Filed: Feb. 05, 2009
Latest Update: Mar. 02, 2020
Summary: 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United 2009 Decisions States Court of Appeals for the Third Circuit 2-5-2009 Davila-Bajana v. Holohan Precedential or Non-Precedential: Non-Precedential Docket No. 08-1013 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Davila-Bajana v. Holohan" (2009). 2009 Decisions. Paper 1920. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1920 This decision is brought to you for free and open access by the Opinio
Summary: 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United 2009 Decisions States Court of Appeals for the Third Circuit 2-5-2009 Davila-Bajana v. Holohan Precedential or Non-Precedential: Non-Precedential Docket No. 08-1013 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Davila-Bajana v. Holohan" (2009). 2009 Decisions. Paper 1920. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1920 This decision is brought to you for free and open access by the Opinion..
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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Precedential or Non-Precedential: Non-Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Davila-Bajana v. Holohan" (2009). 2009 Decisions. Paper 1920.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1920
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL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.
8
