Brucestan Jordan v. Edmond Cicchi, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: CHAGARES, JORDAN and COWEN, Circuit Judges. Total Pages: 9.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 14-3512
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BRUCESTAN T. JORDAN,
Appellant
v.
EDMOND C. CICCHI; BRIAN J. FENYAK
__________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 10-cv-04398)
District Judge: Honorable Anne E. Thompson
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 18, 2015
Before: CHAGARES, JORDAN and COWEN, Circuit Judges
(Opinion filed: June 22, 2015)
____________
OPINION*
____________

PER CURIAM
Brucestan T. Jordan appeals from an order of the District Court granting summary
judgment to the defendants. For the reasons that follow, we will affirm.
In 2008, Jordan filed a civil rights action in the United States District Court for the
District of New Jersey against employees of the Middlesex County Adult Correctional
Center (“MCACC”), alleging an unreasonable search and use of excessive force, see

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Jordan v. Giles, etc., D.C. Civ. No. 08-cv-06088. In the 2010 civil rights action at issue
in this appeal, Jordan sued MCACC Warden Edmond C. Cicchi and Business Manager
Brian J. Fenyak, alleging that they retaliated against him for the 2008 lawsuit by
withholding his legal mail and denying him access to the library. Jordan further alleged
that these actions by the defendants obstructed his access to the courts. After deposing
Jordan, the defendants moved for summary judgment, Fed. R. Civ. Pro. 56(a). Jordan
opposed the motion. In an order entered on May 16, 2014, the District Court awarded
summary judgment to the defendants. Jordan then filed a timely motion for
reconsideration, which the Court denied in an order entered on July 17, 2014.
Jordan appeals. We have jurisdiction under 28 U.S.C. § 1291. Jordan argues in
his brief that summary judgment was not proper because, after he filed the 2010 civil
rights action, “the defendants never withheld his legal mail to the same extent again.”
Appellant’s Brief, at 2. In addition, he argues that Fenyak’s letter to him demanding that
he pay $156.35 to have his mail forwarded to him is also proof that the defendants
withheld his mail. Id. at 3. He further argues that, although he may have filed numerous
pleadings in his various cases, he did so while he was detained at the Federal Correctional
Institution in Miami, Florida (“FCI-Miami). Id. at 4. He further argues that, because the
defendants withheld his mail, he missed the deadline for an appeal, and a case that was
supposed to be dismissed with prejudice went to trial and he was sentenced to a term of
imprisonment of 4 years. Id. at 8. Last, he argues that the doctrine of respondeat
superior should not defeat his claims against Cicchi and Fenyak. Id. at 8-10.
We will affirm. We review a District Court’s grant of summary judgment de
novo. Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d Cir. 2007). Summary
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judgment is appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro.
56(a). The moving parties have the initial burden of identifying evidence that they
believe shows an absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Moreover, we are required to view the facts in the light most
favorable to the non-moving party, and make all reasonable inferences in his favor. See
Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). But, if the moving party
has carried its burden, the nonmovant must then come forward with evidence showing
that there is a triable issue. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). A triable, or genuine, issue of material fact is one that could change the
outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
Ultimately, “[w]here the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec.
Indus. Co., 475 U.S. at 587.
By way of background, the summary judgment record shows that Jordan was a
pretrial detainee at MCACC from April 8, 2008 to April 24, 2009 and again for most of
the time from October, 2011 to February, 2012, awaiting trial on state charges. He was,
however, committed to Trenton Psychiatric Hospital for an evaluation from December
26, 2008 through January 27, 2009, and he also spent a portion of his time in federal
custody at FCI-Miami, where he was serving a sentence for mail fraud. Jordan went to
trial in New Jersey in May, 2013 and was found guilty of theft by deception and

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sentenced to a term of imprisonment of 1½-4 years. The summary judgment record also
shows that Jordan was represented in his federal criminal case on appeal by an attorney. 1
In deciding Jordan’s retaliation claim, the District Court held that there was
insufficient evidence in the summary judgment record to lead a rational trier of fact to
find either that Jordan had suffered an adverse action, or that his protected conduct
motivated the defendants to retaliate against him. With regard to whether Jordan had
suffered some adverse action, the District Court noted that Jordan’s actions while at
MCACC showed that he was allowed access to the mail system and the library, because,
during the period in question, he filed numerous pleadings, amended pleadings, motions,
and responses to motions in connection with his various legal proceedings. Moreover,
the record showed only two instances in his excessive force case in which his mail was
returned as undeliverable, and he was not even housed at the MCACC facility at the time
either piece of mail was returned as undeliverable. With regard to whether Jordan’s
constitutionally protected conduct was a substantial or motivating factor in the alleged
decision to withhold his mail and deny him access to the library, the Court noted that
Jordan’s sole argument for causation was that he engaged in constitutionally protected
activity and suffered harm at a later date, which is not legally adequate under our decision
in Krouse v. American Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997) (temporal
proximity, standing alone, is only sufficient when facts are “unusually suggestive” of a
retaliatory motive).

For background on Jordan’s federal criminal conviction for mail fraud, the appellees
have referred us to United States v. Jordan, 544 F.3d 656 (6th Cir. 2008) (affirming
judgment of conviction and sentence).
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The District Court also held that, in any event, there was no showing that either
Warden Cicchi or Business Manager Fenyak played a personal role in the alleged
retaliation. In denying Jordan’s access to the courts claim, the District Court referred to
its “adverse action” analysis in connection with Jordan’s retaliation claim.
We have reviewed the summary judgment motion, evidence in support, and
Jordan’s response thereto, and conclude that there was, as the District Court concluded,
no triable issue here and thus that Warden Cicchi and Business Manager Fenyak were
entitled to judgment as a matter of law, Fed. R. Civ. Pro. 56(a). With respect to Jordan’s
retaliation claim, the District Court’s determination that Jordan’s ability to file pleadings
and motions in connection with his various legal proceedings showed that he had access
to his legal mail and the library is persuasive, but we need not draw inferences here.
Summary judgment was proper on the ground that Jordan failed utterly to show that his
constitutionally protected conduct, that is, his 2008 civil rights lawsuit, was a substantial
or motivating factor in the alleged improper subsequent denial of his access to the courts
by the defendants. A prisoner in a retaliation case must prove that: (1) the conduct which
led to the alleged retaliation was constitutionally protected; (2) he suffered some adverse
action at the hands of the prison officials; and (3) his constitutionally protected conduct
was a substantial or motivating factor in the decision to act adversely to him. Rauser v.
Horn, 241 F.3d 330, 333-34 (3d Cir. 2001). There is not a scintilla of evidence in the
summary judgment record of a motivation to retaliate on the part of Cicchi and Fenyak
for Jordan’s 2008 civil rights lawsuit, and, as the District Court noted, there is nothing
suggestive in the record about the temporal relationship between the 2008 lawsuit and the

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adverse actions alleged by Jordan, see Krouse, 126 F.3d at 503. Accordingly, summary
judgment for the defendants was proper on the retaliation claim.
With respect to Jordan’s access to the courts claim, we note as a threshold matter
that liability in a civil rights action pursuant to 42 U.S.C. § 1983 cannot be imposed on a
supervisor on the basis of respondeat superior, Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1988), and liability cannot be imposed absent personal involvement in the
alleged actions, see Rizzo v. Goode, 423 U.S. 362, 375-77 (1976); Chincello v. Fenton,
805 F.2d 126, 133-34 (3d Cir. 1986). Jordan made no showing whatever that either
Warden Cicchi or Business Manager Fenyak played a role in the day-to-day management
of the library at MCACC. Accordingly, summary judgment in their favor on this issue
was proper. We thus will consider only the allegation that Jordan’s legal mail was
withheld, and consider whether he suffered an actual injury as required to make out a
constitutional claim.
Prisoners have a right of access to the courts, Lewis v. Casey, 518 U.S. 343
(1996); Bounds v. Smith, 430 U.S. 817 (1977), but a violation of this right is only
established where the prisoner shows that he was actually injured, that is, that he was
actually hindered in his efforts to pursue a legal claim, Lewis, 518 U.S. at 351. An actual
injury is shown only where a nonfrivolous, arguable claim is lost, Christopher v.
Harbury, 536 U.S. 403, 415 (2002). With respect to his federal criminal case, the
summary judgment record shows that Jordan was represented by counsel on appeal. In
view of that undisputed fact and, given the Sixth Circuit Court of Appeals’ decision
affirming the criminal judgment, see Jordan, 544 F.3d 656, there is no showing of a
triable issue with respect to Jordan’s allegation that his right to appeal his federal
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conviction was impaired. See Anderson, 477 U.S. at 249 (plaintiff cannot rest on his
allegations without any significant probative evidence tending to support his claim).
Jordan’s allegation that his state theft by deception case would have been dismissed had
he not been denied access to the courts by the defendants is similarly completely
unsupported by the summary judgment record.
We are left then with the issue whether Jordan was hindered in prosecuting his
2008 excessive force case, D.C. Civ. No. 08-cv-06088, by the withholding of his legal
mail. In his brief Jordan states that “[n]ot once after [his] release from their custody in
May of 2009 did the defendants hold [his] legal mail, fail[ ] to give it to him before he
left the facility, or try to charge [him] additional fees to receive his legal mail.”
Accordingly, we will consider only events that occurred before May, 2009. The District
Court found for purposes of summary judgment that the docket from Jordan’s 2008 civil
rights action indicated two instances where his mail was returned as undeliverable, but
the Court noted that Jordan was not housed at MCACC at either time, and thus the
defendants could not be responsible for the undelivered mail.
In the 2008 lawsuit, Jordan pursued a claim of an unreasonable strip search and
use of excessive force against Officer John Nortesano. The summary judgment record
shows that there were two instances where his mail was returned in this case, see Docket
Entry Nos. 4 & 16, but Jordan was housed at the Trenton psychiatric facility when the
first item was returned on January 5, 2009, and not at MCACC; and he was not housed at
MCACC when the second item was returned on June 25, 2009. Moreover, that second
item was remailed to Jordan’s new address in Florida, according to a July 1, 2009 docket
entry. Accordingly, we are left with a single incident of mail in the 2008 excessive force
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lawsuit that was not delivered to Jordan apparently because he was undergoing a
psychiatric evaluation in a Trenton hospital. That mail was an order by the District Court
denying Jordan’s application to proceed in forma pauperis without prejudice for failure to
use the proper form, and administratively terminating his case. See Docket Entry Nos. 23. The case, however, was reopened a few months later when Jordan complied with the
form requirements and the District Court granted his in forma pauperis application.
Because the case was reopened, Jordan suffered no actual injury in connection with that
undelivered mail.2
In sum, with respect to his access to the courts claim, Jordan failed to identify any
actual injury suffered as a direct result of any withheld legal mail, and thus the defendants
were entitled to judgment as a matter of law. Jordan does not effectively dispute this.
Instead, he argues that the fact that Fenyak wrote to him and told him that he would have
to pay $156.35 to have his mail forwarded to him is proof that Fenyak withheld his legal
mail and denied him access to the courts. We disagree. Fenyak’s May 13, 2009 letter,
which consists of two sentences, references no particular piece of mail, and does not even
identify that the mail at issue was legal mail. Nor does Jordan identify any particular
piece of mail that Fenyak was offering to forward if Jordan paid for postage.
Accordingly, without more, we cannot infer from Fenyak’s letter that it has any bearing
on whether Jordan suffered an actual injury as a result of any withheld legal mail. 3

2

The case went to trial in March, 2015 and the jury returned a verdict in favor of Officer
Nortesano.
3
We note that Jordan testified at his deposition that, after he received the letter from
Fenyak, he sent his mother to MCACC to personally pick up his mail. He thus never
actually had to pay to have his mail forwarded.
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Last, the District Court properly denied Jordan’s motion for reconsideration
because he failed to allege a manifest error of law or fact, and because he presented no
new evidence that required the District Court to reconsider its decision. See Harsco
Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985).
For the foregoing reasons, we will affirm the orders of the District Court granting
summary judgment to the defendants and denying Jordan’s motion for reconsideration.

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