Carter v. McGrady

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

5-28-2002

Carter v. McGrady

Precedential or Non-Precedential: Precedential

Docket No. 01-1738

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PRECEDENTIAL

Filed May 29, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-1738

RICHARD CARTER, SCI-MAHANOY PARA-LEGAL

ASSISTANT/ ON BEHALF OF HIMSELF AND PRISON

POPULATION

v.

JAMES MCGRADY, CAPTAIN, AND; MARY CANINO,

HEARING EXAMINER, IN THEIR INDIVIDUAL AND

OFFICIAL CAPACITY

(Eastern District of PA Civil #94-cv-7163)

RICHARD CARTER, on behalf of himself and all those

similarly situated

v.

MARTIN L. DRAGOVICH, SUPERINTENDENT; EDWARD J.

KLEM, Superintendent of Centralized Services;

COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA

DEPARTMENT OF CORRECTIONS; SCI AT MAHANOY;

JAMES MCGRADY, CAPTAIN (Eastern District of PA Civil

#96-cv-6496)

Richard Carter, Appellant

On Appeal From the United States District Court

For the Eastern District of Pennsylvania

District Judge: Honorable J. Curtis Joyner

Argued: February 4, 2002

Before: BECKER, Chief Judge, McKEE and BARRY,

Circuit Judges.

(Filed: May 29, 2002)

JOSEPH A. SULLIVAN, ESQUIRE

EDWARD W. FERRUGGIA, ESQUIRE

KIMBERLY M. KAPLAN, ESQUIRE

(ARGUED)

LISA M. SCIDURLO, ESQUIRE

ADAM C. BONIN, ESQUIRE

Schnader, Harrison, Segal & Lewis,

LLP

1600 Market Street, Suite 3600

Philadelphia, PA 19103

Counsel for Appellant

D. MICHAEL FISHER, ESQUIRE

Attorney General

BETH ANNE SMITH, ESQUIRE

(ARGUED)

Senior Deputy Attorney General

JOHN G. KNORR, III, ESQUIRE

Chief Deputy Attorney General

Chief, Appellate Section

Office of Attorney General

21 S. 12th Street, 3rd Floor

Philadelphia, PA 19107-3606

Counsel for Appellees James

McGrady, Martin L. Dragovich

Edward J. Klem and Mary Canino

OPINION OF THE COURT

BECKER, Chief Judge.

This is a prisoner’s civil rights case, 42 U.S.C.S 1983,

brought by Richard Carter, an inmate in the custody of the

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Pennsylvania Department of Corrections ("DOC"). Carter, an

experienced and assiduous jailhouse lawyer, claims that he

was unlawfully subjected to cell searches and disciplinary

proceedings in retaliation for his jailhouse lawyering, which

he contends was disfavored at the State Correctional

Institute at Mahanoy ("SCI-Mahanoy") where he was

incarcerated at all times relevant to this lawsuit. This

appeal is from the order of the District Court granting

summary judgment for the defendants, James McGrady,

Martin Dragovich, and Edward Klem, all officials at SCI-

Mahanoy, based on the conclusion that Carter did not have

a constitutionally protected right to act as a jailhouse

lawyer and, thus, the defendants were entitled to qualified

immunity.

When this case was before the District Court, the

Supreme Court had yet to decide Shaw v. Murphy , 532 U.S.

223 (2001), which held that prisoners do not have a

freestanding constitutional right to assist other inmates in

filing legal claims. Shaw had asserted such a right, and the

Supreme Court has therefore foreclosed one facet of

Carter’s claim. This development has required Carter, who

describes himself in the case caption as "SCI-Mahanoy

Para-Legal Assistant/On Behalf of himself and prison

population," to shift gears and to stress two other

arguments. First, Carter claims that he was retaliated

against for exercising his First Amendment rights. Second,

invoking Turner v. Safley, 482 U.S. 78 (1987), he claims

that there are no reasons related to penological interests

that would otherwise justify the conduct of the prison

officials.

Carter’s claim of retaliation for exercising a constitutional

right is governed by Rauser v. Horn, 241 F.3d 330 (3d Cir.

2001). Under Rauser, prison officials may prevail when the

plaintiff has made out a prima facie case of retaliation if

they prove that "they would have made the same decision

absent the protected conduct for reasons reasonably related

to legitimate penological interests." Id. at 334. The record

reveals that Carter was clearly guilty of egregious violations

of prison policy -- stealing a typewriter and unauthorized

use of the mails (and other violations as well). We conclude,

assuming arguendo that Carter has correctly described the

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attitude at SCI-Mahanoy about jailhouse lawyering and that

he has made out a prima facie case of retaliation, that there

is no genuine issue of material fact that the prison officials

would have disciplined Carter for these violations

notwithstanding his jailhouse lawyering. Accordingly, we

will affirm, albeit on different grounds than those relied on

by the District Court. See Narin v. Lower Merion Sch. Dist.,

206 F.3d 323, 333 n.8 (3d Cir. 2000). We therefore need

not reach the interesting issues raised by Carter’s theory

that he has a protected First Amendment right to provide

legal advice, and that any action taken against him for

exercising such a right must be evaluated under Turner.

I. Facts and Procedural History

On February 25, 1994, Carter executed and transmitted

an "outside purchase approval form" for an electric

typewriter from a "family member or friend." In due course,

a Smith-Corona typewriter arrived at SCI-Mahanoy from

Suburban Office Equipment, a vendor located in Ardmore,

Pennsylvania. On March 24, 1994, Carter signed an inmate

personal property receipt and accepted delivery of the

typewriter. A mailroom inspector, Liz Ryan, later informed

James McGrady, SCI-Mahanoy’s Security Captain, that the

vendor had sent a demand letter stating that: (1) no

payment had been made for the typewriter; and (2) Carter

had obtained the typewriter through the unauthorized use

of a credit card.

McGrady investigated the matter by contacting Wallace

McLean, who worked for the vendor. McLean informed

McGrady that the typewriter had been ordered over the

phone using a credit card and that the customer identified

the name on the card as Richard Carter. The actual owner

of the card, who lived in California, subsequently verified

that Carter was not authorized to use that card. McLean

faxed certain documents to McGrady, including the sales

receipt that indicated that the typewriter was sold to Carter

and paid for with a Visa card; the "Retrieval Request

Fulfillment Transmittal" containing a copy of a credit card

sales slip reflecting that the sale of the typewriter was made

by a credit card bearing the name "Richard Carter"; and an

inquiry from McLean representing that a typewriter was

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shipped from the vendor to Richard Carter and signed for

by an SCI-Mahanoy mailroom employee.

On October 19, 1994, thirteen days after the vendor had

contacted SCI-Mahanoy about the typewriter, McGrady

twice ordered Carter’s cell to be searched. In the course of

the first search, a corrections officer, M.E. Steinhauer,

seized the typewriter. Immediately after the search, Carter

was taken to the security office. McGrady testified that

Carter told him that an inmate at SCI-Graterford, where

Carter was formerly an inmate, had purchased the

typewriter for him in return for legal services rendered, but

that he had no idea how that inmate purchased the

typewriter. Carter denies telling McGrady this, but does

admit that he gave McGrady an unsigned affidavit that he

prepared, purportedly on behalf of the other inmate,

making a statement to this effect.

Carter submits that McGrady then threatened him with

discipline should he assist other inmates with legal

matters, stating that, "You don’t work in the law library

here . . . SCI-Mahanoy does not allow inmates to help other

inmates with their legal matters." When Carter told

McGrady about how he had been helping other inmates for

many years, Carter alleges that McGrady responded by

saying "I don’t care where you were before. We don’t allow

prisoners to help other inmates." Carter also represents

that McGrady said, "if I even hear about you helping other

inmates, I will write you up and put you in RHU[Restrictive

Housing Unit]."

McGrady subsequently ordered a second search for

documentation of the purchase of the typewriter or any

other evidence of the unauthorized use of the credit card. In

the course of this search, Steinhauer confiscated Carter’s

personal papers, including all of Carter’s legal materials. In

the papers seized from Carter’s cell, Steinhauer found an

envelope from the vendor containing two receipts for the

typewriter that were identical to the sales receipt and credit

card sales slip that the vendor had faxed to McGrady.

Carter testified that, on October 23, 1994, he filed a written

request to have his documents returned. The request was

denied.

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On October 27, 1994, McGrady called Carter to his office

to witness the return of legal documents belonging to ten

different inmates. Carter testified that, in his presence,

each of the inmates that he was assisting was ordered not

to allow Carter to review their legal materials and told that

anyone who did would be sent to the RHU. This was despite

protests that they had no other means of legal assistance.

During this meeting, McGrady asked Carter what he was

doing with these papers. Carter responded that he was not

assigned to the law library as a legal aide but that he was

being paid for helping people. McGrady then told Carter

that he could not conduct a business while in prison.

Carter responded that he was a court-appointed paralegal

and was being paid by the Federal Courts to assist other

inmates. Carter produced two documents as evidence of his

status as a court-appointed paralegal, but McGrady could

not determine from the documents whether Carter was

telling the truth.

McGrady thereafter wrote a misconduct report charging

Carter with receiving stolen property. At the disciplinary

hearing on the charge, Carter was found guilty and

sentenced to sixty days disciplinary custody in the RHU.

After serving this sanction, he was returned to the general

population at SCI-Mahanoy. Carter was also charged by the

Schuylkill County District Attorney’s Office with

unauthorized use of a credit card, theft by deception,

receiving stolen property, and conspiracy. He was convicted

of the charge of receiving stolen property and given a

sentence of two and one-half to five years consecutive to the

sentence he is currently serving.

Carter testified that over the course of the next two years

he was routinely harassed and searched when entering and

leaving the prison library, far more frequently than other

inmates. He alleges that these were efforts to search his

files to determine which inmates he was assisting with legal

matters. On June 5, 1996, his cell was again searched and

his legal and personal papers were seized.

In August 1997, an inmate informed Vincent Mooney, the

Security Lieutenant at SCI-Mahanoy, that another inmate -

Dana Carter (who happened to be the plaintiff’s cell-mate)

- was holding the inmate’s legal papers until he paid Dana

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Carter money for his legal work. As a result, Mooney

ordered a search of Dana Carter’s cell. During that search,

Corrections Officer Toth discovered an excessive amount of

property in the cell, belonging to both Dana and Richard

Carter, as well as other inmates, which was deemed to

constitute a fire and safety hazard. Mooney ordered the

search team to confiscate the property and take it to the

security area. Mooney subsequently called Carter (the

plaintiff - not his cellmate, Dana) to the security office

where he advised him that he was limited to two file boxes

of property in his cell. Carter was then allowed to select the

paperwork that he wanted to keep, and was told that his

remaining paperwork would be stored in the property room,

but that paper belonging to other inmates would be

returned to those inmates.

Later in August 1997, staff at SCI-Greene, another

Pennsylvania prison, advised McGrady that Carter had

circumvented mail policies by corresponding with an

inmate at SCI-Greene, Donny Unger. Carter concedes that

he wrote a note to Unger without seeking authorization for

that correspondence. Inmates in DOC custody are

prohibited from corresponding with inmates in other state

correctional institutions. On the basis of this information,

a routine misconduct search of Carter’s cell was conducted

in late August. During that search, prison officials

confiscated a copy of a newsletter drafted by Carter, "The

Last Line of Defense," which advocated prisoner litigation

and argued that prison paralegals like himself stood as the

"last line of defense." Carter had not requested or obtained

approval by the SCI-Mahanoy administration for this

newsletter. On August 29, 1997, Carter was charged with

misconduct for unauthorized use of the mail. He was found

guilty and sentenced to RHU for thirty days.

Carter served thirty days in RHU for the unauthorized

use of the mails. He was not thereafter returned to SCI-

Mahanoy, but was placed instead in administrative custody

pending transfer. He was ultimately transferred to SCI-

Dallas, where he remains incarcerated. The transfer was

initiated by McGrady, who petitioned the DOC to transfer

Carter to another state correctional institution. This

transfer decision was based on security concerns,

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specifically, Carter’s attempts to establish at SCI-Mahanoy

various unauthorized groups, including the Ma’at Karast

Temple, a religious group that Carter wanted the prison to

recognize as an official religion. McGrady also believed that

Carter was affiliated with groups that advocate violence.

Carter, in contrast, urges that the transfer was done in

order to punish him for assisting other inmates, and to

prevent him from continuing to help them in the future. He

also contends that defendants filed negative parole

recommendations against him in May 1995 and February

1996 despite the fact that he has been a nonviolent and

generally exemplary inmate, and that this was done in

retaliation for his jailhouse lawyering.

Carter filed two separate pro se complaints alleging

violations of 42 U.S.C. S 1983. The protracted history of this

litigation, not relevant to the outcome, is described in the

margin.1 An amended complaint was filed on February 12,

1999, alleging claims under 42 U.S.C. S 1983, based on

both access to courts and retaliation for exercise of his First

Amendment rights. Carter also pled a conspiracy count

under 42 U.S.C. S 1985. Defendants moved to dismiss the

_________________________________________________________________

1. In September 1996, Carter filed this S 1983 action against SCI-

Mahanoy, Dragovich, and Klem. (C.A. No. 96-6496). He challenged the

adequacy of the law library and legal reference aides policy, as well as

the legality of the prison restrictions on his ability to practice as a

"jailhouse lawyer." Carter alleged that the defendants had violated his

right of access to the courts, and that certain actions were taken against

him in retaliation for the exercise of his First Amendment rights.

Defendants moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the

complaint. They maintained that: 1) an inmate had no constitutional

right to act as a jailhouse lawyer; 2) Carter’s access-to-courts claim

failed since he had not suffered any actual injury as a result of their

conduct; and 3) Carter’s retaliation claim failed since he had no

constitutional right to be a jailhouse lawyer, and had failed to allege

facts which showed that the defendants had taken any retaliatory action

against him, or knew of or acquiesced in any such retaliation. The

District Court denied the motion, concluding that Carter was not

asserting an access-to-courts claim. The District Court also granted

Carter’s motion to consolidate this case with another case he had

previously filed, C.A. No. 94-7163, which has a long procedural history.

Carter subsequently filed an amended complaint, which subsumes the

two consolidated cases and lays the foundation for this appeal.

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amended complaint pursuant to Fed. R. Civ. P. 12(b)(6).

The Court dismissed Carter’s claims against the

Commonwealth of Pennsylvania, the DOC, and SCI-

Mahanoy on grounds of Eleventh Amendment immunity.

Carter’s access-to-courts claim was dismissed because he

failed to allege an "actual injury" within the meaning of

Lewis v. Casey, 518 U.S. 343 (1996). The S 1985 claim was

dismissed because "jailhouse lawyers" are not protected

under that statute. Thus, all that was left was Carter’s

retaliation claim against McGrady, Dragovich, and Klem.

Defendants subsequently moved for summary judgment,

arguing inter alia that Carter’s retaliation claim failed as a

matter of law and that they were entitled to qualified

immunity. The District Court concluded that the

defendants were entitled to qualified immunity because

Carter did not have a constitutional right to act as a

jailhouse lawyer and granted their motion for summary

judgment, from which Carter now appeals. The District

Court had jurisdiction pursuant to 28 U.S.C. S 1331. We

have appellate jurisdiction pursuant to 28 U.S.C.S 1291.

We exercise plenary review over a district court’s grant of

summary judgment. See Pi Lambda Phi Fraternity, Inc. v.

Univ. of Pittsburgh, 229 F.3d 435, 441 n.3 (3d Cir. 2000).

We set forth the familiar standards governing review of

summary judgment motions in the margin.2

II. Discussion

A prisoner alleging that prison officials have retaliated

against him for exercising his constitutional rights must

prove that: 1) the conduct in which he was engaged was

constitutionally protected; 2) he suffered "adverse action" at

the hands of prison officials; and 3) his constitutionally

_________________________________________________________________

2. Summary judgment is proper if there is no genuine issue of material

fact and if, viewing the facts in the light most favorable to the non-

moving party, the moving party is entitled to judgment as a matter of

law. See Fed. R. Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317

(1986). The judge’s function at the summary judgment stage is not to

weigh the evidence and determine the truth of the matter, but to

determine whether there is a genuine issue for trial. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

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protected conduct was a substantial or motivating factor in

the decision to discipline him. Rauser v. Horn , 241 F.3d

330, 333 (3d Cir. 2001) (adopting Mount Healthy Bd. of

Educ. v. Doyle, 429 U.S. 274, 287 (1977)). Once a prisoner

has made his prima facie case, the burden shifts to the

defendant to prove by a preponderance of the evidence that

it "would have made the same decision absent the protected

conduct for reasons reasonably related to penological

interest." Id. at 334 (incorporating Turner v. Safley, 482

U.S. 78, 89 (1987)).

The Supreme Court has made clear that decisions of

prison administrators are entitled to great deference. In

crafting the appropriate standard of review for prisoners’

constitutional claims, the Court observed that "[r]unning a

prison is an inordinately difficult undertaking." Turner, 482

U.S. at 85. Moreover, the Court noted that " ‘courts are ill

equipped to deal with the increasingly urgent problems of

prison administration and reform.’ " Id. (quoting Procunier v.

Martinez, 41 U.S. 396, 405 (1974)). Thus, "[p]rison

administrators should be accorded wide-ranging deference

in the adoption and execution of policies and practices that

in their judgment are needed to preserve internal order and

discipline and to maintain institutional security." Bell v.

Wolfish, 441 U.S. 520, 547 (1979).

In this case, Carter was never charged with misconduct

for helping other inmates with legal matters or having their

legal materials in his cell. Rather, he was charged with

misconduct for undisputed violations of prison policy. The

search and seizure of items from his cell were related to

these various violations. Carter was discovered with a

stolen typewriter in his cell. The cell search uncovered an

envelope containing two receipts for the typewriter,

identical to the sales receipt and credit card sales slip faxed

by the vendor. As a result, Carter was disciplined with sixty

days in the RHU.

Moreover, it is not disputed that Carter corresponded

with Unger in violation of prison policy. Carter conceded

that he wrote a note to Unger without seeking authorization

for that correspondence. His cell was searched in

connection with this allegation; he was written up and

subsequently disciplined with thirty days for this conduct.

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Additionally, there is no dispute that the amount of

property kept by Richard Carter and Dana Carter in their

cell exceeded the amount allowed by fire and safety

regulations. The materials were seized for this reason, and

Carter was allowed to select up to two boxes of his personal

material to keep in his cell. Finally, in the course of

searching Carter’s cell in connection with the unauthorized

use of the mails, prison officials found the newsletter, "The

Last Line of Defense," a publication of which Carter was the

editor and for which he had not requested or obtained

approval by the SCI-Mahanoy administration. The foregoing

represents a sizeable quantum of misconduct evidence.

Carter contends that notwithstanding these facts all of

the actions taken against him were a reflection of

defendants’ bias against jailhouse lawyers. We note in

passing that inmates at SCI-Mahanoy are in fact permitted

to act as jailhouse lawyers provided that they do not

demand or receive payment for their services. The

institution also provided both a law library and inmates

assigned to work as legal aides in that library. All inmates

have access to the law library, which was open all day,

including evenings, from Monday to Friday; on weekends, it

was open six to eight hours. Inmates are allowed to confer

with each other in the library as long as they are not

disruptive. Nevertheless, even assuming, for purposes of

this case, that Carter’s activity was constitutionally

protected, but see Shaw v. Murphy, 532 U.S. 223, 230-31

(2001), supra, and that the searches and subsequent

disciplinary action were motivated by hostility to this

protected activity, Carter still cannot prevail.

As this Court has previously held, "once a prisoner has

demonstrated that his exercise of a constitutional right was

a substantial or motivating factor in the challenged

decision, the prison officials may still prevail by proving

that they would have made the same decision absent the

protected conduct for reasons reasonably related to a

legitimate penological interest." Rauser , 241 F.3d at 334

(emphasis added). Given the quantum of evidence of

Carter’s misconduct, we cannot say that the prison officials’

decision to discipline Carter for his violations of prison

policy was not within the "broad discretion" that we must

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afford them. Thornburgh v. Abbott, 490 U.S. 401, 413

(1989). Even if prison officials were motivated by animus to

jailhouse lawyers, Carter’s offenses, such as receiving

stolen property, were so clear and overt that we cannot say

that the disciplinary action taken against Carter was

retaliatory. Rather, we conclude that the there is no

genuine issue of material fact that such action was

"reasonably related to legitimate penological interests," and

that Carter would have been disciplined notwithstanding

his jailhouse lawyering. Turner, 482 U.S. at 90. The

judgment of the District Court will therefore be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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