                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-11-2007

O'Connell v. Williams
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2206




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"O'Connell v. Williams" (2007). 2007 Decisions. Paper 788.
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                                                 NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                        NO. 06-2206
                     ________________

                  WARREN O’CONNELL,

                               Appellant


                               v.

  DALE WILLIAMS, Unit Manager of D Unit; JOHN WILLIAMS,
Captain of Guards; DEPUTY WARDEN JOSEPH MAZURKIEWICZ;
      JOHN BARRY JOHNSON, Warden of S.C.I. Pine Grove;
         PH. D. JEFFREY BEARD, Secretary of Corrections

          ____________________________________

        On Appeal From the United States District Court
           For the Western District of Pennsylvania
                  (D.C. Civ. No. 03-cv-00706)
          District Judge: Honorable David S. Cercone
        _______________________________________


          Submitted Under Third Circuit LAR 34.1(a)
                        June 1, 2007

 Before: SLOVITER, MCKEE AND AMBRO, CIRCUIT JUDGES

                     (Filed July 11, 2007)

                 _______________________

                        OPINION
                 _______________________
PER CURIAM



       Warren O’Connell, proceeding pro se, filed a civil rights lawsuit under 42 U.S.C.

§ 1983 against various officials employed by S.C.I.-Pine Grove, as well as the Secretary

of the Pennsylvania Department of Corrections. In his initial complaint, O’Connell

alleged that Defendants violated his Eighth and Fourteenth Amendment rights by failing

to move him to another cell to protect him from his cellmate and violated his First

Amendment right of access to the courts by maintaining an inadequate law library in the

Restricted Housing Unit (“RHU”) at SCI-Pine Grove. He then amended his complaint to

allege that he had been retaliated against for initiating the underlying lawsuit.

       The filing of the underlying complaint was precipitated by a fight between

Appellant and his cellmate, Richard Greene, in March 2003. During the two months

preceding, Appellant several times requested a cell change, indicating that he and Greene

were not getting along. Appellant claims that Dale Williams, the Unit Manager, told him

he would “take care of it,” but nothing ever happened. During the fight, Appellant was

bitten on the left arm by Greene, and consequently, had to undergo treatment for

Hepatitis C, with which Greene was infected. Appellant was charged with fighting and

given sixty days’ disciplinary time in RHU. According to Appellant, he was released

from RHU thirty days later and reinstated to his former job. Appellant alleges that the

day after the instant lawsuit was filed in early May 2003, he was charged with a

misconduct for “disseminating lies” regarding the criminal records and/or institutional

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adjustment of other inmates. As a result, he was placed in administrative custody pending

review of the charges. He alleges that he was then twice transferred to different state

correctional institutions without a hearing, and that the misconduct and the transfers were

effected in retaliation for his filing the instant lawsuit.

       Upon Defendants’ motion, the District Court dismissed all of Appellant’s claims

except his claim that two of the defendants violated his right to due process by failing to

protect him from his cellmate. After a period of court-supervised discovery, the

remaining defendants moved for, and the District Court granted, summary judgment.

O’Connell now appeals the District Court’s dismissal of his claims regarding access to

the courts and retaliation, denial of his motions for the appointment of counsel, and grant

of summary judgment on his failure to protect claims. For the reasons that follow, we

will affirm.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review

the District Court’s grant of Appellees’ motion to dismiss de novo. See Alston v. Parker,

363 F.3d 229, 232-33 (3d Cir. 2004). We exercise plenary review over the District

Court’s entry of summary judgment, viewing the underlying facts and all reasonable

inferences therefrom in the light most favorable to the party opposing the summary

judgment motion. Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 235 (3d Cir. 1995).

       The Supreme Court has recognized that “adequate law libraries” are a component

of the right of access to the courts. See Bounds v. Smith, 430 U.S. 817, 828 (1977). To

state a claim for denial of access to courts based on an inadequate law library, a litigant

                                                3
must show with specificity that he was prevented from litigating a nonfrivolous

underlying claim due to the allegedly inadequate facilities, and must seek a remedy for

the denial of access which would not be available in another suit. See Lewis v. Casey,

518 U.S. 343, 353 & n.3 (1996); accord Christopher v. Harbury, 536 U.S. 403, 415

(2002).

       Here, O’Connell alleged only that the law library in RHU at SCI-Pine Grove has

been incomplete since the prison opened in early 2000, and that at the time of filing, it

consisted only of a mobile book cart with sixty books. In his opposition to Appellees’

motion to dismiss and on appeal, he claims that he lost the federal appeal of his civil

action, Civ. No. 99-cv-00263 (E.D. Pa.), due to the shortcomings of the books on the

book cart. We note, however, that judgment was entered in the appeal cited by Appellant

on December 17, 2002, and the mandate issued on February 20, 2003. See C.A. No. 01-

2974. The incidents in question, which caused Appellant to be confined to RHU,

occurred after this appeal became final. Accordingly, we agree that Appellant failed to

show an actual injury as required by existing Supreme Court precedent.

       With respect to Appellant’s claims that he was given false misconducts and

unwarranted transfers in retaliation for filing this lawsuit, we agree with the District Court

that Appellant failed to satisfy the third element of a retaliation claim: that his protected

activity was a substantial motivating factor in the decision to take adverse action against

him. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Appellant complains that

after he filed his lawsuit, he was charged with a misconduct for “disseminating lies”

                                               4
regarding other inmates and placed in administrative custody pending review of the

charges. He further alleges that he was then twice transferred to different state

correctional institutions without a hearing. The Magistrate Judge found that the charges

against Appellant were supported by the record and that they satisfied Appellees’ burden

of showing that Appellant would have been transferred even if he had not filed the instant

lawsuit. See Carter v. McGrady, 292 F.3d 152, 159 (3d Cir. 2002). In so concluding, the

Magistrate Judge properly deferred to the judgment of prison administrators. See id. at

158 (quoting Turner v. Safley, 482 U.S. 78, 85 (1987)).         Because Appellant has not

demonstrated that these actions would not have been taken against him had he not filed

the instant lawsuit, we agree with the determination of the District Court that he has not

stated a claim for retaliation.

       With respect to the District Court’s entry of summary judgment in favor of

Appellees on Appellant’s claim that they failed to protect him from his cellmate, we agree

with the District Court that the facts alleged by Appellant do not demonstrate that

Appellees knew of and consciously disregarded an excessive risk to Appellant’s health or

safety. See Farmer v. Brennan, 511 U.S. 825, 847 (1994). Certainly, the record supports

Appellant’s allegations that he repeatedly requested a new cell assignment and that he and

his cellmate were “not getting along.” However, Appellant has set forth no evidence that

Appellees were, or should have been, aware that there was a serious threat to his safety.

While we do not dispute that Appellant suffered injuries as a result of the altercation with

his cellmate, we cannot conclude that Appellees are liable for them.

                                             5
       Finally, Appellant challenges the District Court’s denials of his motions for the

appointment of counsel, which we review for abuse of discretion. See Tabron v. Grace,

6 F.3d 147, 158 (3d Cir. 1993). The District Court clearly assessed all of the relevant

Tabron factors in denying Appellant’s several motions for the appointment of counsel,

and we cannot conclude that its denials constitute an abuse of discretion.

       Having thoroughly considered all of the arguments raised by Appellant, we

conclude that they are unpersuasive and accordingly, we will affirm the judgment of the

District Court.




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