Kim Vo v. Wetzel

CLD-139 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-1210
___________
KIM VO,
Appellant
v.
JOHN E. WETZEL, Department of Corrections; LONNIE OLIVER, Superintendent SCI
Cmbridge Springs; CORRECTIONS OFFICER M. MCCURDY; MAJOR DODDS;
SERGEANT M. VANTASSEL
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 1:19-cv-00084)
District Judge: Honorable Richard A. Lanzillo
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
April 28, 2022
Before: AMBRO, SHWARTZ and BIBAS, Circuit Judges
(Opinion filed: May 10, 2022)
_________
OPINION*
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Kim Vo, an inmate proceeding pro se and in forma pauperis, appeals from the
District Court’s order granting summary judgment in favor of defendants. For the
reasons that follow, we will summarily affirm.
I.
In March 2019, Vo filed a civil rights action against defendants challenging the
confiscation of her belongings, including a variety of art supplies and a set of prayer
beads. In her amended complaint, which is the operative pleading, Vo alleged that
defendants violated her free exercise rights when they confiscated the prayer beads;
retaliated against her for filing requests and grievances; and violated her rights under the
Equal Protection Clause by confiscating her art portfolio. Defendants and Vo each filed
motions for summary judgment, and the District Court granted summary judgment in
favor of defendants. Vo timely appealed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and review the District Court’s
grant of a motion for summary judgment de novo. See Dondero v. Lower Milford Twp.,
5 F.4th 355, 358 (3d Cir. 2021). Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact
exists if the evidence is sufficient for a reasonable factfinder to return a verdict for the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As a
pro se litigant, Vo is entitled to liberal construction of her complaint. See Erickson v.
2
Pardus, 551 U.S. 89, 94 (2007) (per curiam). We may summarily affirm if the appeal
fails to present a substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
III.
First, the District Court correctly found that Vo failed to exhaust her available
administrative remedies regarding certain claims. To properly exhaust a claim as
required by the PLRA, an inmate is required to complete the administrative review
process by complying with the procedural rules established by the prison. Jones v. Bock,
549 U.S. 199, 218–19 (2007). Here, the Inmate Grievance System Policy required that,
in filing an initial grievance, “[t]he inmate shall identify individuals directly involved in
the event(s).” DC-ADM 804(1)(A)(11)(b), District Ct. ECF No. 70-2. Where a specific
defendant is not identified by name, a prison may excuse the issue “by identifying the
unidentified persons and acknowledging that they were fairly within the compass of the
prisoner’s grievance.” Spruill v. Gillis, 372 F.3d 218, 234 (3d Cir. 2004).
We agree with the District Court’s conclusion that Vo failed to exhaust her claims
against Major Dodds and Superintendent Oliver. Vo did not identify them by name in
her initial grievance, nor were they identified in her grievance appeals, except for a
reference to reporting the confiscation of her property to Oliver after the fact.
Additionally, grievance officers did not name Dodds or Oliver in the grievance process
such that Vo’s failure to name them could be excused, and references by Vo or the
grievance officers to the “search team,” “security office,” and “security staff,” without
more, were inadequate to identify Dodds or Oliver as being involved.
The District Court also properly found that the Vo failed to exhaust her equal
3
protection claim for the confiscation of her art portfolio. Exhaustion “requires inmates to
provide enough information about the conduct of which they complain to allow prison
officials to take appropriate responsive measures.” Mack v. Warden Loretto FCI, 839
F.3d 286, 296 (3d Cir. 2016) (cleaned up). Vo’s grievance informed prison officials that
her property had been confiscated in contravention of the prison’s policies, but it did not
alert them to any issue of disparate treatment.1
The District Court also properly concluded that Vo failed to demonstrate a genuine
factual dispute regarding retaliation. To establish a First Amendment retaliation claim,
Vo was required to show that (1) her conduct was constitutionally protected; (2) she
suffered an adverse action by prison officials; and (3) her constitutionally protected
conduct was a substantial or motivating factor in the officials’ conduct. Watson v.
Rozum, 834 F.3d 417, 422 (3d Cir. 2016). Because motivation is almost never subject to
proof by direct evidence, Vo could rely on circumstantial evidence to prove a retaliatory
motive, and could satisfy her burden “with evidence of either (1) an unusually suggestive
temporal proximity between the protected activity and the allegedly retaliatory action, or
(2) a pattern of antagonism coupled with timing that suggests a causal link.” Id.1
Even if this claim were properly exhausted, defendants would have been entitled to
summary judgment, as they established a rational basis for confiscating Vo’s portfolio,
which had no documentation about its origin, but not confiscating other portfolios with
verified sources. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008) (to
succeed on a “class-of-one” theory under the Equal Protection Clause, the plaintiff must
allege different treatment from others similarly situated and no rational basis for such
treatment).
4
Vo’s conduct in filing grievances and requests was constitutionally protected,
Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003), and the confiscation of her
belongings constituted adverse action. However, McCurdy and Zakostelecky attested
that they were unaware of Vo’s grievances or complaints when they reviewed her
property, and Vo did not present any evidence to the contrary. This negates the
possibility that Vo’s grievances or complaints could have been a motivating factor in
their actions. Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir. 2002)
(explaining that “[i]t is only intuitive that for protected conduct to be a substantial or
motiving factor in a decision, the decisionmakers must be aware of the protected
conduct”). Moreover, McCurdy and Zakostelecky established that they would made the
same decision to confiscate Vo’s property regardless of her grievances because she had
more property than was allowed by the prison’s policies. Watson, 834 F.3d at 422 (even
if the plaintiff establishes a prima facie case of retaliation, prison officials may still
prevail if they establish that they would have made the same decision absent the protected
conduct for reasons reasonably related to a legitimate penological interest).
Finally, the District Court properly granted summary judgment in favor of
defendants on Vo’s free exercise claim.2 “Inmates clearly retain protections afforded by
the First Amendment, including its directive that no law shall prohibit the free exercise of
2
To the extent that Vo’s religious rights claim fell within the purview of RLUIPA, it was
properly dismissed, as RLUIPA does not permit actions against state officials in their
individual capacities, nor have the states consented to waive their sovereign immunity
with respect to RLUIPA suits for damages against State employees in their official
capacities. Sharp v. Johnson, 669 F.3d 144, 153, 155 (3d Cir. 2012).
5
religion.” O’Lone v. Est. of Shabazz, 482 U.S. 342, 348 (1987) (citation omitted).
However, an inmate only “retains those First Amendment rights that are not inconsistent
with his status as a prisoner or with the legitimate penological objectives of the
corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974).
Vo’s prayer beads were confiscated pursuant to a prison policy providing that
“[h]omemade or other unauthorized sacred objects are not permitted and shall be
confiscated.” DC-ADM 819 § 3(A)(1)(j). In her complaint and other filings, Vo’s claim
centered not on the reasonableness of the prison’s policy,3 but on the application of the
policy to her prayer beads, which she maintained were not homemade and thus not
subject to confiscation.
While Vo alleged that her prayer beads were not homemade, she did not present
any evidence to support that contention. Unsubstantiated allegations are not evidence of
asserted facts. See Bell v. United Princeton Properties, Inc., 884 F.2d 713, 720 (3d Cir.
1989). By contrast, defendants presented an affidavit attesting that the prayer beads
confiscated from Vo’s property were homemade from wooden craft beads strung on a
piece of floss and were therefore prohibited under the prison’s policy. Thus, the District
Court properly found no genuine issue of material fact regarding whether the prayer
beads were homemade.
Vo also asserted that her prayer beads fell under the following exceptions:
3
To the extent that Vo raised the issue of reasonableness, we discern no error in the
District Court’s weighing of the factors set forth in Turner v. Safley, 482 U.S. 78, 89–90
(1987), and conclusion that the prison’s policy was reasonable.
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a. An inmate will be permitted to keep no-longer-permitted
items, as long as the item(s) were noted on the inmate’s
DC-153, Personal Property Inventory Form as of the
effective date of the previous DC-ADM 815, dated May
12, 2008.
b. When an inmate transfers to a facility that does not permit
an item previously approved at another facility, the inmate
will be permitted to keep the item, as long as the item is
noted on the inmate’s DC-153 as noted above[.]4
See DC-ADM 815 § 2(6)(a-b); see also DC-ADM 819 § 3(A)(1)(d) (providing that an
inmate may retain sacred objects previously approved before March 27, 2007).
While Vo alleged that she had possessed the prayer beads for 21 years, she only
presented evidence to support that she had possessed them since 2010 when she was
transferred into the SCI – Cambridge Springs. Because Vo failed to present DC-153
forms noting that she possessed the prayer beads as of May 12, 2008, as required by DC-
ADM 815 § 2(6)(a) and (b), there was no genuine factual dispute regarding whether the
prayer beads fell within the exceptions. Therefore, the District Court properly granted
summary judgment in favor of defendants.5
4
The District Court appears to have read subsection (b) to apply only to property
inventoried on DC-153 forms as of May 12, 2008, as outlined in subsection (a). This is
consistent with the plain language of the policy, as subsection (b) refers to the “DC-153
as noted above” (emphasis added). See Downey v. Pennsylvania Dep't of Corr., 968 F.3d
299, 306 (3d Cir. 2020) (analyzing a prison’s policy by looking to its plain language).
5
The District Court earlier dismissed with prejudice several claims raised in Vo’s initial
complaint, including a due process claim, an Eighth Amendment claim, and all claims
against Wetzel. The claims against Wetzel were properly dismissed because he lacked
personal involvement, see Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988), as
were the due process claim, see Tillman v. Lebanon Cty. Corr. Facility, 221 F.3d 410,
422 (3d Cir. 2000) (the use of a prison’s grievance system is an adequate post-deprivation
remedy) and the Eighth Amendment claim, see Farmer v. Brennan, 511 U.S. 825, 834
(1994) (to succeed on a claim under the Eighth Amendment, a prisoner must show that
she has been deprived of the minimal civilized measure of life’s necessities).
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IV.
Accordingly, we will affirm the judgment of the District Court. See 3d Cir. LAR
27.4; I.O.P. 10.6.
8