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


5-1-2008

Toussaint v. Good
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4638




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                                                         NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                               No. 06-4638




                        PATRICK TOUSSAINT,
                                     Appellant

                                    v.

              DAVID GOOD; JEFFREY A. BEARD, Ph.D;
             MARLINE STEWART; NORA HRUBOCHAK;
                 LT. PIROZZOLA,; SGT. GREEN;
                 SGT. MATTHEWS; SGT. VITALE




              On Appeal from the United States District Court
                 for the Western District of Pennsylvania
                    D.C. Civil Action No. 05-cv-0443
                        (Honorable Kim R. Gibson)


             Submitted Pursuant to Third Circuit LAR 34.1(a)
                             April 22, 2008

Before: SCIRICA, Chief Judge, HARDIMAN and STAPLETON, Circuit Judges.

                           (Filed: May 1, 2008)




                       OPINION OF THE COURT
PER CURIAM.

       Patrick Toussaint appeals from the order of the United States District Court for the

Western District of Pennsylvania granting summary judgment in favor of the defendants.

We will affirm in part, vacate in part, and remand the matter for further proceedings.

       The parties are well-acquainted with the history of this case, so we will recount the

background only as relevant to this appeal. Toussaint is currently incarcerated at the State

Correctional Institution at Cresson, Pennsylvania. In 2005, he filed a civil rights action

against several prison officials and employees. He raised the following claims, as

summarized by the Magistrate Judge: (1) the defendants have injured his right of access

to the courts; (2) the defendants are torturing him by forcing him to share a cell with

inmates with whom he was not on good terms and by whom he felt threatened, with

housing in the Restrictive Housing Unit (“RHU”) under protective custody being the only

alternative offered; and (3) the defendants have retaliated against him for filing

grievances.1 As relief, Toussaint sought a transfer to another institution, as well as

damages for mental anguish and for destroyed property.




   1
     Toussaint’s complaint includes many other explanatory allegations, including that
defendant Pirozzola took his legal materials and interfered with his ability to pursue his
court cases, and confiscated and damaged some of his personal property; (2) defendants
Matthews, Green, and Vitale refused his requests to change cells when he felt threatened
by a cellmate, moved him to another cell and showed favoritism to other inmates, and
issued false misconducts when he refused to obey orders; (3) defendant Hrubochak did
not respond to his requests regarding the cell situation; and (4) defendants Good and
Stewart unlawfully denied or ignored his grievances and failed to intervene on his behalf.

                                              2
       The defendants filed a motion to dismiss the complaint. The Magistrate Judge

advised the parties that the motion would be treated as a motion for summary judgment

and ordered Toussaint to respond to the defendants’ motion, submitting all evidence

relevant to his claims in doing so. Toussaint filed his response. The Magistrate Judge

issued a report and recommendation that summary judgment be entered in favor of all

defendants. Toussaint filed objections. The District Court adopted the report and

recommendation, granted the motion for summary judgment, and entered judgment in the

defendants’ favor. Toussaint appeals.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary

review over a District Court’s grant of summary judgment and apply the same test applied

by the District Court. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir. 2001).

Summary judgment is proper when, viewing the evidence in the light most favorable to

the nonmovant, there is no genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. Id. at 232; Fed. R. Civ. P. 56(c). If the moving party

meets the initial burden of establishing that there is no genuine issue, the burden shifts to

the nonmoving party to produce evidence of a genuine issue for trial. Specifically, the

party opposing summary judgment “may not rest upon the mere allegations or denials of

the . . . pleading”; the party’s response, “by affidavits or as otherwise provided in this

rule, must set forth specific facts showing that there is a genuine issue for trial.” Saldana,

260 F.3d at 232 (citing Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio



                                              3
Corp., 475 U.S. 574 (1986)). We will view the facts in the light most favorable to the

nonmoving party and we will draw all inferences in that party’s favor. See Reitz v.

County of Bucks, 125 F.3d 139, 143 (3d Cir. 1997).

       As to Toussaint’s First Amendment claim regarding the denial of access to the

courts, we agree with the Magistrate Judge’s determination that Toussaint alleged no

actual injury under Lewis v. Casey, 518 U.S. 343, 355 (1996). We note that Toussaint

clarified in his objections to the report and recommendation that he was impeded in filing

a motion for bail pending appeal in this Court. Yet Toussaint still alleged no specific

facts regarding this alleged harm; he provided no case numbers, dates of attempted filing,

or details describing how his litigation was affected. Next, concerning Toussaint’s claims

against the defendants premised on his cell assignments and denials of grievances related

thereto, 42 U.S.C. § 1997e(e) precludes damages relief for mental injury without a prior

showing of physical injury. We add that, to the extent that he sought other relief, inmates

have no constitutional right to be housed in a cell of their choosing. See Sheehan v.

Beyer, 51 F.3d 1170, 1174 (3d Cir. 1995).

       We further add that, to the extent that Toussaint’s claim is based on “false”

misconducts that resulted in sixty- and ninety-day stays in the RHU, such stays do not

constitute an “atypical and significant hardship” to trigger due process protections. See

Sandin v. Conner, 515 U.S. 472, 484 (1995). In addition, to the extent that Toussaint’s

claims against defendants Hrubochak, Good, Beard, and Stewart are based on a



                                             4
respondeat superior liability theory and do not allege any specific personal involvement

by those defendants in the alleged constitutional deprivations, they would fail. See Rode

v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Moreover, to the extent that

Toussaint intended to raise claims concerning intentional destruction of his personal

property, we conclude that Toussaint stated no due process claim. Even an intentional

deprivation of property in the prison setting is not a due process violation if the prison

provides an adequate post-deprivation remedy, see Hudson v. Palmer, 468 U.S. 517, 532-

33 (1984), such as Pennsylvania’s inmate grievance procedure, see Tillman v. Lebanon

County Corr. Facility, 221 F.3d 410, 422 (3d Cir. 2000). From the record, it appears that

there were no genuine issues for trial on these claims.

       However, we disagree with the Magistrate Judge’s analysis of Toussaint’s

retaliation claim. In resolving the claim in the defendants’ favor, the Magistrate Judge

noted that he looked for evidence sufficient to create a genuine issue of fact as to the

elements of a retaliation claim and concluded that Toussaint failed to show a causal

connection between his grievance filings and the sanctions imposed on him. (Report and

Recommendation at 4-5, citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003).) It is

true that Toussaint made no attempt to support his retaliation claim by affidavit or

otherwise under Rule 56(e) in opposing the motion for summary judgment. However,

upon review of the defendants’ brief in support of its motion, it does not appear that the

defendants ever argued that they were entitled to judgment on Toussaint’s retaliation



                                              5
claim. On this record, it is unclear why the Magistrate Judge credited the defendants with

meeting the summary judgment standard on a claim against which they did not

specifically defend, and regarding which Toussaint might not have been on notice to

argue.2 We thus vacate the District Court’s judgment on the retaliation claim.

       For the foregoing reasons, we will affirm the judgment of the District Court in

part, vacate in part, and remand for further proceedings.3




   2
    Toussaint does appear to have preserved this claim in his response to the defendants’
motion (in which he alleged that defendant Matthews placed him to the RHU because he
had filed grievances against Matthews’s work colleagues) as well as in his objections to
the Magistrate Judge’s report and recommendation (in which he alleged generally that the
defendants retaliated against him in response to grievances filed).
   3
     We note that Toussaint’s reply brief contains a request for an injunction “to overrule
all of the Attorney General’s cross appeal brief . . .” (emphasis omitted). To the extent
that Toussaint seeks to have the appellees’ brief stricken, we deny this request.

                                             6
