NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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Nos. 10-4140 & 10-4241

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JEROME PREVET,

Appellant

v.

MICHAEL C. BARONE, SUPERINTENDENT; MAJOR MR. PAUL A. ENNIS;

UNIT MANAGER MR. GRAHAM; COUNSELOR MR. BLICHA;

PAROLE BD SUPER. MRS. EVERTTE; *SECRETARY PENNSYLVANIA 

DEPARTMENT OF CORRECTIONS;

PAROLE AGENT MRS. BAKER; PAROLE AGENT MRS. LUTZ;

MRS. CYNTHIA L. DAUB, PAROLE BOARD SECRETARY; PAROLE AGENT MR. 

HOUGES

*(Pursuant to Rule 43(c), Fed. R. App. P.)

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 1-09-cv-00160)

Magistrate Judge: Honorable Susan Paradise Baxter

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 20, 2011

Before: BARRY, JORDAN and GARTH, Circuit Judges

(Opinion filed: May 20, 2011)

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OPINION

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2

PER CURIAM

Jerome Prevet, an inmate at SCI-Forest in Pennsylvania, appeals from an order of 

the District Court granting summary judgment to the defendants in this pro se civil rights 

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

Prevet is serving a prison sentence of seventeen to thirty-four years for a 1981 

conviction. His maximum sentence expires on October 21, 2014. He has been 

considered for and denied parole on a number of occasions. His last hearing occurred in 

March 2009. At that time, he had recently completed the prison’s sex-offender treatment 

program, which the Pennsylvania Board of Probation and Parole (“PBPP”) had 

previously listed as a requirement for parole consideration. Citing the negative 

recommendation supplied by the Department of Corrections (“DOC”) and Prevet’s 

minimization of the nature and circumstances of his offense, however, the PBPP again 

denied parole.

In July 2009, Prevet filed a complaint pursuant to 42 U.S.C. § 1983. He named as 

defendants several DOC and PBPP employees and alleged, inter alia

The District Court awarded summary judgment to the defendants, finding that the

parole denial was “reasonably related to legitimate penological interests,” and that the 

, that he was denied 

parole because (1) he had previously filed grievances and lawsuits against prison officials

and (2) he is a member of the Nation of Islam. He claimed that the DOC defendants had 

retaliated against him by refusing to provide the positive parole recommendation, and 

that the PBPP defendants had retaliated against him by denying parole.
3

PBPP would have rendered the same decision notwithstanding any motivation to 

retaliate. See Carter v. McGrady, 292 F.3d 152, 158-59 (3d Cir. 2002). Prevet filed a 

timely appeal, confined to a challenge to the District Court’s ruling on his retaliation 

claims.

1

We have jurisdiction pursuant to 28 U.S.C. § 1291. When reviewing a district 

court’s grant of summary judgment, we exercise plenary review, viewing the facts in the 

light most favorable to the non-moving party. 

 

Dee v. Borough of Dunmore, 549 F.3d 

225, 229 (3d Cir. 2008). Summary judgment should be granted only if there is no 

genuine as to any material fact and the moving party is entitled to judgment as a matter of 

law. Barefoot Architect, Inc. v. Bunge

Prison officials are liable for retaliatory conduct if the conduct was motivated “in 

substantial part by a desire to punish [the] individual for exercise of a constitutional 

right,”

, 632 F.3d 822 (3d Cir. 2011).

Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (quoting Thaddeus-X v. 

Blatter, 175 F.3d 378, 386 (6th Cir. 1999) (en banc)), such as an inmate’s filing of 

lawsuits and grievances related to incarceration, or his religious practice. See Mitchell v. 

Horn, 318 F.3d 523, 530 (3d Cir. 2003); Milhouse v. Carlson

 1 We note that the defendants did not raise, and the District Court did not consider, 

whether Heck v. Humphrey, 512 U.S. 477 (1994), bars Prevet’s challenge to his parole 

denial. See Williams v. Consovoy, 453 F.3d 173, 177 (3d Cir. 2006). Although we 

directed the parties to address this issue, along with whether the defendants had waived 

the defense by failing to raise it, see Kramer v. Vill. of North Fond du Lac, 384 F.3d 856, 

862-63 (7th Cir. 2004), they did not do so. Because we agree with the District Court’s 

decision to deny the claims on the merits, we need not decide whether Heck would bar 

Prevet’s challenge.

, 652 F.2d 371, 373 (3d Cir. 
4

1981). To prevail on a retaliation claim, the prisoner must prove: (1) that the conduct 

leading to the alleged retaliation was constitutionally protected; (2) that he suffered an 

adverse action sufficient to deter a person of ordinary firmness from exercising his 

constitutional rights; and (3) that his protected conduct was a substantial or motivating 

factor in the decision to discipline him. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 

2001). However, “prison 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.

Here, the DOC defendants argue that even assuming that Prevet had established a 

prima facie case for retaliation, they acted pursuant to a legitimate penological interest in 

withholding a favorable parole recommendation, because of Prevet’s “poor adjustment, 

reflected in seven misconducts, multiple group failures and the nature of his offense . . . 

.” Appellees’ Brief at 9. We find these factors are indeed legitimate penological 

concerns, and that the DOC defendants met their burden of showing that they would have 

withheld a parole recommendation absent any retaliatory motive. Similarly, the PBPP 

defendants denied parole based on the DOC’s negative recommendation, and Prevet’s 

“minimization of the nature and circumstances of the offense(s) committed.” We agree 

with the District Court that these are also legitimate penological concerns, and that the

PBPP defendants met their burden of showing that they would have made the same 

decision absent any retaliatory motive. The District Court thus properly granted 

summary motion in favor of the defendants.

at 334.
5

Accordingly, we will affirm the District Court’s judgment.