Bray Murray v. Collen McCoy

• Court: Court of Appeals for the Third Circuit
• Decided: March 28, 2024
• Docket: 23-2582
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-2582 __________

BRAY JIBRIL MURRAY, Appellant

v.

COLLEN MCCOY; CHARLIE J. MCKEOWN; C.O. COOPER; SGT. GILROY; CAPTAIN LUKASHENSKI; KEVIN RANSOM; JASEN BOHINSKI; MICHAEL GOYNE; SGT. ROBERT MCCOY ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 1:21-cv-00320) District Judge: Honorable Robert D. Mariani ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) March 26, 2024 Before: BIBAS, PORTER, and MONTGOMERY-REEVES, Circuit Judges

(Opinion filed March 28, 2024) ___________

OPINION* ___________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Bray Jibril Murray, a Pennsylvania prisoner, appeals from orders of the United

States District Court for the Middle District of Pennsylvania that granted the defendants’

motion for summary judgment and denied his motion for post-judgment relief. For the

following reasons, we will affirm in part, vacate in part, and remand for further

proceedings consistent with this opinion.

I.

In 2021, Murray filed a pro se civil rights action under 42 U.S.C. § 1983, raising

First Amendment retaliation and Fourteenth Amendment due process claims against

Department of Corrections (DOC) defendants. (ECF 1.) In relevant part, he claimed that

DOC employees falsely charged him with misconducts in retaliation for his submission

of inmate grievances and that he was not permitted to call inmate witnesses at a

disciplinary hearing. The defendants filed a motion for summary judgment (ECF 48),

which Murray opposed. (ECF 58.) The District Court granted the defendants’ motion,

holding that Murray’s claims lacked merit. (ECF 66 & 67.) Murray next filed a motion

for reconsideration pursuant to Federal Rule of Civil Procedure 59(e). (ECF 69 & 70.)

The District Court denied that motion (ECF 72), and Murray timely appealed. (ECF 73.)

II.

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

Court’s summary judgment ruling is plenary. See DeHart v. Horn, 390 F.3d 262, 267 (3d

Cir. 2004). Summary judgment is proper where, viewing the evidence in the light most

favorable to the nonmoving party and drawing all inferences in favor of that party, there

is no genuine issue of material fact and the moving party is entitled to judgment as a

2 matter of law. See Fed. R. Civ. P. 56(a); Kaucher v. County of Bucks, 455 F.3d 418, 423

(3d Cir. 2006).

III.

Murray raises three claims in his brief.1 First, he challenges the District Court’s

entry of summary judgment on his retaliation claim in favor of Correctional Officer

(C.O.) Colleen McCoy and C.O. Cooper. (Doc. 19, at 17-27 of 114.) To sustain a

retaliation claim, an inmate must demonstrate that: (1) he engaged in constitutionally

protected conduct; (2) he suffered adverse action; and (3) the constitutionally protected

conduct was “a substantial or motivating factor” for the adverse action. See Rauser v.

Horn, 241 F.3d 330, 333-34 (3d Cir. 2001). The District Court held that Murray’s claim

failed at the third step because the record showed that the alleged retaliatory acts either

occurred before the protected activity or were too far removed temporally from the

protected activity to establish causation. We disagree.

“Because motivation is almost never subject to proof by direct evidence, [a

prisoner] must rely on circumstantial evidence to prove a retaliatory motive,” and can

satisfy his burden “with evidence of either (1) an unusually suggestive temporal

proximity between the protected activity and the allegedly retaliatory action, or (2) a

pattern of antagonism coupled with timing that suggests a causal link.” Watson v.

Rozum, 834 F.3d 417, 422 (3d Cir. 2016). “[W]here the temporal proximity is not so

1 Any claims not raised in Murray’s brief have been forfeited. See M.S. by & through Hall v. Susquehanna Twp. Sch. Dist., 969 F.3d 120, 124 n.2 (3d Cir. 2020). In this connection, we note that Murray does not challenge the denial of his Rule 59(e) motion. 3 close as to be ‘unduly suggestive,’” the appropriate test is “timing plus other evidence.”

Id. at 424 (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000)).

And that other evidence can be “gleaned from the record as a whole.” Id.

Between July 15, 2019, and October 3, 2019, Murray filed several grievances

against C.O. McCoy and C.O. Cooper.2 During this same time period, those defendants

issued at least four misconducts against Murray.3 In one instance, C.O. McCoy issued a

misconduct within approximately 24 hours of Murray’s submission of two grievances.4

The District Court nevertheless concluded that Murray “failed to satisfy the third Rauser

prong” because “[t]here is no reason that [C.O.] Colleen McCoy would issue a retaliatory

misconduct against Murray based on his filing of grievances against other staff

members.” (ECF 66, at 22.) But, contrary to the District Court’s conclusion, C.O.

McCoy was named in those two grievances.

The District Court also found that there was no “unusually suggestive” temporal

proximity between the other grievances and the issuance of the misconducts. We

2 See Grievance 809441, filed on June 28, 2019 (ECF 59-2); Grievance 811782, filed on July 14, 2019 (ECF 59-3); Grievance 812432, filed on July 15, 2019 (ECF 59-4); Grievance 821833, filed on September 3, 2019 (ECF 59-7); Grievance 821799, filed on September 4, 2019 (ECF 59-9); Grievance 827627, filed on October 3, 2019 (ECF 59- 13). 3 See Misconduct B274397, issued on August 7, 2019 (ECF 59-5); Misconduct D123755, issued on August 8, 2019 (ECF 59-6); Misconduct D123772, issued on September 4, 2019 (ECF 59-10); Misconduct B972392, issued on September 30, 2019 (ECF 59-12). 4 See Grievance 821833, filed on September 3, 2019 (ECF 59-7); Grievance 821799, filed on September 4, 2019 (ECF 59-9); Misconduct D123772, issued on September 4, 2019 (ECF 59-10). 4 conclude, however, that the District Court “took too narrow a view of the temporal

proximity needed to satisfy the causal link element.” Kachmar v. SunGard Data Sys.,

Inc., 109 F.3d 173, 177 (3d Cir. 1997). In its analysis, the District Court measured the

time between each grievance and the allegedly corresponding misconduct report.

Excluding the grievances and misconduct discussed in the preceding paragraph, those

periods ranged from 10 and 46 days. But by matching each grievance with a

corresponding misconduct and simply counting the days between them, the District Court

improperly ignored a “pattern of antagonism” that was indicative of a causal nexus.5

Watson, 834 F.3d at 422; Farrell, 206 F.3d at 279 (stating that “this analysis viewed too

narrowly the scope and nature of conduct and circumstances that could support the

inference of causation”).

That pattern included the evidence suggesting that C.O. McCoy, who had worked

on the prison unit where Murray was housed between June 2017 and September 2019

(ECF 59-19, at 3 of 13; ECF 59-20, at 9 of 16), had not issued any misconducts to him

until after he filed grievances against her beginning in 2019. (ECF 59-19, at 3-4 of 13;

ECF 59-44, at 2-3 of 4.) Furthermore, although C.O. McCoy stated in answers to

interrogatories that she did not know about two of Murray’s grievances (ECF 59-19, at 4-

5 Evidence of this pattern of antagonism exists only with respect to C.O. McCoy, not C.O. Cooper. The only evidence demonstrating that C.O. Cooper had retaliatory motive is temporal proximity which, in this instance, is insufficient to defeat summary judgment. See Krouse v. American Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997) (stating that temporal proximity, standing alone, is only sufficient when facts are “unusually suggestive” of a retaliatory motive).

5 5 of 13), decisions denying those grievances indicate that C.O. McCoy was made aware

of the accusations at the time that they were made. (ECF 59-2, at 3 of 9; ECF 59-4, at 3

of 17.) In addition, there is a dispute of material fact concerning whether C.O. McCoy

openly expressed her animosity for Murray because of his grievances (ECF 59-19, at 12

of 13; ECF 59-20, at 8 of 16; ECF 59-44, at 3 of 4), and whether C.O. McCoy was

removed from Murray’s unit in September 2019 because she had been harassing him.

(ECF 59-19, at 8 of 13; ECF 59-44, at 3 of 4.) Moreover, Murray was exonerated of

three misconducts, which, he suggests, demonstrates that they were retaliatory.6 (Doc.

19, at 12-13 of 114; Doc. 26, at 9 of 19.) Finally, Murray asserts that when C.O. McCoy

was reassigned to his unit on March 21, 2020, she issued a misconduct charging him with

assault, threatening an employee with bodily harm, and refusing to obey an order.7 (Doc.

19, at 24 of 114.) This evidence, examined as part of the record as a whole, indicates that

there is a genuine material factual dispute about whether Murray raised a prima facie case

6 Murray was exonerated of two misconducts charging him with covering his cell door. (Misconduct B274397 (ECF 59-5); Misconduct B972392 (ECF 59-12); ECF 49-2 at 6 of 6.) Although the record does not provide a clear reason for the exonerations, Murray points to a policy that permitted inmates to cover their doors in certain circumstances. (ECF 59-37, at 3 of 3.) In addition, with respect to the misconduct charging Murray with refusing to obey an order and taking food from the dining hall (Misconduct D123772 (ECF 59-10)), the record indicates that the charges were dismissed or that Murray was found not guilty. (ECF 49-2, at 2 of 6.) 7 The District Court noted that C.O. McCoy issued the assault misconduct approximately six months after Murray filed Grievance 824076 in September 2019. (ECF 66, at 21.) Again, however, by focusing solely on the time between the grievance and the misconduct, the District Court improperly failed to consider evidence that C.O. McCoy, who Murray claimed maintained animus for him, issued the assault misconduct immediately upon being reassigned to his unit.

6 of retaliation against C.O. McCoy. Accordingly, we conclude that the District Court

erred in entering summary judgment in favor of C.O. McCoy on Murray’s retaliation

claims.8

IV.

In his second claim, Murray argues that the District Court erred in rejecting his

due process challenge to the disciplinary hearing at which he was found guilty of the

assault charge. (Doc. 19, at 27-36 of 114.) Murray was sentenced to 90 days of

disciplinary custody and lost his prison job. (ECF 1, at 10 of 18.) In his complaint,

Murray alleged that he was not permitted to call inmate witnesses and that Hearing

Examiner McKeown was not impartial because Murray had sued him in state court in

2017. (Id. at 14-15.) We agree with the District Court that Murray’s challenge lacks

merit because 90 days in disciplinary segregation, by itself, does not amount to an

“atypical and significant” hardship that implicates due process concerns. See Sandin v.

Conner, 515 U.S. 472, 484-86 (1995) (explaining that “[d]iscipline by prison officials in

response to a wide range of misconduct” is expected as part of an inmate’s sentence); see

also Smith v. Mensinger, 293 F.3d 641, 653-54 (3d Cir. 2002) (holding that seven months

of disciplinary confinement did not violate a protected liberty interest). In addition,

8 We note that the appellees argue that, even if Murray established a prima facie case of retaliation, summary judgment was proper because “Corrections Officials’ actions were taken for legitimate penological interests and would have been taken despite Murray’s protected activity.” (Doc. 22, at 40 of 50.) Murray contests that argument. (Doc. 26, at 6-7 of 19.) Although the District Court acknowledged the “same decision defense” (ECF 66, at 18 of 30), it did not address it. Under these circumstances, we decline to address the defense in the first instance and offer no opinion on its applicability.

7 Murray lacks a due process liberty or property interest in his prison job.9 See James v.

Quinlan, 866 F.2d 627, 629-30 (3d Cir. 1989). Murray further suggests that he was

entitled to enhanced due process protections because assault can be charged as a criminal

offense. (Doc. 19, at 27-30 of 114.) But the assault charge against Murray was brought

only in prison disciplinary proceedings, which “are not part of a criminal prosecution,

and the full panoply of rights due a defendant in such proceedings does not apply.”

Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In sum, we agree with the District Court

that summary judgment was warranted on Murray’s due process claim.

Murray’s final argument challenges the District Court’s conclusion that

Superintendent Kevin Ransom lacked personal involvement in the alleged constitutional

violations.10 (Doc. 19, at 37-41.) “A defendant in a civil rights action must have

personal involvement in the alleged wrongs; liability cannot be predicated solely on the

operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3rd Cir.

1988). “Personal involvement can be shown through allegations of personal direction or

of actual knowledge and acquiescence.” Id. Murray alleged that Superintendent Ransom

“approv[ed] false charges of assault.” (ECF 1, at 6, 13 of 18.) But, generally, “[r]uling

9 To the extent that Murray suggested that the disciplinary hearing resulted in his later transfer different prison (ECF 1, at 5), we note that prisoners do not have a liberty interest in being confined to a particular institution. See Meachum v. Fano, 427 U.S. 215, 225 (1976). 10 Murray also argues that Captain Lukashenski was personally involved in the alleged constitutional deprivations. (Doc. 19, at 38-41.) We need not address this argument, however, because the District Court did not reject the claims against Captain Lukashenski for lack of personal involvement. 8 against a prisoner on an administrative complaint does not cause or contribute to the

[constitutional] violation.” George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007); see also

Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020). Murray also generally claimed that

Superintendent Ransom was “[f]ully aware of [C.O.] McCoy’s retaliatory animus for

Plaintiff, and her desire to see him punished for prior grievances and PREA complaint

against her.” (ECF 1, at 10 of 18.) But Superintendent Ransom’s awareness of Murray’s

allegations concerning C.O. McCoy, without more, is insufficient to establish personal

involvement. See Reedy v. Evanson, 615 F.3d 197, 231 (3d Cir. 2010) (affirming grant

of summary judgement for supervisor who was “kept abreast” of an investigation, but did

not direct his subordinate “to take or not to take any particular action”); see also King v.

Zamiara, 680 F.3d 686, 696-97 (6th Cir. 2012) (“Having the right to control the offending

employee is not enough, simply being aware of the misconduct is not enough, and even

administrative approval of an action later found to be retaliatory, without more, is not

enough.”).

VI.

In sum, we will affirm in part, vacate in part, and remand for further proceedings

consistent with this opinion. Specifically, we will vacate the District Court’s order as it

relates to Murray’s retaliation claims against C.O. McCoy. In all other respects, we will

affirm the District Court’s judgment.