Robert Gattis, individually and on behalf of all others similarly situated v. Warden Perry Phelps

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3090
___________
ROBERT GATTIS, individually and on behalf of
all others similarly situated,
Appellant
v.
WARDEN PERRY PHELPS; JAMES T. VAUGHN
CORRECTIONAL CENTER; MAJOR DCC JAMES SCARBOROUGH;
STAFF LIEUTENANT DCC KAREN HAWKINS;
SERGEANT DCC WILFORD BECKLES;
CAROL POWELL, James T. Vaughn Correctional Center,
1181 Paddock Road, Smyrna, DE 19977
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil Action No. 08-cv-00154)
District Judge: Honorable Joseph J. Farnan, Jr.
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 21, 2009
Before: FISHER, JORDAN AND VAN ANTWERPEN, Circuit Judges
(Opinion filed: September 14, 2009)
___________
OPINION
___________

-- 1 of 8 --

Notably, Gattis did not name the JTVCC as a defendant in the § 1983 action. Rather,1
he sued several Department of Corrections employees in their individual and official
capacities.
2
PER CURIAM
Robert Gattis, a prisoner proceeding pro se, filed a complaint under 42 U.S.C.
§ 1983 in the District Court, alleging that certain Delaware Department of Corrections
policies infringe on his constitutional rights. Gattis also filed a request for a preliminary
injunction and a temporary restraining order, as well as a motion for appointment of
counsel. The District Court dismissed the action under the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1), and denied Gattis’ requests for
injunctive relief and counsel, reasoning that his claims were frivolous and failed to state a
cognizable claim. Gattis now appeals that decision. We have jurisdiction pursuant to 28
U.S.C. § 1291. For the reasons that follow, we will affirm in part, vacate in part, and
remand for further proceedings.
Gattis is on death row at the James T. Vaughn Correctional Center (“JTVCC”) in
Delaware. In his § 1983 complaint, Gattis alleged that two policies of the JTVCC violate
his constitutional rights. First, he contended that the JTVCC’s policy of prohibiting1
prisoners from possessing sexually explicit magazines, as applied to inmates on death
row, violates the First and Fourteenth Amendments. Second, Gattis argued that his
Eighth Amendment rights were violated when the JTVCC altered its exercise policies for
death row inmates, reducing their exercise schedule from four to three days per week and

-- 2 of 8 --

3
forcing them to exercise indoors if outdoor space was unavailable. In addition to
preliminary injunctive relief, Gattis sought permanent injunctive relief, nominal damages,
punitive damages, and costs. The District Court dismissed the complaint under § 1915
and § 1915A, reasoning that Gattis’ damages claims were barred by Eleventh Amendment
immunity, and that his remaining claims were legally frivolous.
When reviewing a complaint dismissed under § 1915, this Court applies the same
standard provided for in Federal Rule of Civil Procedure 12(b)(6). See Tourscher v.
McCollough, 184 F.3d 236, 240 (3d Cir. 1999). In determining whether a district court
properly dismissed a complaint under Rule 12(b)(6), this Court must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be
entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)
(quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). This
standard requires that a plaintiff allege in his complaint “‘enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence of’ the necessary element[s]”
of a cause of action. Phillips, 515 F.3d at 234 (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 556 (2007)).
Gattis presents three arguments on appeal. First, he argues that the District Court
erred in dismissing all of his monetary damages claims. The Eleventh Amendment bars a
suit for money damages against a state agency and state officials sued in their official

-- 3 of 8 --

The Turner test “requires courts to consider (1) whether a rational connection exists2
between the regulation and a neutral, legitimate government interest; (2) whether
alternative means exist for inmates to exercise the constitutional right at issue; (3) what
impact the accommodation of the right would have on inmates, prison personnel, and
allocation of prison resources; and (4) whether obvious, easy alternatives exist.”
Waterman, 183 F.3d at 213 n.6 (citing Turner, 482 U.S. at 89-91).
4
capacities. See Melo v. Hafer, 912 F.2d 628, 635 (3d Cir. 1990). However, the Eleventh
Amendment does not bar such claims against state officials sued in their individual
capacities. See id. Nor does the PLRA prohibit prisoners from seeking nominal or
punitive damages in § 1983 actions. See Allah v. Al-Hafeez, 226 F.3d 247, 251-52 (3d
Cir. 2000). Thus, though we agree with the District Court that Eleventh Amendment
immunity bars any monetary claims against the JTVCC and its employees in their official
capacities, we note that Gattis correctly argues that the Eleventh Amendment does not bar
his damages claims against the defendants inasmuch as he sued them in their individual
capacities.
Second, Gattis argues that the District Court erred in dismissing his First
Amendment claim. In determining whether a prison regulation infringes on a prisoner’s
constitutional rights, courts apply the four-part framework established in Turner v. Safley,
482 U.S. 78, 89-91 (1987). See Waterman v. Farmer, 183 F.3d 208, 212-213 (3d Cir.
1999). In concluding that Gattis’ claim was frivolous, the District Court did not2
expressly conduct a new analysis under Turner. Rather, it relied on two District of
Delaware cases, Jolly v. Snyder, No. 00-041, 2003 WL 1697539 (D. Del. Mar. 22, 2003)

-- 4 of 8 --

5
(applying Turner to the JTVCC policy prohibiting sexually explicit material), and
Stevenson v. Snyder, No. 00-732, 2004 WL 422693 (D. Del. March 3, 2004) (relying on
Jolly’s application of Turner to the same ban). Gattis argues that Jolly and Stevenson are
not controlling because they do not contemplate the ban as it relates to death penalty
prisoners, who are subject to special conditions, including administrative segregation.
We agree that an analysis of the Turner factors, as applied to Gattis’s specific
circumstances, is warranted.
The explicit materials policy involved in Jolly, Stevenson, and the present case
applies broadly to all prisoners. The Jolly and Stevenson decisions rested on the
argument that “the policy is necessary to maintain prison security and to further
rehabilitative goals. Specifically, Defendants urge that possession of pornographic
materials by prisoners, especially sex offenders, can lead to sexual harassment of female
officers and can undermine the safety of both prison guards and other inmates.” Jolly,
2003 WL 1697539, at *3. Neither case explains whether the plaintiffs involved were, like
Gattis, death row inmates, or whether they were housed in the general prison population.
While the reasoning of Jolly and Stevenson might reasonably be applied to the JTVCC
inmate population at large, it may or may not hold up when applied to death row inmates
in administrative segregation: the record does not reveal the extent to which death
penalty inmates have close contact with guards, female officers, and other inmates, so the
degree to which the prison security issues involved in Jolly and Stevenson are also in play

-- 5 of 8 --

6
here is unclear. Moreover, since Gattis is on death row, further analysis is required to
demonstrate that rehabilitation is a legitimate penological interest. Given the possibility
of clemency or other relief that could change Gattis’s sentence, we do not say that
rehabilitation concerns are irrelevant. Indeed, rehabilitation may be appropriately
considered even if it pertains only to a prisoner’s behavior while incarcerated, but some
analysis in that regard should be undertaken by the District Court in the first instance, and
such analysis may benefit from further development of the record. In short, the District
Court lacked sufficient facts to conclude that Gattis is similarly situated to the plaintiffs in
Jolly and Stevenson.
Moreover, the procedural posture of Jolly and Stevenson differed significantly
from the instant case. Those cases were decided on a motion to dismiss and motion for
summary judgment, respectively, meaning that the defendants had been afforded an
opportunity to respond to the claims against them and articulate a reason for the
challenged policy. Here, the District Court dismissed Gattis’ complaint during the § 1915
screening process, assuming that administratively segregated prisoners are subject to the
same rationale as the plaintiffs in Jolly and Stevenson. On remand, the District Court
should consider whether the defendants should be afforded an opportunity to develop the
factual record and explain how, if at all, the regulation reasonably applies to inmates in
Gattis’ situation.
Third, Gattis argues that the District Court improperly dismissed his Eighth

-- 6 of 8 --

7
Amendment claim. The denial of exercise or recreation may result in a constitutional
violation. See Peterkin v. Jeffes, 855 F.2d 1021, 1031-33 (3d Cir. 1988). However, a
plaintiff must demonstrate that such a denial is sufficiently serious to deprive inmates of
the minimal civilized measure of life’s necessities. See Tillman v. Lebanon County Corr.
Facility, 221 F.3d 410, 418 (3d Cir. 2000). Even minimal provision of time for exercise
and recreation may satisfy constitutional requirements. See, e.g., Wishon v. Gammon,
978 F.2d 446, 449 (8th Cir. 1992) (forty-five minutes of exercise per week not
constitutionally infirm); Knight v. Armontrout, 878 F.2d 1093, 1096 (8th Cir. 1989)
(holding that denial of outdoor recreation for thirteen days not cruel and unusual
punishment). Moreover, “a temporary denial of outdoor exercise with no medical effects
is not a substantial deprivation.” May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997).
Thus, we agree with the District Court that Gattis’ alleged harm – that his exercise was
limited to three days per week and that he was not guaranteed outdoor exercise at all
times – was insufficiently serious to implicate the Eighth Amendment.
Finally, Gattis appeals from the District Court’s denial of his requests for
preliminary injunctive relief and appointment of counsel. A court should grant injunctive
relief only if, inter alia, “the plaintiff is likely to succeed on the merits . . . [and] denial
will result in irreparable harm to the plaintiff.” Maldonado v. Houstoun, 157 F.3d 179,
184 (3d Cir. 1998). The District Court denied injunctive relief, reasoning that Gattis
failed to demonstrate a likelihood of success on the merits. We agree with the District

-- 7 of 8 --

8
Court’s reasoning as it pertains to his Eighth Amendment claim. Further, we cannot say
that Gattis’ inability to access sexually explicit material constitutes irreparable harm. As
such, the District Court’s denial of injunctive relief concerning his First Amendment
claim was also appropriate.
With respect to Gattis’ request for counsel, we review the District Court’s decision
for abuse of discretion. See Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997).
Although we perceive no abuse of discretion in the denial of Gattis’ motion, see Tabron
v. Grace, 6 F.3d 147, 155-56 (3d Cir. 1993) (setting forth the factors a court should
consider in deciding a motion for appointment of counsel), we note that the District Court
is free to reevaluate its decision on remand if circumstances warrant.
Accordingly, we will affirm the judgment of the District Court in part, vacate in
part, and remand for further proceedings consistent with this opinion.

-- 8 of 8 --