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


4-11-2002

Harris v. Terhune
Precedential or Non-Precedential:

Docket No. 01-3490




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Recommended Citation
"Harris v. Terhune" (2002). 2002 Decisions. Paper 265.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/265


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                                                     NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                             No. 01-3490
                             ___________


                        TERRANCE D. HARRIS,
                                               Appellant

                                 v.

                        JOHN S. TERHUNE;
                  WILLIE BOGGAN; SHERRY JONES;
      LAMKIN, Investigator; ASCIONE, Corrections Officer;
   MOORE, Corrections Officer; SPERIER, Corrections Officer;
          FINLEY, Corrections Officer; JOHN DOE, I-X;
    CORBIN, Corrections Officer; JOSEPH BUTLER; JACK OSVART;
        PRIM SENHA; SHELIAH THOMAS; STATE OF NEW JERSEY;
              NEW JERSEY DEPARTMENT OF CORRECTIONS

          _______________________________________________

          On Appeal from the United States District Court
                   for the District of New Jersey
                 D.C. Civil Action No. 99-cv-03543
                  (Honorable Joseph H. Rodriguez)
                        ___________________

          Submitted Pursuant to Third Circuit LAR 34.1(a)
                           March 4, 2002
Before:   SCIRICA and ROSENN, Circuit Judges, and WARD, District Judge*



     *The Honorable Robert J. Ward , United States District Judge for the Southern District
of New York, sitting by designation.


                       (Filed April 11, 2002)

                          __________________

                        OPINION OF THE COURT
                         __________________

SCIRICA, Circuit Judge.

     Terrence Harris brought suit in the United States District Court for the District of
New Jersey under 42 U.S.C. 1983, alleging that various employees of the New Jersey
Department of Corrections interfered with his free exercise of religion and retaliated
against him for filing grievances while he was incarcerated at the Albert C. Wagner
Youth Correctional Facility in New Jersey. The District Court granted summary
judgment for defendants. We will affirm.
                               I.
      We exercise plenary review over an appeal from a grant of summary judgment.
DeHart v. Horn, 227 F.3d 47 (3d Cir. 2000). "Summary judgment is appropriate only if
there is no genuine issue of material fact, and the moving party is entitled to a judgment
as a matter of law." Id. at 50 (citations omitted).
     In considering a motion for summary judgment, a court must draw all
     reasonable inferences from the underlying facts in the light most favorable
     to the non-moving party. The burden is on the moving party to demonstrate
     that the evidence creates no genuine issue of material fact. Once the
     moving party has met this initial burden, the non-moving party must present
     concrete evidence that supports each essential element of its claim.

Skerski v. Time Warner Cable Co., 257 F.3d 273, 278 (3d Cir. 2001) (citations omitted).
     On his free exercise of religion claim, Harris contends that corrections officer
Wayne Corbin placed a substantial burden on his daily call to prayer, a central practice of
the Muslim religion. We have stated that "[i]nmates clearly retain protections afforded by
the First Amendment, . . . including its directive that no law shall prohibit the free
exercise of religion" subject to certain valid penological objectives. DeHart, 227 F.3d at
50-51 (quotations and citations omitted). Defendants fulfilled their initial burden under
Fed.R.Civ.P. 56 by demonstrating an absence of evidence to support Harris’ claim of
interference with his free exercise of religion. As the District Court noted, defendants
submitted affidavits and evidence of Harris’ disciplinary record which showed that Harris
received only one disciplinary charge during the time period in question and that Corbin
never issued Harris a disciplinary charge or interfered with Harris’ free exercise of
religion.
     Harris did not set forth specific facts showing a genuine issue for trial nor did he
submit any depositions or affidavits to support his claim. Because Harris did not meet
his burden under Fed.R.Civ.P. 56, granting summary judgment for the defendants was
proper.
                              III.
     The government may not retaliate against an individual for exercising his
constitutionally protected right to file grievances. A prisoner-plaintiff must comply with
a three part test when making a retaliation claim. See Rauser v. Horn, 241 F.3d 330 (3d
Cir. 2001). First, a plaintiff must prove "the conduct which led to the alleged retaliation
was constitutionally protected." Id. at 333 (citation omitted). Second, he "must show that
he suffered some ’adverse action’ at the hands of prison officials." Id. (citation omitted).
Finally, he must prove "that his constitutionally protected conduct was ’a substantial or
motivating factor’ in the decision to discipline him." Id. (citing Mount Healthy Bd. of Ed.
v. Doyle, 429 U.S. 274, 287 (1977)).
     Harris failed to offer any evidence that filing grievances was the "substantial or
motivating factor" in his receiving a disciplinary sanction of ten days detention for failure
to obey an order. Because Harris did not present evidence from which a reasonable jury
could conclude the prison officials retaliated against him for exercising his rights, he did
not meet his obligation under Fed.R.Civ.P. 56.
     Lastly, Harris contends that summary judgment was premature because he was
denied an adequate opportunity to obtain discovery. We are not convinced. Notably
absent from Harris’ brief is any request of discovery being served upon the defendants or
any meaningful petition to the District Court that discovery was incomplete. In any case,
Harris fails to point to what discovery he now wants besides an unfounded allegation that
the prison disciplinary record already disclosed by the defendants as being incomplete.
                              IV.
     For the foregoing reasons, we will affirm the District Court’s grant of summary
judgment.

TO THE CLERK:

          Please file the foregoing opinion.




                              /s/ Anthony J. Scirica
                                         Circuit Judge
DATED:   April 11, 2002
