                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-5-2009

Davila-Bajana v. Holohan
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1013




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                                              NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ___________

                      No. 08-1013
                      ___________

                JUAN DAVILA-BAJANA,
                            Appellant

                            v.

    TIM HOLOHAN, UNICOR BUSINESS MANAGER;
    MARTY SAPKO, UNICOR FACTORY MANAGER;
 DEBRA FORSYTH, SUPERINTENDENT OF INDUSTRIES;
    DAVE ENGLISH, UNICOR GENERAL FOREMAN;
      ROBERT KLARK, CAMP ADMINISTRATOR;
          HOUSELER, SAFETY MANAGER;
           UNITED STATES OF AMERICA
            __________________________

        Appeal from the United States District Court
          for the Western District of Pennsylvania
               (D.C. Civil No. 04-cv-00253-E)
       District Judge: Honorable Sean J. McLaughlin
               __________________________

      Submitted Pursuant to Third Circuit LAR 34.1(a)
                     February 5, 2009

Before: RENDELL, FUENTES and NYGAARD, Circuit Judges.

                 (Filed: February 5, 2009)
                       ___________

               OPINION OF THE COURT
                    ___________
PER CURIAM

       Juan Davila-Bajana, proceeding pro se, appeals from the order of the United States

District Court for the Western District of Pennsylvania, entering summary judgment in

favor of Appellees. For the reasons that follow, we will affirm in part and vacate and

remand in part.

       At all relevant times, Davila-Bajana was a federal prisoner incarcerated at the

Federal Correctional Institution at McKean (“FCI-McKean”). He was assigned to work

in a prison factory run by Federal Prison Industries, Inc. (also known as “UNICOR”)

which manufactured office furniture. He was employed by UNICOR on and off between

March 23, 1999 and March 31, 2003. According to Appellant, air in the factory was full

of particle and silica dust from the saws and secondhand smoke (“environmental tobacco

smoke” or “ETS”) from employees who smoked tobacco products outside of designated

smoking areas. Additionally, he maintains that there were insufficient exhaust fans in the

factory to mitigate either of these problems. Appellant claims that, during the course of

his employment, he repeatedly complained to prison staff about his exposure to the silica

dust and ETS in the factory.

       On March 31, 2003, upon arriving for work, he and two other inmates were told to

return to their housing units. Appellees claim that Appellant was temporarily removed

from his job pending an investigation into a piece of unauthorized scrap material found in

or around the work station he shared with the two other employees. Appellant claims that



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his removal was ordered in retaliation for his complaints about being exposed to silica

dust and ETS in the factory. On April 8, 2003, Appellant filed a formal request for

administrative remedy on these grounds. According to Appellant, at an April 29, 2003

meeting he was influenced by certain Appellees to withdraw his request for

administrative remedy in exchange for being reinstated to his job. Appellant withdrew

his grievance, but when he was not reinstated, he re-filed it. Appellant claims that he was

later offered his job back, but turned down the offer due to the attendant loss of longevity

and denial of backpay.

       On September 8, 2004, Appellant filed the underlying complaint, alleging,

pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 402 U.S. 388 (1971), that

Appellees violated his rights under the First and Eighth Amendments by exposing him to

ETS and silica dust in the course of his employment and by firing him in retaliation for

complaining about the conditions of his employment.1 Appellees filed a motion to

dismiss, arguing that Appellant’s Eighth Amendment claim was unexhausted and that his

remaining claims should be dismissed under the “total exhaustion” rule. The District

Court agreed that Appellant had failed to administratively exhaust his Eighth Amendment

claim and, accordingly, dismissed that claim. However, the District Court declined to

dismiss Appellant’s First Amendment claim, which Appellees conceded was properly

exhausted.


  1
   Appellant also raised a claim pursuant to the Federal Tort Claims Act, which was
properly dismissed as time-barred.

                                             3
       After a period of discovery, Appellees moved for summary judgment on

Appellant’s First Amendment retaliation claim. In support of their motion, Appellees

argued that: (1) Appellant’s alleged informal complaints prior to his dismissal from

UNICOR did not constitute constitutionally protected conduct; (2) Appellant’s loss of his

job was not sufficiently serious to deter the exercise of his constitutional rights; (3)

Appellant failed to demonstrate the requisite nexus between his removal from his job and

any constitutionally protected conduct; and (4) Appellees had a legitimate reason for

firing Appellant in that an unauthorized piece of scrap material was found in the vicinity

of his work area in late March 2003.

       Assuming arguendo that Appellant made out a prima facie case of retaliation, the

District Court held that Appellees were entitled to summary judgment on Appellant’s

retaliation claim based on their provision of “sufficient, penologically grounded reasons

to support Plaintiff’s removal from employment.” The District Court held that Appellant

provided no evidence to the contrary and actually acknowledged that the investigation

could have been the reason he was removed from his job.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s

decision to grant a motion to dismiss de novo. DeHart v. Horn, 390 F.3d 262, 272 (3d

Cir. 2004). We also 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 Appellant, the non-moving party. See Norfolk Southern Ry. v.



                                               4
Basell USA Inc., 512 F.3d 86, 91 (3d Cir. 2008). Summary judgment is appropriate only

if “there is no genuine issue as to any material fact and . . . the moving party is entitled to

judgment as a matter of law.” See Fed. R. Civ. P. 56(c).

       With respect to Appellant’s Eighth Amendment claim, the District Court held that

a review of Appellant’s grievance indicated only a retaliation, and not an Eighth

Amendment, claim. Accordingly, the District Court concluded that Appellant failed to

exhaust his Eighth Amendment claim and granted Appellees’ motion to dismiss. We

disagree. In his April 8, 2003 grievance, Appellant states: “I have repeatedly requested

that smoking be limited only to the break area and at break time because evidence of

smoking is noticeable all over the factory particularly on my work area. UNICOR ETS

level, has repeatedly caused and continuing to cause me shortness of breath, sinusitis,

lightheadedness, watery-eyes and occasional vomiting.” (Supp. App. 120.) He later

refers to Appellees’ “deliberate indifference to [his] serious health concern.” (Id.)

Additionally in the Administrative Filings referred to by Appellees in their brief,

Appellant repeatedly refers to his complaints “about UNICOR secondhand smoke, and

about the health problems caused by UNICOR ETS” (Supp. App. 128 (July 7, 2003

Request for Administrative Remedy)), and “about [his] ailments due to UNICOR

excessive secondhand smoke (ETS) and silica dust.” (Supp. App. 126 (July 28, 2003

Request for Administrative Remedy); Supp. App. 123 (September 12, 2003 Request for

Administrative Remedy).) Tellingly, in his July 21, 2003 Response to Appellant’s



                                               5
Request for Administrative Remedy, the Warden explicitly addressed Appellant’s “claim

of adverse health related to secondhand smoke in the factory.” (Supp. App. 129.) In a

response dated August 29, 20003, M.E. Ray, Regional Director, recognized that

Appellant “filed an administrative remedy concerning the alleged secondhand smoke in

the UNICOR factory.” (Supp. App. 127.) We conclude that the foregoing grievances and

responses indicate that Appellees were on notice that Appellant was complaining both of

retaliation and of exposure to ETS and silica dust. See Jones v. Bock, 549 U.S. 199, 219

(2007) (identifying one purpose of exhaustion as allowing prison to address complaint

before being subjected to suit); Williams v. Beard, 482 F.3d 637, 640 (3d Cir. 2007)

(explaining that primary purpose of PLRA’s exhaustion requirement is to alert prison

officials to a problem).

       In Helling v. McKinney, 509 U.S. 25 (1993), the Supreme Court recognized that a

prisoner may state an Eighth Amendment claim for exposure to levels of ETS that pose an

unreasonable risk of serious damage to the prisoner’s future health. See id. at 35; see also

Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003). In order to succeed on such a claim, a

prisoner must satisfy both the objective and subjective prongs of any Eighth Amendment

claim: that the prisoner is being exposed to unreasonably high levels of ETS and that

prison officials have been deliberately indifferent to the risk of harm. See 316 F.3d at

262. While we express no opinion on whether Appellant’s allegations rise to the level of

an Eighth Amendment violation, we conclude that they were sufficient to put Appellees



                                             6
on notice that Appellant intended to raise an Eighth Amendment claim. Accordingly, we

conclude that the District Court erred in holding that Appellant’s Eighth Amendment

claim was unexhausted.

       We agree, however, for the reasons stated by the District Court, that the entry of

summary judgment in favor of Appellees on Appellant’s retaliation claim was proper.

Assuming that Appellant did make out a prima facie case of retaliation, we agree that

Appellant has failed to demonstrate the existence of a genuine factual dispute as to

whether Appellees had a legitimate reason for removing him from his UNICOR job. See

Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (holding that “once a prisoner

demonstrates 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”). In their summary judgment motion,

Appellees argued and submitted several declarations supporting their position that

Appellant was temporarily removed from his job on or around March 31, 2003 based on

the discovery of an unauthorized piece of scrap material near his workstation. In his

opposition to Appellees’ motion for summary judgment, Appellant did not dispute that

the unauthorized material was found near his work station, that an investigation ensued,

and that this could have been the reason for his dismissal. While Appellant did aver that

he did not, and still does not, subjectively believe that this was the reason for his



                                               7
dismissal, a party opposing summary judgment must offer more than his own assertions to

support his claim. See El v. Southeastern Penn. Transp. Auth., 479 F.3d 232, 247 (3d Cir.

2007); Estate of Smith v. Marasco, 318 F.3d 497, 514 (3d Cir. 2003). Because Appellant

failed to adduce any evidence to rebut Appellees’ assertion, we agree that the entry of

summary judgment on this claim was proper.

       Based on the foregoing, we will affirm in part and vacate in part and remand for

further proceedings consistent with this opinion.




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