Patrick Toussaint v. David Good

ALD-226 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3751
___________
PATRICK TOUSSAINT,
Appellant
v.
DAVID GOOD; JEFFREY BEARD, Ph.D;
MARLENE STEWART; NORA HRUBOCHAK;
LT. PIROZZOLA; SGT. GREEN;
SGT. MATTHEWS; SGT. VITALE
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 05-cv-00443)
District Judge: Honorable Kim R. Gibson
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 25, 2009
Before: SLOVITER, FUENTES and JORDAN, Circuit Judges
(Opinion filed: July 6, 2009)
_________
OPINION
_________
PER CURIAM
Patrick Toussaint filed, pro se, an action under 42 U.S.C. § 1983, alleging
violations of his civil rights by several prison officials and employees of the Department

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of Corrections. For the reasons that follow, we will summarily affirm.
I. Background
Toussaint, a prisoner incarcerated at the State Correctional Institution at Cresson,
filed a complaint on December 20, 2005, in the Western District Court of Pennsylvania.
In his original complaint he alleged that Defendants: (1) denied him access to the courts;
(2) tortured him by forcing him to share a cell with inmates with whom he was not on
good terms and by whom he felt threatened; and (3) retaliated against him for filing
grievances. Defendants filed a motion to dismiss, which the District Court treated as a
motion for summary judgment and granted.
Toussaint appealed, and we vacated in part and remanded for further proceedings.
Although we agreed with the District Court’s analysis on Toussaint’s access-to-courts and
torture claims, we held that the District Court should not have granted summary judgment
on the retaliation claim because the Defendants had not sought judgment as to that claim.
On remand, the parties were ordered to file cross-motions for summary judgment solely
on the retaliation claim. Defendants filed a motion for summary judgment. Toussaint did
not file any opposition. The Magistrate Judge recommended granting the motion in favor
of the Defendants. See Fed. R. Civ. P. 56(e)(2). The District Court adopted the
Magistrate’s Judge’s report. Toussaint timely appealed.
II. Analysis
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary

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review over a District Court’s grant of summary judgment and apply the same test applied
by the District Court. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir. 2001). Entry
of summary judgment is appropriate when the pleadings, discovery materials and
affidavits show that there is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). When a moving party demonstrates the absence of a
genuine issue of material fact, the nonmoving party must go beyond the pleadings and
point to “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P.
56(e). If that does not happen, the moving party is entitled to a judgment as a matter of
law. Celotex Corp., 477 at 323. Under Fed. R. Civ. P. 56(b) a defending party “may
move [for summary judgment] at any time. . . on all or part of the claim.
Toussaint claims that we should grant him relief because defense counsel failed to
properly argue the retaliation claim when the case was first in the District Court and
therefore somehow waived the right to defend the claim. In our prior opinion, however,
we specifically remanded for further proceedings as to this claim. Toussaint v. Good, No.
06-4638, slip op. at 5-6 (3rd Cir. May 1, 2008). On remand, the District Court ordered
the parties to file cross-motions for summary judgment. In doing so, the District Court
acted appropriately, and consistently with our mandate, to resolve Toussaint’s retaliation
claim. We previously held that “the Magistrate Judge credited the defendants with
meeting the summary judgment standard on a claim against which they did not

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specifically defend, and regarding which Toussaint might not have been on notice to
argue.” Toussaint v. Good, No. 06-4638, slip op. at 6. By ordering parties to file cross-
motions, the District Court was giving both parties an opportunity to argue the merits of
the retaliation claim.
Toussaint alleged that the Defendants retaliated against him by issuing false
disciplinary reports for which he was sanctioned, in response to his use of the inmate
grievance system. To prevail on a claim for retaliation by prison officials, a plaintiff must
show that: (1) he engaged in constitutionally protected conduct; (2) he suffered some
“adverse action” by prison officials; and (3) his exercise of a constitutional right was a
substantial or motivating factor in the adverse action. Rauser v. Horn, 241 F.3d 330, 333-
34 (3d Cir. 2001). “[P]rison 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.” Id. at 334.
Toussaint alleged that correctional officers issued misconduct reports in retaliation
for grievances he filed about his housing situation. In seeking summary judgment,
Defendants provided evidence of three misconducts against Toussaint: on August 22,
2005, October 16, 2005, and November 14, 2005. In addition, they provided copies of
two grievances filed by Toussaint: on August 22, 2005 and October 14, 2005.
Except possibly for the timing, Toussaint failed to proffer evidence that his filing
of a grievance was a “substantial or motivating factor” in any of the three decisions to

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Defendants point out that the substance of the grievance filed on August 22, 2005,1
reveals that it must have been filed after the misconduct report of the same date.
Therefore, the August misconduct report could not have been retaliatory as to the first of
Toussaint’s grievances.
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issue him a misconduct. Even assuming that Toussaint’s evidence established a genuine1
issue as to that, Defendants proffered evidence that they would have issued the
misconduct reports anyway, for legitimate, penological reasons. Indeed, Defendants’
evidence—including the misconduct reports, written statements by Toussaint, and his
grievances—established that Toussaint was issued citations as a response to his own
affirmative and outrageous behavior. The August 22, 2005, citation came after
Toussaint, despite signing an agreement to do so, repeatedly refused to move from one
cell to another (at a time when a significant number of prisoners were out of their cells).
The October 16, 2005, misconduct occurred after Toussaint (a) went to a correctional
officer’s office and announced that he would not go back to his cell and (b) returned to
his cell and began removing his property from it. Finally, the November 14, 2005,
citation was issued after Toussaint once again approached an officer to announce that he
would not return to his cell.
Because Toussaint pointed to nothing undermining the Defendants’ evidence, see
Fed. R. Civ. P. 56(e), he failed to establish a genuine issue as to whether the Defendants
would have issued the misconduct reports regardless of his filing of grievances. See

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Rauser, 241 F.3d at 334. Accordingly, we must, and will, affirm the judgment of the
District Court.
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