                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-20-2008

Devlin v. Blackman
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3223




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Recommended Citation
"Devlin v. Blackman" (2008). 2008 Decisions. Paper 992.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/992


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                                                           NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 07-3223


                              MARGARET DEVLIN,

                                              Appellant

                                         v.

                WARDEN ARTHUR BLACKMAN; LT. JAMES
             ADAMS; CO JEROME BARMORE; KEVIN HAYWARD


                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                            (D.C. Civ. No. 05-06081)
                   Honorable Bruce W. Kauffman, District Judge


                    Submitted under Third Circuit LAR 34.1(a)
                                 June 10, 2008

       BEFORE: AMBRO, CHAGARES, and GREENBERG, Circuit Judges

                               (Filed: June 20, 2008)


                            OPINION OF THE COURT


GREENBERG, Circuit Judge.

     This matter comes on before this Court on an appeal from an order entered June
27, 2007, granting defendants Arthur Blackman,1 the warden at the Philadelphia Prison

Detention Center (“Center”), James Adams, a lieutenant at the Center, and Jerome

Barmore, a correctional officer at the Center, summary judgment in this action that

Margaret Devlin, a correctional officer at the Center, brought against them. Devlin

explains in her complaint that the “gravaman [sic] of [her] action is to allege unlawful

retaliation for the lawful exercise of protected speech because the plaintiff complained to

the Warden and others including the defendants about unlawful actions with prisoners

that threatened the lives of guards and security in the prison.” App. at 14-15. Devlin

asserts in her complaint that after she reported the presence of contraband in the Center

she was subjected to threats and less favorable work assignments within the Center in

retaliation for her action. The District Court accompanied its order with a memorandum

opinion explaining why it was granting summary judgment to defendants. In particular,

the court explained that Devlin “alleg[ed] that she has been retaliated against for

exercising her First Amendment rights,” id. at 8, but the alleged retaliation was on

account of a report made as part of her duties and thus was not protected speech.

Therefore it granted summary judgment against her.

       The District Court had jurisdiction under 28 U.S.C. § 1331 and we have

jurisdiction under 28 U.S.C. § 1291. We review the District Court’s grant of summary



  1
    The Court notes that certain documents in this case refer to Blackman as “Blackmon.”
We are using the spelling Blackman as he himself used in his answer to the complaint in
this case.

                                             2
judgment de novo. See GFL Advantage Fund, Ltd. v. Colkitt, 272 F.3d 189, 198-99 (3d

Cir. 2001).

       We have no need to set forth the facts as the parties are well aware of them and the

District Court set them forth in its memorandum opinion. We agree with the result the

District Court reached and, accordingly, will affirm the order of June 27, 2007, largely for

the reasons the court set forth. We, however, make this refinement on its reasoning. The

District Court, citing Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951 (2006), indicated

that Devlin “reported the case incident as part of her duty as an employee of the

Philadelphia Prison System [and] [a]ccordingly, since her report was made as part of her

duties as a police officer, she failed to establish that she engaged in ‘protected speech’ . . .

.” App. at 12. Though we do not question the legal foundations of this reasoning, we

have some problem with applying it here because Blackman does not contend that he

disciplined Devlin for making a report. Quite to the contrary, he contends that she should

have made the report sooner. Our reservations concerning the District Court’s reasoning,

however, do not lead us to question the result the court reached for Devlin does not deny

that she delayed in reporting the contraband, i.e., a cake, for she sets forth in her brief that

she was aware of the presence of the cake on June 14, 2005, but did not report its

presence to Blackman until July 1, 2005. We are of the view that a correctional officer

hardly can state a claim based on discipline imposed on her as a result of her failure to

report properly the presence of contraband in a detention facility. Indeed, it would have



                                               3
been surprising if Blackman had not disciplined her for her conduct.

      The order of June 27, 2007, will be affirmed.




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