Corliveetho McMillian v. John Wetzel ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-1771
___________
CORLIVEETHO MCMILLIAN,
Appellant
v.
JOHN E. WETZEL, Secretary of Corrections; JEFFREY WITHERITE, Western Region
Staff Assistant of Department of Corrections; SUPERINTENDENT BRIAN
COLEMAN; SECURITY CAPTAIN CAPSTICK; SECURITY CAPTAIN WEAVER;
UNIT MANAGER STEPHEN BOZAS; CO I OFFICER CARNS; CO I OFFICER
PALMER; PRISONER WILLIAM KULP
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2-14-cv-01529)
District Judge: Honorable Nora B. Fischer
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 2, 2019
Before: GREENAWAY, JR., RESTREPO and FUENTES, Circuit Judges
(Opinion filed: November 4, 2019)
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OPINION *
___________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Pro se appellant Corliveetho McMillian appeals the District Court’s adverse
judgment in this prisoner-civil-rights case. For the reasons discussed below, we will
affirm the District Court’s judgment in part, vacate in part, and remand for further
proceedings.
In 2014, McMillian, a prisoner confined at SCI-Fayette during the events at issue
in this case, filed a complaint under 42 U.S.C. § 1983. He alleged that the defendants—
corrections officers and Pennsylvania Department of Corrections personnel—retaliated
against him in a variety of ways for filing lawsuits and grievances and violated his Eighth
Amendment rights by failing to protect him from another inmate. His primary claim
concerned an incident in which inmate William Kulp sprayed feces on him while they
were in the prison yard. McMillian claimed that, in accordance with prison procedures,
defendants Officer Carns and Officer Palmer strip-searched Kulp before allowing him to
go to the yard. During the search, McMillian claims that he heard Carns say, “I didn’t
see nothing,” and Palmer say, “Yeah, yeah, I was looking at the t.v., I didn’t see nothing
either.” ECF No. 48 at 5. Despite being searched, soon after being placed in a recreation
cage next to McMillian, Kulp pulled out a seven-inch toothpaste tube and squeezed liquid
feces from it onto him. McMillian claims that this was done at Carns’s and Palmer’s
instigation. In addition to the § 1983 claims against the prison defendants, McMillian
asserted state-law claims against Kulp.
A Magistrate Judge issued a report and recommendation concluding that summary
judgment should be granted to the defendants. The Magistrate Judge concluded that all
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of McMillian’s retaliation claims besides the one concerning inmate Kulp’s conduct were
time-barred and that McMillian had failed to show that most of the named defendants had
the requisite personal involvement in the alleged violations. Further, the Magistrate
Judge concluded that McMillian had failed to present evidence that Carns or Palmer had
any reason to expect that Kulp would squirt feces on him, which was fatal to both the
retaliation and the Eighth Amendment claim. The Magistrate Judge noted that while
McMillian had presented an affidavit from an inmate named Jamel Brockington saying
that Kulp had told him he had acted at the guards’ behest, the affidavit was hearsay and
could not be considered for purposes of summary judgment. The District Court approved
and adopted the report and recommendation. Kulp appealed, but we dismissed the appeal
for lack of jurisdiction, explaining that because the District Court had not disposed of
McMillian’s claims against Kulp, the action was not final as to all claims and all parties.
See C.A. No. 17-2055.
In the District Court, McMillian then requested an order certifying the Court’s
summary-judgment order for immediate appeal under Fed. R. Civ. P. 54(b). The District
Court, in a single order, declined to exercise supplemental jurisdiction over McMillian’s
claims against Kulp, dismissed those claims without prejudice, and denied McMillian’s
Rule 54(b) motion as moot. Within 30 days of that order, McMillian filed a notice of
appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. However, the scope of our
jurisdiction is disputed. The defendants argue that because the only order that McMillian
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specifically identified in his notice of appeal is the order denying his Rule 54(b) motion,
we have jurisdiction to review only that order.
We are not persuaded. We construe notices of appeal liberally, particularly when
they are filed by pro se litigants, see Powell v. Symons, 680 F.3d 301, 306 (3d Cir. 2012),
and we can exercise jurisdiction over orders not specified in the notice of appeal where
“(1) there is a connection between the specified and unspecified orders; (2) the intention
to appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced
and has a full opportunity to brief the issues.” Polonski v. Trump Taj Mahal Assocs., 137
F.3d 139, 144 (3d Cir. 1998). These requirements are satisfied here. The two orders are
connected—the very purpose of McMillian’s Rule 54(b) motion was to authorize his
appeal of the summary-judgment order—and, particularly given McMillian’s premature
appeal in C.A. No. 17-2055, there can be little question that he intended to appeal the
earlier order. See Cortez v. Trans Union, LLC, 617 F.3d 688, 695 n.2 (3d Cir. 2010).
Finally, the defendants have had the opportunity to brief the issues raised in the
summary-judgment decision. See generally Powell, 680 F.3d at 306.
Thus, we are satisfied that we possess jurisdiction over the District Court’s order
granting summary judgment to the defendants. We review the grant of summary
judgment de novo, applying the same standard as the District Court. See Blunt v. Lower
Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). Summary judgment is proper if,
viewing the record in the light most favorable to McMillian, there is no genuine issue of
material fact and the defendants are entitled to judgment as a matter of law. See Fakete
v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir. 2002).
4
At the outset, we note that McMillian conceded in his opening brief that the
District Court correctly ruled that his claims against several defendants fail either because
the claims are time-barred or the defendants were not personally involved in the alleged
misconduct. 1 We therefore will not address those matters further. See generally
Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398
(3d Cir. 1994). Moreover, while McMillian at times seems to contend that some alleged
acts of retaliation that occurred more than two years before he filed his complaint can
escape § 1983’s two-year limitations period because they constitute continuing
violations, we disagree. Rather, each alleged act of retaliation gave rise to a discrete
cause of action. See Wisniewski v. Fisher, 857 F.3d 152, 158 (3d Cir. 2017); see
generally Randall v. City of Phila. Law Dep’t, -- F.3d --, No. 18-2303, 2019 WL
1272927, at *2 (3d Cir. Mar. 20, 2019).
Accordingly, we will limit our discussion to McMillian’s retaliation and failure-to-
protect claims arising out of the incident with Kulp as alleged against Carns and Palmer.
Turning first to the retaliation claim, the District Court assumed that McMillian had
engaged in protected activity and that Kulp’s attack qualified as an adverse action (and
1
This covers defendants John Wetzel, Jeffrey Witherite, Brian Coleman, and Security
Captain Weaver. Further, the District Court concluded that defendant Security Captain
Capstick does not exist, see ECF No. 40, and McMillian has not challenged that
conclusion. We also affirm the District Court’s ruling that defendant Stephen Bozas is
entitled to summary judgment. While McMillian stated that he overheard Bozas telling
Carns and Palmer to keep the pressure on him, “there is no evidence to link this statement
to the incident involving Kulp,” ECF No. 112 (D.C. Op.) at 9, and McMillian has
presented no other evidence concerning Bozas.
5
we will do the same for purposes of this appeal), but concluded that McMillian had failed
to present any admissible evidence to support his claim that Carns and Palmer conspired
with Kulp. See generally Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (setting forth
elements of retaliation claim); Great W. Mining & Mineral Co. v. Fox Rothschild LLP,
615 F.3d 159, 178 (3d Cir. 2010) (discussing standards to show an unconstitutional
conspiracy).
The District Court’s ruling depended on its conclusion that Brockington’s
affidavit—in which Brockington stated that he heard Carns say to Kulp, “Tell
Brockington how I took care of you after you [squirted feces on] McMillian,” and that
Kulp then told Brockington that Carns had bribed him to attack McMillian, ECF No. 104-
5 at 3—is inadmissible hearsay that could not be considered for purposes of summary
judgment. The Court erred in this respect. “The rule in this circuit is that hearsay
statements can be considered on a motion for summary judgment if they are capable of
being admissible at trial.” Fraternal Order of Police, Lodge 1 v. City of Camden, 842
F.3d 231, 238 (3d Cir. 2016) (alteration omitted) (quoting Stelwagon Mfg. Co. v. Tarmac
Roofing Sys., 63 F.3d 1267, 1275 n.17 (3d Cir. 1995)). Nothing suggests that
Brockington would be unavailable to testify at trial. See id.; J.F. Feeser, Inc. v. Serv-A-
Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990). Further, Carns and Kulp are both
party-opponents, and their statements are therefore admissible under Fed. R. Evid.
801(d)(2). See generally Albright v. Virtue, 273 F.3d 564, 569 (3d Cir. 2001). 2
2
The defendants argue that while Kulp was once a party-opponent, he no longer is
because the District Court declined to exercise supplemental jurisdiction over the claims
6
The District Court also dismissed McMillian’s affidavits as presenting only his
“own suspicions and suppositions.” ECF No. 112 at 10. However, that understates
McMillian’s evidence: McMillian swore in his affidavit (under penalty of perjury) that he
had overheard a conversation between Palmer and Carns in which they admitted to being
behind the attack. See ECF No. 104-7 at 1; see also Brooks v. Kyler, 204 F.3d 102, 108
n.7 (3d Cir. 2000) (noting that an affidavit is “about the best that can be expected from [a
pro se prisoner] at the summary judgment phase of the proceedings” (quotation marks,
alterations omitted)). Accordingly, we conclude that the District Court erred in
concluding that McMillian had failed to present any admissible evidence to support his
claim that the Carns and Palmer conspired with Kulp, 3 and we will therefore vacate its
grant of judgment to Carns and Palmer on this retaliation claim.
Likewise, the District Court treated McMillian’s Eighth Amendment failure-to-
protect claim to be directed toward only defendants Wetzel, Witherite, Coleman, Weaver,
against him. However, on appeal, we “review the record as it existed at the time
summary judgment was entered.” Union Pac. R. Co. v. Greentree Transp. Trucking Co.,
293 F.3d 120, 125–26 (3d Cir. 2002). At that time, Kulp was a party in the case.
3
The circumstances of the attack could also support McMillian’s claim. In discovery,
Carns and Palmer acknowledged that they had strip searched Kulp just before the attack.
The record contains no explanation of how, despite this search, Kulp came to possess a
seven-inch container. Taking the facts in the light most favorable to McMillian, a jury
could infer that this could be accomplished only with Carns’s and Palmer’s consent. See
generally Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (“On a
motion for summary judgment, a district court must view the facts in the light most
favorable to the non-moving party and must make all reasonable inferences in that party’s
favor.”). This interpretation is also consistent with the comments that McMillian said he
heard Carns and Palmer make while performing the search, in which they conspicuously
denied seeing anything.
7
and Bozas. However, we read McMillian’s complaint also to assert this claim against
Carns and Palmer. See ECF No. 48 at ¶¶ 29-30. Because much of the same evidence
that supports McMillian’s retaliation claim against these defendants may also support a
failure-to-protect claim, see generally Farmer v. Brennan, 511 U.S. 825, 833–34 (1994),
we will also vacate the District Court’s judgment as to this claim against these two
defendants. 4
Thus, we will affirm the District Court’s judgment in part and vacate in part and
remand for further proceedings. More particularly, we will affirm the District Court’s
disposition of all of McMillian’s claims with the exception of his retaliation and failure-
to-protect claims against defendants Carns and Palmer. Because our decision to remand
the matter as to these claims means that not all claims over which the District Court has
original jurisdiction have been dismissed, we will also vacate and remand the District
Court’s order declining to exercise supplemental jurisdiction over McMillian’s claims
against Kulp. See United States ex rel. Silver v. Omnicare, Inc., 903 F.3d 78, 94 (3d Cir.
2018).
4
We express no opinion about the merits of the failure-to-protect claim.
8