judgment in favor of the defendants
    by the District Court for the Middle District of Pennsylvania.
    I.
    As the parties are familiar with the background of this case, we will only
    summarize those facts relevant to the disposition of this appeal. In 2002, Corliss, a
    former inmate at the Pennsylvania State Correctional Institution at Smithfield, filed a
    civil rights complaint alleging that from July 2001 to the date of his complaint the
    Warden and other prison officials (hereinafter “SCI”) undertook a “course of conduct to
    retaliate against [him] due to [his] diligent attempts to redress prison staff malfeasance.”
    Appendix, Complaint at ¶ 11. SCI filed a motion to dismiss the complaint for failure to
    exhaust administrative remedies. The District Court denied the motion, finding that SCI
    did not indicate whether Corliss had exhausted the retaliation claims presently before the
    court.
    Corliss and SCI filed motions for summary judgment. The District Court granted
    summary judgment for SCI, finding that Corliss had not exhausted his administrative
    remedies, and as to certain incidents of SCI’s alleged misconduct Corliss had not
    established a First Amendment retaliation claim. The District Court denied Corliss’
    motion for reconsideration, and Corliss filed a timely notice of appeal.
    II.
    We have jurisdiction pursuant 
    28 U.S.C. § 1291
    . Our review of the District
    2
    Court’s grant of summary judgment is plenary. Saldana v. Kmart Corp., 
    260 F.3d 228
    ,
    231 (3d Cir. 2001). Summary judgment is proper only if there is no genuine issue of
    material fact and if, viewing the facts in the light most favorable to the nonmoving party,
    the moving party is entitled to judgment as a matter of law. 
    Id. at 232
    . When opposing
    summary judgment, the nonmovant may not rest upon mere allegations, but rather must
    “identify those facts of record which would contradict the facts identified by the movant.”
    Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 
    311 F.3d 226
    , 233 (3d Cir. 2003).
    III.
    Before filing suit in federal court, a prisoner must properly exhaust all available
    administrative remedies. 28 U.S.C. § 1997e(a); Woodford v. Ngo, 
    126 S. Ct. 2378
    , 2387
    (2006). We agree with the District Court that Corliss’ grievances either failed to allege
    retaliation or if they alleged retaliation were not properly exhausted. See 
    id. at 2388
    .
    Corliss’ attempts to avoid the exhaustion requirement are without merit. Appellant
    Brief at 8-12; Appellant’s Reply Brief at 1-5. The exhaustion requirement applies to “all
    inmate suits about prison life”, and therefore applies to Corliss’ retaliation claim. Porter
    v. Nussle, 
    534 U.S. 516
    , 532 (2002). Although Corliss is correct that exhaustion is an
    affirmative defense that can be waived, see Ray v. Kertes, 
    285 F.3d 287
    , 295 (3d Cir.
    2002), contrary to Corliss’ assertion SCI did raise an exhaustion defense, see Defendent’s
    Brief in Support of Motion for Summary Judgment at 6 - 11. Corliss’ reliance on the ‘law
    of the case’ doctrine is misplaced. See Behrens. v. Pelletier, 
    516 U.S. 299
    , 309 (1996)
    (finding law of the case doctrine inapplicable where the legally relevant factors differ
    3
    between a motion to dismiss, which relies on plaintiff’s allegations in his complaint, and
    a motion for summary judgment which relies on the evidence in the record); Robbins v.
    Wilkie, 
    433 F.3d 755
    , 764 (10th Cir. 2006) (same). We have considered Corliss’
    remaining challenges to exhaustion, and reject them without further discussion.
    We also agree with the District Court that Corliss’ exhausted claims challenging
    the misconduct reports do not survive summary judgment. To establish a retaliation
    claim, an inmate must demonstrate that he engaged in constitutionally protected conduct,
    that he suffered some adverse action by the prison officials, and that the protected
    conduct was a substantial or motivating factor in the taking of adverse action against the
    inmate. Rauser v. Horn, 
    241 F.3d 330
    , 333 (3d Cir. 2001). If the inmate satisfies his
    burden, the defendants may still prevail if they prove by a preponderance of the evidence
    that they would have taken the same action absent the protected conduct. 
    Id. at 333-34
    .
    A prisoner’s constitutional rights are limited. Shaw v. Murphy, 
    532 U.S. 223
    , 229
    (2001). The Department of Correction’s regulation prohibiting “abusive, obscene or
    inappropriate language”, Defendants’ Exhibit B-2 (DC-ADM 801),1 is a permissible
    restriction on an inmate’s constitutional rights. See Cowans v. Warren, 
    150 F.3d 910
    ,
    912 (8th Cir. 1998); Ustrack v. Faiman, 
    781 F.2d 573
    , 580 (7th Cir. 1986). As recognized
    by the District Court, both Corliss’ inmate request form and his letter to the psychology
    department employee clearly contained such abusive and inappropriate language.
    1
    Citations to “Defendants’ Exhibit” refer to the exhibits submitted in support of the
    defendants’ motion for summary judgment.
    4
    Defendants’ Exhibit B-3 (inmate request form, Misconduct Report 579443); Exhibit B-4
    (letter, Misconduct Report 740309). Corliss argues that the letter only contained opinions
    and suggestions, and was written in confidence. Defendants’ Exhibit B-4 (misconduct
    appeal). This argument is without merit. The regulation clearly prohibits the improper
    language regardless of its purpose or intent. See Defendants’ Exhibit B-2 (DC-ADM
    801).
    With respect to Corliss’ misconduct for fighting with his cell mate, Kent Smith,2
    and the misconduct for failure to obey an order, the guards who issued the reports are not
    parties to this suit. See Defendants’ Exhibit B-6 (fighting, Misconduct Report A228145);
    
    id.
     Exhibit B-7 (failure to obey order, Misconduct Report A260249); Appendix,
    Statement of Facts in Opposition at ¶¶ 89, 91, 95, 105-06. Moreover, regardless of
    whether Corliss can demonstrate that these misconduct reports were substantially
    motivated by protected conduct, SCI has provided adequate evidence that it would have
    otherwise issued the reports for legitimate penological reasons. SCI provided the medical
    reports supporting their finding that both Corliss and Smith were active participants in the
    altercation. See Rauser, 
    241 F.3d at 344
    . Although Corliss asserts that Smith likely
    incurred some of his injuries during a prior fight with another individual, Corliss does not
    provide any evidence in support of this allegation. See Appellant’s Appendix, Statement
    of Facts in Opposition at ¶ 93. SCI also provided the misconduct reports supporting the
    2
    As indicated above, Corliss’ grievance challenging this cell assignment was not
    properly exhausted.
    5
    charge that Corliss failed to obey the order to uncover the light. Defendants’ Exhibit B-7.
    Again, Corliss has provided no evidence to support his assertion that the misconduct
    report was improper. See Fireman's Ins. Co. v. DuFresne, 
    676 F.2d 965
    , 969 (3d Cir.
    1982) (party opposing summary judgment may not rely merely upon bare assertions,
    conclusory allegations, or suspicions).
    Accordingly, for all the reasons stated, we agree with the District Court’s
    conclusion that SCI is entitled to summary judgment.
    6