NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 18-1123 __________

CYRUS R. SANDERS, Appellant

v.

EMANUEL ROSE, Dauphin County Prison Officer; LT. HEWITT; WARDEN DEROSE; DAUPHIN COUNTY PRISON; UNKNOWN OFFICERS; CRIEGHTON, Dauphin County Prison Officer; LT. CARNAZZO; MAJOR STEWART; UNKNOWN JOHN DOE PRISON GUARDS; UNKNOWN INTAKE COUNSELORS; CONNIE OROSZ; UNKNOWN MAILROOM AND LAW LIBRARY STAFF; FRANK J. LAVERY; WILLIAM TULLY; DAUPHIN COUNTY PRISON BOARD; JEFFREY HASTE; DAUPHIN COUNTY COMMISSIONERS; C.O. JOANN CRYDER; ROBERT THRONE; JILL CUFFARO ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 10-cv-01241) District Judge: Honorable Yvette Kane ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) March 15, 2019

Before: GREENAWAY, JR, RESTREPO and FUENTES, Circuit Judges

(Opinion filed: April 3, 2020) ___________

OPINION * ___________

PER CURIAM

Cyrus R. Sanders appeals from the District Court order that granted the

Defendants’ summary judgment motion in his civil rights action. For the reasons that

follow, we will vacate the District Court’s order granting summary judgment, as well as

its prior order granting Defendants’ motion to clarify claims remaining in the action, and

we will remand for further proceedings.

I.

Sanders filed his initial complaint in 2009 when he was a pretrial detainee at

Dauphin County Prison. 1 In October 2012, the District Court dismissed all counts of

Sanders’ second amended complaint, except Count I (an access-to-courts claim),

determining that Sanders had violated Rule 20 of the Federal Rules of Civil Procedure,

by attempting to include unrelated counts in his complaint. See Dkt. #63. The Court

later dismissed Count I for failure to state a claim upon which relief could be granted.

See Dkt. #90. On appeal, we affirmed the District Court’s dismissal of Count I but

determined that there was no Rule 20 violation because all of the counts of the second

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 As we write for the parties, who are familiar with the facts and the procedural posture of this case, we address the facts and procedure only briefly. 2 amended complaint were related. Sanders v. Rose,

(3d Cir.

2014) (per curiam, not precedential). We affirmed in part, vacated in part, and remanded

for consideration of claims in Sanders’ second amended complaint other than Count I.

.

After remand, the Defendants filed a motion to dismiss. The District Court

granted the motion in part and denied it in part. The order specifically stated, among

other things, that “Defendants’ motion to dismiss is hereby DENIED as to Plaintiff’s

retaliation claim,” and “DENIED as to Plaintiff's claims of substantive and procedural

due process violations resulting from the November 2, 2009 misconduct hearing.” Dkt.

#134. The order also allowed Sanders’ excessive force and failure to intervene claims to

go forward against certain defendants. The Defendants then filed a motion for

clarification regarding the order, expressing confusion about whether the excessive force

and due process claims remained against certain defendants who had already been

dismissed or who had not been served. Dkt. #135. The District Court issued an order

and memorandum; the order stated, in full:

In accordance with the accompanying memorandum, IT IS HEREBY ORDERED THAT: 1. Defendants’ motion to clarify (Doc. No. 135) is GRANTED as set forth below. 2. The only claims that remain in this action are (1) the excessive force and failure to intervene claims leveled against Defendants Rose, Cryder, Throne and the Unknown Officers, and (2) the procedural and substantive due process claims leveled against Defendants Hewitt and Cufarro. All other claims are DISMISSED and all other Defendants terminated from this action.

3 Dkt. #140. Notably, despite saying in the order granting the motion to dismiss in part

(docketed at #134) that the retaliation claim was to continue, the order granting the

motion for clarification (docketed at #140) does not mention a retaliation claim, nor does

the accompanying memorandum opinion.

After unsuccessful settlement discussions (Sanders was appointed counsel for the

limited purpose of those discussions), the parties engaged in discovery and Defendants

filed a summary judgment motion. Sanders responded, but he did not file a statement of

facts under Local Rule 56.1. In a memorandum dated September 26, 2017, the District

Court “accordingly deem[ed] the facts set forth by Defendants to be undisputed. See

Local Rule 56.1; Fed. R. Civ. P. 56(e)(2).” Memorandum Opinion, Dkt. #164, p. 5 n.1.

The District Court granted summary judgment as to the excessive force, failure to

intervene, and due process claims and directed the Clerk of Court to enter judgment in

favor of Defendants Emanuel Rose, Joann Cryder, Throne, Lt. Hewitt, Jill Cuffaro, and

the Unknown Officer. Dkt. #165, 166.

Sanders appealed. After the parties filed their initial briefs, we directed the parties

to file supplemental briefs, addressing whether the retaliation claim remained

unadjudicated, and if the retaliation claim was dismissed or otherwise adjudicated

without an explanation from the District Court, whether we should remand the action to

the District Court. See Order entered April 9, 2019. We also directed the parties to

address whether the District Court properly applied Local Rule 56.1 to deem the

Defendants’ facts as undisputed.

4 II.

We first examine our jurisdiction. The pivotal question regarding appellate

jurisdiction is whether the District Court adjudicated all of Sanders’ claims. “Generally,

an order which terminates fewer than all claims pending in an action or claims against

fewer than all the parties to an action does not constitute a ‘final’ order for purposes of

.” Elliott v. Archdiocese of New York,

(3d Cir. 2012).

Although the District Court did not discuss the retaliation claim in its order entered May

17, 2016, in that order the court dismissed “all other claims” aside from certain specified

claims; the retaliation claim was not one of the claims the district court listed as

remaining in the action. In its order entered September 26, 2017, the court granted

summary judgment as to those claims that it had described as remaining in the action.

We therefore conclude that these two orders adjudicated all claims in the action.

The second jurisdictional issue is whether Sanders’ appeal was timely filed—his

notice of appeal was filed well outside of the 30 days prescribed by Rule 4(a)(1)(A) of

the Federal Rules of Appellate Procedure. 2 However, the District Court construed a

document that Sanders filed as a motion to reopen the time to appeal under Rule 4(a)(6)

of the Federal Rules of Appellate Procedure, granted his motion, and deemed his notice

of appeal to be timely filed. As Sanders satisfied the requirements of Rule 4(a)(6), we

2 Sanders did not receive the District Court’s order granting summary judgment, as the Court mistakenly sent it to the attorney who had been appointed only for settlement discussions.

5 conclude that the District Court did not abuse its discretion in granting Sanders’ motion

to reopen the time to appeal. See Baker v. United States,

(3d Cir.

2012) (explaining requirements for reopening); United States v. Rinaldi,

(3d Cir. 2006) (stating that standard of review is abuse of discretion).3

As the District Court adjudicated all of Sanders’ claims and Sanders’ appeal was

timely filed, we have appellate jurisdiction.

III.

Appellees argue, in a rather circular manner, that there could be no viable

retaliation claim because all of Sanders’ other constitutional claims were resolved by the

District Court. See, e.g., Appellees’ Supplemental Brief at 17 (“If the court considers the

proper granting of Summary Judgment on [the other] claims, it is logical that the

retaliation claims were clearly adjudicated or meant to be adjudicated without mention

and thus included in the court’s Opinion and Order ultimately granting Summary

Judgment in favor of the Defendants/Appellees.”). However, Appellees fail to recognize

that government actions, “which standing alone do not violate the Constitution, may

nonetheless be constitutional torts if motivated in substantial part by a desire to punish an

individual for exercise of a constitutional right.” Allah v. Seiverling,

, 224–

3 Sanders filed in our Court a “Motion to Compel Arbitration Counsel Ganley’s Declaration,” asking us to compel the attorney to verify facts involved in the timeliness calculation. As the District Court properly granted Sanders’ Rule 4(a)(6) motion, the motion to compel is denied as moot. We also deny Appellees’ “Motion to Strike Plaintiff’s Untimely Notice of Appeal.”

6 25 (3d Cir. 2000) (internal quotation marks omitted). Appellees do not argue

persuasively how the District Court’s adjudication of the other claims renders the

retaliation claim moot or necessarily lacking in arguable merit.4

To state a retaliation claim, Sanders was required to show: “(1) constitutionally

protected conduct, (2) an adverse action by prison officials ‘sufficient to deter a person of

ordinary firmness from exercising his [constitutional] rights,’ and (3) ‘a causal link

between the exercise of his constitutional rights and the adverse action taken against

him.’” Mitchell v. Horn,

(3d Cir. 2003) (quoting Rauser v. Horn,

(3d Cir. 2001)). The burden then shifts to the prison officials to prove

“that they would have made the same decision absent the protected conduct for reasons

reasonably related to a legitimate penological interest.” Rauser,

. Here,

crediting Sanders’ allegations, 5 Sanders likely established constitutionally protected

4 Appellees also claim that Sanders has waived consideration of the retaliation claim by failing to raise it in his appellate brief. But Sanders argued in his brief that the District Court erred in granting summary judgment as to his “free speech” claim and argued that “a bogus misconduct was issued to rationalize the use of excessive force and a brutal beating upon the Appellant as a pretrial detainee who exercised his right of free speech.” Appellant’s Brief at 3. Liberally construing his pro-se brief, as we must, see Haines v. Kerner,

(1972), we conclude that he did not waive the issue. 5 See Montone v. City of Jersey City,

(3d Cir. 2013) (“[I]n considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party’s evidence is to be believed[,] and all justifiable inferences are to be drawn in his favor.” (internal quotations omitted)).

7 conduct, 6 the alleged beating would deter a person of ordinary firmness from exercising

his First Amendment rights, and the allegation that the guards were singing the “Mickey

Mouse” song establishes a nexus.

In the context of summary judgment, Rule 56(a) of the Federal Rules of Civil

Procedure indicates that a court “should state on the record the reasons for granting or

denying” a motion for summary judgment. And before Rule 56 was amended to include

that requirement, we determined that having a district court’s explanation for a summary

judgment grant was so important that we exercised our “supervisory power to require the

district courts in this circuit to accompany grants of summary judgment hereafter with an

explanation sufficient to permit the parties and this court to understand the legal premise

for the court’s order.” Vadino v. A. Valey Engineers,

(3d Cir. 1990).7

6 Inmates retain the “protections afforded by the First Amendment,” O’Lone v. Estate of Shabazz,

(1987), but they “retain[] [only] those First Amendment rights that are not inconsistent with [their] status as [] prisoner[s] or with the legitimate penological objectives of the corrections system,” Pell v. Procunier,

(1974). Because the District Court did not adjudicate the retaliation claim, it did not discuss whether Sanders, a pretrial detainee, had a First Amendment right to express his displeasure with the prison’s system for access to legal materials. 7 We noted that “[t]here are, of course, cases where the reason for summary judgment is apparent on the record because, for example, only one ground was given for the motion.” Id. at 258. But here, the District Court explicitly rejected the only reasons the Defendants gave for dismissal of the retaliation claim, see Memorandum, Dkt. #133 at 13 (“without further development of the record the court cannot say there is no viable First Amendment claim”), and the Defendants’ memorandum in support of their motion for summary judgment does not expressly address the retaliation claim. Although the Defendants argue in their brief in support of their motion for summary judgment that “all remaining Defendants” are “entitled to qualified immunity such that Plaintiff’s remaining claims must be dismissed,” Brief, Dkt. #159 at 2, both the Defendants and the District 8 Given the District Court’s failure to mention the retaliation claim in orders subsequent to

the order denying Defendants’ motion to dismiss as to the retaliation claim, we cannot

discern the District Court’s reasons for dismissing or granting summary judgment as to

the retaliation claim.

IV.

The parties were also directed to address whether the District Court properly

applied Local Rule 56.1 to deem the Defendants’ facts as undisputed. See Weitzner v.

Sanofi Pasteur Inc.,

(3d Cir. 2018) (determining that a district court’s

application and interpretation of its own local rules should be reviewed for abuse of

discretion, but reiterating that the court still was required to do a “full analysis” to

determine whether summary judgment was appropriate); Paladino v. Newsome,

(3d Cir. 2018) (holding that “sworn deposition testimony--which the District

court did not consider” in a pro se case established a genuine issue of material fact).

We need not address any procedural issues that arose in connection with the

disposition of Defendants’ motion for summary judgment. Because the facts underlying

Sanders’ retaliation claim are interrelated with the facts underlying the claims that the

District Court considered on summary judgment (excessive force and failure-to-intervene

claims against Defendants Rose, Cryder, Throne, and Unknown Officers, and the

procedural and substantive due process claims against Defendants Hewitt and Cuffaro),

Court discuss qualified immunity as to the excessive force claim and not with regard to the retaliation claim, see Id. at 508; Memorandum, Dkt. #164, at 17-19. 9 we will vacate the order granting summary judgment in its entirety. On remand, the

District Court shall direct the Defendants to file a motion for summary judgment that

addresses all of the claims that survived Defendants’ motion to dismiss, which we have

determined includes Sanders’ retaliation claim, unless they wish to proceed to trial as to

any claim.

V.

For the foregoing reasons, we will vacate the District Court’s orders entered on

May 17, 2016, and September 26, 2017, and will remand this matter for further

proceedings consistent with this opinion.

10