Shaw v. Morgan et al

Filing 56

MEMORANDUM. Signed by Judge Gregory M. Sleet on 12/27/2011. (lih)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

DANIEL SHAW,
Plaintiff,
v.

MAJOR PARKER and C/O LEV AN,
Defendants.

)

)

)

)
) Civ. Action No. 08-421-GMS
)

)

)

)

MEMORANDUM
I. INTRODUCTION

The plaintiff, Daniel Shaw ("Shaw"), a former inmate at the Howard R. Young
Correctional Center ("HRYCI"), Wilmington, Delaware filed this lawsuit pursuant to 42 U.S.c.
§ 1983 alleging violations of his constitutional rights. He proceeds pro se and has been granted
leave to proceed without prepayment of fees. Before the court is the defendants' motion for
summary judgment and Shaw's opposition thereto. (D.L 51, 52, 53.) For the reasons that follow,
the court will grant the motion for summary judgment.
II. BACKGROUND
Shaw filed his complaint on July 8, 2009. (D.L 2.) The court dismissed the claims in the
original complaint raised against Warden Phil Morgan and Commissioner Carl Danberg and
allowed Shaw to proceed against the defendants Major Parker ("Parker") and C/O Levan
("Levan") (together "the defendants") on First Amendment claims that they confiscated his
rosary. (See D.L 9.) Thereafter, Shaw filed an amended complaint and added C/O Cannon
("Cannon"), C/O Kadow ("Kadow"), and Richard Kearney ("Kearney") as defendants and raised
additional claims. (D.l. 12.) The court dismissed Cannon, Kadow, and Kearney and the claims

that: (1) Shaw was refused the right to a higher education because he was not allowed to attend
bible college; (2) the grievance process is inadequate; (3) he was deprived his personal property;
and (4) retaliation occurred as a result of the grievances he filed. (D.l. 15.) Shaw was allowed to
proceed against Parker and Levan on his First Amendment claims.
Parker and Levan answered the amended complaint and admitted that corrections officers
were directed to take rosary beads from inmates for safety reasons and denied that Shaw was
denied the right to practice his religion. (D.l. 26,,-r 1.) On April 19, 2010, Shaw filed an
amended complaint, without leave of court, construed as a motion for leave to amend. (See D.l.
37.) On February 8, 2011, the court granted the motion for leave to amend and gave Shaw
fourteen days from the date of the order to file an amended complaint. (D.l. 55.) He failed to do
so. Accordingly, the case proceeds on the amended complaint found at Docket Item 12 and
Shaw's claims that Parker and Levan violated his First Amendment right to the free exercise of
religion when his rosary beads were confiscated on May 29, 2008 and July 2, 2008. (D.!. 12.)
Shaw submitted two grievances. The first grievance, dated May 29, 2008, complains that
rosary beads were taken on the same date because of security concerns, even though other items
inmates were allowed to possess could be viewed as security concerns. (D.I. 38 at 21A.) The
matter was resolved on June 27, 2008 when Warden Morgan authorized the return of the rosary
beads. (Id.) The May 29, 2008 grievance states that rosaries have to be the "break-away" kind
and are the only type allowed to enter the facility. (Id.) The second grievance, dated July 2,
2008, complains that Levan took Shaw's rosary beads upon the direction of Parker even though
Warden Morgan had authorized their return and the rosary beads could not be used to harm
anyone. (Id. at 24A.) The grievance was designated "non-grievable." (Id.)

2

According to Levan, on or about May 29, 2008, a security team performing routine
searches of offenders' cells removed Shaw's rosary beads. (D.1. 51, Levan aff.) Levan was not
part of the security team, and he did not confiscate any rosary beads. (Id.) According to Parker,
on or about May 29, 2008, the security team discovered rosary beads in several offenders' cells.
(D.1. 51, Parker aff.) Parker understood that the rosary beads were distributed by a visiting priest
who failed to gain prior approval from the HRYCI. (Id.) Parker determined that, because of the
strength of the cord, the rosary beads posed a security threat, and Parker ordered the security
team to confiscate the rosary beads. (Id.) Neither Levan, nor Parker, address the second taking
of Shaw's rosary beads on July 2, 2008.

III. STANDARD OF REVIEW
"The court shall grant summary judgment 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 oflaw."l Fed.
R. Civ. P. 56(a). The moving party has the initial burden of proving the absence ofa genuinely

disputed material fact relative to the clams in question. Celotex Corp. v. Catrett, 477 U.S. 317
(1986). Material facts are those "that could affect the outcome" of the proceeding, and "a dispute
about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury to return
a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

lRule 56 was revised by amendment effective December 1,2010. "The standard for
granting summary judgment remains unchanged," and "[t]he amendments will not affect
continuing development of the decisional law construing and applying these phrases." Fed. R.
Civ. P. 56 advisory committee's note to 2010 Amendments.

3

The burden then shifts to the non-movant to demonstrate the existence of a genuine issue
for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams v.

Borough a/West Chester, Pa., 891 F.2d 458,460-461 (3d Cir. 1989). Pursuant to Rule 56(c)(1),
a non-moving party asserting that a fact is genuinely disputed must support such an assertion by:
"(A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations ..., admissions,
interrogatory answers, or other materials; or (B) showing that the materials cited [by the opposing
party] do not establish the absence ... ofa genuine dispute ..." Fed. R. Civ. P. 56(c) (1).
When determining whether a genuine issue of material fact exists, the court must view
the evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476
F .3d 180, 184 (3d Cir. 2007). A dispute is "genuine" only if the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-249.

See Matsushita Elec. Indus. Co., 475 U.S. at 586-587 ("Where the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for
trial."'). If the nonmoving party fails to make a sufficient showing on an essential element of its
case with respect to which it has the burden of proof, the moving party is entitled to judgment as
a matter oflaw. See Celotex Corp. v. Catrett, 477 U.S. at 322.
The defendants move for summary judgment as to the May 29, 2008 incident on the
grounds that: (1) Shaw did not establish the requisite personal involvement of Levan; (2) they
are immune from liability in their official capacities; and (3) they are entitled to qualified

4

immunity. The defendants did not move for summary judgment regarding the July 2, 2008 incident.

IV. DISCUSSION
A. Personal Involvement
The defendants seek summary judgment on behalf of Levan on the grounds that he lacks
the requisite personal involvement necessary for a § 1983 claim. Shaw acknowledges this his
rosary beads were taken by the security team on May 29, 2008, but that his rosary was returned
only to have Levan take them on July 2, 2008.
When bringing a § 1983 claim, a plaintiff must allege that some person has deprived him
of a federal right, and that the person who caused the deprivation acted under color of state law.

West v. Atkins, 487 U.S. 42, 48 (1988). A defendant in a civil rights action must have personal
involvement in the alleged wrongs to be liable, and cannot be held responsible for a
constitutional violation which he or she neither participated in nor approved." Baraka v.

McGreevey, 481 F.3d 187,210 (3d Cir. 2007). "Personal involvement can be shown through
allegations of personal direction or of actual knowledge and acquiescence." Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
The evidence of record does not reflect Levan's personal involvement with regard to
Shaw's claim that his rosary beads were confiscated on or May 29, 2008. Accordingly, summary
judgment is appropriate on behalf of Shaw as to the May 29, 2008 claim.

B. Eleventh Amendment
The defendants seek summary judgment with regard to the official capacity claims that
seek monetary damages. The Eleventh Amendment shields states from suits by individuals
absent a state's consent. See Seminole Tribe ofFla. v. Florida, 517 U.S. 44, 54 (1996). "[A] suit

5

against a state official in his or her official capacity is not a suit against the official but rather is a
suit against the official's office. As such, it is no different from a suit against the State itself."

Will v. Michigan Dep 't o/State Police, 491 U.S. 58, 71 (1989) (internal citations omitted). Thus,
§ 1983 claims for monetary damages against a state or a state official in his official capacity are
barred by the Eleventh Amendment. See id. The State has not waived its immunity from suit in
federal court, and although Congress can abrogate a state's sovereign immunity, it did not do so
through the enactment of 42 U.S.C. § 1983. See Brooks-McCollum v. Delaware, 213 F. App'x
92, 94 (3d Cir. 2007) (not published).
Accordingly sovereign immunity applies, and summary judgment is appropriate as to this
Issue. For the above reasons, the court will grant the defendants' motion for summary judgment
as to the official capacity claims that seek monetary damages.

C. First Amendment
Parker moves for summary judgment on the grounds that he determined that the rosary
beads confiscated by the security team on May 29, 2008, and that had been distributed by a
visiting priest, posed a security threat. Shaw responds that the rosary is an important part of the
Catholic religion and, when his rosary was confiscated, he was denied the ability to practice his
religion.
The First Amendment provides that "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof ...." U.S. Const. amend. I.
Prisoners do not forfeit this right by reason of their conviction and confinement in prison, but the
right is limited. See DeHart v. Horn, 227 F.3d 47, 50-51 (3d Cir. 2000). To establish a violation
of the Free Exercise Clause, Shaw must show that he was prevented from engaging in his

6

religion without any justification reasonably related to legitimate penological interests. Turner v.

Safley, 482 U.S. 78, 89 (1987). To determine whether a restriction is reasonably related to
legitimate penological interests, the court weighs four factors: (1) there must be a "valid, rational
connection" between the prison regulation and the legitimate governmental interest put forward
to justify it; (2) whether inmates retain an alternative means of exercising the circumscribed
right; (3) the costs that accommodating the right would impose on other inmates, guards, and
prison resources generally; and (4) whether there are alternatives to the regulation that fully
accommodate the prisoner's rights at de minimis cost to valid penological interests. See DeHart,
227 F.3d at 51.
The evidence of record does not demonstrate a violation of Shaw's free exercise rights
with regard to the May 29, 2008 taking of his rosary beads. Parker determined that the rosary
beads posed a security threat because of the strength of the cord. The prison's interest in
maintaining a safe and secure institution for inmates and prison personnel is paramount.
Moreover, inmates are not totally precluded from possessing rosary beads, and may possess
"break-away" rosary beads. In light of the foregoing, the court concludes that the prison has a
legitimate interest in maintaining a safe and secure institution and those interests are rationally
connected to the institutional policy that inmates cannot possess rosary beads unless they are the
"break-away" type.
For the above reasons, the court will grant the motion for summary judgment as to the
May 29, 2008 claim.

v.

CONCLUSION
For the above reasons, the court will grant the defendants' motion for summary judgment

7

with regard to the May 29, 2008 incident. The July 2, 2008 First Amendment claim for the
taking of rosary beads is the only claim that remains. In addition, Shaw has not participated in
the litigation since November 4,2010, and he will be ordered to show cause why this case should
not be dismissed for failure to prosecute, pursuant to D. Del. LR 41.1.
An appropriate order will be issued.

_~,,---./l-_c..._ _
1--L.7__, 2011
Wilmington, Delaware

8