Glavin Ivy v. John Wetzel

• Court: Court of Appeals for the Third Circuit
• Decided: August 2, 2024
• Docket: 23-1589
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-1589 __________

GLAVIN IVY, Appellant

v.

JOHN WETZEL; LAUREN BLAKE; J. WINTERS; DOMBROSKI; HEX. FISCUS; CCPM GUSTAFSON; MAJOR PERRY; DSCS ADAMS; DSFM MONGELLUZZO ____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 1-20-cv-00265) Magistrate Judge: Honorable Richard A. Lanzillo ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) August 1, 2024

Before: SHWARTZ, RESTREPO, and FREEMAN, Circuit Judges

(Opinion filed August 2, 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. Pro se Appellant Glavin Ivy brought a complaint under 42 U.S.C. § 1983

presenting First Amendment claims related to the confiscation of a document in a prison

library and a penal misconduct report that resulted from the incident. Ivy drafted a legal

document on behalf of an inmate named Ricky Fritchman (herein “the Fritchman

document”). Ivy printed this document using the prison library printer, at which point it

was taken by Appellee J. Winters, a prison librarian who believed the document was

Fritchman’s property. Ivy attempted to take the document from the desk on which it was

lying but Winters placed her hand on the papers and prevented him from doing so. Ivy

and Winters spoke to each other, although the exact language used in this conversation is

in debate, and the document was confiscated.

Winters filed a misconduct report that resulted in three charges: (1) “threatening

an employee or their family with bodily harm”; (2) “using abusive, obscene, or

inappropriate language to an employee”; and (3) possession of contraband, i.e., the

document drafted by Ivy on behalf of Fritchman.1 Ivy was found guilty of all three

charges and sentenced to 75 days in a Restricted Housing Unit (R.H.U.).

In his complaint, Ivy argued that a document is not another inmate’s personal

property just because it has that inmate’s name on it. In his view, he was not in

possession of contraband because the document in question belonged to him, as he

bought the paper on which it was printed, he typed it, Fritchman never had possession of

1 Winters initially filed a misconduct report that only included the first two charges, but it was dismissed without prejudice after a hearing examiner determined that the report was “in error.”

2 it, and it was not listed on Fritchman’s property inventory sheet. Ivy further argued that

even were this not so, he was never in possession of the document because it was

confiscated by Winters before he took possession of it. In light of these facts, Ivy argued

that, through the issuance of the misconduct charge, the Defendants violated his First

Amendment rights by: (1) preventing him from engaging in inmate-to-inmate

communication and (2) retaliating against him for expressing his intent to sue and for

typing a document on behalf of another inmate.2 Defendants Winters and Lauren Blake,

another prison librarian, filed a motion for summary judgment, which the District Court

granted.3 Ivy timely filed this appeal, and then filed a motion for reconsideration, which

the District Court denied.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over the District Court’s grant of summary judgment, applying the same standard as the

District Court, and we may affirm on any basis supported by the record. See Blunt v.

Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). “Summary judgment is

appropriate only where, drawing all reasonable inferences in favor of the nonmoving

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

2 Ivy also presented claims of civil conspiracy, invasion of privacy, and violation of his Due Process rights, but the District Court dismissed these claims at the motion to dismiss stage, leaving the First Amendment claims as the only live issues. Ivy has not challenged the dismissal of these claims on appeal. 3 At the motion to dismiss stage, the District Court dismissed claims against all Defendants except Winters and Blake.

3 to judgment as a matter of law.” Ruehl v. Viacom, Inc., 500 F.3d 375, 380 n.6 (3d Cir.

2007) (internal quotation and citation omitted).

We begin with Ivy’s claim that Winters’ confiscation of the Fritchman document

violated his First Amendment right to free speech (hereafter, “the contraband claim”).4

The Supreme Court has “determined that incarceration does not divest prisoners of all

constitutional protections. Inmates retain . . . certain protections of the First

Amendment.” Shaw v. Murphy, 532 U.S. 223, 228–29 (2001). Having established this

baseline, the Supreme Court “decline[d] to cloak the provision of legal assistance with

any First Amendment protection above and beyond the protection normally accorded

prisoners’ speech. Instead, the proper constitutional test is the one [the Supreme Court]

set forth in Turner.” Id. at 231–32. “Of course, the Turner analysis is appropriate only in

cases where a prison policy is impinging on inmates’ constitutional rights,” and it

therefore “assumes as a predicate that the plaintiff inmate has demonstrated that a

constitutionally protected interest is at stake.” DeHart v. Horn, 227 F.3d 47, 51 (3d Cir.

2000).

Once an inmate has demonstrated that a prison policy implicates a constitutionally

protected interest, courts assess whether the policy is valid—that is, whether it is

“reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78,

89 (1987). To do so, courts address several factors set forth in Turner. Id. at 89–90.

4 The District Court granted summary judgment in favor of Blake after Ivy conceded that “it would be proper” to do so. We concur with this decision. 4 Here, the District Court did not apply Turner’s multi-factor test because it

concluded Ivy did not establish the predicate: that the prison’s policy implicated a

constitutionally protected interest. It noted that the only policy relevant here is the

contraband policy—Section 3.C of DC-ADM 815, Personal Property, State Issued Items,

and Commissary/Outside Purchases Manual—which states that “property belonging to

another inmate” is considered contraband. It then rejected Ivy’s arguments about the

policy as “irrelevant to a free-speech claim.” ECF No. 51 at 6 & n.3. It therefore granted

summary judgment for Winters on the contraband claim.

In its opinion denying Ivy’s motion for reconsideration, the District Court stated

that “Ivy never demonstrated that the policy on its face or as applied to him burdened his

free speech rights,” and that “[g]iven this failure of proof, the Court had no occasion to

undertake an analysis under Turner v. Safley, 482 U.S. 78, 89 (1987) beyond this

threshold inquiry.”

We disagree with the District Court’s conclusion that the contraband policy, as

applied here, did not implicate a constitutional interest. As the District Court correctly

observed at an earlier stage of the case, “Ivy engaged in communicative activity when he

prepared another inmate’s habeas petition which at least implicates First Amendment

interests.” ECF No. 20 at 14. Thus, Ivy has established a predicate, and a Turner

analysis must follow. Accordingly, we will vacate the District Court’s order on the

contraband claim and remand for further proceedings.

We next turn to Ivy’s retaliation claim. To succeed on a prima facie claim for

retaliation under the First Amendment, a prisoner-plaintiff must establish that (1) “the

5 conduct which led to the alleged retaliation was constitutionally protected”; (2) “he

suffered some ‘adverse action’ at the hands of the prison officials” that “was sufficient to

deter a person of ordinary firmness from exercising his [constitutional] rights”; and (3)

there existed a “causal link between the exercise of his constitutional rights and the

adverse action taken against him.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)

(internal citations omitted). If the plaintiff establishes these elements, the burden then

shifts “to the defendant to prove by a preponderance of the evidence that it would have

taken the same disciplinary action even in the absence of the protected activity.” Id. This

framework incorporates the Turner standard dictating “that a prison regulation that

impinges on the constitutional rights of an inmate is valid if it is ‘reasonably related to

legitimate penological interests.’” Id. at 334.

As noted above, after receiving a misconduct report, Ivy was found guilty of three

charges: “threatening an employee or their family with bodily harm”; “using abusive,

obscene, or inappropriate language to an employee”; and possession of contraband. In

her misconduct report statement, Winters wrote that Ivy swore at her, yelled at her, and

reached across the counter to pull the Fritchman document out from under her hand.

Winters stated that Ivy yelled at her, “You don’t know who you are messing with. I’m not

your average inmate!” and that she “found this comment to be threatening because he

already reached across the counter to take something from [her] and he told [her] that he

will ‘fucking do what he wants.’”

In support of his misconduct hearing appeal, Ivy wrote that he “did not attempt to

snatch the paper from the librarian’s person, but from the table.” He also wrote that “75

6 days for typing a document is outrageous and disproportionate. There was no threat of

bodily harm whatsoever. Using ‘fucking’ as an adverb does not earn me 75 days in

R.H.U.” In his opening brief, he contends that this statement was a hypothetical, in that

even if he had used profanity, 75 days in the R.H.U. would have been disproportionate to

the offense. He also contends that he “did not threaten ‘bodily harm,’ but rather, that

[his] alleged statements were in reference to his expression of intent to sue.” He argues

that he “strongly contested whether or not he used profanity,” and points to his complaint,

Responsive Statement of Material Facts, and Unsworn Declaration. He further argues

that by being found guilty on the possession of contraband charge, he was being

unlawfully disciplined for exercising his free speech rights.

Upon review, we conclude that Ivy failed to meet his burden with respect to his

retaliation claim. In his complaint, Ivy argued that the Defendants sought to retaliate

against him “for (1) expressing his intent to sue which constituted protected free speech,

and (2) for assisting another inmate with seeking habeas relief by typing a document

which also constituted free speech.” Ivy alleged that Winters told him that “dumb

inmates threaten to sue [her] all the time,” and that she “threatened to not schedule [him]

for additional time related to his appeal deadline as a form of retaliation.” However, he

fails to show that his alleged “constitutionally protected conduct was a substantial or

motivating factor in the decision to discipline him.” Watson v. Rozum, 834 F.3d 417,

422–23 (3d Cir. 2016). Instead, as discussed above, the record reflects that he was

disciplined for violating the relevant prison policies, and that the Defendants would have

made the same disciplinary decision regardless of Ivy’s intent to sue or his assistance of

7 another inmate. We therefore concur with the District Court’s conclusion that summary

judgment was warranted with respect to Ivy’s retaliation claim.

Accordingly, for the reasons discussed above, we will vacate with respect to the

contraband claim, affirm in all other respects, and remand for further proceedings.