                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-11-2005

Szemple v. Talbot
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1385




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Recommended Citation
"Szemple v. Talbot" (2005). 2005 Decisions. Paper 875.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/875


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BPS-233                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                  NO. 05-1385
                               ________________

                          CRAIG FRANCIS SZEMPLE,

                                         Appellant

                                           v.

                         PAUL TALBOT;
        ROY L. HENDRICKS, Administrator New Jersey State Prison;
    DEVON BROWN, Commissioner of New Jersey Department of Corrections;
            CORRECTIONAL MEDICAL SERVICES, INC.;
                    JOHN DOE, Shift Supervisor
                  _______________________________________

                  On Appeal From the United States District Court
                          For the District of New Jersey
                          (D.C. Civ. No. 04-CV-05338)
                    District Judge: Honorable Mary L. Cooper
                  _______________________________________


Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                   Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   May 5, 2005

       Before: RENDELL, FISHER and VAN ANTWERPEN, Circuit Judges.

                              (Filed : July 11, 2005)

                           _______________________

                                  OPINION
                           _______________________
FISHER, Circuit Judge.

       Craig Francis Szemple appeals from an order of the United States District Court

for the District of New Jersey dismissing his complaint before service pursuant to 28

U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). For the reasons that follow, we will affirm.

       In his complaint and amended complaint, Szemple alleged that sometime in 2003,

he filed a civil action against Correctional Medical Services, Inc. and others, alleging

deliberate indifference to his medical needs. On Friday, January 2, 2004, he reported to

the medical clinic at the New Jersey State Prison to have a prescription renewed. When

Szemple requested the prescription, defendant Dr. Paul Talbot, who Szemple alleges was

aware of his 2003 lawsuit, replied, “Sue, sue, sue. You go back now, we’ll see about

this.” Szemple replied, “We’ll see about this.” Later that day, prison guards came to

Szemple’s cell, handcuffed him, and escorted him to solitary confinement detention

where he was subjected to a strip search and placed in a cell. Szemple alleges that he was

“housed there continuously without any visits, recreation or access to a telephone until a

hearing was afforded.”

       The next day, a prison guard provided Szemple with a copy of a Form 529

(Disciplinary Report), by which an unknown shift supervisor authorized his placement in

pre-hearing detention. The form also contained Dr. Talbot’s signature, and accused

Szemple of threatening him in violation of N.J.A.C. 10A:4-4.1(a).005. The form

recounted Szemple’s statement, “We’ll see about this,” but did not include Talbot’s



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preceding statement. The form stated that Talbot felt threatened because of Szemple’s

posturing and body language.

       On Monday, January 5, 2004, Szemple had a hearing before a disciplinary hearing

officer, and was exonerated. He was released from solitary confinement and returned to

the general prison population.

       Szemple’s complaint alleged that these actions violated his due process rights, and

constituted retaliation for his 2003 lawsuit. As relief, Szemple sought compensatory

damages, punitive damages, declaratory relief, and costs and fees. Szemple’s amended

complaint added further counts alleging that defendants violated his due process rights

pursuant to certain New Jersey statutory provisions.

       The District Court held that the claims against defendants Devon Brown, Roy

Hendricks, and Correctional Medical Services must be dismissed, as Szemple made no

claims that those defendants were personally involved. The Court dismissed the claims

against all defendants in their official capacities, finding they were immune to liability

pursuant to the Eleventh Amendment. The Court also held that Szemple’s disciplinary

confinement did not rise to the level of an atypical or significant hardship that might

create a protected liberty interest and therefore dismissed his due process claims. Finally,

the District Court recognized that a retaliation claim can survive even when the retaliatory

action does not involve a liberty interest, but determined that Szemple’s statement to

Talbot, along with his body language, was the motivating factor for the disciplinary



                                              3
charge against Szemple, rather than Szemple’s previously filed lawsuit. The District

Court concluded that Szemple’s complaint failed to state a claim upon which relief could

be granted, and dismissed the complaint.

       Our review of a court’s sua sponte dismissal of a complaint pursuant to 28 U.S.C.

§ 1915(e) is plenary. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). We accept

the factual allegations of the complaint as true and make all reasonable inferences

therefrom. Id. For the reasons stated by the District Court, we agree that Szemple’s

claims against those defendants who were not alleged to be personally involved, as well

as his claims for damages against state officials in their official capacities, must be

dismissed. We further agree that Szemple’s allegations do not show that he was deprived

of a liberty interest, and that his due process claims must be dismissed.

       Turning to the retaliation claim, as the District Court properly noted, “A prisoner

alleging retaliation must show (1) constitutionally protected conduct, (2) an adverse

action by prison officials sufficient to deter a person of ordinary firmness from exercising

his constitutional rights, and (3) a causal link between the exercise of his constitutional

rights and the adverse action taken against him.” Mitchell v. Horn, 318 F.3d 523, 530 (3d

Cir. 2003) (internal quotations and citations omitted). Szemple’s filing of his 2003

lawsuit was an exercise of his First Amendment right of access to the courts. However,

the District Court found that Szemple did not meet the second and third prongs. First, the

Court found he had not suffered an adverse action, as he was found not guilty of the



                                              4
charge against him. Second, the Court found that Szemple had not established a causal

link. We agree that Szemple’s complaint failed to state a claim for retaliation.

       As to the adverse action requirement, we have found that confinement in

administrative segregation can constitute adverse action. Allah, 229 F.3d at 225-26.

However, Szemple’s confinement was limited to a few days, and his complaint does not

describe any conditions of confinement that would deter a person of ordinary firmness

from exercising his constitutional rights.

       We further agree that Szemple failed to show a causal link between the lawsuit he

had filed a year before and Talbot’s initiation of disciplinary charges against him. Rather,

Talbot indicated that he felt threatened by Szemple’s body language and his statement,

“We’ll see about that.” Because Szemple failed to satisfy the elements of a retaliation

claim, the District Court properly dismissed the claim.

       For the foregoing reasons, and those stated by the District Court, we will affirm the

District Court’s judgment.1




RENDELL, Circuit Judge, dissenting:



       I respectfully dissent, because I cannot agree that dismissal of Szemple's pro se complaint

was proper.



       1
           The Clerk is hereby directed to file Appellant’s pro se Brief and Appendix.

                                                5
       Szemple alleged that the prison doctor retaliated against him, causing him to be placed in

solitary confinement, because he had sued the prison medical service. The majority rejects the

causal connection asserted at this early stage and impermissibly concludes that a different alleged

cause was at work. This is not proper on a motion to dismiss.

       Viewing all facts in the light most favorable to Szemple, his action should be permitted to

proceed. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (stating that when reviewing the

District Court's grant of a motion to dismiss, “We must determine whether, under any reasonable

reading of the pleadings, the plaintiffs may be entitled to relief, and we must accept as true the

factual allegations in the complaint and all reasonable inferences that can be drawn therefrom”)

(internal citations omitted).

       This is particularly true in light of the liberal standard of review for a pro se complaint.

See Estelle v. Gamble, 429 U.S. 97, 107 (1976) (recognizing that “a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

lawyers and can only be dismissed for failure to state a claim if it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him to relief”)

(internal quotations omitted).

       For the foregoing reasons, I would vacate the dismissal of the retaliation claim.




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