2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-25-2009

Darrell Debrew v. Doug Auman

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4673

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"Darrell Debrew v. Doug Auman" (2009). 2009 Decisions. Paper 199.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 07-4673

___________

DARRELL JAMES DEBREW,

Appellant

v.

MR. DOUG AUMAN, Unit Manager at FCI Loretto, in his

official and individual capacity and as individual;

COUNSELOR CUSTOR, Counseler at FCI Loretto, in his

official and individual capacity and as individual; LT.

FEDORKA, Lieutenant at FCI Loretto, in his official and

individual capacity and as individual; WARDEN JOHN

YOST, Warden at FCI Loretto, in his official and individual

capacity and as individual

_________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(W.D. Pa. Civil Action No. 07-cv-00179)

District Judge: Honorable Kim R. Gibson

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 5, 2009

Before: SCIRICA, Chief Judge, CHAGARES and WEIS, Circuit Judges

 (Opinion filed: November 25, 2009) 

___________

OPINION

___________
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PER CURIAM.

Plaintiff Darrell DeBrew, a federal prisoner and self-described “prolific

writer of essays,” proceeding pro se, appeals the dismissal of his civil rights complaint. 

We will affirm in part and vacate in part and remand for further proceedings.

According to the complaint, plaintiff, while housed in the Federal

Correctional Institute (FCI) in Loretto, Pennsylvania, received an incident report on May

30, 2006, from Lieutenant Fedorka for unauthorized use of the telephone, running a

business, and “[r]efusing to program.” On June 5, 2006, Unit Manager Doug Auman and

Counselor Custer found plaintiff guilty of running a business and unauthorized use of the

telephone. 

Auman and Custer directed plaintiff to remove his webpage from the

internet and prohibited his use of the mail or telephone in connection with his manuscripts

and books. On June 18, 2006, plaintiff asked his mother to terminate his webpage. 

Debrew was successful in his administrative appeals, and the incident report

was expunged on August 9, 2006.

Plaintiff was ultimately transferred to the FCI in Petersburg, Virginia,

where, on July 16, 2007, he filed this Bivens suit against Lt. Fedorka; Auman; Custer; and

John Yost, the warden at the FCI in Loretto, in their individual and official capacities. 

Plaintiff sought injunctive and declaratory relief, as well as compensatory and punitive

damages. He alleged that defendants violated his First Amendment rights by issuing him
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the incident report, ordering him not to use the mail or telephone, directing him to remove

his webpage, and sanctioning him. 

After screening the case pursuant to 28 U.S.C. § 1915A and before any

pleadings had been filed by defendants, a magistrate judge issued a report and

recommended that the complaint be dismissed. The magistrate judge determined that the

plaintiff’s claims for equitable relief were moot, punitive damages were inappropriate,

and that, among other things, the defendants’ qualified immunity precluded the award of

other damages.

The district judge adopted the report, dismissed the plaintiff’s complaint,

and denied reconsideration. Plaintiff timely appealed. 

Our review of the record convinces us that the District Court properly

determined that the claims for injunctive and declaratory relief became moot when

plaintiff was transferred from the FCI in Loretto to the FCI in Petersburg. See Sutton v.

Rasheed, 323 F.3d 236, 248 (3d Cir. 2003). In addition, no claims could properly be

brought against defendants in their official capacities. See Consejo De Desarrollo

Economico De Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007)

(explaining that a “Bivens action can be maintained against a defendant in his or her

individual capacity only, and not in his or her official capacity” (quoting Daly-Murphy v.

Winston, 837 F.2d 348, 355 (9th Cir. 1987))). 
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We conclude, however, that the case was not made ripe for a ruling on

whether qualified immunity precluded plaintiff from suing defendants as individuals. 

“[T]he qualified-immunity defense shields government agents from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Thomas v.

Independence Twp., 463 F.3d 285, 291 (3d Cir. 2006) (quoting Behrens v. Pelletier, 516

U.S. 299, 305 (1996)). 

It is well established that “[i]ncarceration . . . necessitates that many rights

and privileges, including rights derived from the First Amendment, be eliminated or

curtailed.” Abu-Jamal v. Price, 154 F.3d 128, 132-33 (3d Cir. 1998). In order to

maintain security, prisons may limit an inmate’s speech if it “incite[s] other prisoners” or

involves “escape plans.” Id. at 134; see also Nasir v. Morgan, 350 F.3d 366, 368-76 (3d

Cir. 2003) (finding constitutional a prison’s regulation prohibiting inmates from

corresponding with other inmates and former inmates without written approval of the

prison’s superintendent). 

However, inmates “retain[ ] those First Amendment rights that are not

inconsistent with [their] status as . . . prisoner[s] or with the legitimate penological

objectives of the corrections system.” Abu-Jamal, 154 F.3d at 134 (quoting Pell v.

Procunier, 417 U.S. 817, 822 (1974)); see also id. at 130-36 (barring prison from

enforcing anti-business or profession rule against an inmate author based on the content
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of his writings and because the material did “not affect the allocation of prison resources,

other inmates, or the orderly administration of the prison system any more than . . . the

writing of other inmates”). 

The record before us does not contain sufficient information to determine

whether the plaintiff’s case involves the violation of a clearly established constitutional

right. The complaint alleged that plaintiff is an author, maintained a webpage, was found

to have violated prison rules prohibiting a business, was ordered to remove his webpage,

and was restricted in his use of the mail and telephone regarding his books and

manuscripts. 

The record lacks more detailed allegations of facts about the events that

prompted the defendants’ actions against plaintiff. Sufficient information about the

webpage, books and manuscripts, as well as mail and telephone usage is not available for

a proper First Amendment determination that considers the plaintiff’s status as a prisoner

and the prison’s legitimate penological objectives. 

Because the complaint failed to disclose whether the defendants’ actions

did not violate a clearly established constitutional right, dismissal on qualified immunity

grounds was premature. See Thomas, 463 F.3d at 291 (a dismissal based on qualified

immunity will be upheld “only when the immunity is established on the face of the

complaint” (quoting Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001))). On remand,

the District Court may order plaintiff to provide a more definite statement of his claims so
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that the qualified immunity issue may be resolved expeditiously and without “subjecting

the [i]ndividual [d]efendants who may be immune from suit to needless discovery and the

other burdens of litigation.” Id. at 299-301. 

Similarly, the issue of monetary damages need not be resolved until liability

is determined. 

Accordingly, the claims against defendants for injunctive and declaratory

relief as well as the claims against defendants in their official capacities were properly

dismissed. The judgment in favor of defendants on the remaining claims will be vacated,

and the case remanded for further proceedings. 

____________________