Hester v. Phelps et al
Filing
64
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 7/29/13. (mdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CORNELL HESTER,
Plaintiff,
v.
Civ. No. 12-001-LPS
PERRY PHELPS, et aI.,
Defendants.
Cornell Hester, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.
Ryan Patrick Connell, Deputy Attorney General, Delaware Department of Justice, Wilmington,
Delaware. Counsel for Defendants Warden Perry Phelps and Sergeant Cain.
MEMORANDUM OPINION
July 29,2013
Wilmington, Delaware
Sb%:DEctli
I.
INTRODUCTION
Plaintiff Cornell Hester ("Plaintiff'), an inmate at the James T. Vaughn Correctional
Center ("VCC") in Smyrna, Delaware, filed this action on January 3,2012, alleging
constitutional violations pursuant to 42 U.S.C. § 1983. Presently before the Court are
Defendants Warden Perry Phelps' ("Warden Phelps") and Sergeant Cain's ("Cain") (together
"State Defendants") motion for summary judgment (D.!. 44) and motion to revoke Plaintiffs in
forma pauperis status (0.1. 52), as well as Plaintiffs motion for leave to file a response (OJ. 50),
motions for injunctive relief (OJ. 54, 55), motion for hearing (OJ. 56), and motion for leave to
amend (0.1.63). For the reasons that follow, the Court will grant Plaintiffs motion for leave to
file a response and will deny all remaining motions.
II.
BACKGROUND
In his Complaint (D.!. 2, 13), Plaintiff alleges that on December 23,2011, he was
wrongfully transferred from full minimum status to the Medium High Housing Unit ("MHU").
MHU is a housing unit for problem inmates who have twelve to eighteen classification points or
higher. Plaintiff is the only person in MHU with five points. Plaintiff was one program away
from becoming a graduate, which would have made him a role model inmate with full-minimum
status. Plaintiff seeks transfer to the State of New Jersey, and this status would have allowed his
participation in the interstate compact process. Plaintiff did not receive any write-ups or charges
and, at the time of transfer, was told that it was an administrative move. Plaintiff asked Lt.
Savage ("Savage") how he could be transferred when there was no rule violation and asked for a
copy of any rules violation, but Savage indicated that there were no charges.
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Plaintiff alleges that he was transferred because he wrote a letter to Warden Phelps "about
violating his interstate transfer." Plaintiffs December 23,2011 grievance states that the transfer
occurred after he wrote the letter to Warden Phelps regarding the deprivation of his right to the
interstate compact for transfer to New Jersey. (See D.I. 7) Plaintiffs application for a transfer
was denied during an "in-house" classification hearing. Because State Defendants move for
summary judgment on behalf of only Warden Phelps, the Court does not address Plaintiffs
remaining allegations.
Incident reports dated August 5 and 27, September 27, October 15, November 9, and
December 10 and 15,2011, were issued to Plaintiff for violations of prison rules. CD.I. 45 Ex. A)
Plaintiff indicates that he was found "not guilty" of the August 5, September 27, and October 15,
2011 infractions. (D.I. 51 Ex. A) On December 22,2011, Plaintiff wrote a letter to Warden
Phelps requesting an interstate compact transfer to New Jersey. (D.I. 45 Ex. A) The letter was
forwarded to treatment administrator Hosterman. (Id.) The next day, Deputy Warden Pierce
authored a memo to have Plaintiff moved to MHU pending a classification review based upon a
recent investigation that Plaintiff had been a serious management problem and required more
control than could be provided in minimum security.! (Id.) Warden Phelps was not copied on
the letter. That same day, an administrative transfer memo, signed by the Shift Commander, was
provided to Plaintiff. (Id.) Again, Warden Phelps was not copied on the memo.
According to Plaintiff, Savage, Lt. Endress, and Counselors Davis and Shrader verbally
confirmed that Warden Phelps ordered Plaintiffs transfer to MHU. (D.I. 51
~
C. 3) In addition,
lState Defendants' Reply refers to an affidavit from Pierce. (See D.1. 53) The affidavit
was not filed with the Court.
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and according to Plaintiff, Cain advised Plaintiff that the administrative transfer was ordered by
Warden Phelps. (Id.
at~D.l)
Plaintiff wrote a second letter to Warden Phelps on January 3,2012, again requesting an
interstate compact transfer to New Jersey. (ld.) Once again, the letter was forwarded to
treatment administrator Hosterman. (ld.) A counselor met with Plaintiff on January 18, 2012.
(D.I. 45 Ex. A) Plaintiff questioned his transfer, stating that he believed he was set up and
wrongfully transferred. (/d.) The counselor informed Plaintiff that he was administratively
transferred because he was a management problem and that Plaintiff would have to transition
back to his prior housing unit. (Id.)
III.
MOTION FOR SUMMARY JUDGMENT
State Defendants move for summary judgment on behalf of Warden Phelps on the
grounds that Warden Phelps was not personally involved in the decision to transfer Plaintiff, and
he is entitled to qualified immunity. (D.I. 44, 45) While Plaintiff did not timely file an
opposition, he filed a motion for leave to fi1e his opposition. (D.I. 50) The Court wi11 grant the
motion and considers Plaintif-rs opposition. (D.I. 51) Plaintiff also moves for an evidentiary
hearing to support his opposition to the Motion for Summary Judgment. (D.L 56) This motion
will be denied.
A.
Standards of Review
"The court shall grant summary judgment ifthe 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. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine
issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
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586 n.l 0 (1986). An assertion that a fact cannot be - or, alternatively, is - genuinely disputed
must be supported either by citing to "particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for the purposes of the motion only), admissions, interrogatory answers, or
other materials," or by "showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact." Fed. R. Civ. P. 56(c)(1)(A) & (B). If the moving party has carried its burden, the
nonmovant must then "come forward with specific facts showing that there is a genuine issue for
trial." Matsushita, 475 U.S. at 587 (internal quotation marks omitted). The Court will "draw all
reasonable inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000).
B.
Personal Involvement
Warden Phelps contends that the evidence of record does not support a finding of his
personal involvement in Plaintiffs transfer. In addition, he argues that Plaintiffs transfer was
not motivated in response to Plaintiffs request for an interstate compact transfer but, rather, as a
result of Plaintiff s numerous disciplinary issues. Plaintiff contends that Warden Phelps was
personally involved in the transfer, that numerous prison officials indicated to him that it was
Warden Phelps who authorized the transfer, and that the transfer occurred just one day following
his letter to the warden.
A defendant in a civil rights action must have personal involvement in the alleged
wrongs; liability cannot be predicated solely on the operation of respondeat superior. See Rode v.
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Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). In order to satisfy the "personal
involvement" requirement, a § 1983 complaint need only allege the conduct, time, place, and
person responsible. See Evancho v. Fisher, 423 F.3d 347,353 (3d Cir. 2005). "Personal
involvement can be shown through allegations of personal direction or of actual knowledge and
acquiescence." Rode, 845 F.2d at 1207.
In order to establish a retaliation claim, a prisoner must show that he engaged in a
constitutionally protected activity, that he suffered an adverse action at the hands of prison
officials, and that there was a causal link between the two. See Rauser v. Horn, 241 F .3d 330,
333 (3d Cir. 2001). The causation element requires a p1aintiffto prove either: (1) an unusually
suggestive temporal proximity between the protected activity and the allegedly retaliatory action,
or (2) a pattern of antagonism coupled with timing to establish a causal link. See Lauren W ex
reI. Jean W v. DeFlaminis, 480 F.3d 259,267 (3d Cir. 2007); Krouse v. American Sterilizer Co.,
126 F.3d 494,503-04 (3d Cir. 1997). "[O]nce a prisoner demonstrates that his exercise ofa
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. When analyzing a retaliation claim, courts consider that the task of prison
administrators and staff is difficult, and that the decisions of prison officials require deference,
particularly where prison security is concerned. See Rauser, 241 F.3d at 334.
Construing the facts in the light most favorable to Plaintiff, the non-moving party, the
Court concludes that there remain genuine issues of fact with regard to Warden Phelps'
involvement in Plaintiffs transfer. State Defendants argue that Plaintiff did not obtain witness
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statements to support his position that Warden Phelps ordered the transfer. However, the record
is also devoid of statements that indicate Warden Phelps had no input in the decision to transfer
Plaintiff, did not order the transfer, or did not acquiesce in the decision to transfer Plaintiff. The
record reflects that Warden Phelps possessed knowledge of Plaintiff's request for an interstate
compact transfer via the December 22, 2010 letter, in which Plaintiff complained to him that he
was violating the interstate compact. 2 Plaintiff argues that Warden Phelps approved the transfer
in retaliation for Plaintiff's letter of complaint. "From the facts alleged [the Court] can weigh the
substantiality ofthe claim. No more is required." Solan v. Ranck, 326 F. App'x 97, 101 (3d Cir.
May 8,2009) (quoting Boykins v. Ambridge Area Sch. Dist., 621 F.2d 75,80 (3d Cir. 1980».
Plaintiff has met the first element of a retaliation claim. In addition, his transfer may
qualifY as adverse treatment for the purposes of a retaliation claim. See Atkinson v. Taylor, 316
F.3d 257,270 (3d Cir. 2003) (finding prisoner's transfer to administrative segregation qualified
as adverse action). Plaintiff has alleged causation through the suggestive timing of the transfer
that occurred the day following his letter to Warden Phelps. Warden Phelps, however, explains
Plaintiff was transferred because of his lengthy of disciplinary violations and, thus, has provided
a reason that is reasonably related to a legitimate penological interest. Plaintiff counters that he
was found "not guilty" in at least three of the disciplinary violations that State Defendants rely
upon. In sum, there remain genuine issues of material fact and, therefore, summary judgment is
not appropriate on the current record.
For the above reasons, the Court will deny the motion for summary judgment (D.!. 44)
filed on behalf of Warden Phelps.
2The Court assumes, without deciding, that the letter is a form of protected speech.
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c.
Qualified Immunity
State Defendants also assert that summary judgment is appropriate because Warden
Phelps is entitled to qualified immunity. Specifically, State Defendants argue that Plaintiff has
failed to establish that Warden Phelps acted with discriminatory purpose, relying upon Ashcroft
v. Iqbal, 556 U.S. 662 (2009). As the Supreme Court made clear in Iqbal, the factors necessary
to establish a constitutional violation will vary with the constitutional provisions at issue. See id.
at 676. The claims at issue in Iqbal involved discrimination in contravention ofthe First and
Fifth Amendments to the Constitution. See id. at 669. In order to make out a claim of
discrimination under the First and Fifth Amendments, a plaintiff must plead and prove that the
defendants acted with "discriminatory purpose." See id.
Here, Plaintiff alleges retaliation for complaining about alleged unlawful acts in not
transferring him pursuant to the interstate compact. As discussed above, the elements of
retaliation are different from discrimination. In addition, the holding in Iqbal is limited to
situations involving discrimination. See Iqbal, 556 U.S. at 677 ("In the context of determining
whether there is a violation of clearly established right to overcome qualified immunity, purpose
rather than knowledge is required to impose Bivens liability ... for unconstitutional
discrimination...."). Accordingly, and as discussed above, the Court applied the knowledge and
acquiescence standard in determining the issue of Warden Phelps' personal involvement.
When analyzing qualified immunity, the two-step test as set forth in Saucier v. Katz, 533
U.S. 194 (2001), is not mandatory, but often appropriate. See Pearson v. Callahan, 555 U.S.
233, 236 (2009). Pursuant to Saucier, the court first examines whether the alleged conduct,
taken in the light most favorable to Plaintiff, violated a constitutional right. See Saucier, 533
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U.S. at 201. "Ifno constitutional right would have been violated were the allegations
established, there is no necessity for further inquiries concerning qualified immunity." ld. Ifthe
allegations amount to the violation of a constitutional right, the court proceeds to the second
inquiry and determine if the right was "clearly established in the specific context ofthe case."
Brosseau v. Haugen, 543 U.S. 194, 198 (2004); see also Saucier, 533 U.S. at 202 (noting that
officer is entitled to qualified immunity unless "it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted"). Courts have the discretion in deciding
which of the two prongs of the qualified immunity analysis should be addressed first in light of
the circumstances in the particular case at hand. See Pearson, 555 U.S. at 236.
As discussed above, there remain genuine issues of disputed material fact as to Warden
Phelps' personal involvement in retaliating against Plaintiff and, thus, whether he violated
Plaintiff's constitutional rights. Accordingly, at this time, the Court will deny the Motion for
Summary Judgment on the issue of qualified immunity.
IV.
MOTION TO REVOKE IN FORMA PAUPERIS STATUS
State Defendants move to revoke Plaintiff's in forma pauperis status. (D.I. 52) The
Prison Litigation Reform Act ("PLRA") provides that a prisoner cannot bring a new civil action
or appeal a judgment in a civil action informa pauperis ifhe has, three or more times in the past,
while incarcerated, brought a ci vii action or appeal in federal court that was dismissed as
frivolous, malicious, or for failure to state a claim upon which relief may be granted. See 28
U.S.c. § 1915(g). State Defendants contend that the instant case is a frivolous lawsuit, that
Plaintiff has acquired three or more strikes, and, therefore, Plaintiff falls within the "three strikes
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rule." An exception is made to the "three strikes rule" when the prisoner is in imminent danger
of serious physical injury.
Plaintiff's Complaint alleges denial of dental care. The Court reviewed the Complaint
when it granted Plaintiff leave to proceed in forma pauperis. It determined that Plaintiff
adequately alleged that, at time of the filing of the Complaint, he was under imminent danger of
serious physical injury. (See D.1. 6; see also Williams v. Forte, 135 F. App'x 520 (3d Cir. 2005)
(inmate adequately alleged that he was in imminent danger of serious physical injury to qualifY
for three-strikes exception under the PLRA in forma pauperis statute, where his complaint
against prison officials alleged a lack of medical treatment over time for medical condition that
placed him in serious pain at the time he filed his complaint); see also Abdul-Akbar v. McKelvie,
239 F.3d 307, 311 (3d Cir. 2001).
The Court has considered the issue and finds no basis to change its ruling. Therefore, the
Court will deny State Defendants' Motion to Revoke Plaintiff's In Forma Pauperis Status. (D.L
52)
V.
MOTIONS FOR INJUNCTIVE RELIEF
On September 7,2012, this Court denied Plaintiff's Motion for Injunctive Relief, wherein
he sought transfer to a correctional institution in New Jersey. (See D.I. 38) Since that time,
Plaintiff has filed two additional motions, both seeking a transfer to a New Jersey correctional
institution due to alleged excessive retaliation and harassment. (See D.L 54, 55)
"A preliminary injunction is an extraordinary remedy that should be granted only if:
(1) the plaintiff is likely to succeed on the merits; (2) denial will result in irreparable harm to the
plaintiff; (3) granting the injunction will not result in irreparable harm to the defendant; and
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(4) granting the injunction is in the public interest." NutraSweet Co. v. Vit-Mar Enters., Inc., 176
F.3d 151, 153 (3d Cir. 1999). Because of the intractable problems of prison administration, a
request for injunctive relief in the prison context must be viewed with considerable caution. See
Abraham v. Danberg, 322 F. App'x 169, 170 (3d Cir. Apr. 24,2009) (citing Goffv. Harper, 60
F.3d 518, 520 (8th Cir. 1995».
Plaintiff has no right to transfer to a New Jersey correctional facility. The Delaware
Supreme Court has recognized that prison officials have discretion to house inmates at the
facilities they choose. See Walls v. Taylor, 856 A.2d 1067,2004 WL 906550 (Del. 2004) (table)
(citing Brathwaite v. State, No. 169,2003 (Del. Dec. 29, 2003». Furthermore, the United States
Supreme Court has held that an inmate has no due process right to be incarcerated in a particular
institution, whether it be inside or outside the state of conviction. See Olim v. Wakinekona, 461
U.S. 238, 251(1983). In addition, on the record before the Court, the Court cannot conclude that
Plaintiff has established a likelihood of success on the merits. Finally, this Court has previously
considered the issue and determined that injunctive relief is not warranted.
Therefore, the Court will deny Plaintiffs Motions for Injunctive Relief. (D.L 54, 55)
Plaintiff is placed on notice that future motions seeking a transfer to a New Jersey correctional
institution will be docketed, but not considered.
VI.
MOTION TO AMEND
Plaintiff recently a motion for leave to amend. (D.I. 63) "After amending once or after
an answer has been filed, the plaintiff may amend only with leave of the court or the written
consent of the opposing party, but 'leave shall be freely given when justice so requires.'" Shane
v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (quoting Fed. R. Civ. P. 15(a». If a proposed
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amendment "is frivolous or advances a claim or defense that is legally insufficient on its face, the
court may deny leave to amend." Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D.
463,468 (D.N.J. 1990). Plaintiff proposes to amend to add a second retaliation claim against
Phelps.
To state a claim for retaliation, a plaintiff must allege that: (1) he was engaged in
constitutionally protected conduct, (2) "he suffered some 'adverse action' at the hands ofthe
prison officials," and (3) "his constitutionally protected conduct was 'a substantial or motivating
factor' in the decision" to take that action. Rauser, 241 F.3d at 333. Plaintiff's proposed
amendment alleges, in a conclusory manner, that in May 2013 he was "thrown from minimum to
maximum all over again same retaliation process as to the pending civil complaint filed 5-22
2012." The proposed amendment advances a claim that is legally insufficient on its face.
Therefore, the Court will deny the motion for leave to amend. (0.1.63)
VII.
CONCLUSION
For the above reasons, the Court will grant the motion for leave to file a response (OJ.
50) and deny the remaining motions (OJ. 44, 52, 54, 55, 56, 63).
An appropriate Order follows.
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