Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-2006

Bailey v. Blaine
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1545




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"Bailey v. Blaine" (2006). 2006 Decisions. Paper 1081.
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                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                     NO. 05-1545


                               DEMETRIUS BAILEY,

                                           Appellant

                                             v.

                  CONNER BLAINE; DEPUTY STOWITZSKY;
                    DEPUTY MILLER; MAJOR HASSETT;
                    G. BANKS; C.O. RICCI; C.O.MORALES;
                      CAPT. WYNFIELD; CAPT. LANTZ;
              LT. ESMOND; KENT WARMAN; ROBERT BITNER;
                T. D. JACKSON; F.J. ZABOROWSKI; C. ROSSI


                 On appeal From the United States District Court
                    For the Western District of Pennsylvania
                         (W.D. Pa. Civ. No. 00-cv-1638)
                 Magistrate Judge: Honorable Ila Jeanne Sensenich
                 _______________________________________

                    Submitted Under Third Circuit LAR 34.1(a)
                                  May 9, 2006

       BEFORE: McKEE, FUENTES and NYGAARD, CIRCUIT JUDGES

                                (Filed: May 19, 2006)


                                       OPINION


PER CURIAM

    Demetrius Bailey filed this civil rights action pro se in the United States District
Court for the Western District of Pennsylvania pursuant to 42 U.S.C. § 1983, alleging that

Appellees retaliated against him for filing grievances and lawsuits in connection with

their alleged violation of his constitutional rights. Bailey’s complaint alleged that

Appellees, officials and employees at the State Correctional Institution at Greene (“SCI-

Greene”) where Bailey was incarcerated at the time, violated his First Amendment rights

by confiscating magazines in his cell as well incoming magazines and newspapers while

he was in the Restricted Housing Unit (“RHU”). Bailey further alleged that, after he

began filing grievances related to the magazine and newspaper confiscation, Appellee

George Banks, the former RHU manager, retaliated against him by issuing a

memorandum which retroactively banned RHU inmates from possessing magazines in

their cells. Bailey also alleged that the other Appellees retaliated against him by

fabricating misconduct charges of which he was ultimately found guilty and punished by

imposition of varying periods in disciplinary custody.1

       The District Court granted Appellees’ motion for summary judgment on Bailey’s

First Amendment claim, holding that both the magazine confiscation and the publications

policy were reasonably related to a legitimate penological interest. The District Court

denied Appellees’ motion for summary judgment on the retaliation claim, however, and

the case proceeded to a bench trial before the Magistrate Judge pursuant to 28 U.S.C.

§ 636(c) and Federal Rule of Civil Procedure 73.


       1
        Bailey also alleged that his subsequent transfer to SCI-Frackville was retaliatory.
However, this claim was stricken from the proceedings because Bailey had raised it in a
separate lawsuit.
          Bailey represented himself at the two-day bench trial and testified at length about

the events surrounding the misconduct charges, refuting the version of events presented in

the misconduct reports and in Appellees’ testimony. Appellees’ case-in-chief included

the testimony of George Banks; Marshal Warman, former chairman of the Publications

Review Committee at SCI-Greene; Gayle Morales, a former Corrections Officer (“CO”)

at SCI-Greene who had confiscated Bailey’s newspapers and issued three of the five

challenged misconduct reports; and CO Albert Ricci, who was involved in the magazine

confiscation and had issued two of the disputed misconduct reports. The Magistrate

Judge entered judgment in favor of Appellees, holding that Bailey had failed to meet his

burden of showing that his constitutionally protected activity was a substantial or

motivating factor behind Appellees’ actions. Bailey timely appealed, again proceeding

pro se.

          The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have

jurisdiction pursuant to 28 U.S.C. § 1291. On appeal, Bailey challenges only the District

Court’s ruling on his retaliation claim. We review the District Court’s findings of fact for

clear error, see Universal Minerals, Inc. v. C.A. Hughes & Co., 

, 102 (3d Cir.

1981), and exercise plenary review over the court’s legal conclusions, see Koslow v.

Commonwealth of Pa., 

, 167 (3d Cir. 2002).

          To be successful in a retaliation claim, a plaintiff must prove by a preponderance

of the evidence that: a) the conduct leading to the alleged retaliation was constitutionally



                                                3
protected; b) he or she suffered an “adverse action” at the hands of prison officials; and c)

the protected activity was a substantial or motivating factor in the prison officials’

actions. Rauser v. Horn, 

, 333-34 (3d Cir. 2001). The Magistrate Judge

held that, although Bailey had satisfied the first two elements set forth in Rauser, he had

not sustained his burden of proving causation.

       As to the policy-based claim, Bailey argues that the Magistrate Judge failed to

acknowledge the chronology of events leading up to the Banks memorandum, which

establishes causation. It is undisputed that Bailey’s magazines were confiscated on

December 4, 1999, and that he filed a grievance about this on December 6, 1999. Bailey

emphasizes that, although the Banks memorandum was dated December 13, 1999, one

week after he filed his grievance, the policy announced in the memorandum was made

retroactive to November 23, 1999, thereby including the date Bailey’s magazines were

confiscated.

       Bailey correctly recognizes that temporal proximity between the protected activity

and the alleged retaliatory action can suggest causation. See 

.

Contrary to Bailey’s assertion, the Magistrate Judge did not ignore the issue of temporal

proximity. Rather, the opinion acknowledged that the memorandum’s conflicting dates

had raised a question as to retaliatory motive before trial. See Opinion at 9. However,

the Magistrate Judge found credible Banks’s testimony that the policy stemmed from

problems with RHU inmates using magazines to set fires and overflow the toilets in their



                                              4
cells – not from Bailey’s grievances. See 

The Magistrate Judge also credited

Banks’s testimony that he had mistakenly put the wrong date on the memo. See 

The Magistrate Judge’s determination as to witness credibility is not subject to our

review. See United States v. Bethancourt, 

, 1078 (3d Cir. 1995). Accepting

this finding, as we must, we agree with the Magistrate Judge that Bailey did not sustain

his burden of proving causation for this claim. See 

.

       Bailey’s second retaliation claim centers on the following misconduct charges,

which Bailey argues were fabricated: a March 4, 2000, charge for failing to obey a direct

order from CO Morales to remove two posters of nude women from his cell wall; a

March 17, 2000, charge for verbally threatening Morales; a March 18, 2000, charge for

refusing to obey a direct order from CO Ricci to remove his arms from the “pie slot” in

his cell door; an April 13, 2000, charge for refusing to obey Ricci’s order to step away

from his cell door during a random cell search; and an April 25, 2000, charge for refusing

to “cuff up” in the law library when ordered to do so by Morales. Bailey testified that he

did not disobey any of these orders or commit any of the rule infractions described in the

misconduct reports and that Morales and Ricci fabricated the charges because he had filed

grievances against them for their roles in confiscating his magazines and newspapers.

       The Magistrate Judge credited Morales’s and Ricci’s testimony that the

misconduct charges were valid and concluded that Bailey had not shown a causal

connection between the misconduct reports and his grievances. The Magistrate Judge



                                             5
also observed that Bailey’s testimony regarding the poster-related charge was internally

inconsistent. See Opinion at 9.

       On appeal, Bailey argues that the Magistrate Judge’s credibility findings were

based on “false evidence” and that the Magistrate Judge “twisted the evidence to fit the

defendants.” Bailey does not offer any examples of the purportedly “false evidence.”

Even if he had, as we stated earlier, the District Court’s credibility determinations are not

subject to our review. See 

; Leeper v. United States, 

, 308 (3d Cir. 1985) (A district court’s factual findings are reviewed only to

assess whether enough supporting evidence is on record, regardless whether the evidence

permits different inferences to be drawn.)

       Bailey next argues that the Magistrate Judge did not allow him to call witnesses

whose testimony would have corroborated his version of the events. A federal court may,

in its discretion, issue a writ of habeas corpus ad testificandum to secure the appearance

of a state or federal prisoner as a witness, if it is necessary to bring him or her into court

to testify or for trial. 28 U.S.C. § 2241(c)(5). A district court’s decision whether to issue

the writ will be reversed only for an abuse of discretion. Jerry v. Francisco, 

,

256 (3d Cir. 1980).

       After the trial testimony concluded, the Magistrate Judge gave Bailey an

opportunity to present arguments for bringing two federal inmates, Brown and Byrd, to

court to testify. Bailey argued that Brown, who was housed in the cell next to his, was an



                                               6
“ear witness” to events leading up to several of the misconduct charges and could testify

that Bailey was not given the direct orders described in the misconduct reports. Inmate

Byrd was present during the law library incident, and, according to Bailey, could testify

that CO Morales never gave Bailey an order to “cuff up.” The Magistrate Judge denied

Bailey’s requests for these witnesses, noting that Bailey had not provided the court with a

statement of either witness’s proposed testimony prior to trial and had not listed either

Brown or Byrd as witnesses in any of the grievance or misconduct proceedings related to

the same events. Further, the Magistrate Judge expressed doubt that Brown would be

able to remember events which had occurred years earlier and noted that Byrd’s testimony

related to only a minor part of the case.

       Although Brown and Byrd’s proffered testimony appears to be relevant, our

review of the trial transcript indicates that it would not have affected the outcome of the

trial and that, therefore, the issuance of a writ of habeas corpus ad testificandum was not

required. See United States v. Cruz-Jimenez, 

, 100 (3d Cir. 1992) (not every

remotely relevant proffer will require issuance of the writ). Accordingly, we find no

abuse of discretion in the Magistrate Judge’s denial of Bailey’s motion.

       Bailey argues that Magistrate Judge erred by not appointing counsel to assist him

in prosecuting his case. When determining whether to appoint counsel, a court should

first consider whether the claimant’s case has arguable merit in fact or law. Tabron v.

Grace, 

, 155 (3d Cir. 1993). After this threshold criterion is met, a court



                                              7
should consider the following factors: (1) the plaintiff’s ability to present his case; (2) the

difficulty of the legal issues; (3) the degree to which factual investigation will be

necessary and the plaintiff’s ability to pursue that investigation; (4) the plaintiff’s ability

to retain counsel on his own; (5) the extent to which the case is likely to turn on

credibility determinations; and (6) whether the case will require expert testimony. 

A district court’s decision to deny counsel is reviewed for abuse of discretion.

Parham v. Johnson, 

, 457 (3d Cir. 1997).

       We agree with the Magistrate Judge’s Tabron analysis and with the conclusion that

Bailey’s self-representation was adequate. Throughout the proceedings, Bailey

vigorously prosecuted his case, filing and responding to motions as appropriate and ably

conducting cross-examination at trial. We find no abuse of discretion in the Magistrate

Judge’s denial of counsel.

       Bailey’s remaining arguments on appeal concern the relative importance of various

Department of Corrections policies regarding publications and the ability of a unit

manager to create policy. As these issues were not raised during trial and are irrelevant to

Bailey’s retaliation claim, we decline to address them.

       For the foregoing reasons, we will affirm the District Court’s judgment.




                                               8