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


9-17-2007

Corliss v. Varner
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2328




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                                                     NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT

                             No. 06-2328
                          ________________

                         JUSTIN M. CORLISS,

                                Apellant

                                   v.

                 SUPERINTENDENT BEN VARNER;
                JOHN CRIDER; DAVID WAKEFIELD;
                    CAPT. ROBERT GLENNY;
             TIM MCCAULEY; GUARD LEAR; R. JOHNS
              ____________________________________

             On Appeal From the United States District Court
                 For the Middle District of Pennsylvania
                      (D.C. Civil No. 02-cv-00282)
               District Judge: Honorable John E. Jones, III
             _______________________________________


               Submitted Under Third Circuit LAR 34.1(a)
                            May 16, 2007

       Before: BARRY, CHAGARES AND ROTH, CIRCUIT JUDGES

                       (Filed: September 17, 2007)


                      _______________________

                             OPINION
                      _______________________



PER CURIAM
         Justin Corliss appeals the grant of summary judgment in favor of the defendants

by the District Court for the Middle District of Pennsylvania.

                                               I.

         As the parties are familiar with the background of this case, we will only

summarize those facts relevant to the disposition of this appeal. In 2002, Corliss, a

former inmate at the Pennsylvania State Correctional Institution at Smithfield, filed a

civil rights complaint alleging that from July 2001 to the date of his complaint the

Warden and other prison officials (hereinafter “SCI”) undertook a “course of conduct to

retaliate against [him] due to [his] diligent attempts to redress prison staff malfeasance.”

Appendix, Complaint at ¶ 11. SCI filed a motion to dismiss the complaint for failure to

exhaust administrative remedies. The District Court denied the motion, finding that SCI

did not indicate whether Corliss had exhausted the retaliation claims presently before the

court.

         Corliss and SCI filed motions for summary judgment. The District Court granted

summary judgment for SCI, finding that Corliss had not exhausted his administrative

remedies, and as to certain incidents of SCI’s alleged misconduct Corliss had not

established a First Amendment retaliation claim. The District Court denied Corliss’

motion for reconsideration, and Corliss filed a timely notice of appeal.



                                              II.

         We have jurisdiction pursuant 28 U.S.C. § 1291. Our review of the District

                                               2
Court’s grant of summary judgment is plenary. Saldana v. Kmart Corp., 260 F.3d 228,

231 (3d Cir. 2001). Summary judgment 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. Id. at 232. When opposing

summary judgment, the nonmovant may not rest upon mere allegations, but rather must

“identify those facts of record which would contradict the facts identified by the movant.”

Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003).

                                             III.

       Before filing suit in federal court, a prisoner must properly exhaust all available

administrative remedies. 28 U.S.C. § 1997e(a); Woodford v. Ngo, 126 S. Ct. 2378, 2387

(2006). We agree with the District Court that Corliss’ grievances either failed to allege

retaliation or if they alleged retaliation were not properly exhausted. See id. at 2388.

       Corliss’ attempts to avoid the exhaustion requirement are without merit. Appellant

Brief at 8-12; Appellant’s Reply Brief at 1-5. The exhaustion requirement applies to “all

inmate suits about prison life”, and therefore applies to Corliss’ retaliation claim. Porter

v. Nussle, 534 U.S. 516, 532 (2002). Although Corliss is correct that exhaustion is an

affirmative defense that can be waived, see Ray v. Kertes, 285 F.3d 287, 295 (3d Cir.

2002), contrary to Corliss’ assertion SCI did raise an exhaustion defense, see Defendent’s

Brief in Support of Motion for Summary Judgment at 6 - 11. Corliss’ reliance on the ‘law

of the case’ doctrine is misplaced. See Behrens. v. Pelletier, 516 U.S. 299, 309 (1996)

(finding law of the case doctrine inapplicable where the legally relevant factors differ

                                              3
between a motion to dismiss, which relies on plaintiff’s allegations in his complaint, and

a motion for summary judgment which relies on the evidence in the record); Robbins v.

Wilkie, 433 F.3d 755, 764 (10th Cir. 2006) (same). We have considered Corliss’

remaining challenges to exhaustion, and reject them without further discussion.

       We also agree with the District Court that Corliss’ exhausted claims challenging

the misconduct reports do not survive summary judgment. To establish a retaliation

claim, an inmate must demonstrate that he engaged in constitutionally protected conduct,

that he suffered some adverse action by the prison officials, and that the protected

conduct was a substantial or motivating factor in the taking of adverse action against the

inmate. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). If the inmate satisfies his

burden, the defendants may still prevail if they prove by a preponderance of the evidence

that they would have taken the same action absent the protected conduct. Id. at 333-34.

       A prisoner’s constitutional rights are limited. Shaw v. Murphy, 532 U.S. 223, 229

(2001). The Department of Correction’s regulation prohibiting “abusive, obscene or

inappropriate language”, Defendants’ Exhibit B-2 (DC-ADM 801),1 is a permissible

restriction on an inmate’s constitutional rights. See Cowans v. Warren, 150 F.3d 910,

912 (8th Cir. 1998); Ustrack v. Faiman, 781 F.2d 573, 580 (7th Cir. 1986). As recognized

by the District Court, both Corliss’ inmate request form and his letter to the psychology

department employee clearly contained such abusive and inappropriate language.


   1
     Citations to “Defendants’ Exhibit” refer to the exhibits submitted in support of the
defendants’ motion for summary judgment.
                                             4
Defendants’ Exhibit B-3 (inmate request form, Misconduct Report 579443); Exhibit B-4

(letter, Misconduct Report 740309). Corliss argues that the letter only contained opinions

and suggestions, and was written in confidence. Defendants’ Exhibit B-4 (misconduct

appeal). This argument is without merit. The regulation clearly prohibits the improper

language regardless of its purpose or intent. See Defendants’ Exhibit B-2 (DC-ADM

801).

        With respect to Corliss’ misconduct for fighting with his cell mate, Kent Smith,2

and the misconduct for failure to obey an order, the guards who issued the reports are not

parties to this suit. See Defendants’ Exhibit B-6 (fighting, Misconduct Report A228145);

id. Exhibit B-7 (failure to obey order, Misconduct Report A260249); Appendix,

Statement of Facts in Opposition at ¶¶ 89, 91, 95, 105-06. Moreover, regardless of

whether Corliss can demonstrate that these misconduct reports were substantially

motivated by protected conduct, SCI has provided adequate evidence that it would have

otherwise issued the reports for legitimate penological reasons. SCI provided the medical

reports supporting their finding that both Corliss and Smith were active participants in the

altercation. See Rauser, 241 F.3d at 344. Although Corliss asserts that Smith likely

incurred some of his injuries during a prior fight with another individual, Corliss does not

provide any evidence in support of this allegation. See Appellant’s Appendix, Statement

of Facts in Opposition at ¶ 93. SCI also provided the misconduct reports supporting the


   2
    As indicated above, Corliss’ grievance challenging this cell assignment was not
properly exhausted.
                                             5
charge that Corliss failed to obey the order to uncover the light. Defendants’ Exhibit B-7.

Again, Corliss has provided no evidence to support his assertion that the misconduct

report was improper. See Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir.

1982) (party opposing summary judgment may not rely merely upon bare assertions,

conclusory allegations, or suspicions).

       Accordingly, for all the reasons stated, we agree with the District Court’s

conclusion that SCI is entitled to summary judgment.




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