Mr. M. E. Keeling v. Mr. Forr, et al. (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mr. Michael E. Keeling, : : Appellant : : v. : : Mr. Forr, Mr. P. Damiter, R. Shannon, : Ms. Sharon Burks and Mr. Jeffery Beard : BEFORE: No. 1147 C.D. 2007 Submitted: January 25, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE RENà E COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: May 7, 2008 This is an appeal from the entry of summary judgment by the Court of Common Pleas of Schuylkill County (trial court) against an inmate, Michael E. Keeling (Keeling), who brought a civil rights retaliation action under 42 U.S.C. § 1983 (2006) against officials from both the Department of Corrections and the prison in which he was confined. (Officials). Keeling alleges in his Complaint and Amendment to the Complaint that the Officials retaliated against him in response to prior lawsuits that he had brought against them. In particular, he avers that the Officials purposefully transferred him from State Correctional Institution (SCI)-Frackville to SCI-Rockview in order to inconvenience him and to enable them to retrieve and damage his property while he was at SCI-Rockview.1 He avers that on his return to the first prison, the Officials, also in retaliation for the prior lawsuits: (1) inappropriately delayed returning his 1 Throughout this opinion, when quoting from the Complaint, in the interest of representing Keeling s arguments as closely as possible, we have refrained from inserting editorial marks or corrections where they otherwise would normally go, other than to insert Keeling s name in brackets where he had identified himself in another manner. Keeling does not specifically identify any claims in his Complaint, but the relevant facts and claims drawn from the 111 paragraphs of the Complaint may be summed up as follows: 1]. SCI-Frackville s retaliatory tactic s began when on the morning of May 27, 2003 correction officer (John Doe) woke [Keeling] up with a verbal command at 4:45 am informing [Keeling that he] was being transferred on a temporary/transfer ¦ 2]. It was and is a abnormal manner simply because [Keeling] was not permitted to pack up his own personal property T.V. Radio, legal material s etc, etc, and clearly suspicious practice because normally inmate s are pack up one day prior to a transfer from the DOC institutional..ill remain there upon his return (suspicious) once again ¦ 3]. Plaintiff was instructed to leave all property in his cell (CC/51) and it will remain there until I return (suspicious) once again for a T/T movement[.] 4]. It appears while plaintiff was in route to SCI-Rockview on or about 1;15 may 27, 2003 a (C.O. John Doe) removed all personal properties unsupervised by plaintiff and store in the SCI-Frackville property room (per) Sgt, Kraynak ¦ 5]. Plaintiff will bolster the (abnormal) action by stating at that time plaintiff was considered a (escape) risk and housed on a escape risk tier of the institution and still staff permitted allowed and cancelled/bogus court date in support and plaintiff should not have been erroneously transported unless it is totally a tactic of retaliatory/harassment ¦ (Complaint at ¶¶ 1-5.) 2 personal property to him;2 (2) failed to address grievances he filed in response to the transfer;3 and (3) denied him a promotional transfer to a different institution. 2 Keeling avers that: 9]. Upon return to SCI-Frackville on June 3, 2003 at 4:30 pm. Officer name (Zubris) in the receiving room/property room literally [refused] to relinquish my personal property item s T.V. Radio Typewriter, etc etc by saying I was told not to issue your property (per) order of (Sgt. Kraynak) you will receive it in the morning a abnormal practice once again for an inmate s returning to their custody institution ¦ ¦. 12]. Two day s later I finally received my personal property June 5, 2003 by issuing a pass to property room and (Sgt, Kraynak s) first word s were Keeling I did no you returned ¦ 13]. It is a fact (Sgt, Kraynak) was on duty the day I returned and would or should have been aware of institutional (return s) because a list is issued hour s before in order to prepare a cell and he intentionally told (C.O. Zubris) not to release my property ¦ 14]. The record s will reflect I was issued a Federal Court Order to respond on May 23, 2003 and without my personal property and legal material I could not follow those order s ¦ 15]. After retrieving my personal property on June 5, 2003[, I] learned my (Radio) antenna had been broken ¦ ¦. 92]. Sgt, Kraynak retaliated against plaintiff by refusing to allow plaintiff to receive my personal property on June 3, 2003 ¦ 93]. Mir Miranda retaliated against plaintiff by refusing to allow plaintiff to receive my personal properties June 4, 2003 ¦ (Complaint ¶¶ 9, 12-15, 92-93.) 3 Keeling then avers that he filed two grievances arising from these events. In the first grievance, Keeling averred that: 16]. I immediately filed a grievance (initial steps) complaint dated, 6/7/03, concerning pure [r]etaliation (a) denial of personal property (hygienic s) (Legal Material s) etc, etc, (b) Denial of any assistance from, Block Officer, Musil, Sgt, Paulukiois) and Unit Manager, Miranda, (c) Sgt Kraynak s denial order to release my property to (C.O. Zubris) on 6/3/03 at 4:30, pm. (d) Broken Radio ¦ (Continued ¦) 3 (Complaint ¶ 105.) Keeling concludes his Complaint with his request for the following damages: (1) compensatory damages of $25,000 against each defendant; (2) punitive damages in the amount of $5,000,000 against the Officials of Corrections (3) suit costs and fees; and (4) [a]ny additional relief this court deem s ; [sic] just and lawfully proper and equitable[.] (Complaint at 12.) Keeling further requests a trial by jury. The Officials answered the Complaint and Amendment to the Complaint, denying that any of their actions were retaliatory in nature. The Officials admitted that prison officers did pack Keeling s private property into storage boxes, but also noted that SCI-Frackville s policy indicates that either an inmate, or an officer, may pack the property. The Officials also indicated that it had transferred Keeling to SCIRockview to enable him to attend a federal proceeding that he had initiated. The Officials averred that they learned that the federal proceeding had been continued on May 28, 2003, one day after they had already transferred Keeling to SCI-Rockview. The parties conducted discovery, which included the taking of a deposition from Keeling. On January 23, 2007, the Officials moved for summary judgment (Motion) relying primarily on admissions from Keeling: 17]. I also filed a grievance dated, 6/9/03 concerning staffs retaliatory tactic s by placing me on a temporary transfer to a court appearance clearly cancelled time pre/fax May 23, 2003 by staff member (John Doe) ¦ (Complaint ¶¶ 16-17.) The Complaint goes into great length about the procedural history of the grievance cases, although the discussion is difficult to follow. The gist of the discussion seems to be that no decisions were rendered as to his grievances. 4 a. At the time of his temporary transfer to SCI-Rockview in May of 2003, [Keeling] had a pending lawsuit filed in the United States District Court for the Middle District of Pennsylvania: Keeling v. Kintzel, et al., at Docket No. 02-0408. See Plaintiff s Deposition at 23, 29; b. When he arrived at SCI-Rockview, he was told by the PRC committee that he was there for a court appearance in Keeling v. Kintzel. Id. at 25-26. The trial date for the Federal Court case was June 3, 2003. Id. at 34. While at SCI-Rockview, he was told that the Court date was postponed. Id. at 27; c. He was only at SCI-Rockview from May 27, 2003 until June 3, 2003, a total of seven days. Id. at 27. When asked how he was damaged by being at Rockview for six days, the Plaintiff responded: I won t say I was damaged. But it was harassment. Id.; d. [Keeling] does not know if the Defendants at SCIFrackville were aware that the trial had been postponed prior to his temporary transfer to SCI-Rockview. Id. at 27-28. .... f. [Keeling] also testified that he did not know who ordered him to be temporarily transferred to SCI-Rockview. Id. at 33-34. He also admitted that he did not know if staff at SCI-Frackville had received the Order postponing the trial date before he was transferred. Id. at 37. .... h. When asked how he was damaged by the two-day delay in getting his property once he returned to SCI-Frackville, [Keeling] stated, I was damaged because I didn t have no property and I didn t have my hygienics [sic] to brush my teeth. Id. at 47. However, he admitted that he was given a bar of soap and was able to shower during those two days. Id.; i. The plaintiff contends that he discovered the antenna to his radio missing after he returned from SCI-Rockview. However, he admits to signing an Inmate Personal Property Inventory Form dated January 26, 2001, which states that the same radio had its antenna missing at that time. Id. at 42. See also Deposition Exhibit 2. .... l. [Keeling] received a number of letters from Donald Williamson explaining why the Plaintiff was denied an incentive based transfer. Id. at 84-85. See also Deposition Exhibits 4-6. He was repeatedly told he was denied an incentive based transfer because 5 of his custody level. Id. See attached copies of excerpts from the Plaintiff s Deposition and Deposition Exhibits 1-6 marked as Exhibit E. (Officials Motion for Summary Judgment ¶ 5.) Keeling did not file a response to the Officials Motion. The trial court granted the Motion and entered judgment in favor of the Officials because [Keeling] did not file an answer or other material directly responsive or contradictory to [Officials ] summary judgment motion. (Trial Ct. Op. at 5.) However, the trial court also addressed the merits of each issue, noting that Keeling had no proof that he had been entitled to an institutional transfer, nor could Keeling prove a constitutional, or other, violation based on the inmate grievance system. (Trial Ct. Op. at 6.) The trial court noted that the record evidence established that the Officials were not aware of the continuance of the federal proceeding until after they had transferred Keeling, and Keeling offered no evidence to rebut that evidence. Additionally, Keeling indicated that he was not damaged by his transfer to SCIRockview. The trial court also noted that, as to his personal property, the only damage was a slight delay of two days in receiving his goods. Keeling acknowledged that the radio that he claimed was damaged had been damaged some two years prior. The trial court also noted that the record evidence supported the conclusion that Keeling was not given the incentive-based transfer due to his custody 6 level.4 Keeling appeals, averring, essentially that material issues of fact remain.5 Summary Judgment is only appropriate where there is no genuine issue of material fact. Wimer v. Pennsylvania Employees Benefit Trust Fund, ___ Pa. ___, ___, 939 A.2d 843, 850 (2007). This Court may disturb a decision granting summary judgment only if we determine that the trial court committed an error of law or abused its discretion. Id. In considering the merits of a summary judgment motion, we must view the evidence of record in the light most favorable to the non-moving party. Id. Similarly, we must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Id. In order to state a retaliation claim under 42 U.S.C. § 19836 an inmate must allege that he has suffered some adverse action at the hands of prison officials in 4 The record shows that inmates with a Custody Level of 2 may be eligible for the transfer that Keeling sought. However, the record indicates that Keeling was a Custody Level 3 inmate, which is a more restrictive classification than Custody Level 2. 5 Keeling also argues, among other things, that: (1) Officials are not entitled to sovereign immunity and (2) the trial court erred in some of its discovery rulings. We note that the trial court indicated that Keeling himself acknowledged that his federal lawsuit had been dismissed, in part, because of the confusing nature of [Keeling s] filings. (Trial Ct. Op. at 3 n.2.) The trial court also noted that the record in this case is replete with [Keeling] s filings, many of which are vague, rambling and not responsive or pertinent to the issue at hand. (Trial Court Op. at 3 n.2.) We similarly note that this description aptly fits the appellate brief submitted by Keeling to this Court and to some of the issues that Keeling seems to be raising. For instance, although the issue of immunity was raised in the Officials New Matter, the issue was not pursued before the trial court in subsequent filings and is not relevant to the present appeal. The focus of our review will be on those issues preserved before the trial court. 6 Section 1983 states: (Continued ¦) 7 retaliation for engaging in [constitutionally] protected conduct. Yount v. Department of Corrections, 886 A.2d 1163, 1167 (Pa. Cmwlth. 2005) (citing Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001)). Adverse action is action which is sufficient to deter a person of ordinary firmness from exercising his constitutional rights. Id. We first note that, per Pa. R.C.P. No. 1035.3(d), [s]ummary judgment may be entered against a party who does not respond to a motion for summary judgment. Accord Kochems v. Department of Environmental Protection, 701 A.2d 281, 283 (Pa. Cmwlth. 1997). Thus, in the present case, Keeling s failure to respond to the Officials Motion was, by itself, a sufficient basis for the trial court to grant summary judgment. In addition, we find the trial court s discussion of the record as it relates to the issue before it to be neither an abuse of discretion nor an error of law. The Officials correctly point out that, even making all inferences in favor of the non-moving party as we are required to do, Keeling has simply not stated any basis upon which to proceed with a retaliation claim. Our law is clear that a: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 42 U.S.C. § 1983. 8 non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ertel v. Patriot-News Co., 544 Pa. 93, 101-02, 674 A.2d 1038, 1042 (1996). In the present case, Keeling failed to adduce any evidence that the Officials knew that his federal proceeding had been continued before the Officials transferred Keeling. Additionally, Keeling admitted that his radio antenna was not on the radio before he was transferred (Keeling Dep. at 42-44; Inmate Personal Property Inventory, Keeling Dep. Ex. 2), that he was not harmed by the transfer (Keeling Dep. at 34 ( won t say I I was damaged, but it was harassment ), and that the denial of his transfer request was based on penological reasons.7 Keeling s own admissions eviscerate his position and eliminate any material issues of fact. Applying this to our standard for reviewing a retaliation claim, the trial court correctly determined that there was no conduct in this 7 State law does not afford an inmate a choice of confinement options, 37 Pa. Code § 93.11(a), and an inmate does not have a liberty interest in being housed in a particular housing unit or institution. Olin v. Wakinekona, 461 U.S. 238, 245 (1983). A claim of retaliation may be refuted by a preponderance of the evidence that [the prison officials] would have taken the same disciplinary action even in the absence of the protected activity. Rauser, 241 F.3d at 333. The evidence shows that the Officials denial of Keeling s transfer was based on penological reasons his more restrictive Custody Level and not in retaliation for any claims he may have brought. Worth nothing is that Keeling, in his Complaint, acknowledges that he is housed in an escape risk section of the prison, and he uses that fact to criticize the Officials for transferring him to another prison for the federal proceeding. (See Complaint ¶ 5) (stating that [Keeling] will bolster the (abnormal) action by stating at that time [Keeling] was considered a (escape) risk and housed on a escape risk tier of the institution and still staff permitted allowed and canceled/bogus court date in support and plaintiff should not have been erroneously transported unless it is totally a tactic of retaliatory/harassment ¦ ).) Documentary evidence also established that multiple New York detainers also weighed against his transfer. (Letter from Chief of Transfer Records Donald Williamson to Keeling, dated October 18, 2005, Keeling Dep. Ex. 6.) 9 case that could reasonably be construed as being sufficient to deter a person of ordinary firmness from exercising his constitutional rights. Yount. For these reasons, the order of the trial court is affirmed. _______________________________ RENà E COHN JUBELIRER, JUDGE 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mr. Michael E. Keeling, : : Appellant : : v. : : Mr. Forr, Mr. P. Damiter, R. Shannon, : Ms. Sharon Burks and Mr. Jeffery Beard : No. 1147 C.D. 2007 ORDER NOW, May 7, 2008, the order of the Court of Common Pleas of Schuylkill County in the above-captioned matter is hereby AFFIRMED. __________________________________ RENà E COHN JUBELIRER, JUDGE
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