# White v. Wireman

> District Court, M.D. Pennsylvania · February 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10408328

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** February 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10408328

## How later opinions describe it (automated extraction)

- explaining judges should give some review to every report and recommendation

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10408328. Public record. Not legal advice.