                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-26-2001

Rauser v. Horn
Precedential or Non-Precedential:

Docket 99-4013




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Recommended Citation
"Rauser v. Horn" (2001). 2001 Decisions. Paper 34.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/34


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Filed February 26, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-4013

HENRY RAUSER,
       Appellant

v.

MARTIN HORN, in his official capacity as Commissioner
of the Pennsylvania Department of Corrections;
WILLIAM F. WARD, in his official capacity as
Chairman of the Penna. Board of Par ole

On Appeal From the United States District Court
for the Western District of Pennsylvania
(D.C. No. 98-cv-01538)
District Judge: Honorable William L. Standish

Submitted Under Third Circuit LAR 34.1(a)
January 23, 2001

Before: NYGAARD, ALITO, and ROSENN, Cir cuit Judges.

(Filed: February 26, 2001)

       Jon Romberg, Esquire
       Seton Hall University School of Law
       833 McCarter Highway
       Newark, NJ 07102

        Counsel for Appellant
       Calvin R. Koons, Esquire
       Office of Attorney General
        of Pennsylvania
       Strawberry Square, 15th Floor
       Harrisburg, PA 17120

        Counsel for Appellees

OPINION OF THE COURT

ROSENN, Circuit Judge.

In this appeal, we are called upon to announce the
burden of proof that a prisoner must shoulder when he
alleges that prison officials have retaliated against him for
exercising his constitutional rights. The plaintiff, Henry
Rauser, is an inmate serving his eighth year of a five to ten
year sentence for a drug-related offense. He filed this suit
in the United States District Court for the W estern District
of Pennsylvania alleging that the officials at the
Pennsylvania State Correctional Facility at Camp Hill
violated his First Amendment right to religious freedom and
retaliated against him when he insisted on exer cising that
right. The District Court held that the prison officials had
violated the Establishment Clause as a matter of law and
enjoined further violations. However, it dismissed Rauser's
retaliation claim on summary judgment. Although the
former decision is not challenged on appeal, Rauser timely
appealed from the grant of summary judgment on his
retaliation claim. For the following reasons, we reverse and
remand for further proceedings consistent with this
opinion.

I.

In 1997, Rauser became eligible for parole. In preparation
for his parole review, the Pennsylvania Department of
Corrections ("the DOC") issued a Pr escriptive Program Plan
for Rauser, which required him to complete a series of
behavioral programs before the DOC would r ecommend his
release. Among the programs Rauser was r equired to
complete were Alcoholics Anonymous ("AA") and/or

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Narcotics Anonymous ("NA"). Both of these programs are
centered on a belief in a Supreme Being and require
participants to accept God as a treatment for their
addictions.

After completing a related religious substance abuse
program known as the "New Values T en Week Twelve-Step
Lecture," Rauser objected to continuing in AA/NA on the
basis of his own religious beliefs. In spite of this objection,
the DOC refused to consider recommending Rauser for
parole unless he participated in AA or NA. The DOC did not
offer Rauser a non-religious alter native to these programs
until after he filed the complaint in this action.

Rauser alleges that the Department took three actions in
retaliation for his insistence on religious freedom. First, the
DOC transferred Rauser from its Corr ectional Facility in
Camp Hill, Pennsylvania, to a facility in Waynesburg,
Pennsylvania, far from his home and family. When he
arrived at the Waynesburg facility, the DOC changed
Rauser's job classification from Class 3, Step D, the highest
level attainable by an inmate, to Class 1, Step A, the lowest
possible designation. This reclassification was accompanied
by a dramatic drop in Rauser's rate of pay, fr om $.41 per
hour to $.18 per hour. Finally, the DOC r efused to
recommend Rauser for parole, stating that"this
recommendation is based on the incompletion of programs
stipulated in [Rauser's] PPP, i.e.,[the] D[rug] & A[lcohol]
program."

On September 16, 1998, several months after he r eceived
a negative parole recommendation, Rauserfiled this 42
U.S.C. S 1983 action in the United States District Court for
the Western District of Pennsylvania. His complaint alleged
that the DOC's requirement that he participate in religious
addition therapy violated the establishment and fr ee
exercise clauses of the First Amendment. He sought
declaratory and injunctive relief, as well as monetary
damages for these violations. Rauser also sought
declaratory, injunctive and monetary relief for the allegedly
retaliatory transfer and wage reduction. The District Court
referred Rauser's case to Magistrate Judge Francis X.
Caiazza (MJ).

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The defendant prison officials moved to dismiss Rauser's
complaint for failure to state a claim or , alternatively, for
summary judgment. Judge Caiazza issued a report
recommending that the defendants' motion for summary
judgment on Rauser's Free Exercise claim be denied
because the AA/NA requirement violated the establishment
clause as a matter of law. The MJ further recommended
that the defendants be ordered to allow Rauser to decline
to participate in religious programs and that all entries
in the DOC's files adversely affecting Rauser's parole
eligibility based on his refusal to complete such programs
be expunged. The District Court adopted these
recommendations, none of which are challenged on appeal.

Judge Caiazza also recommended that the District Court
grant the defendants' motion for summary judgment on
Rauser's retaliation claim. The District Court adopted this
recommendation in an Order dated December 3, 1999,
holding that Rauser enjoyed no constitutional pr otection
against retaliation because he possessed no pr otected
liberty interest in early parole, prison wages, or a specific
place of confinement. This order is the subject of this
appeal. We hold that the relevant question is not whether
Rauser had a protected liberty interest in the privileges he
was denied, but whether he was denied those privileges in
retaliation for exercising a constitutional right.1 Because
Rauser has demonstrated that material questions of fact
relevant to this inquiry exist, we reverse the order of
summary judgment and remand this case for trial.

II.

In a recent case entitled Allah v. Seiverling, 229 F.3d 220,
224-25 (3d Cir. 2000), this court held that,"government
actions, which standing alone do not violate the
Constitution, may nonetheless be constitutional torts if
motivated in substantial part by a desire to punish an
_________________________________________________________________

1. The prison officials concede on appeal that the District Court failed
to
apply the proper legal standard for evaluating constitutional retaliation
claims. Accordingly, we have concluded that oral argument would not
materially assist in the resolution of this appeal. We therefore order the
case submitted without oral argument.

                               4
individual for the exercise of a constitutional right."
(quoting Thaddeus-X v. Blatter, 175 F .3d 378, 386 (6th Cir.
1999)(en banc)). Accordingly, the law of this circuit is clear
that a prisoner litigating a retaliation claim need not prove
that he had an independent liberty interest in the privileges
he was denied. Our primary purpose in this appeal,
therefore, is to set forth with specificity the elements of a
prisoner's cause of action for retaliation and the burden of
proof he must carry to succeed.

As a threshold matter, a prisoner -plaintiff in a retaliation
case must prove that the conduct which led to the alleged
retaliation was constitutionally protected. See Thaddeus-X,
175 F.3d at 389; Drexel v. V aughn, 1998 WL 151798 at *7
(E.D.Pa.)(determining that prisoner had engaged in
constitutionally protected conduct befor e proceeding with
retaliation inquiry). In this case, the District Court
determined that Rauser's refusal to participate in a
religious program was protected by the First Amendment.
This conclusion has not been challenged on appeal.

Next, a prisoner litigating a retaliation claim must show
that he suffered some "adverse action" at the hands of the
prison officials. See Allah, 229 F .3d at 225. Under Allah, a
prisoner-plaintiff satisfies this r equirement by
demonstrating that the action "was sufficient to deter a
person of ordinary firmness from exercising his
[constitutional] rights." Id. Her e, Rauser has produced
evidence that he was denied parole, transferr ed to a distant
prison where his family could not visit him r egularly, and
penalized financially. The prison officials do not dispute
this evidence. Accordingly, Rauser has pr esented sufficient
evidence of adversity to survive summary judgment.

Once these two threshold criteria are met, there remains
the question of how a prisoner-plaintif f must go about
proving a causal link between the exercise of his
constitutional rights and the adverse action taken against
him. This is a question of first impression in this circuit. In
Mount Healthy Bd. of Ed. v. Doyle, 429 U.S. 274, 287
(1977), the Supreme Court used a burden-shifting
framework to decide a retaliation case that ar ose in the
public employment context. The Court held that the
plaintiff bore the initial burden of proving that his

                               5
constitutionally protected conduct was "a substantial or
motivating factor" in the decision to discipline him. See id.
The burden then shifted to the defendant to pr ove by a
preponderance of the evidence that it would have taken the
same disciplinary action even in the absence of the
protected activity. See id. In this appeal, we join the several
circuits that have imported the Mount Healthy burden-
shifting framework into the prison context.2 See Thaddeus-
X, 175 F.3d at 399; Graham v. Henderson, 89 F.3d 75, 80
(2d Cir. 1996); Babcock v. White, 102 F.3d 267, 275 (7th
Cir. 1996).

We recognize that the task of prison administration is
difficult, and that courts should affor d deference to
decisions made by prison officials, who possess the
necessary expertise. In Turner v. Safely , 482 U.S. 78, 89
(1987), the Supreme Court held that a prison r egulation
that impinges on the constitutional rights of an inmate is
valid if it is "reasonably related to legitimate penological
interests." In adopting the Mount Healthy framework, we do
not discard the deferential standar d articulated in Turner.
Rather, we incorporate the balancing test announced in
Turner into the Mount Healthy bur den-shifting framework.
This means that, once a prisoner demonstrates that his
exercise of a 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.

III.

Applying the standard discussed above to the case before
us, we conclude that summary judgment was impr oper. In
determining whether summary judgment is pr oper, the
court must view the evidence and all justifiable inferences
_________________________________________________________________

2. But see Goff v. Burton, 7 F.3d 734, 737 (8th Cir. 1993). Cf. Woods v.
Smith, 60 F.3d 1161, 1166 & n.26 (5th Cir . 1995) (citing Mount Healthy
but stating that the prisoner must establish that but for the retaliatory
motive the complained of incident would not have occurred); McDonald
v. Hall, 610 F.2d 16, 18 (1st Cir . 1979) (same).

                               6
to be drawn therefrom in the light most favorable to the
non-moving party. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). Rauser has presented a gr eat deal of
evidence from which a reasonable jury could conclude that
the prison officials penalized him because he insisted on
exercising his First Amendment rights. First, Rauser has
sworn that a DOC official warned him shortly before his
transfer not to "try and disrupt their alcohol pr ograms"
with constitutional challenges and threatened that such
challenges would result in a denial of par ole. Second, the
DOC acknowledged that its failure to grant Rauser a
favorable parole recommendation was due to his "failure to
complete prescribed treatment plans," specifically AA/NA.

Finally, Rauser has demonstrated a suggestive temporal
proximity between his insistence on his First Amendment
rights and his transfer and wage reduction. See Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir.
2000)(stating that suggestive timing is relevant to causation
in retaliation case). The District Court noted that Rauser
first raised his religious objections "prior to January 1998."
On January 26, 1998, the DOC transferred Rauser to the
Waynesburg facility and cut his wages by more than half.
On the eve of that transfer, a DOC official warned Rauser
that if he continued to disrupt prison programs with
Constitutional challenges, he would be punished with a
denial of parole.

IV.

Viewing the evidence as a whole in the light most
favorable to Rauser, we conclude that a r easonable jury
could determine that Rauser's protected conduct was a
motivating factor in the DOC's decision to transfer him, cut
his wages and deny him parole. The DOC has of fered no
evidence to suggest that these actions were taken for any
other reason, penologically legitimate or otherwise.
Accordingly, the District Court's grant of summary
judgment will be reversed and the case r emanded for
further proceedings consistent with this opinion. Costs to
be taxed against the appellee.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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