Corliss v. Varner

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Precedential or Non-Precedential: Non-Precedential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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"Corliss v. Varner" (2007). 2007 Decisions. Paper 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NOT PRECEDENTIAL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
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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
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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.
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