                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 10-2462
                                  ___________

                          CHRIS WASHINGTON-EL,
                                          Appellant

                                        v.

       DAVID DIGUGLIELMO; JOHN MURRAY; A.S. WILLIAMSON;
       GARY OLINGER; MICHAEL LORENZO; THOMAS DOHMAN,
               Sued in their individual and official capacities
               ____________________________________

                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                     (D.C. Civil Action No. 06-cv-04517)
                   District Judge: Honorable J. Curtis Joyner
                  ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                March 22, 2011

             Before: BARRY, JORDAN AND GARTH, Circuit Judges

                         (Opinion filed: March 22, 2011)

                                  ___________

                                   OPINION
                                  ___________

PER CURIAM

    Chris Washington-El appeals pro se from an order, certified for immediate appeal,
                                        1
entering summary judgment in favor of the defendants on all but one of his claims. We

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

                                             I.

       Washington-El, a Pennsylvania state prisoner housed at all relevant times at SCI-

Graterford, filed suit under 42 U.S.C. § 1983 against various prison personnel. He asserts

that defendants: (1) violated his First Amendment right to exercise his religion by

depriving him of a Koran and preventing him from participating in Ramadan (the “Free

Exercise” claim); (2) violated his First Amendment right of access to the courts by

placing him in administrative custody in the Restricted Housing Unit (“RHU”) in

retaliation for filing a grievance and successfully contesting a misconduct charge; (3)

violated his First Amendment right of access to the courts by obstructing his attempts to

litigate in various respects; (4) violated his Fifth and Fourteenth Amendment rights to

procedural due process in transferring him to the RHU; and (5) violated his Eight

Amendment rights by depriving him of a clean jumpsuit for four months and forcing him

to shower in an area contaminated by feces. As defendants, he named his prison

Superintendent (DiGuglielmo), a Deputy Superintendent (Lorenzo), three members of the

Program Review Committee who reviewed his placement in the RHU (Murray,

Williamson and Olinger), and the prison Security Captain who ordered it (Dohman).

       Washington-El filed suit pro se but was later represented at all relevant stages by

counsel. After discovery, the defendants moved for summary judgment on the merits of

his claims. The District Court denied their motion on May 7, 2008, in a one-sentence
                                             2
order stating merely that “there are numerous genuine issues of material fact underlying

the plaintiff‟s claims in this case.” (Dist. Ct. Docket No. 35.) Defendants then filed a

second motion for summary judgment asserting qualified immunity, which they had not

previously argued, and Washington-El opposed it. Neither side supplemented the record.

This time, by order entered August 1, 2008, the District Court granted defendants‟ motion

as to all but Washington-El‟s Free Exercise claim. In doing so, the District Court held

only that Washington-El had not adduced sufficient evidence of an underlying

constitutional violation, and it did not reach the issue of whether his asserted rights were

“clearly established.” Ray v. Twp. of Warren, 626 F.3d 170, 174 (3d Cir. 2010). Thus,

the practical effect of the District Court‟s ruling was to reconsider its initial denial of

summary judgment on the merits.

       The District Court then referred the parties to a Magistrate Judge to explore

settlement. At a mediation conference, the parties reached an agreement purportedly

allowing Washington-El to withdraw his remaining Free Exercise claim without

prejudice, immediately appeal the entry of summary judgment on his other claims, and

then reassert his Free Exercise claim after this Court‟s decision on appeal. Washington-

El filed a motion to withdraw his Free Exercise claim without prejudice pursuant to the

agreement, which the District Court granted. He then filed a notice of appeal from the

District Court‟s August 1, 2008 entry of summary judgment. (C.A. No. 08-4329.) We

dismissed his appeal for lack of jurisdiction because the District Court had not certified

its judgment for immediate appeal under Rule 54(b) of the Federal Rules of Civil
                                               3
Procedure. See Washington-El v. DiGuglielmo, 365 F. App‟x 338, 340-41 (3d Cir.

2010). Shortly thereafter, the District Court entered an order amending its August 1

judgment to certify it for immediate appeal under Rule 54(b). Washington-El now

appeals from that certified order.1

                                              II.

                                      A.   Law of the Case

       As a threshold matter, Washington-El argues that it was improper for the District

Court to grant summary judgment on claims that it previously held involved issues of

material fact. The District Court denied defendants‟ first motion for summary judgment

on the merits because it found “numerous genuine issues of material fact underlying the

plaintiff‟s claims[.]” Three months later, however, and on the same record, it effectively

reversed course and entered summary judgment on the merits of those same claims. It

did not acknowledge that this was the practical effect of its ruling or explain its reasons


       1
          The parties do not challenge the certification, but we consider it sua sponte
because we would lack jurisdiction if the certification were improper. See Gerardi v.
Pelullo, 16 F.3d 1363, 1368 (3d Cir. 1994). We review the certification of an otherwise-
final order under Rule 54(b) for abuse of discretion. See Berckeley Inv. Grp., Ltd. v.
Colkitt, 455 F.3d 195, 201-02 (3d Cir. 2006). In this case, the District Court weighed the
relevant factors and we cannot say that it abused its discretion in doing so. As the
District Court noted, Washington-El intends to appeal the summary judgment order
regardless of the outcome of his Free Exercise claim. We agree that permitting him to do
so now will not result in duplication of effort on appeal, and we also believe it
administratively beneficial at this point to fix the scope of further proceedings in the
District Court. Thus, we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary
review over the entry of summary judgment, which is proper only if “there is no genuine
issue of material fact and if, viewing the facts in the light most favorable to the
nonmoving party, the moving party is entitled to judgment as a matter of law.” Carter v.
                                               4
for reaching a different conclusion.

       We are indeed troubled by these circumstances. Under the law of the case

doctrine, district courts are permitted to reopen previously adjudicated matters before

final judgment so long as they (1) explain on the record their reasons for doing so and (2)

take appropriate steps to avoid prejudicial reliance on the previous ruling. See Williams

v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997); see also Krueger Assocs., Inc. v. Am. Dist.

Tel. Co. of Pa., 247 F.3d 61, 65-66 (3d Cir. 2001) (discussing previous denial of

summary judgment); Fagan v. City of Vineland, 22 F.3d 1283, 1289-90 (3d Cir. 1994)

(same). In this case, the District Court offered no explanation for effectively

reconsidering its prior ruling, and its failure to do so is particularly troubling in light of

the fact that it issued both rulings on the basis of an identical record. Cf. Krueger

Assocs., 247 F.3d at 65-66 (entry of summary judgment after previous denial appropriate

after additional discovery).

       Nevertheless, any error in this regard is harmless. Washington-El was not

prejudiced in the District Court because he responded to defendants‟ second motion and

took no action in reliance on the prior order. He also is not prejudiced on appeal because

our review is plenary. Thus, although we are troubled by the District Court‟s

unexplained departure from its previous ruling, that departure was harmless in this case.

                                           B.       The Merits

       Turning to the merits, we agree that summary judgment was appropriate as to


McGrady, 292 F.3d 152, 157 n.2 (2002).
                                                5
Washington-El‟s claims of denial of access to the courts, cruel and unusual punishment,

and denial of due process, primarily for the reasons explained by the District Court and

argued by defendants on appeal.2 We also agree that summary judgment was appropriate

on Washington-El‟s retaliation claim as to all defendants other than Dohman because

Washington-El produced no evidence that those defendants were personally involved or

knowingly acquiesced in Dohman‟s alleged retaliation. See Atkinson v. Taylor, 316 F.3d

257, 270 (3d Cir. 2003). Washington-El‟s retaliation claim against Dohman himself,

however, must be permitted to proceed.

       Washington-El claims that Dohman ordered his transfer to the RHU in retaliation


       2
          Washington-El‟s claim that defendants interfered with his access to the courts
fails because he has neither alleged nor produced evidence of an “actual injury”—i.e.,
loss of an opportunity to pursue a non-frivolous claim. See Lewis v. Casey, 518 U.S.
343, 348-49 (1996). His Eighth Amendment claim fails because he has not produced
evidence either that defendants deprived him of “„the minimal civilized measures of life‟s
necessities‟” or that they acted with “deliberate indifference” in doing so. See Griffin v.
Vaughn, 112 F.3d 703, 709 (3d Cir. 1997) (citation omitted). Finally, his due process
claim fails because his 17-month stay in administrative custody in the RHU while at SCI-
Graterford does not constitute an “„atypical and significant hardship . . . in relation to the
ordinary incidents of prison life‟” sufficient to deprive him of a protected liberty interest.
Id. at 708 (so holding with respect to 15-month stay in administrative custody in the RHU
at SCI-Graterford) (quoting Sandin v. Connor, 515 U.S. 472, 484 (1995)). In that regard,
Washington-El asserts in his brief that he continued to be held in an RHU after his
transfer from SCI-Graterford and that he has remained in an RHU for approximately four
and one-half years. The only defendants in this case, however, are SCI-Graterford
personnel, and Washington-El never amended his complaint to allege his continued
detention after his transfer to another prison or assert claims on that basis. Cf. Giano v.
Selsky, 238 F.3d 223, 225-26 (2d Cir. 2001) (aggregating pre- and post-transfer
confinement in suit regarding current confinement). To the contrary, he filed a separate
lawsuit regarding his post-transfer confinement, and that suit remains pending as of the
date of this opinion. (Washington-El v. Beard, W.D. Pa. Civ. No. 08-cv-01688.)
Washington-El‟s challenge to his continued, post-transfer detention in the RHU is most
                                              6
for his filing of a grievance and defeat of a disciplinary charge that Dohman filed against

him. The relevant undisputed facts are as follows. Dohman ordered a search of

Washington-El‟s cell on May 8, 2005, during which officers confiscated three telephone

books that Washington-El claims contained information regarding witnesses in his

criminal case. On November 25, 2005, he filed a grievance seeking the return of those

materials, and the grievance ultimately was sustained and the materials returned to him

(albeit some seven months later). Shortly before that, on October 3, 2005, Washington-

El successfully contested a misconduct charge that Dohman had filed against him for

allegedly being present in an unauthorized area. Then, on February 20, 2006, Dohman

ordered Washington-El‟s placement in administrative custody in the RHU, purportedly

on the basis of information that he “may have been responsible” for an altercation

between two other inmates. Washington-El claims that Dohman really ordered his

transfer to the RHU in retaliation for defending against the misconduct charge and filing

the grievance.

       In order to prevail on this claim, Washington-El ultimately must prove that: (1) he

engaged in constitutionally protected activity; (2) he suffered “adverse action” as a result;

and (3) his protected activity was a “„substantial or motivating factor‟” for the adverse

action—i.e., causation. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (citation

omitted). If Washington-El makes that showing, the burden shifts to Dohman to prove

that he “would have made the same decision absent the protected conduct for reasons


appropriately addressed in that suit and in any appeal therefrom.
                                              7
reasonably related to a legitimate penological interest.” Id. at 334.



       In this case, there is no dispute that the first two elements are satisfied: defendants

concede that Washington-El‟s activity was constitutionally protected and that his transfer

to the RHU was sufficiently adverse. The only element at issue is causation. The District

Court concluded that Washington-El failed to make a sufficient showing on this element

because Washington-El‟s “evidence, consisting of his own account of Dohman‟s

displeasure and of affidavits of fellow prisoners, is weak and we are not persuaded that he

has satisfied the elements necessary to sustain a retaliation claim.” (Dist Ct. Docket No.

43 at 10.) The strength of Washington-El‟s evidence, however, is not the proper focus,

and whether he has proven his claim is not the test. “The judge‟s function at the

summary judgment stage is not to weigh the evidence and determine the truth of the

matter, but to determine whether there is a genuine issue for trial.” Carter, 292 F.3d at

157 n.2. Although the issue is a close one, we agree with Washington-El that his

evidence would permit a reasonable factfinder to find in his favor.

       Dohman asserts that he placed Washington-El in the RHU for a single reason: “In

February of 2006, I received information that . . . Washington-El may have been

responsible for an altercation between two inmates in the Institution. Based upon this

information, I placed Washington-El in the [RHU] in Administrative Custody pending an

investigation.” (Dist. Ct. Docket No. 25-1 at 26-27 ¶¶ 4-5.) Defendants‟ interrogatory

responses confirm that this was the only stated reason. (Dist. Ct. Docket No. 33-1 at 14 ¶
                                              8
3) (“Plaintiff was placed in Administrative Custody due to Dohman having information

that Washington-El was involved in injuries to another inmate in the institution[.]”).

Defendants have provided no further detail regarding this “information,” such as its

nature, its source, or the reliability thereof. Washington-El has adduced evidence which,

viewed in the light most favorable to him, both calls Dohman‟s stated reason into

question and suggests that the actual reason may have been retaliation.

       Washington-El has submitted affidavits from the two inmates involved in the

altercation, Gary Dorsey and Jose Sanchez. Dorsey states that Dohman interviewed him

five days before ordering Washington-El to the RHU. According to Dorsey, Dohman

asked him whether Washington-El had been involved in the altercation, and Dorsey

responded that he had not. (Dist. Ct. Docket. No. 33-1 at 10 ¶¶ 1-2.) The day after

Dohman placed Washington-El in the RHU, he interviewed Sanchez, and Sanchez too

told him that Washington-El had not been involved. (Id. at 5 ¶¶ 1-4.) Though Dohman

claims he ordered Washington-El‟s transfer to the RHU pending an investigation into this

altercation, he did not similarly transfer Dorsey and Sanchez, the inmates actually

involved in it. (Id. at 3 ¶ 12.) This differential treatment supports an inference of

causation. See Brennan v. Norton, 350 F.3d 399, 421 (3d Cir. 2003).

       Washington-El remained in the RHU for the duration of his confinement at SCI-

Graterford. During that time, Dohman gave at least two other reasons for keeping him in

the RHU—that he received “information” that Washington-El was planning an escape

and that he kept Washington-El in the RHU “to prevent him from trafficking of drugs
                                              9
within the Institution.” (Dist. Ct. Docket No. 25-1 at 27 ¶¶ 6-7.) These shifting

rationales for holding Washington-El in the RHU also support an inference of causation.

See Marra v. Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007) (citing Farrell v.

Planters Lifesavers Co., 206 F.3d 271, 280-21 (3d Cir. 2000)).

       Finally, Washington-El also has adduced evidence bearing on Dohman‟s actual

motivation for the transfer. According to Washington-El‟s affidavit, Dohman searched

his cell in December 2005 and “expressed dissatisfaction” with the dismissal of the

disciplinary charge and Washington-El‟s grievance. (Dist. Ct. Docket No. 33-1 at 2 ¶

10.) Then, on the day that Dohman transferred him to administrative custody, Dohman

questioned him about the altercation between Dorsey and Sanchez and “reiterated his

dissatisfaction of plaintiff having been found not guilty of misconduct and grievance

complaint filed.” (Id. at 2 ¶ 11.) The next day, Dohman interviewed Sanchez. When

Sanchez told him that Washington-El had not been involved, Dohman “became irate, and

persistent” and “expressed his disgust and dismay for . . . Mr. Washington‟s involvement

of filing grievances and a lawsuit. And expressed his vengeance toward both Mr.

Washington and myself.” (Id. at 5 ¶¶ 4-6.) Finally, an inmate named Rasheed Williams,

whose affidavit Washington-El has submitted, states that Dohman “asked me about a

grievance complaint I had filed against his office and then tried to intimidate[.] He asked

did I want to be in the hole for a long time like Washington for filing grievances he could

arrange it.” (Id. at 6.) Taken together, Washington-El‟s evidence permits the reasonable

inference that his constitutionally protected conduct was a “substantial or motivating
                                            10
factor” for Dohman‟s decision to order his transfer to the RHU on February 20, 2006, and

to hold him there for at least some period of time thereafter. Rauser, 241 F.3d at 333.



       Defendants raise two principal arguments to the contrary, but neither is persuasive.

First, they argue that the temporal proximity of Washington-El‟s protected activity and

his transfer to the RHU does not suggest retaliation because Dohman did not order

Washington-El‟s transfer until four months after he defeated the misconduct charge, three

months after he filed his grievance, and two months after Dohman first “expressed

dissatisfaction” with those developments. See Thomas v. Town of Hammonton, 351 F.3d

108, 114 (3d Cir. 2003); Rauser, 241 F.3d at 334. “„It is important to emphasize,”

however, “that it is causation, not temporal proximity itself, that is an element of

plaintiff‟s prima facie case, and temporal proximity merely provides an evidentiary basis

from which an inference can be drawn.‟” Marra, 497 F.3d at 302 (citation omitted).

Thus, even in the absence of an unusually suggestive temporal proximity, a plaintiff can

show “that from the „evidence gleaned from the record as a whole‟ the trier of fact should

infer causation.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.

2007) (quoting Farrell, 206 F.3d at 281). As explained above, the record taken as a

whole permits that inference in this case.

       Second, defendants argue that, even if Washington-El had met his initial burden to

show causation, the record shows that Dohman would have ordered his transfer to the

RHU anyway for legitimate penological reasons. They base this argument primarily on
                                             11
an investigation begun in December 2005 into allegations that Washington-El was

conspiring with two SCI-Graterford staff members to smuggle marijuana and other

contraband into the prison. During that investigation, Dohman received information that

these staff members might also be conspiring to help Washington-El escape from prison.

The investigation ultimately resulted in a federal criminal action against the staff

members, who pleaded guilty to various related crimes. Washington-El himself does not

appear to have been charged. Defendants argue that, even if Washington-El was only

“tangentially” involved with the suspect staff members, it was “essential” to hold him in

the RHU to prevent him from interacting with those staff members and to prevent his

escape from prison. (Defs.‟ Br. at 37.)

       We are mindful of the deference we owe to prison officials in such matters, see

Rauser, 241 F.3d at 334, and we have no doubt that these circumstances would more than

justify Washington-El‟s placement in the RHU. Dohman himself, however, does not

claim that these circumstances are what led him to order that placement. Instead,

Dohman claims that he did so only because he suspected that Washington-El was

involved in the altercation between two inmates, and he claims that his separate

investigation into the staff members became a reason for keeping him in the RHU only at

some point thereafter. (Dist. Ct. Docket No. 25-1 at 26-27 ¶¶ 4-7.)3 It may be that this


       3
         In his affidavit, Dohman states that he received information in December 2005
that Washington-El was involved with staff members in smuggling marijuana, but “was
asked to leave [him] in the general population” in order to build a case. (Dist. Ct. Docket
No. 25-1 at 26 ¶ 3.) He does not claim that anything about this investigation had changed
                                             12
investigation became a legitimate penological reason for holding Washington-El in the

RHU at some point in time, but, on the existing record, it does not explain Dohman‟s

decision to transfer him there in the first place. Thus, the record does not permit

summary judgment in favor of Dohman on this issue.

       One final matter warrants discussion. Washington-El seeks both damages and an

injunction requiring his immediate release from the RHU. Although Washington-El

contends that he remains in an RHU, he is now in a different facility following his

transfer from SCI-Graterford, and the only defendants in this action are SCI-Graterford

personnel. Thus, although the parties have not raised this issue, it appears that his claim

for injunctive relief in this action may be moot. See Sutton v. Rasheed, 323 F.3d 236,

248 (3d Cir. 2003). The District Court should address that issue as appropriate on

remand.

       Accordingly, we will affirm the District Court‟s judgment as to all claims but the

retaliation claim and remand for further proceedings. In doing so, we hold merely that

Washington-El has adduced sufficient evidence of retaliation to proceed to trial, and we

express no opinion on whether he might ultimately prevail.




when he decided to place Washington-El in the RHU on February 20, 2006, and asserts
instead that he decided to do so only to investigate the altercation between two other
inmates. (Id. at 26-27 ¶¶ 4-5.) Curiously, defendants do not defend Dohman‟s actual
rationale in their brief.
                                             13
