White v. Wireman

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

IVAN WHITE, :

Plaintiff : CIVIL ACTION NO. 1:16-0675

v. : (MANNION, D.J.)

(CARLSON, M.J.)

DARRELL WIREMAN, et al., :

Defendants :

MEMORANDUM

Presently before the court is the October 15, 2018 report and

recommendation (“First Report”), (Doc. 65), of Magistrate Judge Martin

Carlson, which recommends that the defendants’, Darrell Wireman, Morris

L. Houser, Ulrich Klemm, Shawn Kephart, James Eckard, Angela Duvall,

Ron Smith, Ray Dunkle, and the Pennsylvania Department of Corrections

(“DOC”), (collectively, “Defendants”), motion for partial summary judgment,

(Doc. 43), be granted in part and denied in part. Defendants filed objections

to the First Report. (Doc. 72).

Also before the court is the December 19, 2019 report and

recommendation (“Second Report”), (Doc. 127), of Judge Carlson, which

recommends that Defendants’ motion for summary judgment, (Doc. 112), be

granted in part and denied in part. The plaintiff, Ivan White (“White”), filed

objections to the Second Report. (Doc. 128).

Based on the foregoing, Judge Carlson’s First and Second Reports,

(Doc. 65; Doc. 127), will be ADOPTED IN THEIR ENTIRETY; Defendants’

objections to the First Report, (Doc. 72), will be OVERRULED; Defendants’

motion for partial summary judgment, (Doc. 43), will be GRANTED IN PART

and DENIED IN PART; White’s objections to the Second Report, (Doc. 128),

will be OVERRULED; and Defendants’ motion for summary judgment, (Doc.

112), will be GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

On April 22, 2016, Ivan White (“White”), an inmate currently

incarcerated at State Correctional Institution – Huntingdon (“SCI-

Huntingdon”), initiated this civil rights action against Defendants. (Doc. 1).

White filed a second amended complaint, (Doc. 27), on June 27, 2017,

asserting eleven counts that generally fit into two broad categories: Counts I

to V pertain to issues that occurred during meetings with his attorney at SCI-

Huntingdon on August 30, 2014, and May 24, 2015, and Counts VI to XI

pertain to White’s religious practices.1

On February 5, 2018, a verbal order was entered reassigning this case

to the undersigned. On May 4, 2018, Defendants filed the present motion for

1 Count X was dismissed by order dated March 12, 2018. (Doc. 34).

partial summary judgment. (Doc. 43). Specifically, Defendants seek to

dismiss Counts I and II for legal insufficiency issues, as well as Count III

because it is dependent upon Count II. Defendants also seek to have Counts

I, II, III, VIII, and IX dismissed for failure to properly exhaust available

administrative remedies pursuant to the Prison Litigation Reform Act of 1996

(“PLRA”). Finally, Defendants seek to have Counts IV and V dismissed

against defendants Eckard and Smith, as they relate to the May 24, 2015

incident, and for all counts to be dismissed against defendants Houser and

Dunkle.

In his First Report, Judge Carlson recommends that Counts VIII and IX

be dismissed against all Defendants due to White’s failure to exhaust his

administrative remedies under the PLRA insofar as the grievances that

White filed failed to alert Defendants to his issues regarding the Ramadan

fast or the alleged promotion of other religions over White’s religion,

Muhammad’s Temple of Islam. Judge Carlson additionally recommends that

summary judgment be entered for defendants Eckard and Smith on Counts

IV and V as they relate to the May 24, 2015 attorney visit due to White’s

failure to name these defendants in the pertinent grievances. Judge Carlson

recommends that the Defendants’ motion be denied in all other respects.

On October 29, 2018, Defendants filed objections to the First Report,

(Doc. 72), and a brief in support, (Doc. 73). Defendants specifically object to

the First Report’s recommendation against dismissing Counts I, II, and III for

failure to exhaust, arguing that White’s grievances did not put Defendants on

notice of White’s complaints about retaliation for his prior testimony or

litigation of his own claims. Defendants also object to the portion of the First

Report which recommends denial of summary judgment on the merits of

Counts I, II, and III because, inter alia, the mere fact that White was permitted

to testify in other proceedings does not preclude him from bringing an action

pursuant to Section 1981.

Here, because Defendants’ objections to the First Report pertain to the

recommendation that summary judgment be denied as to Counts I, II, and

III, and because the court will adopt the Second Report, which recommends

the grant of summary judgment for Defendants on those counts, the court

need not address Defendants’ objections to the First Report. Accordingly,

Defendants’ objections to the First Report, (Doc. 72), are OVERRULED and

the First Report is ADOPTED IN ITS ENTIRETY.2

2 In a novel argument, White asserts, without support, that the First

Report is no longer pending because “[r]ecommendations do not keep on

‘pending’ forever.” (Doc. 130, at 3). Obviously, this argument is unfounded

as report and recommendations do not cease pending merely because there

has been a subsequent report and recommendation on a separate motion.

Report and recommendations, like motions, remain pending until a court

issues a ruling on it.

After the close of discovery on May 31, 2019, Defendants filed another

motion for summary judgment, (Doc. 112), on July 1, 2019, this time seeking

summary judgment on all counts not recommended for dismissal in the First

Report—namely, Counts I, II, III, IV, V, and XI. White filed a brief in opposition

on July 23, 2019, (Doc. 125), and Defendants filed a reply brief on August 6,

2019, (Doc. 126).

On December 19, 2019, Judge Carlson issued the Second Report,

recommending that summary judgment be entered for Defendants on

Counts I, II, III, IV, and V; that Count XI be dismissed as partially moot; and

that summary judgment be denied as to Counts VI and VII. (Doc. 127).

Additionally, the Second Report repeated the First Report’s recommendation

that summary judgment be entered for Defendants on Counts VIII and IX.

White filed objections to the Second Report, (Doc. 128), and a brief in

support, (Doc. 129). Defendants filed a brief in support of the Second Report,

(Doc. 129), and White filed a reply brief, (Doc. 130).

II. STANDARD

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge

and the court may rely on the recommendations of the magistrate judge to

the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.

2000) (citing U.S. v. Raddatz, 447 U.S. 667, 676 (1980)).

Even where no objection is made, the court should, as a matter of good

practice, “satisfy itself that there is no clear error on the face of the record in

order to accept the recommendation.” Fed.R.Civ.P. 72(b) advisory

committee notes; see also Univac Dental Co. v. Dentsply Intern., Inc., 702

F.Supp.2d 465, 469 (M.D.Pa. 2010) (citing Henderson v. Carlson, 812 F.2d

874, 878 (3d Cir. 1987) (explaining judges should give some review to every

report and recommendation)). Nevertheless, whether timely objections are

made or not, the district court may accept, not accept, or modify, in whole or

in part, the findings or recommendations made by the magistrate judge. 28

U.S.C. §636(b)(1); M.D.Pa. Local Rule 72.31.

III. DISCUSSION

Initially, the court notes that, upon review, the uncontested portions of

the First and Second Reports contain no plain error or manifest injustice, and

therefore those parts are adopted in full. With regard to the contested

portions of the Second Report, White makes four specific objections, each

of which the court will address in turn.

a. White’s Objection to the Second Report’s Recommendation on

Count XI

First, White objects to the Second Report’s recommendation that

Count XI be partially dismissed as moot because to do so “would risk

confusion down the line.” (Doc. 128, at 2). In Count XI, White brings a claim

under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”),

42 U.S.C. §§2000cc et seq., alleging the DOC placed a substantial burden

on his religious practices by prohibiting him from observing the December

fast in 2014 and 2015, including on his ability to observe an end-of-fast

communal feast, and by serving him unlabeled food prohibited by his religion.

White seeks injunctive relief in the form of the ability to observe the

December fast and to receive a halal diet.

The Second Report observes that Count XI is now partially moot,

except with regard to the end-of-fast communal feast, since the DOC has

amended its policies in order to accommodate the December fast and the

halal diet, and since White acknowledged having been able to observe the

December fast in 2016, 2017, and 2018, as well as having been able to

receive a halal diet since 2018. See Doc. 121, at 12-13.

In his objection, White acknowledges that his demand for injunctive

relief as to Count XI is partially moot. Nevertheless, White argues that Count

XI should not be partially dismissed but, instead, “[w]ith more precision, the

Court could ‘dismiss’ claims for injunctive relief as to just those components

of White’s religious observance that DOC recently ceased to substantially

burden.” (Doc. 128, at 3). White then cites to the fact that he may still request

an award of attorneys’ fees and costs under 42 U.S.C. §1988(b) and argues

that Count XI should not be dismissed before he has the opportunity “to

litigate to obtain the relief available under Section 1988 for RLUIPA claims.”

(Doc. 128, at 4).

The court will overrule this objection. As the Defendants note, the

Second Report does not recommend outright dismissal of Count XI. Instead,

it recommends that it be partially dismissed as moot “as it relates to the

December fast and halal diet” but that summary judgment be denied “with

respect to the end-of-fast communal feast.” (Doc. 127, at 45). Thus, it

appears that the Second Report recommends precisely as White suggests.

Accordingly, White’s objection to this portion of the Second Report is

OVERRULED.

b. White’s Objection to the Second Report’s Recommendation on

Counts VIII and IX

Next, White objects to the portion of the Second Report which

recommends that summary judgment be entered for the Defendants on

Counts VIII and IX (related to establishment of religion)3 because the

Defendants’ second motion for summary judgment, (Doc. 112), did not seek

summary judgment on those counts. White then goes on to challenge Judge

Carlson’s reasoning in the First Report with regard to the recommendation

that Counts VIII and IX be dismissed for failure to exhaust under the PLRA.

Defendants note that the Second Report did not address the merits of

Counts VIII and IX because those counts were addressed in the First Report,

to which White made no objection. Thus, according to Defendants, White is

now attempting to make arguments that should have been raised through

objections to the First Report.

Indeed, the Second Report merely reiterates the First Report’s

recommendation that Counts VIII and IX be dismissed for failure to exhaust

but, understandably, does not unnecessarily repeat the prior analysis. In any

event, the court agrees with both the First Report and the Second Report’s

recommendation that summary judgment be granted on these counts

because none of White’s grievances put prison officials on notice of his

objections to Defendants’ alleged promotion of the Ramadan fast or other

religions over his. Instead, the grievances White filed that were related to

3 Counts VIII and IX allege establishment of religion claims, asserting

that Defendants “fostered the observance of the Ramadan Fast and urged

prisoners to follow that observance instead of the December Fast.” (Doc. 27,

at 46).

these counts, Grievance Nos. 494714 and 524683, pertained only to the

grievance system in general and the failure to process his request. (Doc. 46-

6, at 2; Doc. 46-7, at 2). None of White’s grievances alleged that Defendants

promoted any other religion over White’s religion. Therefore, having

reviewed the First and Second Reports, the court agrees with their

recommendations and Defendants’ motion for partial summary judgment,

(Doc. 43), is GRANTED with respect to Counts VIII and IX. White’s second

objection is OVERRULED.4

c. White’s Objection to the Second Report’s Recommendation on

Counts IV and V

Next, White objects to the portion of the Second Report that

recommends summary judgment be granted on Counts IV and V, which

allege interference and conspiracy to interfere with confidential attorney

4 The court expressly rejects White’s argument that Defendants were

on notice of his establishment claims because defendant Houser’s response

to White’s grievance referred to pending state litigation—presumably,

Cooper v. Department of Corrections, No. 691 C.D. 2016, 2016 WL 6246945

(Pa.Commw.Ct. Oct. 26, 2016). The mere fact that a response to a grievance

refers to case law does not mean that the grievant raised—and therefore

prison officials are considered to be on notice of—all legal issues addressed

in the cited case regardless of whether or not the grievant actually attempted

to raise them. Such an interpretation would be absurd and is particularly so

here where the response does not name the case, but states only that

White’s request was the same as a prior request he made that was denied

because of “litigation pending in the Court of Common Pleas.” (Doc. 46-7, at

5).

communications in violation of the Free Speech Clause. White argues that

there are outstanding issues of material fact related to these claims.

Specifically, he asserts that the evidence of record, as well as some exhibits

entered in another case of which he asks the court to take judicial notice,

create genuine issues of material fact about whether Defendants infringed

on his free speech rights. White also objects to the Second Report’s

observation that courts in this District have “repeatedly rebuffed efforts to

challenge the visiting room practices at SCI Huntingdon on constitutional

grounds.” (Doc. 127, at 25) (citing Camacho v. Dean, No. 1:14-cv-1428, 2016

WL 1182265 (M.D.Pa. Mar. 28, 2016) (adopting a report and

recommendation)),5 and Lane v. Taveres, No. 3:14-cv-991, 2015 WL 435003

(M.D.Pa. Feb 3, 2015) (same)).

In Camacho, Judge Kane adopted a report and recommendation that

recommended denial of the plaintiff’s motion for a preliminary injunction

seeking confidential contact visits with his attorney. There, the plaintiff

argued that SCI-Huntingdon defendants infringed upon his right of access to

5 Notably, White testified in a hearing on the motion for a preliminary

injunction in Camacho. The Camacho report and recommendation

summarized this testimony, noting White testified about grievances he filed

regarding the same visits with counsel that are at issue in the present matter.

Camacho v. Dean, No. 1:14-cv-1428, 2015 U.S.Dist.LEXIS 177233, at *25-

26 (M.D.Pa. July 22, 2015).

the court by failing to permit confidential contact visits with his counsel due

to the visitation procedures at SCI-Huntingdon.

In Lane, the plaintiff, likewise in a motion for a preliminary injunction,

made a nearly identical claim to that of the plaintiff in Camacho. In denying

the motion, Judge Caputo found that the plaintiff, Lane, failed to satisfy his

burden of demonstrating a reasonable probability of prevailing on the merits

of his access-to-courts claim. Lane, 2015 WL 435003, at *13. Subsequently,

Judge Caputo adopted a report and recommendation and entered summary

judgment in favor of the defendants on Lane’s access-to-courts claim

wherein he made virtually identical allegations to those of White here. More

particularly, Lane alleged First Amendment retaliation and that he was

denied access to courts because he was unable to fully prepare to testify in

a separate proceeding because of the condition of the same visiting booths

at issue in this case; because the defendants planted contraband (a cigarette

butt) near where Lane met with his counsel; and because a correctional

officer brushed up against his counsel’s person. Lane v. Tavares, No. 3:14-

cv-991, 2019 WL 1620285, at *6 (M.D.Pa. Apr. 16, 2019).

The Second Report observes that, while inmates have a constitutional

right to meet confidentially with their attorneys, courts have held that there is

no constitutional violation when an inmate is provided an area to speak

confidentially with counsel, such as non-contact attorney booths. (Doc. 127,

at 25). It was in that respect that Judge Carlson observed that the courts in

Camacho and Lane found that the non-contact attorney booths at SCI-

Huntingdon were sufficient to afford an inmate the right to confidentially meet

with counsel. Judge Carlson also noted that many of White’s present claims

are the same as those rejected in Camacho and Lane.

White asserts that, in doing so, the Second Report, “imports

contrasting facts from two other prisoner actions in this district,” and was

improper for various reasons, including that (1) the standard for a preliminary

objection is different than that of summary judgment; (2) because a court

may not weigh evidence or assess credibility on a motion for summary

judgment; (3) because those cases did not have a free speech claim at the

relevant time; (4) because the evidence here is more extensive than in those

cases; and (5) because the Second Report, “solely on the basis of findings

in Camacho and in Lane[,] suggest[s] that constitutionally[-]adequate

facilities would have been available at SCI Huntingdon by May 2015, [and]

assumes that the existing facilities actually were made available to Mr. White

and his counsel, contrary to testimony in the record here.” (Doc. 128, at 10).

The court will overrule White’s third objection. The Second Report’s

observation of the similarities between the cases does not equate to error.

Additionally, the Second Report’s discussion of the virtually identical

allegations in those cases does not constitute “confusion” about the pertinent

standard. To the contrary, the Second Report observes that there is not a

genuine dispute as to material facts and, in applying the law to the facts, it is

apparent that Defendants’ actions did not violate White’s right to

confidentially meet with counsel. The fact that those cases did not have a

free speech claim pending at the “relevant” time is immaterial where those

courts were addressing the very same non-contact booths that White

complains of here.

Finally, White is incorrect that the Second Report’s recommendation

that summary judgment be entered on these counts is based on the facts

involved in Camacho and Lane. The Second Report specifically notes the

following facts in the case at bar:

White contends that during the August 2014

conference, he was unable to use the intercom

system during his conferences because of the static

and crackling noises and argues that he and counsel

had to shout to each other in order to communicate.

Further, during the May 2015 conference, White

asserts that he and his counsel were purposely

placed in booth number 3 so that Officer Duvall would

be able to potentially overhear their conversations.

He also argues that he was unable to receive legal

advice from counsel at this visit as it pertained to his

upcoming testimony in court because he could not

view legal papers that his attorney had brought for

him. In addition to these concerns, White also alleges

misconduct by Officer Duvall during these

conferences. With respect to the August 2014

conference, White claims that Duvall struck the

window of the attorney booth with her radio several

times in order to frighten White and his counsel. It is

also alleged that Duvall “brushed by the attorney in a

menacing fashion” with the intent to intimidate

White’s counsel. Finally, White claims that Duvall

planted a contraband cigarette butt in the attorney

booth before the August 2014 visit.

(Doc. 127, at 28).

The court agrees with the Second Report’s conclusion that the above-

mentioned facts are insufficient to withstand the present motion for summary

judgment. Put simply, the facts that White has set forth regarding his attorney

visits are insufficient as a matter of law to constitute a violation of his

constitutional rights. White has cited no evidence that anyone heard or

attempted to overhear his conversations with his attorney. White merely

asserts that he recalled hearing noise from people outside the booth, (Doc.

121, at 37, 40), which did not render their conversation non-confidential as a

matter of law. See Camacho, 2015 U.S. Dist. LEXIS 177233, at *67 (“[W]e

conclude that [an inmate] can meet confidentially with his counsel in the

attorney booths [at SCI-Huntingdon].”); Lane, 2015 WL 435003, at *12 (“In

those booths [at SCI-Huntingdon], [an inmate] and his counsel are able to

speak confidentially through telephones.”). As Defendants note, merely

hearing voices outside the booth does not mean that those speaking

overheard White and his counsel. “Quite the opposite. If those people were

talking, then they were not listening.” (Doc. 126, at 3).

Thus, as in Lane, “[w]hat remains are unsupported, speculative

allegations that Defendants planted contraband (a cigarette butt) near where

[White] visited his counsel and that Defendant Duvall ‘outright physical[ly]

assault[ed]’ [White]’s counsel (in reality, brushed up against her [according

to counsel’s own description of the encounter]).” 2019 WL 1620285, at *5.

These events, including Officer Duvall’s striking the window with a radio,

likewise are insufficient as a matter of law to constitute a violation of White’s

free speech rights.

To the extent White argues his claim is broader than the Second

Report recognizes since it also includes the intimidation of his counsel, White

is incorrect. As the Judge Carlson succinctly recognizes, “[T]he allegations

concerning Officer Duvall’s conduct, which allegedly included hitting the

window with her radio, planting a contraband cigarette butt in the visiting

booth, and brushing up against White’s counsel, are not constitutional

infractions and do not render White’s visits with his attorney non-

confidential.” (Doc. 127, at 29). See Lane v. Tavares, 2019 WL 1620285, at

*6. Accordingly, White’s third objection to the Second Report is

OVERRULED, and Defendants’ motion for summary judgment, (Doc. 112),

is GRANTED as to Counts IV and V.

d. White’s Objection to the Second Report’s Recommendation on

Counts II and III

Lastly, White objects to the Second Report’s recommendation that

summary judgment be entered for Defendants on Counts II and III. In Counts

II and III, White alleges that defendants Duvall, Dunkle, Smith, and Eckard

conspired to deter, and neglected to prevent deterrence of, his testimony in

federal court. The Second Report recommends summary judgment be

entered on these counts because, based on the evidence, White cannot

show that he was unable to testify fully and freely in the Camacho hearing.

In his objection, White contends that the Second Report’s

recommendation is based on improper speculation where it observes that

any impediment to his testimony in the Camacho hearing purportedly caused

by the difficulties in meeting with his counsel could have been resolved by

simply asking the court to permit him time to review the exhibits. In response,

White cites several extra-record facts about the Camacho hearing, including

that “the parties were surprised that exhibits displayed in the courtroom could

not be seen by witnesses who participated by video,” that “[q]uite some time

was expended in a futile effort to make the link work,” and that “[t]he

proceedings went forward because the court wanted to avoid any further

delay.” (Doc. 128, at 12). Curiously, White himself then goes on to speculate

that, had he not been “prevented from reviewing the exhibits beforehand with

counsel, his testimony at the Camacho hearing could have led to a different

result there.” (Doc. 128, at 13).

White’s objection is unconvincing. While he is correct that preventing

him from testifying as fully as he intended and from being able to identify

exhibits would be cognizable injuries under Section 1985, as the Second

Report aptly observes, White has put forth no evidence in support of this

claim other than bald assertions insufficient to survive a motion for summary

judgment. Indeed, White himself acknowledged that, other than not having

the chance to go over some of the paperwork discussed in his testimony, he

did not know in what way he was prevented from testifying as fully as he

desired. (Doc. 121, at 44). Crucially, White does not link the alleged

interference with his attorney visits to his inability to testify as fully as he

would have liked about the exhibits. That is, White has not alleged that the

interference with his attorney visits were the reason he did not have a chance

to go over the exhibits prior to the hearing.

In fact, White’s own testimony contradicts his contention that he was

unable to review documents with his attorney during their meetings, since

White testified that the attorney visitation booth had “a little slot in the barrier

where [if] [counsel] wanted to share a document with you, she could send it

to you and you could send it back to her.” (Doc. 121-1, at 12). Moreover,

White testified that defendants Dunkle, Eckerd, Smith, and Duvall did not tell

him not to testify in the Camacho hearing, and did not give him a hard time

or punish him in any way for having done so. (Doc. 121, at 47-48).

Accordingly, White fourth objection is OVERRULED, and Defendants’

motion for summary judgment, (Doc. 112), GRANTED with respect to Counts

II and III.

IV. CONCLUSION

In conclusion, for the reasons set forth above, Defendants’ objections

to the First Report, (Doc. 72), are OVERRULED, and White’s objections to

the Second Report, (Doc. 128), are OVERRULED. The court will ADOPT IN

THEIR ENTIRETY the First Report, (Doc. 65), and the Second Report, (Doc.

127).

Defendants’ motion for partial summary judgment, (Doc. 43), is

GRANTED IN PART and DENIED IN PART. Summary judgment is

GRANTED in favor of Defendants on Counts VIII and IX, as well as in favor

of defendants Eckard and Smith on Counts IV and V as it relates to the May

24, 2015 attorney visit. Defendants motion for partial summary judgment,

(Doc. 43), is DENIED in all other respects.

Defendants’ motion for summary judgment, (Doc. 112), is GRANTED

IN PART and DENIED IN PART. Summary judgment is GRANTED in favor

of Defendants on Counts I, II, III, IV, and V. Summary judgment is DENIED

as to Counts VI and VII. Finally, Count XI is DISMISSED AS MOOT only

insofar as it relates to the December fast and halal diet only. An appropriate

order will issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: February 21, 2020

16-0675-01