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


7-22-2008

Powell v. Beard
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2618




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Recommended Citation
"Powell v. Beard" (2008). 2008 Decisions. Paper 819.
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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 07-2618
                                       ___________

                                    KEVIN POWELL,
                                              Appellant

                                             v.

                            JEFFREY BEARD;
          FRANKLIN J. TENNIS; MARGARET MILLER; MARY JO HAYS
                  ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              D.C. Civil Action No. 05-0955
                           (Honorable James F. McClure, Jr.)
                      ____________________________________

                    Submitted Under Third Circuit LAR 34.1(a)
                                  July 11, 2008
      Before: SCIRICA, Chief Judge, HARDIMAN and COWEN, Circuit Judges.

                                   (Filed: July 22, 2008)
                                        _________

                                OPINION OF THE COURT
                                      _________

PER CURIAM.

       Kevin Powell, a pro se prisoner, is incarcerated at S.C.I.-Rockview in Bellefonte,

Pennsylvania. He initiated this civil rights action under 42 U.S.C. §1983 in the United

States District Court for the Middle District of Pennsylvania, alleging violations of the
Eighth Amendment and retaliation. Although defendants moved for summary judgment

only as to the Eighth Amendment claim, the District Court granted summary judgment as

to both claims on the basis that Powell’s failure to show deliberate indifference

necessarily meant that he could not show an improper motive in support of his retaliation

claim. We will affirm.

       Powell alleged that on January 31, 2005, defendant Margaret Miller, a nurse at the

correctional institution, forced him to take the wrong medicine, which caused unspecified

health problems, and that she refused to permit Powell to see a doctor. Powell alleges

that Miller was retaliating against him for a previous lawsuit he had filed in state court.

Powell also alleged that defendant Mary Jo Hays refused to permit Powell to see a doctor,

also in retaliation. Powell asserted that Miller and Hays conspired against him because he

had sued one of their friends, Nurse Myers.

       The District Court dismissed Powell’s claims seeking damages from defendants

Beard and Tennis. The defendants moved for summary judgment on the remaining

claims on the basis that Powell allegedly had failed to exhaust his administrative remedies

under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Defendants subsequently

moved for summary judgment on Powell’s Eighth Amendment claim. Powell filed a

response in opposition. In their reply brief, defendants addressed Powell’s retaliation

claim. The Magistrate Judge recommended granting in part and denying in part

defendants’ summary judgment motion regarding exhaustion. The Magistrate Judge



                                              2
recommended granting summary judgment on Powell’s Eighth Amendment claim, and

denying summary judgment on Powell’s retaliation claim due to defendants’ failure to

present their argument in their opening brief. The District Court adopted the Magistrate

Judge’s recommendations regarding exhaustion and the Eighth Amendment claim. The

District Court disagreed with the Magistrate Judge’s recommendation regarding the

retaliation claim and granted summary judgment as to both the Eighth Amendment claim

and the retaliation claim. Powell appealed.

         We have jurisdiction under 28 U.S.C. § 1291. We review an order granting

summary judgment de novo, and we apply the same standard that the District Court

should have applied. MBIA Ins. Corp. v. Royal Indem. Co., 426 F.3d 204, 209 (3d Cir.

2005).

         Powell has stated that he appeals the District Court’s order only as to his retaliation

claim. Accordingly, we will confine our review to that issue.1

         To prevail on a claim for retaliation by prison officials, a plaintiff must show that:

(1) he engaged in constitutionally protected conduct; (2) he suffered some “adverse

action” by prison officials; and (3) his exercise of a constitutional right was a substantial

or motivating factor in the adverse action. Rauser v. Horn, 241 F.3d 330, 333-334 (3d

Cir. 2001). “Prison officials may still prevail by proving that they would have made the




         1
             It appears that summary judgment was properly granted as to Powell’s other
claims.

                                                3
same decision absent the protected conduct for reasons reasonably related to a legitimate

penological interest.” Id. at 334.

       Defendants failed to move for summary judgment on Powell’s retaliation claim.

Although District Courts have the power to grant summary judgment sua sponte, entry of

summary judgment generally is proper only if the party against whom summary judgment

will be entered had notice of possible summary judgment and an opportunity to come

forward with relevant evidence to prevent summary judgment. Gibson v. Mayor and

Council of Wilmington, 355 F.3d 215, 222 (3d Cir. 2004) (citing Celotex v. Catrett, 377

U.S. 317, 326 (1986)).

       The District Court determined that permitting Powell to respond would be futile

because Powell had failed to proffer any evidence of the defendants’ deliberate

indifference and thus could not prevail as a matter of law. We agree. As the District

Court observed, the record reveals that Powell refused to be weighed and/or measured

when he sought to be examined by a prison doctor, and that his lack of cooperation

prevented him from seeing a doctor. Powell submitted nothing to dispute those facts.

Although defendants did not move for summary judgment on the retaliation claim, Powell

was on notice that he was required to come forward with evidence to dispute defendants’

explanation of their actions in response to defendants’ motion for summary judgment as

to his Eighth Amendment claim that he was denied access to medical care. Powell failed

to proffer any evidence of improper motive, and therefore, his retaliation claim fails.



                                             4
For this reason, we will affirm the District Court’s judgment.




                                      5
