Murden v. DeRose et al

Filing 54

MEMORANDUM For the reasons discussed above, we conclude Defendant DeRoses Motion for Summary Judgment (Doc. 44) is properly granted. Therefore, we adopt Magistrate Judge Mannions Report and Recommendation (Doc. 52), grant Defendant DeRoses Motion for Summary Judgment (Doc. 44), and close this case. An appropriate Order will be entered. re 52 REPORT AND RECOMMENDATIONS re 44 MOTION for Summary Judgment filed by Domonick DeRose Signed by Honorable Richard P. Conaboy on 2/15/12. (cc, )

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KEVIN WALKER MURDEN,

:
:CIVIL ACTION NO. 3:09-CV-135
Plaintiff,
:
:(JUDGE CONABOY)
v.
:(Magistrate Judge Mannion)
:
DOMINICK DeROSE,
:
:
Defendant.
:
_________________________________________________________________
MEMORANDUM
Here we consider the Report and Recommendation issued by
Magistrate Judge Malachy E. Mannion on January 27, 2012, in which
he recommends that Defendant DeRose’s Motion for Summary Judgment
(Doc. 44) in the above-captioned action be granted.

(Doc. 52.)

With the present motion Defendant DeRose, the only remaining
Defendant in this action, seeks judgment in his favor on
Plaintiff’s Amended Complaint (Doc. 31).

(Doc. 44.)

Plaintiff filed a Motion to Vacate Judgment on February 10,
2012.

(Doc. 53.)

He indicates the Motion is filed pursuant to

Rule 59(e) of the Federal Rules of Civil Procedure, and he requests
the Court to vacate “the judgment of this Court entered on January
27, 2012.”

(Doc. 53 at 1.)

This filing shows Plaintiff

misapprehends the effect of Magistrate Judge Mannion’s January 27,
2012, Report and Recommendation, although he received notice of the
methodology for objecting to the Report and Recommendation (Doc.
52-1).

Because Plaintiff’s Motion and Memorandum of Law (Docs. 53-

1, 53-2) presents issues and argument which can be construed as

objections to the Report and Recommendation, we will review
Plaintiff’s filings as such.
For the reasons discussed below, we conclude Plaintiff’s
objections are without merit.

We adopt the Report and

Recommendation (Doc. 52) and grant Defendant DeRose’s Motion for
Summary Judgment (Doc. 44).
I. Background
The Magistrate Judge set out the following background
information in his Report and Recommendation.1
By way of relevant background, the
plaintiff, a former inmate at the Dauphin
County Prison, filed the instant civil rights
action pursuant to 42 U.S.C. § 1983 on
January 21, 2009. (Doc. 1.) By report dated
February 25, 2010, it was recommended that a
motion to dismiss the plaintiff’s original
complaint be granted in part and denied in
part. (Doc. No. 22). By memorandum and order
dated April 29, 2010, the report of the
undersigned was adopted and the plaintiff was
directed to file an amended complaint
addressing only his placement in segregation,
his claims for excessive force alleging that
he was subject to brutal assaults and that he
was pepper sprayed without provocation, his
claim for denial of access to the courts, and
his free exercise claims, including a claim
newly raised in the plaintiff’s objections to
the report of the undersigned that he was
denied running water necessary to purify

1

Plaintiff did not file a response to Defendant’s Statement
of Material Facts (Doc. 48). Therefore, Magistrate Judge Mannion
properly deemed the facts asserted by Defendant unopposed pursuant
to Local Rule 56.1 of the Local Rules of Court of the Middle
District of Pennsylvania. (Doc. 52 at 5 n.2.) Furthermore,
Plaintiff does not dispute any fact asserted in the Magistrate
Judge’s factual recitation. (See Docs. 53, 53-1, 53-2.)
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himself prior to prayer. In amending his
complaint, the plaintiff was directed to set
forth the specific actions taken by each of
the defendants in order to establish their
personal involvement in each of the claims
raised by the plaintiff. (Id.)
On May 28, 2010, the plaintiff filed his
amended complaint. (Doc. 31.) On June 14,
2010, a motion to dismiss the plaintiff’s
amended complaint was filed. (Doc. 32.) By
report dated February 3, 2011, it was
recommended that the defendants’ motion be
granted in part and that the plaintiff be
permitted to proceed only on his claim of a
violation of his First Amendment rights by
defendant DeRose, which had not been
addressed by the defendants in their motion
to dismiss the amended complaint. (Doc. 37.)
By order dated February 28, 2011, the report
was adopted and the matter was remanded for
consideration of the final remaining claim.
(Doc. 38.)
On March 14, 2011, an answer was filed
to the amended complaint. (Doc. 41.)
On June 30, 2011, defendant DeRose filed
the pending motion for summary judgment (Doc.
44) along with a supporting brief (Doc. 47),
statement of material facts (Doc. 48), and
supporting exhibits (Doc. 49). On August 22,
2011, the plaintiff filed a brief in
opposition to the defendant’s motion for
summary judgment. (Doc. 50.) A reply brief
was filed by defendant DeRose on September 1,
2011. (Doc. 51.)
. . . .
The only remaining claim by the
plaintiff is a First Amendment claim alleging
improper confiscation of the plaintiff’s
religious materials against defendant DeRose.
To this extent, the plaintiff alleges that on
June 16, 2008, a corrections officer came to
his cell and confiscated the plaintiff’s
Qur’an, kufi, and another religious book, and
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threw them in the garbage. When asked why he
did so, the plaintiff alleges that the
officer responded that he was “just following
the orders of the Warden (DeRose) and the
rest of his superiors.”
In response to the plaintiff’s
allegations, defendant DeRose has provided a
statement of material facts supported by the
record which indicates that the plaintiff was
admitted to the Dauphin County Prison on
August 28, 2007, after having been convicted
on charges of criminal homicide, four counts
of aggravated assault, recklessly endangering
another person, person not to possess, use,
etc. a firearm, carrying a firearm without a
license, criminal attempt – criminal
homicide, possession with intent to
manufacture and/or deliver a controlled
substance, drug paraphernalia, and a state
probation/parole detainer.
On May 29, 2008, the plaintiff was
housed on the C-Block in the Dauphin County
Prison. This same day, there was an
altercation on the upper tier of C-Block
which resulted in a call for “all guards” as
an inmate was assaulted by other inmates. As
a result of this incident, C-Block was placed
on lockdown status. Lockdown status was
maintained because of the disruptive behavior
of the inmates, discovery of contraband
including weapons, and to maintain the
security of the prison.
During the lockdown, the plaintiff was
permitted to retain bedding, uniform, hygiene
products, legal materials, written
correspondence materials, one religious book,
two books for counseling, underclothing,
socks and thermal underwear. The plaintiff
was permitted at all times a religious book
and visits with a religious advisor when he
was on lockdown status.
On June 16, 2008, while the plaintiff
was still housed on C-Block, the inmates on
C-Block caused a riot, which included
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assaulting staff and destruction of County
property. During this incident, inmates
rigged the cell block doors so that the doors
could not lock and close. As a result of this
incident, the plaintiff was charged with,
among other things, possession of contraband
in the form of a shank and a sock filled with
batteries. The plaintiff’s offense was
investigation [sic] by the Criminal
Investigation Division of Dauphin County and
criminal charges were filed against the
plaintiff, including prohibited possession of
offensive weapons, on November 12, 2008.
Another inmate was charged with aggravated
assault of a correctional officer. In order
to maintain security and for the safety of
both inmates and staff, C-Block was
reclassified as “segregation issue” status as
a result of the severity of the incident.
The plaintiff remained on “segregation
issue” status no later than July 16, 2008.
Moreover, the plaintiff did not remain on
“segregation issue” status for the entire
period of June 16, 2008, to July 16, 2008. To
this extent, there were occasions when the
prison attempted to remove the inmates on CBlock from “segregation issue” status during
this period, but as a result of the
disruptive behavior of the inmates housed on
the block, the prison maintained their
restrictive housing status.
On July 5, 2008, the plaintiff, while
still on “segregation issue” status, had in
his possession an Ebony magazine, a Koran,
and a towel which were not permitted due to
his continued behavior and, therefore, he was
disciplined for having possession of this
contraband.
On July 16, 2008, the plaintiff, while
on lock-in status on C-Block, had in his
possession a blue pen, uniform bottom, and
contraband sheet, which were not permissible
items and therefore contraband. The plaintiff
was also found to have been instigating other
inmates to be disruptive. As a result, the
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plaintiff was issued disciplinary reports and
reclassified that day to the Restrictive
Housing Unit, (“RHU”). While in the RHU, the
plaintiff was permitted to possess a
religious book and was potentially permitted
to visit with a religious advisor with prior
approval from the Deputy Warden.
The plaintiff was reclassified from the
RHU and moved to lock-in status on September
8, 2008.
(Doc. 52 at 1-7.)
As noted above, Plaintiff filed a Motion to Vacate Judgment
(Doc. 53) on February 12, 2012.

We construe this Motion as a

filing pursuant to Local Rule 72.3 of the Local Rules of Court of
the Middle District of Pennsylvania expressing objection to the
Report and Recommendation.

Therefore, we will address issues

raised therein as if they were presented as objections to the
Report and Recommendation.
II. Discussion
A. STANDARD OF REVIEW
When a magistrate judge makes a finding or ruling on a motion
or issue, his determination should become that of the court unless
objections are filed.
(1985).

See Thomas v. Arn, 474 U.S. 140, 150-53

Moreover, when no objections are filed, the district court

is required only to review the record for “clear error” prior to
accepting a magistrate judge’s recommendation.
990 F. Supp. 375, 378 (M.D. Pa. 1998).

See Cruz v. Chater,

However, when objections

are filed to a magistrate judge’s Report and Recommendation, the
6

district judge makes a de novo review of those portions of the
report or specified proposed findings or recommendations to which
objection is made.

See Cippolone v. Liggett Group, Inc., 822 F.2d

335, 340 (3d Cir. 1987), cert. denied, 484 U.S. 976 (1987).
B.

Summary Judgment Standard
Summary judgment is appropriate when the movant demonstrates

there is no “genuine issue as to any material fact.”
P. 56(a).

Fed. R. Civ.

“[T]his standard provides that the mere existence of

some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
“An issue is genuine only if there is a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving
party, and a factual dispute is material only if it might affect
the outcome of the suit under governing law.”

Kaucher v. County of

Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson, 477 U.S.
at 248).

In determining whether a genuine issue of fact exists, a

court must resolve all factual doubts and draw all reasonable
inferences in favor of the nonmoving party.

Conoshenti v. Public

Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (citation
omitted).
The initial burden is on the moving party to show an absence
of a genuine issue of material fact.
7

Celotex Corp. v. Catrett, 477

U.S. 317, 330 (1986) (citations omitted).

The moving party may

meet this burden by “pointing out to the district court [] that
there is an absence of evidence to support the nonmoving party’s
case. when the nonmoving party bears the ultimate burden of proof.”
Id. at 325.

The non-moving party may not rest on the bare

allegations contained in his or her pleadings, but is required by
Federal Rule of Civil Procedure 56 to go beyond the pleadings by
way of affidavits, depositions, answers to interrogatories or the
like in order to demonstrate specific material facts which give
rise to a genuine issue.

Id. at 324.

“In considering a motion for summary judgment, a district
court may not make credibility determinations or engage in any
weighing of evidence.”

Anderson, 477 U.S. at 255.

Therefore, when

evidentiary facts are in dispute, when the credibility of witnesses
may be in issue, or when conflicting evidence must be weighed, a
full trial is usually necessary.
C.

Plaintiff’s Objections
Though difficult to follow, we read Plaintiff’s filings to

object generally to the Magistrate Judge’s conclusion that
Defendant did not violate Plaintiff’s constitutional right to the
free exercise of religion.

(Docs. 53-1, 53-2.)

Plaintiff argues

his constitutional rights were violated from May 29, 2008, to July
16, 2008. (Doc. 53-1 at 2.)

The alleged violation is specifically

based on the confiscation of Plaintiff’s Koran with Plaintiff

8

arguing “[t]here’s no proof by defendants that confiscating Koran
would maintain security, Plaintiff was not charged ore [sic]
accused of using religious Koran as a weapon.
confiscation of legal Koran was needed.”

Therefore no

(Id.)

Plaintiff also asserts he was a pretrial detainee during the
relevant time and “pretrial detainees [sic] rights are protected
more than convicted prisoners.”

(Doc. 53-1 at 2.)

He does not say

how the asserted principle would play out in the circumstances
here.

We read this assertion to be an objection that the

Magistrate Judge did not analyze his First Amendment claim as that
of a pretrial detainee rather than a convicted prisoner.
It is well recognized that convicted prisoners confined in
prison do not forfeit all constitutional protections.
Wolfish, 441 U.S. 520, 545 (1979).

Bell v.

Retention of certain

constitutional rights by prison inmates does not preclude
restriction and limitation of those rights.

Id. at 545-46.

“[M]aintaining institutional security and preserving internal order
and discipline are essential goals that may require limitation or
retraction of the retained constitutional rights of both convicted
prisoners and pretrial detainees.”
546 (1979) (emphasis added).

Bell v. Wolfish, 441 U.S. 520,

Prison officials are entitled to

wide-ranging deference in implementing these recognized essential
penological interests.

Id. at 547.

[T]he problems that arise in the day-today operation of a corrections facility are
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not susceptible of easy solutions. Prison
administrators therefore 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.
Id.
Here the actions taken by prison officials were in response to
a riot on the block where Plaintiff was housed, and Plaintiff
himself was charged with possession of contraband in the form of a
shank and a sock filled with batteries.

(Doc. 52 at 6.)

Given

these circumstances and the principle related to pretrial detainees
explained in Bell, we conclude Plaintiff’s status as a pretrial
detainee does not affect our analysis of the First Amendment issue
remaining in this case.
Under the First Amendment, “Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof.”

U.S. Const. amend. I.

The First Amendment is

applicable to the states via the Fourteenth Amendment.
Horn, 227 F.3d 47, 50 (3d Cir. 2000).

DeHart v.

As set out above, the United

States Supreme Court has held that neither convicted prisoners nor
pretrial detainees forfeit all constitutional protections because
of their confinement.

Bell, 441 U.S. at 545.

religion is protected in the prison setting.
50.

The free exercise of
DeHart, 227 F.3d at

However, “a prisoner’s right to practice his religion is not

absolute and . . . prison officials may restrict the exercise of an

10

inmate’s constitutional rights when necessary to facilitate some
legitimate goals and policies of penal institutions.”

Dreibelbis

v. Marks, 675 F.2d 579, 580 (3d Cir. 1982) (internal quotation
omitted) (citing Bell, 441 U.S. at 545-46); see also O’Malley v.
Brierly, 447 F.2d 785, 795 (3d Cir. 1973).
Alleged deprivations of constitutional rights which take place
in the context of prison disturbances create special
considerations.

Whitley v. Albers, 475 U.S. 312, 321-22 (1986).

“When the ‘ever-present potential for violent confrontation and
conflagration,’ Jones v. North Carolina Prisoners’ Labor Union,
Inc., 433 U.S. 119, 132, 97 S. Ct. 2532, 2541, 53 L. Ed. 2d 629
(1977), ripens into actual unrest and conflict, the admonition that
‘a prison’s internal security is peculiarly a matter normally left
to the discretion of prison administrators,’ Rhodes v. Chapman, 452
U.S. [337,] 349 n.14 . . . [(1981)], carries special weight.”
Whitley, 475 U.S. at 321-22.

Courts have also determined that a

temporary deprivation of a religious item does not rise to the
level of a constitutional violation.

See, e.g., Marsh v.

Corrections Corp. of America, 134 F.3d 383, 383 (10th Cir. 1998)
(Table Decision) (concluding plaintiff’s allegations that
defendants temporarily deprived her of religious items for fifteen
days failed to satisfy her burden of establishing First Amendment
violation); see also McCroy v. Douglas County Corrections Center,
No. 8:10CV69, 2010 WL 1610945, at *3 (D. Neb. 1996 Apr. 20, 2010 )
11

(prisoner did not state a claim for relief where his religious
items were confiscated during a shakedown and then returned 15 days
later after prisoner filed a grievance form).
We conclude the circumstances of the case and extent of the
deprivation support the Magistrate Judge’s conclusion that summary
judgment in favor of Defendant is proper.

Although Plaintiff

states his rights were violated from May 29, 2008, to July 16, 2008
(Doc. 53-1 at 2), he does not identify how his rights were violated
before reclassification of his unit to “segregation issue” status
on June 16, 2008--Plaintiff was allowed to retain his religious
materials while his unit was on lockdown status from May 29, 2008,
to June 16, 2008 (Doc. 52 at 5-6).

Therefore, we are concerned

only with the period from June 16, 2008, to July 16, 2008.
Importantly, the deprivation at issue was the result of a
general clearing of cell contents in response to a riot which took
place on Plaintiff’s unit on June 16, 2008.

(Doc. 52 at 9.)

The

duration of the intermittent “segregation issue” status was due to
continued unrest in the unit for a period of at least thirty days
thereafter.

(Id.)

Plaintiff testified that following the June 16,

2008, incident, prison officials “came around and took everybody’s
belongings . . . everything we had in [our cells].”
10:15-18, May 27, 2011, Doc. 49-9.)

(Murden Dep.

Based on this testimony,

Plaintiff does not dispute that the imposed restrictions were a
response to the disturbance and were not targeted at religious

12

materials.
Plaintiff has presented no basis upon which we would disagree
with the Magistrate Judge’s conclusion that prison officials’
penological interest in maintaining security and order following a
major disturbance on June 16, 2008, and continued unrest for a
period thereafter would justify clearing inmate’s cells of all
possessions.

(See Doc. 52 at 9-10.)

The need to clear cells (and

keep them clear) is highlighted by the fact that, despite having
been on lockdown status (where possessions allowed in the cell are
limited) since May 29, 2008, following the riot on June 16, 2008,
Plaintiff was in possession of contraband in the form of a shank
and a sock filled with batteries.

(Doc. 51 at 5.)

Further, although the material not permitted in Plaintiff’s
cell for the thirty-day period while the unit was on “segregation
issue” status included Plaintiff’s copy of the Koran, Plaintiff
actually had a copy of the Koran until July 5, 2008.

Thus,

Plaintiff was without a copy of the Koran for a period of
approximately sixteen (16) days.

During this time Plaintiff’s

ability to exercise his religion was not otherwise infringed.

We

agree with courts which have found that deprivations of similar
duration do not rise to the level of a constitutional violation.
Marsh, 134 F.3d at 383; McCroy, 2010 WL 1610945, at *3.
Considered in the relevant legal framework, Plaintiff is
incorrect that Defendant’s admission that his Koran was confiscated

13

shows that his First Amendment rights were violated.
1 at 2.)

(See Doc. 53-

Particularly in light of the special deference due prison

actions taken in response to prison disturbances, we concur with
Magistrate Judge Mannion that Defendant DeRose is entitled to
summary judgment on the remaining Plaintiff’s First Amendment
claim.
Finally, we note that Plaintiff’s reference to his inability
to contact other witnesses and obtain affidavits from witnesses in
other prisons does not alter our determination.
1.)

(See Doc. 53-2 at

Plaintiff does not dispute the facts upon which the Magistrate

Judge and the Court base our conclusions.

He does not show how

affidavits from other prisoners would support his position.
III. Conclusion
For the reasons discussed above, we conclude Defendant
DeRose’s Motion for Summary Judgment (Doc. 44) is properly granted.
Therefore, we adopt Magistrate Judge Mannion’s Report and
Recommendation (Doc. 52), grant Defendant DeRose’s Motion for
Summary Judgment (Doc. 44), and close this case.2

An appropriate

Order will be entered.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: February 15, 2012

2

With this determination, Plaintiff’s Motion to Vacate
Judgment (Doc. 53) is termed.
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