Russell Tinsley v. Giorla, Warden

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-2295
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RUSSELL TINSLEY,
Appellant
v.
GIORLA, WARDEN; BUTLER, MS. DEPUTY WARDEN;
NORTH, C/O; WHEELER; RODNEY BROCKENBROUGH;
CUFFEE, SERGEANT; LEON A. KING, II;
KNIGHT, LIEUTENANT; SPELLMAN, LIEUTENANT
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 05-cv-2777)
District Judge: Honorable Thomas N. O’Neill, Jr.
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 2, 2010
Before: SLOVITER, CHAGARES and WEIS, Circuit Judges
(Opinion filed: March 11, 2010)
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OPINION
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PER CURIAM.
Appellant Russell Tinsley appeals from the order of the United States
District Court for the Eastern District of Pennsylvania granting Defendants’ motion for

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summary judgment. We will affirm.
I.
In June 2005, Tinsley filed a pro se civil rights complaint under 42 U.S.C. §
1983 against several current and former Philadelphia Prison System (“PPS”) officials and
employees alleging that they denied him access to the courts. After the District Court
appointed counsel to represent him, Tinsley filed an amended complaint pursuant to
§ 1983 against Leon King (then-Commissioner of PPS); Louis Giorla (then-Warden of
Curran-Fromhold Correctional Facility (“CFCF”)); CFCF Deputy Warden Osie Butler;
CFCF Correctional Officer Wheeler; CFCF Correctional Officer Lorenzo North; Rodney
Brockenbrough (then-Warden of Philadelphia Industrial Correction Center (“PICC”));
PICC Sergeant Nakia Cuffee; PICC Lieutenant Carol Knight; and PICC Lieutenant
Deurward Spellman.
In the amended complaint, Tinsley alleged that he suffered various
violations of his constitutional rights, beginning in March 2005, while he was in custody
at both CFCF and PICC. Specifically, Tinsley raised the following claims in the amended
complaint: (1) inadequate access to the prison law library in violation of the Fourteenth
Amendment; (2) denial of legal correspondence in violation of the First Amendment; (3)
seizure of legal papers in violation of the Fourth Amendment; (4) retaliation for
exercising his constitutional rights in violation of the First and Fourteenth Amendments;
and (5) cruel and unusual punishment in violation of the Eighth and Fourteenth

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Amendments.
Tinsley primarily argues that he was denied reasonable access to the law
libraries at both facilities, prohibiting him from adequately preparing for his state criminal
case. Specifically, he complained that because he has been representing himself in his
criminal action, he should have been given daily access to the law library, totaling at least
fifteen to twenty hours per week. Although the record indicates that Tinsley signed into
the law library fifty-two times from March 2005 through November 2005, he alleges that
Defendants denied him access on numerous occasions, even after he signed in. However,
at his deposition, Tinsley was unable recall the exact number of times that he was denied
library access despite having signed in.
In November 2005, Tinsley was hired as a law library trainee at PICC. In
that position, he was assigned to the library five days each week for approximately five
hours per day. Although Tinsley claimed that during that time he assisted other inmates
and did not work on his own case, Defendant Spellman testified that he fired Tinsley in
February 2006 because he was not helping other inmates with their cases and he failed to
perform his duties in the library. One week after Tinsley was fired at PICC, he was
transferred back to CFCF.
In March 2006, Tinsley’s law library and legal mailing privileges were
revoked pursuant to an order entered by the Court of Common Pleas of Philadelphia
County. In August 2006, the Court vacated its earlier order and reinstated Tinsley’s law

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Tinsley challenges the District Court’s order only with respect to his access-to-courts1
claim and his retaliation claim. Accordingly, review of all other claims has been waived.
See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (an issue is waived unless a
party raises it in its opening brief).
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library and legal mailing privileges. Tinsley claims that even after his privileges were
reinstated, he was not granted adequate access to the law library at CFCF. Tinsley also
alleged that Defendants engaged in at least six instances of retaliation against him during
his time at CFCF and PICC as a result of his complaining about lack of library access as
well as his filing of grievances against officials who denied him access.
At the close of discovery, Defendants moved for summary judgment on all
of Tinsley’s claims. After reviewing the parties’ arguments, the District Court
determined that no genuine issues of material fact exist with respect to Tinsley’s § 1983
claims, and granted Defendants’ motion for summary judgment. Tinsley filed a timely
appeal of the District Court’s determination.1
II.
We have jurisdiction over the appeal under 28 U.S.C. § 1291 and exercise
plenary review over the District Court’s decision to grant summary judgment. McGreevy
v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Summary judgment is appropriate when the
“pleadings, the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). A court reviewing a summary

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judgment motion must evaluate the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in that party’s favor. Brewer v.
Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995). However, a party opposing
summary judgment “must present more than just ‘bare assertions, conclusory allegations
or suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv.,
409 F.3d 584, 594 (3d Cir. 2005).
III.
Access to Courts Claim
First, the District Court properly concluded that Tinsley was unable to set
forth facts demonstrating that he sustained an actual injury as a result of the alleged denial
of access to the law libraries at CFCF and PICC. As mentioned, Tinsley alleged that
Defendants’ failure to grant him a reasonable amount of time in the law libraries at CFCF
and PICC – according to Tinsley, fifteen to twenty hours per week – violated his right of
access to the courts.
Prisoners have a fundamental right to access the courts. Lewis v. Casey,
518 U.S. 343, 346 (1996). However, a prisoner making an access-to-courts claim is
required to show that the denial of access caused actual injury. Id. at 352-54. Actual
injury occurs when a prisoner demonstrates that a “nonfrivolous” and “arguable” claim
was lost because of the denial of access to the courts. Christopher v. Harbury, 536 U.S.
403, 415 (2002).

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We agree with the District Court that Tinsley failed on summary judgment
to show any “actual injury” resulting from the alleged denial of his right to access the law
libraries at both facilities. Tinsley, in his deposition, could not point to any missed
deadlines that resulted in a “loss or rejection of a legal claim.” See Oliver v. Fauver, 118
F.3d 175, 177 (3d Cir. 1997). In addition, he could not point to any specific deadline
missed or any prejudice that he suffered as a result of prison officials’ alleged actions. In
fact, the record shows that access to the law libraries at CFCF and PICC enabled Tinsley
to initiate two civil actions in the District Court and file numerous motions in his criminal
action in the Court of Common Pleas. Accordingly, the District Court properly granted
summary judgment on this claim.
Retaliation Claim
We also agree with the District Court that there is no genuine issue of
material fact regarding Tinsley’s retaliation claim. As mentioned earlier, Tinsley argued
that Defendants retaliated against him in various ways for filing grievances against them
for denying him access to the law libraries at CFCF and PICC.
To show retaliation, a prisoner must demonstrate that he was engaged in
constitutionally protected conduct, that the prison officials caused him to suffer “adverse
action,” and that his constitutionally protected conduct was a motivating factor in the
officials’ decision to discipline him. Carter v. McGrady, 292 F.3d 152, 158 (3d Cir.
2002) (citing Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)). However, prison

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officials may still prevail by proving that they would have made the same decision even if
the prisoner was not engaging in constitutionally protected conduct. Id. The District
Court appropriately concluded that Tinsley is unable establish a genuine issue of material
fact regarding the third step of the Carter analysis, i.e. causation.
Tinsley alleged that Defendants engaged in a series of retaliatory acts in
response to his filing of grievances against them, including transferring him from CFCF
to PICC, verbally threatening him, firing him from the PICC library, and refusing to hire
him at the CFCF library. However, Tinsley did not set forth evidence suggesting that
these alleged retaliatory acts were somehow motivated by his reporting their refusal to
grant him access to the library.
For example, although Tinsley claims that he was transferred from CFCF to
PICC for having filed grievances against Defendants Wheeler and North and for filing his
lawsuit in the District Court, he fails to identify who actually transferred him, who at
CFCF possessed the authority to transfer him, or that such person was aware of the
grievances filed against Defendants Wheeler and North. Furthermore, there is no
evidence to suggest that the transfer constituted an “adverse action.” Rauser, 241 F.3d at
333.
Likewise, although Tinsley alleges that Defendants Spellman and Knight
fired him from his position at the PICC library based on his history of filing grievances,
both Spellman and Knight testified at their depositions that they were unaware that

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Tinsley filed any grievances against prison officials. Likewise, Tinsley admitted at his
deposition that he could only infer that Knight and Spellman had prior knowledge about
his filing of grievances before they fired him. Accordingly, we agree with the District
Court that Tinsley was unable to set forth evidence that his filing of grievances was the
motivating factor behind Defendants’ alleged actions. Summary judgment was therefore
appropriate. Accordingly, we will affirm the judgment of the District Court. Appellant’s
motion to file a supplemental appendix is denied as the proffered exhibits either duplicate
documents previously included in Appellees’ supplemental appendix or relate to a wholly
different litigation.

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