WALKER v. REGAN

iy

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHAWN T. WALKER,

Plaintiff : CIVIL ACTION

v. :

FRANK REGAN, : No. 13-7556

Defendant :

MEMORANDUM

PRATTER, J. MARCH 31, 2021

Frank Regan asks the Court to reconsider (Doc. No. 175) its February 27, 2019

Memorandum and Order (Doc. Nos. 131, 132), denying his motion for summary judgment as to

Shawn T. Walker’s 2014 retaliation claim.' Mr. Regan argues that reconsideration is warranted

because of a recent appellate decision regarding qualified immunity. Because Mr. Regan had not

asserted a qualified immunity defense when he moved for summary judgment, and because the

Court’s decision was not based on that legal doctrine, there is nothing for the Court to reconsider

in terms of qualified immunity. The Court denies the motion.

BACKGROUND

Mr. Walker is serving a life sentence at SCI-Phoenix. His First Amendment retaliation

claim at issue here relates to incidents in June 2014. At that time, Mr. Walker was housed at SCI-

Graterford and Mr. Regan was a unit manager corrections officer. Just over two weeks after

Mr. Walker initiated this lawsuit, which included multiple claims against Mr. Regan and other

defendants—and one day after Mr. Regan moved to dismiss the initial complaint—Mr. Regan told

Mr. Walker to get ready to move to Upper H-Block, a cell block on the opposite end of the prison.

The same Memorandum and Order also granted Mr. Regan summary judgment as to Mr. Walker’s

2013 retaliation claim, which was based on Mr. Walker’s allegation that Mr. Regan raised his custody level

in retaliation for Mr. Walker’s refusal to accept the loss of his Z-Code status that had permitted him a single

cell. Walker v. Regan, No. 13-cv-7556, 2019 WL 1003155, at *1-2 (E.D. Pa. Feb. 27, 2019).

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A verbal exchange occurred. Mr. Walker later learned that Mr. Regan had charged him with

misconduct for making threats and refusing an order. Mr. Walker alleges that the move to Upper

H-Block and the misconduct charge were in retaliation for filing this lawsuit against Mr. Regan.*

As stated above, the Court granted Mr. Regan’s motion for summary judgment as to Mr. Walker’s

2013 retaliation claim but denied it as to Mr. Walker’s 2014 retaliation claim and his request for

punitive damages. See Walker v. Regan, No. 13-cv-7556, 2019 WL 1003155, at *1 (E.D. Pa. Feb.

27, 2019).

Mr. Regan now moves for reconsideration, arguing that it was not clearly established in

2014 that a prisoner cell transfer to another block or a misconduct charge based on “some

evidence” of misconduct were sufficiently adverse actions to constitute retaliation. Doc. No. 175.

Mr. Regan bases his reconsideration motion on the Third Circuit Court of Appeals’ decision in

James v. New Jersey State Police where the appellate court noted that it “will consider only

precedents that clearly established rights as of” the date of the alleged events at issue.>_ 957 F.3d

165, 170 (3d Cir. 2020) (finding trooper was entitled to qualified immunity because his use of

deadly force did not violate a clearly established right). Mr. Regan also submitted to the Court a

“Notice of Recent Decision” (Doc. No. 201) where the Third Circuit Court of Appeals noted that,

for the purposes of qualified immunity, “[t]o be clearly established, a right must be so apparent

that ‘every reasonable official would understand that what he is doing is unlawful.” HIRA Educ.

Servs. N. Am. y. Augustine, No. 18-2377, 2021 WL 955948, at *6 (3d Cir. Mar. 15, 2021) (quoting

James, 957 F.3d at 169).

The Court granted Mr. Walker leave to amend his complaint several times. The current operative

pleading is Mr. Walker’s Fifth Amended Complaint. Doc. No. 76.

3 A petition for certiorari was docketed in the United States: Supreme Court on January 4, 2021. See

James v. Bartelt, No. 20-997.

| LEGAL STANDARD

“[A] judgment may be altered or amended if the party seeking reconsideration shows at

least one of the following grounds: (1) an intervening change in the controlling law; (2) the

availability of new evidence that was not [previously] available .. . ; or (3) the need to correct a

clear error of law or fact or to prevent manifest injustice.” Max’s Seafood Cafe ex rel. Lou-Ann,

Inc. v. Quinteros, 176 F.3d 669, 671 (3d Cir. 1999). Motions for reconsideration are granted

sparingly because “[f]ederal courts have a strong interest in the finality of judgments.” Roofers

Local No. 30 Combined Pexsion Fund v. D.A. Nolt, Inc., 719 F. Supp. 2d 530, 554 (E.D. Pa. 2010),

aff'd, 444 F. App’x 571 (3d Cir. 201 1).

Under Local Rule 7.1(g) of this Court, “[m]otions for reconsideration . . . shall be served

and filed within fourteen (14) days after the entry of the order concerned, other than those governed

by Federal Rule of Civil Procedure 59(e).” The Third Circuit Court of Appeals has reiterated that

under Rule 59(e) a motion to alter or amend a judgment must be filed no later than 28 days after

the entry of judgment. Long v. Atl. City Police Dep’t, 670 F.3d 436, 439 (3d Cir. 2012) (citing

Fed. R. Civ. P. 59(e)).

Mr. Regan does not state under which Rule he moves for reconsideration. He appears to

be moving under Rule 59(e) because he asserts that his Motion to Reconsider is based on new case

law from the Third Circuit Court of Appeals regarding qualified immunity. But, as Mr. Walker

points out, Mr. Regan filed his motion on April 28, 2020, some 426 days after the Court’s Order.

Thus, under Rule 59(e) Mr. Regan’s motion is untimely, given that it is well beyond the required

28-day filing period.* See Banister v. Davis, 140 S. Ct. 1698, 1703 (2020) (noting the time to file

4 Rule 6(b)(2) provides that “[a] court must not extend the time to act under Rules 50(b) and (d),

52(b). 59(b), (d), and (e), and 60(b).” Fed. R. Civ. P. 6(b)(2).

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a Rule 59(e) motion is “short—28 days from entry of the judgment, with no possibility of an

extension”),

The only viable option under which the Court can consider Mr. Regan’s motion is Rule

60(b)(6). Rule 60(b)(6) motions allow relief from a final judgment, order, or proceeding for “any

other reason that justifies relief’ previded that the motion is “made within a reasonable time.”°

Fed. R. Civ. P. 60(c). That said, the Third Circuit Court of Appeals has “consistently taken the

position ‘that intervening changes in the law rarely justify relief from final judgments under

60(b)(6).’” Satterfield v. Dist. Att’y Phila., 872 F.3d 152, 161 (3d Cir. 2017) (quoting Cox v. Horn,

757 F.3d 113, 121 (3d Cir. 2014)).

DISCUSSION

The Court will treat Mr. Regan’s motion as a Rule 60(b)(6) motion. The Third Circuit

Court of Appeals has “long employed a flexible, multifactor approach to Rule 60(b)(6) motions,

including those built upon a post-judgment change in the law, that takes into account all the

particulars of a movant’s case.” Cox, 757 F.3d at 122. “A movant, of course, bears the burden of

establishing entitlement to such equitable relief, which, again, will be granted only under

extraordinary circumstances.” Id.

This flexible, multifactor approach includes consideration of:

(1) the general desirability that a final judgment should not be lightly disturbed;

(2) the procedure provided by Rule 60(b) is not a substitute for an appeal; (3) the

Rule should be liberally construed for the purpose of doing substantial justice;

(4) whether, although the motion is made within the maximum time, if any,

provided by the Rule, the motion is made within a reasonable time; (5) whether

5 Like Rule 60(b)(6), Rules 60(b)(4)-(5) are not subject to Rule 60(c)’s one-year filing deadline after

the entry of judgment or order. However, they do not apply to Mr. Regan’s motion, which is purportedly

based on new case law. See Fed. R. Civ. P. 60(b)(4)-(5). Rules 60(b)(1)-(3), which are subject to the one-

year filing deadline, also do not apply to Mr. Regan’s motion.

there are any intervening equities which make it inequitable to grant relief; (6) any

other factor that is relevant ot justice of the order under attack.

Burton v. Horn, No. 09-cv-02435, 1 WL 5264336, at *5 (E.D. Pa. Oct. 22, 2018).

After considering these factors, the Court will deny Mr. Regan’s reconsideration motion.

Mr. Regan asks the Court to cond its prior decision because, he argues, the Third Circuit

Court of Appeals’ decision in James v. New Jersey State Police, 957 F.3d 165 (3d Cir. 2020),

represents a change in the decisional law. Doc. No. 175 at 3. In James, the Third Circuit Court of

Appeals stated that it “will only consider precedents that clearly established rights as of” the date

where the events at issue occurred. 957 F.3d at 170. This is the first time that Mr. Regan argues

that he is entitled to qualified immunity. Indeed, he admits that he did not raise this affirmative

defense as to Mr. Walker’s remaining 2014 retaliation claim in his summary judgment briefing.®

Doc. No. 175 at 3. Accordingly, the Court did not consider whether Mr. Regan was entitled to

qualified immunity when it denied sbeamary judgment on the 2014 retaliation claim.

Mr. Regan appears to contend that, because the attempted transfer of Mr. Walker to a

different cell block and his misconduct charge (which occurred during the same time frame

Mr. Walker filed suit against Mr. Regan) took place in 2014, the Court cannot consider case law

that post-dates those events. To that end, Mr. Regan takes issue with the Court’s citation of the

Third Circuit Court of Appeals’ reasoning in Watson v. Rozum, a 2016 decision where the appellate

court held that some evidence of misconduct is not a complete bar to a prisoner’s claim of

retaliation. 834 F.3d 417, 426 (3d Cir. 2016) (noting that prisoner’s violation was “not so ‘clear

and overt’” for the Court te “conclude that he would have been written up if he had not also given

6 Mr. Walker argues that Mr. Regan has waived a qualified immunity defense having not raised it

previously with respect to Mr. Walker’s 2014 retaliation claim. Doc. No. 187 at 1-2. However, “[a]

defendant may raise qualified immunity on the pleadings in a motion to dismiss, on summary judgment, or

as an affirmative defense at trial.” Schneyder v. Smith, 709 F. Supp. 2d 368, 387 (E.D. Pa. 2010), aff'd,

653 F.3d 313 (3d Cir. 2011).

prison officials ‘a hard time’”). Mr. Regan argues that, prior to Watson, Third Circuit precedent

allowed for the denial of retaliation claims where the defendant could show some evidence of

misconduct and that the same decision would have been made. Doc. No. 175 at 5-6.

Mr. Regan’s interpretation, however, does not find support within this Circuit. The

appellate court stated in Watson that “this is not the first time that [it has] held that a plaintiff can

make out a retaliation claim even though the charge against him may have been factually

supported.”” Watson, 834 F.3d at 426 (citing Hill v. City of Scranton, 411 F.3d 118, 130 (d Cir.

2005) (noting plaintiffs “certainly do not need to allege or prove compliance with the ordinance to

prevail on their First Amendment claim” because “[d]iscriminatory enforcement of a statute or

ordinance is not justified simply because the enforcement is otherwise valid”)). Mr. Regan argues

that, in light of James, the Court’s citation of Watson was improper, and, thus, he asks the Court

to reconsider its opinion. However, “the Third Circuit Court of Appeals {in Watson] explicitly

disavowed a method sometimes used by other courts, pursuant to which a prison official’s showing

of only ‘some evidence of misconduct’ can be enough to grant summary judgment.” Walker, 2019

WL 1003155, at *8. Nothing in James calls into question the Court’s earlier analysis or suggests

that James overruled Watson’s holding that a plaintiff could show retaliation even when a charge

against him may have been factually supported. Watson, 834 F.3d at 426.

Mr. Regan also takes issue with the Court’s analysis of Mr. Walker’s proposed transfer to

Upper H-Block. Although it acknowledges the possibility that being placed in “administrative

segregation would not deter a prisoner of ordinary firmness from exercising his or her First

Amendment rights,” the Third Circuit Court of Appeals has not articulated a bright-line rule that

7 In fact, the Court quoted some of that very language in its underlying opinion denying Mr. Regan’s

motion for summary judgment on Mr. Waiker’s 2014 retaliation claim. See Walker, 2019 WL 1003155, at

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“such action can never amount to adverse action. On the contrary, whether a prisoner-plaintiff has

met that prong of his or her retaliation claim will depend on the facts of the particular case.” Allah

v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000). It is those disputed facts that underscore the

Court’s ruling that summary judgment was not appropriate.

Mr. Regan also asks the Court to reconsider its opinion because of citation of a 2018 district

court decision which noted that “a transfer into administrative or restrictive confinement, a less

desirable cell or location within the prison, or a dangerous cell block might represent an adverse

action.” Lawson v. Crowther, No. 17-cv-39, 2018 WL 6524380, at *3 (W.D. Pa. Oct. 30, 2018),

report and recommendation adopted, No. 17-cv-39-SPB, 2018 WL 6523185 (W.D. Pa. Dec. 12,

2018). Mr. Regan argues that Lawson post-dates the events at issue here by four years and should

not have been considered. However, as the Court previously explained, Walker, 2019 WL

1003155, at *6, observing that an infernal transfer may constitute an adverse action does not go

against Third Circuit precedent, which has previously held that such a determination is fact

dependent. See Allah, 229 F.3d at 225.

Here, there are clearly factual disputes as to whether a move to Upper H-Block would

constitute an adverse action. The Court noted that two of Mr. Walker’s prison counselors had

expressed that Upper H-Block was a higher security block in the prison than B-Block (where Mr.

Walker was housed) and that Mr. Walker testified that Upper H-Block was on the new side of the

prison, which was more isolated. Walker, 2019 WL 1003155, at *6. In line with Allah, the Court

held that the attempted move of Mr. Walker was enough to infer, at the summary judgment stage,

that it was an actionable adverse action that could prevent a prisoner of ordinary firmness from

exercising his First Amendment rights. Id.

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4

Within this Circuit, it is “well settled that prisoners have a constitutional right to access []

the courts.” Allah, 229 F.3d at 224. Here, a dispute exists as to whether Mr. Walker’s lawsuit was

a substantial factor in the attempted transfer of him to Upper H-Block and the written misconduct

charge against him, the timing of which in relation to this litigation cannot be ignored. Thus, based

on these events, the Court found that Mr. Walker’s 2014 retaliation claim survives summary

judgment. It sees no reason to distur’ its initial finding.

CONCLUSION

For the reasons set forth in tiis Memorandum, the Court denies Mr. Regan’s Motion to

Reconsider. An appropriate order follows.

BY THE COURT:

E E.K. PRATTER

NITED STATES DISTRICT JUDGE