                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2002

Carter v. McGrady
Precedential or Non-Precedential: Precedential

Docket No. 01-1738




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"Carter v. McGrady" (2002). 2002 Decisions. Paper 303.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/303


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL

       Filed May 29, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1738

RICHARD CARTER, SCI-MAHANOY PARA-LEGAL
ASSISTANT/ ON BEHALF OF HIMSELF AND PRISON
POPULATION

v.

JAMES MCGRADY, CAPTAIN, AND; MARY CANINO,
HEARING EXAMINER, IN THEIR INDIVIDUAL AND
OFFICIAL CAPACITY
(Eastern District of PA Civil #94-cv-7163)

RICHARD CARTER, on behalf of himself and all those
similarly situated

v.

MARTIN L. DRAGOVICH, SUPERINTENDENT; EDWARD J.
KLEM, Superintendent of Centralized Services;
COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA
DEPARTMENT OF CORRECTIONS; SCI AT MAHANOY;
JAMES MCGRADY, CAPTAIN (Eastern District of PA Civil
#96-cv-6496)

Richard Carter, Appellant

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
District Judge: Honorable J. Curtis Joyner




Argued: February 4, 2002

Before: BECKER, Chief Judge, McKEE and BARRY,
Circuit Judges.

(Filed: May 29, 2002)

       JOSEPH A. SULLIVAN, ESQUIRE
       EDWARD W. FERRUGGIA, ESQUIRE
       KIMBERLY M. KAPLAN, ESQUIRE
        (ARGUED)
       LISA M. SCIDURLO, ESQUIRE
       ADAM C. BONIN, ESQUIRE
       Schnader, Harrison, Segal & Lewis,
        LLP
       1600 Market Street, Suite 3600
       Philadelphia, PA 19103

       Counsel for Appellant
       D. MICHAEL FISHER, ESQUIRE
       Attorney General
       BETH ANNE SMITH, ESQUIRE
        (ARGUED)
       Senior Deputy Attorney General
       JOHN G. KNORR, III, ESQUIRE
       Chief Deputy Attorney General
       Chief, Appellate Section
       Office of Attorney General
       21 S. 12th Street, 3rd Floor
       Philadelphia, PA 19107-3606

       Counsel for Appellees James
       McGrady, Martin L. Dragovich
       Edward J. Klem and Mary Canino

OPINION OF THE COURT

BECKER, Chief Judge.

This is a prisoner’s civil rights case, 42 U.S.C.S 1983,
brought by Richard Carter, an inmate in the custody of the

                                2


Pennsylvania Department of Corrections ("DOC"). Carter, an
experienced and assiduous jailhouse lawyer, claims that he
was unlawfully subjected to cell searches and disciplinary
proceedings in retaliation for his jailhouse lawyering, which
he contends was disfavored at the State Correctional
Institute at Mahanoy ("SCI-Mahanoy") where he was
incarcerated at all times relevant to this lawsuit. This
appeal is from the order of the District Court granting
summary judgment for the defendants, James McGrady,
Martin Dragovich, and Edward Klem, all officials at SCI-
Mahanoy, based on the conclusion that Carter did not have
a constitutionally protected right to act as a jailhouse
lawyer and, thus, the defendants were entitled to qualified
immunity.

When this case was before the District Court, the
Supreme Court had yet to decide Shaw v. Murphy , 532 U.S.
223 (2001), which held that prisoners do not have a
freestanding constitutional right to assist other inmates in
filing legal claims. Shaw had asserted such a right, and the
Supreme Court has therefore foreclosed one facet of
Carter’s claim. This development has required Carter, who
describes himself in the case caption as "SCI-Mahanoy
Para-Legal Assistant/On Behalf of himself and prison
population," to shift gears and to stress two other
arguments. First, Carter claims that he was retaliated
against for exercising his First Amendment rights. Second,
invoking Turner v. Safley, 482 U.S. 78 (1987), he claims
that there are no reasons related to penological interests
that would otherwise justify the conduct of the prison
officials.

Carter’s claim of retaliation for exercising a constitutional
right is governed by Rauser v. Horn, 241 F.3d 330 (3d Cir.
2001). Under Rauser, prison officials may prevail when the
plaintiff has made out a prima facie case of retaliation if
they prove that "they would have made the same decision
absent the protected conduct for reasons reasonably related
to legitimate penological interests." Id. at 334. The record
reveals that Carter was clearly guilty of egregious violations
of prison policy -- stealing a typewriter and unauthorized
use of the mails (and other violations as well). We conclude,
assuming arguendo that Carter has correctly described the

                                3


attitude at SCI-Mahanoy about jailhouse lawyering and that
he has made out a prima facie case of retaliation, that there
is no genuine issue of material fact that the prison officials
would have disciplined Carter for these violations
notwithstanding his jailhouse lawyering. Accordingly, we
will affirm, albeit on different grounds than those relied on
by the District Court. See Narin v. Lower Merion Sch. Dist.,
206 F.3d 323, 333 n.8 (3d Cir. 2000). We therefore need
not reach the interesting issues raised by Carter’s theory
that he has a protected First Amendment right to provide
legal advice, and that any action taken against him for
exercising such a right must be evaluated under Turner.

 I. Facts and Procedural History

On February 25, 1994, Carter executed and transmitted
an "outside purchase approval form" for an electric
typewriter from a "family member or friend." In due course,
a Smith-Corona typewriter arrived at SCI-Mahanoy from
Suburban Office Equipment, a vendor located in Ardmore,
Pennsylvania. On March 24, 1994, Carter signed an inmate
personal property receipt and accepted delivery of the
typewriter. A mailroom inspector, Liz Ryan, later informed
James McGrady, SCI-Mahanoy’s Security Captain, that the
vendor had sent a demand letter stating that: (1) no
payment had been made for the typewriter; and (2) Carter
had obtained the typewriter through the unauthorized use
of a credit card.

McGrady investigated the matter by contacting Wallace
McLean, who worked for the vendor. McLean informed
McGrady that the typewriter had been ordered over the
phone using a credit card and that the customer identified
the name on the card as Richard Carter. The actual owner
of the card, who lived in California, subsequently verified
that Carter was not authorized to use that card. McLean
faxed certain documents to McGrady, including the sales
receipt that indicated that the typewriter was sold to Carter
and paid for with a Visa card; the "Retrieval Request
Fulfillment Transmittal" containing a copy of a credit card
sales slip reflecting that the sale of the typewriter was made
by a credit card bearing the name "Richard Carter"; and an
inquiry from McLean representing that a typewriter was

                                4
shipped from the vendor to Richard Carter and signed for
by an SCI-Mahanoy mailroom employee.

On October 19, 1994, thirteen days after the vendor had
contacted SCI-Mahanoy about the typewriter, McGrady
twice ordered Carter’s cell to be searched. In the course of
the first search, a corrections officer, M.E. Steinhauer,
seized the typewriter. Immediately after the search, Carter
was taken to the security office. McGrady testified that
Carter told him that an inmate at SCI-Graterford, where
Carter was formerly an inmate, had purchased the
typewriter for him in return for legal services rendered, but
that he had no idea how that inmate purchased the
typewriter. Carter denies telling McGrady this, but does
admit that he gave McGrady an unsigned affidavit that he
prepared, purportedly on behalf of the other inmate,
making a statement to this effect.

Carter submits that McGrady then threatened him with
discipline should he assist other inmates with legal
matters, stating that, "You don’t work in the law library
here . . . SCI-Mahanoy does not allow inmates to help other
inmates with their legal matters." When Carter told
McGrady about how he had been helping other inmates for
many years, Carter alleges that McGrady responded by
saying "I don’t care where you were before. We don’t allow
prisoners to help other inmates." Carter also represents
that McGrady said, "if I even hear about you helping other
inmates, I will write you up and put you in RHU[Restrictive
Housing Unit]."

McGrady subsequently ordered a second search for
documentation of the purchase of the typewriter or any
other evidence of the unauthorized use of the credit card. In
the course of this search, Steinhauer confiscated Carter’s
personal papers, including all of Carter’s legal materials. In
the papers seized from Carter’s cell, Steinhauer found an
envelope from the vendor containing two receipts for the
typewriter that were identical to the sales receipt and credit
card sales slip that the vendor had faxed to McGrady.
Carter testified that, on October 23, 1994, he filed a written
request to have his documents returned. The request was
denied.

                                5


On October 27, 1994, McGrady called Carter to his office
to witness the return of legal documents belonging to ten
different inmates. Carter testified that, in his presence,
each of the inmates that he was assisting was ordered not
to allow Carter to review their legal materials and told that
anyone who did would be sent to the RHU. This was despite
protests that they had no other means of legal assistance.
During this meeting, McGrady asked Carter what he was
doing with these papers. Carter responded that he was not
assigned to the law library as a legal aide but that he was
being paid for helping people. McGrady then told Carter
that he could not conduct a business while in prison.
Carter responded that he was a court-appointed paralegal
and was being paid by the Federal Courts to assist other
inmates. Carter produced two documents as evidence of his
status as a court-appointed paralegal, but McGrady could
not determine from the documents whether Carter was
telling the truth.

McGrady thereafter wrote a misconduct report charging
Carter with receiving stolen property. At the disciplinary
hearing on the charge, Carter was found guilty and
sentenced to sixty days disciplinary custody in the RHU.
After serving this sanction, he was returned to the general
population at SCI-Mahanoy. Carter was also charged by the
Schuylkill County District Attorney’s Office with
unauthorized use of a credit card, theft by deception,
receiving stolen property, and conspiracy. He was convicted
of the charge of receiving stolen property and given a
sentence of two and one-half to five years consecutive to the
sentence he is currently serving.

Carter testified that over the course of the next two years
he was routinely harassed and searched when entering and
leaving the prison library, far more frequently than other
inmates. He alleges that these were efforts to search his
files to determine which inmates he was assisting with legal
matters. On June 5, 1996, his cell was again searched and
his legal and personal papers were seized.

In August 1997, an inmate informed Vincent Mooney, the
Security Lieutenant at SCI-Mahanoy, that another inmate -
Dana Carter (who happened to be the plaintiff’s cell-mate)
- was holding the inmate’s legal papers until he paid Dana

                                6


Carter money for his legal work. As a result, Mooney
ordered a search of Dana Carter’s cell. During that search,
Corrections Officer Toth discovered an excessive amount of
property in the cell, belonging to both Dana and Richard
Carter, as well as other inmates, which was deemed to
constitute a fire and safety hazard. Mooney ordered the
search team to confiscate the property and take it to the
security area. Mooney subsequently called Carter (the
plaintiff - not his cellmate, Dana) to the security office
where he advised him that he was limited to two file boxes
of property in his cell. Carter was then allowed to select the
paperwork that he wanted to keep, and was told that his
remaining paperwork would be stored in the property room,
but that paper belonging to other inmates would be
returned to those inmates.

Later in August 1997, staff at SCI-Greene, another
Pennsylvania prison, advised McGrady that Carter had
circumvented mail policies by corresponding with an
inmate at SCI-Greene, Donny Unger. Carter concedes that
he wrote a note to Unger without seeking authorization for
that correspondence. Inmates in DOC custody are
prohibited from corresponding with inmates in other state
correctional institutions. On the basis of this information,
a routine misconduct search of Carter’s cell was conducted
in late August. During that search, prison officials
confiscated a copy of a newsletter drafted by Carter, "The
Last Line of Defense," which advocated prisoner litigation
and argued that prison paralegals like himself stood as the
"last line of defense." Carter had not requested or obtained
approval by the SCI-Mahanoy administration for this
newsletter. On August 29, 1997, Carter was charged with
misconduct for unauthorized use of the mail. He was found
guilty and sentenced to RHU for thirty days.

Carter served thirty days in RHU for the unauthorized
use of the mails. He was not thereafter returned to SCI-
Mahanoy, but was placed instead in administrative custody
pending transfer. He was ultimately transferred to SCI-
Dallas, where he remains incarcerated. The transfer was
initiated by McGrady, who petitioned the DOC to transfer
Carter to another state correctional institution. This
transfer decision was based on security concerns,

                                7


specifically, Carter’s attempts to establish at SCI-Mahanoy
various unauthorized groups, including the Ma’at Karast
Temple, a religious group that Carter wanted the prison to
recognize as an official religion. McGrady also believed that
Carter was affiliated with groups that advocate violence.
Carter, in contrast, urges that the transfer was done in
order to punish him for assisting other inmates, and to
prevent him from continuing to help them in the future. He
also contends that defendants filed negative parole
recommendations against him in May 1995 and February
1996 despite the fact that he has been a nonviolent and
generally exemplary inmate, and that this was done in
retaliation for his jailhouse lawyering.

Carter filed two separate pro se complaints alleging
violations of 42 U.S.C. S 1983. The protracted history of this
litigation, not relevant to the outcome, is described in the
margin.1 An amended complaint was filed on February 12,
1999, alleging claims under 42 U.S.C. S 1983, based on
both access to courts and retaliation for exercise of his First
Amendment rights. Carter also pled a conspiracy count
under 42 U.S.C. S 1985. Defendants moved to dismiss the
_________________________________________________________________

1. In September 1996, Carter filed this S 1983 action against SCI-
Mahanoy, Dragovich, and Klem. (C.A. No. 96-6496). He challenged the
adequacy of the law library and legal reference aides policy, as well as
the legality of the prison restrictions on his ability to practice as a
"jailhouse lawyer." Carter alleged that the defendants had violated his
right of access to the courts, and that certain actions were taken against
him in retaliation for the exercise of his First Amendment rights.
Defendants moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the
complaint. They maintained that: 1) an inmate had no constitutional
right to act as a jailhouse lawyer; 2) Carter’s access-to-courts claim
failed since he had not suffered any actual injury as a result of their
conduct; and 3) Carter’s retaliation claim failed since he had no
constitutional right to be a jailhouse lawyer, and had failed to allege
facts which showed that the defendants had taken any retaliatory action
against him, or knew of or acquiesced in any such retaliation. The
District Court denied the motion, concluding that Carter was not
asserting an access-to-courts claim. The District Court also granted
Carter’s motion to consolidate this case with another case he had
previously filed, C.A. No. 94-7163, which has a long procedural history.
Carter subsequently filed an amended complaint, which subsumes the
two consolidated cases and lays the foundation for this appeal.

                                8


amended complaint pursuant to Fed. R. Civ. P. 12(b)(6).
The Court dismissed Carter’s claims against the
Commonwealth of Pennsylvania, the DOC, and SCI-
Mahanoy on grounds of Eleventh Amendment immunity.
Carter’s access-to-courts claim was dismissed because he
failed to allege an "actual injury" within the meaning of
Lewis v. Casey, 518 U.S. 343 (1996). The S 1985 claim was
dismissed because "jailhouse lawyers" are not protected
under that statute. Thus, all that was left was Carter’s
retaliation claim against McGrady, Dragovich, and Klem.

Defendants subsequently moved for summary judgment,
arguing inter alia that Carter’s retaliation claim failed as a
matter of law and that they were entitled to qualified
immunity. The District Court concluded that the
defendants were entitled to qualified immunity because
Carter did not have a constitutional right to act as a
jailhouse lawyer and granted their motion for summary
judgment, from which Carter now appeals. The District
Court had jurisdiction pursuant to 28 U.S.C. S 1331. We
have appellate jurisdiction pursuant to 28 U.S.C.S 1291.
We exercise plenary review over a district court’s grant of
summary judgment. See Pi Lambda Phi Fraternity, Inc. v.
Univ. of Pittsburgh, 229 F.3d 435, 441 n.3 (3d Cir. 2000).
We set forth the familiar standards governing review of
summary judgment motions in the margin.2

II. Discussion

A prisoner alleging that prison officials have retaliated
against him for exercising his constitutional rights must
prove that: 1) the conduct in which he was engaged was
constitutionally protected; 2) he suffered "adverse action" at
the hands of prison officials; and 3) his constitutionally
_________________________________________________________________

2. Summary judgment is proper if there is no genuine issue of material
fact and if, viewing the facts in the light most favorable to the non-
moving party, the moving party is entitled to judgment as a matter of
law. See Fed. R. Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317
(1986). 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. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

                                9
protected conduct was a substantial or motivating factor in
the decision to discipline him. Rauser v. Horn , 241 F.3d
330, 333 (3d Cir. 2001) (adopting Mount Healthy Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977)). Once a prisoner
has made his prima facie case, the burden shifts to the
defendant to prove by a preponderance of the evidence that
it "would have made the same decision absent the protected
conduct for reasons reasonably related to penological
interest." Id. at 334 (incorporating Turner v. Safley, 482
U.S. 78, 89 (1987)).

The Supreme Court has made clear that decisions of
prison administrators are entitled to great deference. In
crafting the appropriate standard of review for prisoners’
constitutional claims, the Court observed that "[r]unning a
prison is an inordinately difficult undertaking." Turner, 482
U.S. at 85. Moreover, the Court noted that " ‘courts are ill
equipped to deal with the increasingly urgent problems of
prison administration and reform.’ " Id. (quoting Procunier v.
Martinez, 41 U.S. 396, 405 (1974)). Thus, "[p]rison
administrators should be accorded wide-ranging deference
in the adoption and execution of policies and practices that
in their judgment are needed to preserve internal order and
discipline and to maintain institutional security." Bell v.
Wolfish, 441 U.S. 520, 547 (1979).

In this case, Carter was never charged with misconduct
for helping other inmates with legal matters or having their
legal materials in his cell. Rather, he was charged with
misconduct for undisputed violations of prison policy. The
search and seizure of items from his cell were related to
these various violations. Carter was discovered with a
stolen typewriter in his cell. The cell search uncovered an
envelope containing two receipts for the typewriter,
identical to the sales receipt and credit card sales slip faxed
by the vendor. As a result, Carter was disciplined with sixty
days in the RHU.

Moreover, it is not disputed that Carter corresponded
with Unger in violation of prison policy. Carter conceded
that he wrote a note to Unger without seeking authorization
for that correspondence. His cell was searched in
connection with this allegation; he was written up and
subsequently disciplined with thirty days for this conduct.

                                10


Additionally, there is no dispute that the amount of
property kept by Richard Carter and Dana Carter in their
cell exceeded the amount allowed by fire and safety
regulations. The materials were seized for this reason, and
Carter was allowed to select up to two boxes of his personal
material to keep in his cell. Finally, in the course of
searching Carter’s cell in connection with the unauthorized
use of the mails, prison officials found the newsletter, "The
Last Line of Defense," a publication of which Carter was the
editor and for which he had not requested or obtained
approval by the SCI-Mahanoy administration. The foregoing
represents a sizeable quantum of misconduct evidence.
Carter contends that notwithstanding these facts all of
the actions taken against him were a reflection of
defendants’ bias against jailhouse lawyers. We note in
passing that inmates at SCI-Mahanoy are in fact permitted
to act as jailhouse lawyers provided that they do not
demand or receive payment for their services. The
institution also provided both a law library and inmates
assigned to work as legal aides in that library. All inmates
have access to the law library, which was open all day,
including evenings, from Monday to Friday; on weekends, it
was open six to eight hours. Inmates are allowed to confer
with each other in the library as long as they are not
disruptive. Nevertheless, even assuming, for purposes of
this case, that Carter’s activity was constitutionally
protected, but see Shaw v. Murphy, 532 U.S. 223, 230-31
(2001), supra, and that the searches and subsequent
disciplinary action were motivated by hostility to this
protected activity, Carter still cannot prevail.

As this Court has previously held, "once a prisoner has
demonstrated that his exercise of a constitutional right was
a substantial or motivating factor in the challenged
decision, the prison officials may still prevail by proving
that they would have made the same decision absent the
protected conduct for reasons reasonably related to a
legitimate penological interest." Rauser , 241 F.3d at 334
(emphasis added). Given the quantum of evidence of
Carter’s misconduct, we cannot say that the prison officials’
decision to discipline Carter for his violations of prison
policy was not within the "broad discretion" that we must

                                11


afford them. Thornburgh v. Abbott, 490 U.S. 401, 413
(1989). Even if prison officials were motivated by animus to
jailhouse lawyers, Carter’s offenses, such as receiving
stolen property, were so clear and overt that we cannot say
that the disciplinary action taken against Carter was
retaliatory. Rather, we conclude that the there is no
genuine issue of material fact that such action was
"reasonably related to legitimate penological interests," and
that Carter would have been disciplined notwithstanding
his jailhouse lawyering. Turner, 482 U.S. at 90. The
judgment of the District Court will therefore be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                12
