                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-2009

Solan v. Ranck
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4571




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Recommended Citation
"Solan v. Ranck" (2009). 2009 Decisions. Paper 1388.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1388


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                                             NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ___________

                     No. 07-4571
                     ___________

                   DAVID SOLAN,
                                      Appellant

                           v.


  Ms. RANCK, nee Hursh; LIEUTENANT CLARKSON,
former Lieutenant, FCI Allenwood; MR. BITTENBENDER,
       Disciplinary Hearing Officer, FCI Allenwood;
  LIEUTENANT SHEPARD, Lieutenant, FCI Allenwood;
    MS. LEVI, former Unit 4 Manager, FCI Allenwood;
       LT. FELTMAN, SIS Officer, FCI Allenwood;
  WARDEN TROY WILLIAMSON, former Warden, FCI
       Allenwood; all other unnamed FCI Allenwood
        correctional personnel, currently unknown to
               Plaintiff, who either participated
        in the 6/10/05 attack on Plaintiff, and/or who
      participated after in retaliatory measures against
               Plaintiff to punish, dissuade, or
       sabotage him; all in their individual capacities

     ____________________________________

    On Appeal from the United States District Court
         for the Middle District of Pennsylvania
          (D.C. Civil Action No. 06-CV-00049)
    District Judge: Honorable William W. Caldwell
     ____________________________________

   Submitted Pursuant to Third Circuit LAR 34.1(a)
                 February 27, 2009

Before: McKEE, HARDIMAN and ROTH, Circuit Judges
                               (Opinion filed : May 8, 2009)

                                       ___________

                                        OPINION
                                       ___________

PER CURIAM

       Pro se appellant David Solan, currently an inmate at FCC-Petersburg, Petersburg,

Virginia, filed a civil rights action for various events occurring while he was an inmate at

FCI-Allenwood, White Deer, Pennsylvania. He appeals the decisions of the District

Court granting summary judgment in favor of the Defendant-Appellees as to all claims

and denying him both injunctive relief and permission to amend his complaint.1

                                              I

       Solan alleges that in June 2005, while he was an inmate at FCI-Allenwood, the

prison was placed on lockdown following a riot. Two days after the riot, the prison

restored limited access to showers and prisoners were given between four and five

minutes each to use the showers. Solan claims that although he complied with the time

   1
       We have jurisdiction pursuant to 28 U.S.C. § 1291. We may affirm on any
grounds supported by the record. See Hughes v. Long, 242 F.3d 121, 122 n.1 (3d Cir.
2001).

        When reviewing a district court’s grant of summary judgment, we exercise plenary
review, viewing the facts in the light most favorable to the non-moving party. Dee v.
Borough of Dunmore, 549 F.3d 225, 229 (3d Cir. 2008). We apply the same standard that
governs in district court proceedings, under which a party is entitled to summary
judgment “if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

                                             2
limitations placed on the showers, he was forcibly removed from a shower stall and,

while still nude, dragged to his cell in front of numerous guards, several of whom were

female, and at least 100 other prisoners. He does not allege that he suffered physical

injuries.

       Appellees maintain that Solan did not comply with the restricted shower policy and

was walked back to his cell as a result. They concede that his body may have been

exposed when he was returned to the cell, but claim that he was permitted to have a

towel, which he was simply unable to keep around his waist with his hands cuffed.

       Soon after the shower incident, Solan initiated (and subsequently exhausted)

administrative remedy procedures. A few days later, he learned that a request to transfer

him to USP-Canaan, a new federal prison, had been approved. Solan alleges that this

transfer was made in retaliation for filing a complaint. Although the record demonstrates

that he was initially recommended for transfer six months prior to the shower incident,

Solan alleges that the first transfer recommendation had been abandoned and that the new

recommendation was retaliatory. Appellees contend that he had been selected for transfer

to the new prison because that institution needed a larger population and Solan is

regarded as a non-violent prisoner.

       On July 3, 2005, Solan broke his left arm while playing handball. He was taken to

the hospital that day, informed that he would have a follow-up appointment on July 7, and

returned to the prison. Rather than returning him to his cell, BOP officials placed him in



                                             3
the Secure Housing Unit (SHU). Solan alleges that the prison has a general policy of

returning inmates who leave the prison for brief medical visits back to their assigned

cells, and that his placement in SHU was done in retaliation for complaining about the

shower incident. Appellees contend that placement in SHU was appropriate because he

knew of his upcoming appointment date and that this knowledge posed a security risk.

       On July 7, 2005, Solan underwent surgery on his arm. Prior to his departure, he

alleges that his unit manager promised to reserve his cell assignment, which included a

bottom bunk in a two-man cell. Upon his return to the prison, however, he was

reassigned to a dirty top bunk in a six-person cell. Solan refused the bed assignment and

was placed in SHU. Following his stay in SHU, Solan was given a bottom bunk in a six-

man cell. Solan alleges that the prison has a policy of reserving bunk assignments for

inmates who temporarily leave the prison and that his new bed assignment and

subsequent SHU confinement are further examples of retaliation. Appellees argue that

prison officials tried to reassign Solan his original bed, but that an influx of prisoners

from SHU (i.e., prisoners who had been confined since the June riots) resulted in that bed

being occupied. Solan’s subsequent placement in SHU simply resulted from his refusal

to accept the bed offered to him.

                                              II

       In granting the Appellees’ motion for summary judgment, the District Court

concluded that the facts of the shower incident, as alleged by Solan, established an Eighth



                                               4
Amendment violation. Doc. No. 154, 19.2 However, the court determined that the

Defendants are entitled to qualified immunity because the right recognized by the court is

not “clearly established.” See id. at 23-25.

       A defendant is entitled to qualified immunity “insofar as [his] conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person

would have known.” Miller v. Clinton County, 544 F.3d 542, 547 (3d Cir. 2008) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Where there is no binding case law

recognizing a constitutional right within a federal circuit, and the extent or existence of

such a right is debated among other federal circuits, the right is not “clearly established.”

See Wilson v. Layne, 526 U.S. 603, 618 (1999); Murphy v. Dowd, 975 F.2d 435, 437 (8th

Cir. 1992).3

       We need not address at this time whether Solan demonstrated a constitutional

violation because, assuming arguendo that he did, we agree that the right is not clearly

established. As the District Court noted, we have not considered whether a claim alleging

mere psychological harm resulting from forced observation of one’s nude body implicates

the Eighth Amendment. Moreover, those courts which have do not agree. Compare



   2
   Because Solan did not include an appendix with his brief, references to District Court
documents are identified by District Court docket entry numbers.
   3
    We note that the United States Supreme Court’s recent decision in Pearson v.
Callahan, 555 U.S. ___ (2009), which re-examines the two-prong qualified immunity test
articulated in Saucier v. Katz, 533 U.S. 194 (2001), does not affect our analysis in the
instant case.

                                               5
Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003) (strip search of male inmate in

front of female guards would violate Constitution if conducted to inflict psychological

pain), with Somers v. Thurman, 109 F.3d 614, 622-23 (9th Cir. 1997) (psychological

harm incurred from cross-gender searches does not implicate Eighth Amendment).

Accordingly, summary judgment as to the claim against Ranck, Bittenbender, and

Clarkson was appropriate.

                                              III

       Solan alleges that Ms. Levi, a former unit manager, and Troy Williamson, the

former warden at FCI-Allenwood, violated his First Amendment rights to the extent that

they authorized his transfer to USP-Canaan, a move he claims was done in retaliation for

his filing a grievance about the shower incident. “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.” Rode v. Dellarciprete, 845 F.2d 1195,

1207 (3d Cir. 1988). “Personal involvement can be shown through allegations of

personal direction or of actual knowledge and acquiescence.” Id. The District Court

granted summary judgment as to both Defendants, reasoning that Solan failed to allege

either official’s personal involvement in his transfer. See Doc. No. 76, 14-16.

       We agree with the District Court that Solan failed to allege Ms. Levi’s personal

involvement in his transfer. His bare allegation that Levi “probably” had something to do

with his transfer based on her position of authority fails to set forth facts indicating that



                                               6
Levi personally directed or knew of and acquiesced in his transfer for retaliatory reasons.

See Evancho v. Fisher, 423 F.3d 347, 353-54 (3d Cir. 2005).

       However, we disagree with the District Court’s reasoning as to Warden

Williamson. In order to satisfy the “personal involvement” requirement, a § 1983

complaint need only allege the conduct, time, place, and person responsible. See id. at

353 (citing Boykins v. Ambridge Area Sch. Dist., 621 F.2d 75, 80 (3d Cir. 1980)). Here,

Solan argued that Warden Williamson, possessed of the knowledge of Solan’s complaint

regarding the shower incident, approved of the transfer in retaliation for Solan’s protected

conduct. See Appellant’s Br. at 13-17, 24. “From the facts alleged we can weigh the

substantiality of the claim. No more is required.” Boykins, 621 F.2d at 80.

       Nevertheless, summary judgment in favor of Warden Williamson was appropriate.

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). Here, Solan has not shown a “causal link between the

exercise of his constitutional rights and the adverse action taken against him.” Id.

Although Solan alleges that Warden Williamson knew of the shower incident and related

complaint at the time of the transfer, the record shows that Solan’s BP-9 administrative

remedy request was received on June 28, 2005, see Exs. 2 and 3 to Doc. No. 1, whereas

Solan’s transfer was approved on June 24, 2005. See Lavella Decl., ¶¶ 9-12 (Ex. 18 to



                                              7
Doc. No. 117). Solan does not present any other evidence that the warden knew of the

incident and/or any staff member’s alleged retaliatory motive for the transfer prior to

obtaining Solan’s BP-9 request. As such, summary judgment as to Warden Williamson

was appropriate.

       To the extent that Solan’s retaliatory transfer implicates other BOP personnel,

summary judgment was appropriate for two reasons. First, Solan has not explained how

officers Bittenbender, Ranck, Clarkson, Feltman, or Shepard were personally involved in

retaliatory conduct. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Second, the Appellees have demonstrated a legitimate penological reason for the transfer:

the need to build the prison population at USP-Canaan. See Rauser, 241 F.32 at 333.

                                             IV

       Solan claims that following his return from arm surgery, BOP officials assigned

him to an improper bunk in a six-person cell, even though he had been promised that he

could return to the two-man cell he occupied before the surgery, and that his refusal to

accept the reassignment resulted in SHU placement. Solan alleges that this reassignment

was made in retaliation for his grievances. Appellees argue that although prison officials

try to reassign inmates who return from medical visits to their original cells, such

reassignment is not guaranteed and inmates are assigned wherever space is available. We

agree that the causation prong of Rauser is not satisfied here, as the evidence –

uncontested by Solan – demonstrates that BOP officials actually tried to reassign Solan to



                                              8
his original bed, but that it was unavailable. See Ex. 16 to Doc. No. 117. Accordingly,

summary judgment as to the retaliatory cell reassignment claim was appropriate.

                                             V

       We have reviewed Solan’s remaining arguments on appeal and conclude that they

are meritless and warrant no further discussion. Accordingly, and for the foregoing

reasons, we will affirm the judgment of the District Court. In light of this disposition,

Solan’s “Motion to Compel Medical Care and/or an Extension of Time” is denied.




                                              9
