Prevet v. Barone , 428 F. App'x 218 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 10-4140 & 10-4241
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JEROME PREVET,
Appellant
v.
MICHAEL C. BARONE, SUPERINTENDENT; MAJOR MR. PAUL A. ENNIS;
UNIT MANAGER MR. GRAHAM; COUNSELOR MR. BLICHA;
PAROLE BD SUPER. MRS. EVERTTE; *SECRETARY PENNSYLVANIA
DEPARTMENT OF CORRECTIONS;
PAROLE AGENT MRS. BAKER; PAROLE AGENT MRS. LUTZ;
MRS. CYNTHIA L. DAUB, PAROLE BOARD SECRETARY; PAROLE AGENT MR.
HOUGES
*(Pursuant to Rule 43(c), Fed. R. App. P.)
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 1-09-cv-00160)
Magistrate Judge: Honorable Susan Paradise Baxter
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 20, 2011
Before: BARRY, JORDAN and GARTH, Circuit Judges
(Opinion filed: May 20, 2011)
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OPINION
___________
PER CURIAM
Jerome Prevet, an inmate at SCI-Forest in Pennsylvania, appeals from an order of
the District Court granting summary judgment to the defendants in this pro se civil rights
action. For the following reasons, we will affirm the District Court’s judgment.
Prevet is serving a prison sentence of seventeen to thirty-four years for a 1981
conviction. His maximum sentence expires on October 21, 2014. He has been
considered for and denied parole on a number of occasions. His last hearing occurred in
March 2009. At that time, he had recently completed the prison’s sex-offender treatment
program, which the Pennsylvania Board of Probation and Parole (“PBPP”) had
previously listed as a requirement for parole consideration. Citing the negative
recommendation supplied by the Department of Corrections (“DOC”) and Prevet’s
minimization of the nature and circumstances of his offense, however, the PBPP again
denied parole.
In July 2009, Prevet filed a complaint pursuant to 42 U.S.C. § 1983. He named as
defendants several DOC and PBPP employees and alleged, inter alia, that he was denied
parole because (1) he had previously filed grievances and lawsuits against prison officials
and (2) he is a member of the Nation of Islam. He claimed that the DOC defendants had
retaliated against him by refusing to provide the positive parole recommendation, and
that the PBPP defendants had retaliated against him by denying parole.
The District Court awarded summary judgment to the defendants, finding that the
parole denial was “reasonably related to legitimate penological interests,” and that the
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PBPP would have rendered the same decision notwithstanding any motivation to
retaliate. See Carter v. McGrady, 292 F.3d 152, 158-59 (3d Cir. 2002). Prevet filed a
timely appeal, confined to a challenge to the District Court’s ruling on his retaliation
claims. 1
We have jurisdiction pursuant to 28 U.S.C. § 1291. 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). Summary judgment should be granted only if there is no
genuine as to any material fact and the moving party is entitled to judgment as a matter of
law. Barefoot Architect, Inc. v. Bunge, 632 F.3d 822 (3d Cir. 2011).
Prison officials are liable for retaliatory conduct if the conduct was motivated “in
substantial part by a desire to punish [the] individual for exercise of a constitutional
right,” Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (quoting Thaddeus-X v.
Blatter, 175 F.3d 378, 386 (6th Cir. 1999) (en banc)), such as an inmate’s filing of
lawsuits and grievances related to incarceration, or his religious practice. See Mitchell v.
Horn, 318 F.3d 523, 530 (3d Cir. 2003); Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir.
1
We note that the defendants did not raise, and the District Court did not consider,
whether Heck v. Humphrey, 512 U.S. 477 (1994), bars Prevet’s challenge to his parole
denial. See Williams v. Consovoy, 453 F.3d 173, 177 (3d Cir. 2006). Although we
directed the parties to address this issue, along with whether the defendants had waived
the defense by failing to raise it, see Kramer v. Vill. of North Fond du Lac, 384 F.3d 856,
862-63 (7th Cir. 2004), they did not do so. Because we agree with the District Court’s
decision to deny the claims on the merits, we need not decide whether Heck would bar
Prevet’s challenge.
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1981). To prevail on a retaliation claim, the prisoner must prove: (1) that the conduct
leading to the alleged retaliation was constitutionally protected; (2) that he suffered an
adverse action sufficient to deter a person of ordinary firmness from exercising his
constitutional rights; and (3) that his protected conduct was a substantial or motivating
factor in the decision to discipline him. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.
2001). However, “prison officials may still prevail by proving that they would have
made the same decision absent the protected conduct for reasons reasonably related to a
legitimate penological interest.” Id. at 334.
Here, the DOC defendants argue that even assuming that Prevet had established a
prima facie case for retaliation, they acted pursuant to a legitimate penological interest in
withholding a favorable parole recommendation, because of Prevet’s “poor adjustment,
reflected in seven misconducts, multiple group failures and the nature of his offense . . .
.” Appellees’ Brief at 9. We find these factors are indeed legitimate penological
concerns, and that the DOC defendants met their burden of showing that they would have
withheld a parole recommendation absent any retaliatory motive. Similarly, the PBPP
defendants denied parole based on the DOC’s negative recommendation, and Prevet’s
“minimization of the nature and circumstances of the offense(s) committed.” We agree
with the District Court that these are also legitimate penological concerns, and that the
PBPP defendants met their burden of showing that they would have made the same
decision absent any retaliatory motive. The District Court thus properly granted
summary motion in favor of the defendants.
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Accordingly, we will affirm the District Court’s judgment.
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