292 F.3d 152 | 3rd Cir. | 2002
Before: BECKER, Chief Judge, McKEE and BARRY,(cid:13) Circuit Judges.(cid:13) (Filed: May 29, 2002)(cid:13) JOSEPH A. SULLIVAN, ESQUIRE(cid:13) EDWARD W. FERRUGGIA, ESQUIRE(cid:13) KIMBERLY M. KAPLAN, ESQUIRE(cid:13) (ARGUED)(cid:13) LISA M. SCIDURLO, ESQUIRE(cid:13) ADAM C. BONIN, ESQUIRE(cid:13) Schnader, Harrison, Segal & Lewis,(cid:13) LLP(cid:13) 1600 Market Street, Suite 3600(cid:13) Philadelphia, PA 19103(cid:13) Counsel for Appellant(cid:13) D. MICHAEL FISHER, ESQUIRE(cid:13) Attorney General(cid:13) BETH ANNE SMITH, ESQUIRE(cid:13) (ARGUED)(cid:13) Senior Deputy Attorney General(cid:13) JOHN G. KNORR, III, ESQUIRE(cid:13) Chief Deputy Attorney General(cid:13) Chief, Appellate Section(cid:13) Office of Attorney General(cid:13) 21 S. 12th Street, 3rd Floor(cid:13) Philadelphia, PA 19107-3606(cid:13) Counsel for Appellees James(cid:13) McGrady, Martin L. Dragovich(cid:13) Edward J. Klem and Mary Canino(cid:13) OPINION OF THE COURT(cid:13) BECKER, Chief Judge.(cid:13) This is a prisoner’s civil rights case, 42 U.S.C.S 1983,(cid:13) brought by Richard Carter, an inmate in the custody of the(cid:13) 2(cid:13) Pennsylvania Department of Corrections ("DOC"). Carter, an(cid:13) experienced and assiduous jailhouse lawyer, claims that he(cid:13) was unlawfully subjected to cell searches and disciplinary(cid:13) proceedings in retaliation for his jailhouse lawyering, which(cid:13) he contends was disfavored at the State Correctional(cid:13) Institute at Mahanoy ("SCI-Mahanoy") where he was(cid:13) incarcerated at all times relevant to this lawsuit. This(cid:13) appeal is from the order of the District Court granting(cid:13) summary judgment for the defendants, James McGrady,(cid:13) Martin Dragovich, and Edward Klem, all officials at SCI-(cid:13) Mahanoy, based on the conclusion that Carter did not have(cid:13) a constitutionally protected right to act as a jailhouse(cid:13) lawyer and, thus, the defendants were entitled to qualified(cid:13) immunity.(cid:13) When this case was before the District Court, the(cid:13) Supreme Court had yet to decide Shaw v. Murphy , 532 U.S.(cid:13) 223 (2001), which held that prisoners do not have a(cid:13) freestanding constitutional right to assist other inmates in(cid:13) filing legal claims. Shaw had asserted such a right, and the(cid:13) Supreme Court has therefore foreclosed one facet of(cid:13) Carter’s claim. This development has required Carter, who(cid:13) describes himself in the case caption as "SCI-Mahanoy(cid:13) Para-Legal Assistant/On Behalf of himself and prison(cid:13) population," to shift gears and to stress two other(cid:13) arguments. First, Carter claims that he was retaliated(cid:13) against for exercising his First Amendment rights. Second,(cid:13) invoking Turner v. Safley, 482 U.S. 78 (1987), he claims(cid:13) that there are no reasons related to penological interests(cid:13) that would otherwise justify the conduct of the prison(cid:13) officials.(cid:13) Carter’s claim of retaliation for exercising a constitutional(cid:13) right is governed by Rauser v. Horn, 241 F.3d 330 (3d Cir.(cid:13) 2001). Under Rauser, prison officials may prevail when the(cid:13) plaintiff has made out a prima facie case of retaliation if(cid:13) they prove that "they would have made the same decision(cid:13) absent the protected conduct for reasons reasonably related(cid:13) to legitimate penological interests." Id. at 334. The record(cid:13) reveals that Carter was clearly guilty of egregious violations(cid:13) of prison policy -- stealing a typewriter and unauthorized(cid:13) use of the mails (and other violations as well). We conclude,(cid:13) assuming arguendo that Carter has correctly described the(cid:13) 3(cid:13) attitude at SCI-Mahanoy about jailhouse lawyering and that(cid:13) he has made out a prima facie case of retaliation, that there(cid:13) is no genuine issue of material fact that the prison officials(cid:13) would have disciplined Carter for these violations(cid:13) notwithstanding his jailhouse lawyering. Accordingly, we(cid:13) will affirm, albeit on different grounds than those relied on(cid:13) by the District Court. See Narin v. Lower Merion Sch. Dist.,(cid:13) 206 F.3d 323, 333 n.8 (3d Cir. 2000). We therefore need(cid:13) not reach the interesting issues raised by Carter’s theory(cid:13) that he has a protected First Amendment right to provide(cid:13) legal advice, and that any action taken against him for(cid:13) exercising such a right must be evaluated under Turner.(cid:13) I. Facts and Procedural History(cid:13) On February 25, 1994, Carter executed and transmitted(cid:13) an "outside purchase approval form" for an electric(cid:13) typewriter from a "family member or friend." In due course,(cid:13) a Smith-Corona typewriter arrived at SCI-Mahanoy from(cid:13) Suburban Office Equipment, a vendor located in Ardmore,(cid:13) Pennsylvania. On March 24, 1994, Carter signed an inmate(cid:13) personal property receipt and accepted delivery of the(cid:13) typewriter. A mailroom inspector, Liz Ryan, later informed(cid:13) James McGrady, SCI-Mahanoy’s Security Captain, that the(cid:13) vendor had sent a demand letter stating that: (1) no(cid:13) payment had been made for the typewriter; and (2) Carter(cid:13) had obtained the typewriter through the unauthorized use(cid:13) of a credit card.(cid:13) McGrady investigated the matter by contacting Wallace(cid:13) McLean, who worked for the vendor. McLean informed(cid:13) McGrady that the typewriter had been ordered over the(cid:13) phone using a credit card and that the customer identified(cid:13) the name on the card as Richard Carter. The actual owner(cid:13) of the card, who lived in California, subsequently verified(cid:13) that Carter was not authorized to use that card. McLean(cid:13) faxed certain documents to McGrady, including the sales(cid:13) receipt that indicated that the typewriter was sold to Carter(cid:13) and paid for with a Visa card; the "Retrieval Request(cid:13) Fulfillment Transmittal" containing a copy of a credit card(cid:13) sales slip reflecting that the sale of the typewriter was made(cid:13) by a credit card bearing the name "Richard Carter"; and an(cid:13) inquiry from McLean representing that a typewriter was(cid:13) 4(cid:13) shipped from the vendor to Richard Carter and signed for(cid:13) by an SCI-Mahanoy mailroom employee.(cid:13) On October 19, 1994, thirteen days after the vendor had(cid:13) contacted SCI-Mahanoy about the typewriter, McGrady(cid:13) twice ordered Carter’s cell to be searched. In the course of(cid:13) the first search, a corrections officer, M.E. Steinhauer,(cid:13) seized the typewriter. Immediately after the search, Carter(cid:13) was taken to the security office. McGrady testified that(cid:13) Carter told him that an inmate at SCI-Graterford, where(cid:13) Carter was formerly an inmate, had purchased the(cid:13) typewriter for him in return for legal services rendered, but(cid:13) that he had no idea how that inmate purchased the(cid:13) typewriter. Carter denies telling McGrady this, but does(cid:13) admit that he gave McGrady an unsigned affidavit that he(cid:13) prepared, purportedly on behalf of the other inmate,(cid:13) making a statement to this effect.(cid:13) Carter submits that McGrady then threatened him with(cid:13) discipline should he assist other inmates with legal(cid:13) matters, stating that, "You don’t work in the law library(cid:13) here . . . SCI-Mahanoy does not allow inmates to help other(cid:13) inmates with their legal matters." When Carter told(cid:13) McGrady about how he had been helping other inmates for(cid:13) many years, Carter alleges that McGrady responded by(cid:13) saying "I don’t care where you were before. We don’t allow(cid:13) prisoners to help other inmates." Carter also represents(cid:13) that McGrady said, "if I even hear about you helping other(cid:13) inmates, I will write you up and put you in RHU[Restrictive(cid:13) Housing Unit]."(cid:13) McGrady subsequently ordered a second search for(cid:13) documentation of the purchase of the typewriter or any(cid:13) other evidence of the unauthorized use of the credit card. In(cid:13) the course of this search, Steinhauer confiscated Carter’s(cid:13) personal papers, including all of Carter’s legal materials. In(cid:13) the papers seized from Carter’s cell, Steinhauer found an(cid:13) envelope from the vendor containing two receipts for the(cid:13) typewriter that were identical to the sales receipt and credit(cid:13) card sales slip that the vendor had faxed to McGrady.(cid:13) Carter testified that, on October 23, 1994, he filed a written(cid:13) request to have his documents returned. The request was(cid:13) denied.(cid:13) 5(cid:13) On October 27, 1994, McGrady called Carter to his office(cid:13) to witness the return of legal documents belonging to ten(cid:13) different inmates. Carter testified that, in his presence,(cid:13) each of the inmates that he was assisting was ordered not(cid:13) to allow Carter to review their legal materials and told that(cid:13) anyone who did would be sent to the RHU. This was despite(cid:13) protests that they had no other means of legal assistance.(cid:13) During this meeting, McGrady asked Carter what he was(cid:13) doing with these papers. Carter responded that he was not(cid:13) assigned to the law library as a legal aide but that he was(cid:13) being paid for helping people. McGrady then told Carter(cid:13) that he could not conduct a business while in prison.(cid:13) Carter responded that he was a court-appointed paralegal(cid:13) and was being paid by the Federal Courts to assist other(cid:13) inmates. Carter produced two documents as evidence of his(cid:13) status as a court-appointed paralegal, but McGrady could(cid:13) not determine from the documents whether Carter was(cid:13) telling the truth.(cid:13) McGrady thereafter wrote a misconduct report charging(cid:13) Carter with receiving stolen property. At the disciplinary(cid:13) hearing on the charge, Carter was found guilty and(cid:13) sentenced to sixty days disciplinary custody in the RHU.(cid:13) After serving this sanction, he was returned to the general(cid:13) population at SCI-Mahanoy. Carter was also charged by the(cid:13) Schuylkill County District Attorney’s Office with(cid:13) unauthorized use of a credit card, theft by deception,(cid:13) receiving stolen property, and conspiracy. He was convicted(cid:13) of the charge of receiving stolen property and given a(cid:13) sentence of two and one-half to five years consecutive to the(cid:13) sentence he is currently serving.(cid:13) Carter testified that over the course of the next two years(cid:13) he was routinely harassed and searched when entering and(cid:13) leaving the prison library, far more frequently than other(cid:13) inmates. He alleges that these were efforts to search his(cid:13) files to determine which inmates he was assisting with legal(cid:13) matters. On June 5, 1996, his cell was again searched and(cid:13) his legal and personal papers were seized.(cid:13) In August 1997, an inmate informed Vincent Mooney, the(cid:13) Security Lieutenant at SCI-Mahanoy, that another inmate -(cid:13) Dana Carter (who happened to be the plaintiff’s cell-mate)(cid:13) - was holding the inmate’s legal papers until he paid Dana(cid:13) 6(cid:13) Carter money for his legal work. As a result, Mooney(cid:13) ordered a search of Dana Carter’s cell. During that search,(cid:13) Corrections Officer Toth discovered an excessive amount of(cid:13) property in the cell, belonging to both Dana and Richard(cid:13) Carter, as well as other inmates, which was deemed to(cid:13) constitute a fire and safety hazard. Mooney ordered the(cid:13) search team to confiscate the property and take it to the(cid:13) security area. Mooney subsequently called Carter (the(cid:13) plaintiff - not his cellmate, Dana) to the security office(cid:13) where he advised him that he was limited to two file boxes(cid:13) of property in his cell. Carter was then allowed to select the(cid:13) paperwork that he wanted to keep, and was told that his(cid:13) remaining paperwork would be stored in the property room,(cid:13) but that paper belonging to other inmates would be(cid:13) returned to those inmates.(cid:13) Later in August 1997, staff at SCI-Greene, another(cid:13) Pennsylvania prison, advised McGrady that Carter had(cid:13) circumvented mail policies by corresponding with an(cid:13) inmate at SCI-Greene, Donny Unger. Carter concedes that(cid:13) he wrote a note to Unger without seeking authorization for(cid:13) that correspondence. Inmates in DOC custody are(cid:13) prohibited from corresponding with inmates in other state(cid:13) correctional institutions. On the basis of this information,(cid:13) a routine misconduct search of Carter’s cell was conducted(cid:13) in late August. During that search, prison officials(cid:13) confiscated a copy of a newsletter drafted by Carter, "The(cid:13) Last Line of Defense," which advocated prisoner litigation(cid:13) and argued that prison paralegals like himself stood as the(cid:13) "last line of defense." Carter had not requested or obtained(cid:13) approval by the SCI-Mahanoy administration for this(cid:13) newsletter. On August 29, 1997, Carter was charged with(cid:13) misconduct for unauthorized use of the mail. He was found(cid:13) guilty and sentenced to RHU for thirty days.(cid:13) Carter served thirty days in RHU for the unauthorized(cid:13) use of the mails. He was not thereafter returned to SCI-(cid:13) Mahanoy, but was placed instead in administrative custody(cid:13) pending transfer. He was ultimately transferred to SCI-(cid:13) Dallas, where he remains incarcerated. The transfer was(cid:13) initiated by McGrady, who petitioned the DOC to transfer(cid:13) Carter to another state correctional institution. This(cid:13) transfer decision was based on security concerns,(cid:13) 7(cid:13) specifically, Carter’s attempts to establish at SCI-Mahanoy(cid:13) various unauthorized groups, including the Ma’at Karast(cid:13) Temple, a religious group that Carter wanted the prison to(cid:13) recognize as an official religion. McGrady also believed that(cid:13) Carter was affiliated with groups that advocate violence.(cid:13) Carter, in contrast, urges that the transfer was done in(cid:13) order to punish him for assisting other inmates, and to(cid:13) prevent him from continuing to help them in the future. He(cid:13) also contends that defendants filed negative parole(cid:13) recommendations against him in May 1995 and February(cid:13) 1996 despite the fact that he has been a nonviolent and(cid:13) generally exemplary inmate, and that this was done in(cid:13) retaliation for his jailhouse lawyering.(cid:13) Carter filed two separate pro se complaints alleging(cid:13) violations of 42 U.S.C. S 1983. The protracted history of this(cid:13) litigation, not relevant to the outcome, is described in the(cid:13) margin.1 An amended complaint was filed on February 12,(cid:13) 1999, alleging claims under 42 U.S.C. S 1983, based on(cid:13) both access to courts and retaliation for exercise of his First(cid:13) Amendment rights. Carter also pled a conspiracy count(cid:13) under 42 U.S.C. S 1985. Defendants moved to dismiss the(cid:13) _________________________________________________________________(cid:13) 1. In September 1996, Carter filed this S 1983 action against SCI-(cid:13) Mahanoy, Dragovich, and Klem. (C.A. No. 96-6496). He challenged the(cid:13) adequacy of the law library and legal reference aides policy, as well as(cid:13) the legality of the prison restrictions on his ability to practice as a(cid:13) "jailhouse lawyer." Carter alleged that the defendants had violated his(cid:13) right of access to the courts, and that certain actions were taken against(cid:13) him in retaliation for the exercise of his First Amendment rights.(cid:13) Defendants moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the(cid:13) complaint. They maintained that: 1) an inmate had no constitutional(cid:13) right to act as a jailhouse lawyer; 2) Carter’s access-to-courts claim(cid:13) failed since he had not suffered any actual injury as a result of their(cid:13) conduct; and 3) Carter’s retaliation claim failed since he had no(cid:13) constitutional right to be a jailhouse lawyer, and had failed to allege(cid:13) facts which showed that the defendants had taken any retaliatory action(cid:13) against him, or knew of or acquiesced in any such retaliation. The(cid:13) District Court denied the motion, concluding that Carter was not(cid:13) asserting an access-to-courts claim. The District Court also granted(cid:13) Carter’s motion to consolidate this case with another case he had(cid:13) previously filed, C.A. No. 94-7163, which has a long procedural history.(cid:13) Carter subsequently filed an amended complaint, which subsumes the(cid:13) two consolidated cases and lays the foundation for this appeal.(cid:13) 8(cid:13) amended complaint pursuant to Fed. R. Civ. P. 12(b)(6).(cid:13) The Court dismissed Carter’s claims against the(cid:13) Commonwealth of Pennsylvania, the DOC, and SCI-(cid:13) Mahanoy on grounds of Eleventh Amendment immunity.(cid:13) Carter’s access-to-courts claim was dismissed because he(cid:13) failed to allege an "actual injury" within the meaning of(cid:13) Lewis v. Casey, 518 U.S. 343 (1996). The S 1985 claim was(cid:13) dismissed because "jailhouse lawyers" are not protected(cid:13) under that statute. Thus, all that was left was Carter’s(cid:13) retaliation claim against McGrady, Dragovich, and Klem.(cid:13) Defendants subsequently moved for summary judgment,(cid:13) arguing inter alia that Carter’s retaliation claim failed as a(cid:13) matter of law and that they were entitled to qualified(cid:13) immunity. The District Court concluded that the(cid:13) defendants were entitled to qualified immunity because(cid:13) Carter did not have a constitutional right to act as a(cid:13) jailhouse lawyer and granted their motion for summary(cid:13) judgment, from which Carter now appeals. The District(cid:13) Court had jurisdiction pursuant to 28 U.S.C. S 1331. We(cid:13) have appellate jurisdiction pursuant to 28 U.S.C.S 1291.(cid:13) We exercise plenary review over a district court’s grant of(cid:13) summary judgment. See Pi Lambda Phi Fraternity, Inc. v.(cid:13) Univ. of Pittsburgh, 229 F.3d 435, 441 n.3 (3d Cir. 2000).(cid:13) We set forth the familiar standards governing review of(cid:13) summary judgment motions in the margin.2 (cid:13) II. Discussion(cid:13) A prisoner alleging that prison officials have retaliated(cid:13) against him for exercising his constitutional rights must(cid:13) prove that: 1) the conduct in which he was engaged was(cid:13) constitutionally protected; 2) he suffered "adverse action" at(cid:13) the hands of prison officials; and 3) his constitutionally(cid:13) _________________________________________________________________(cid:13) 2. Summary judgment is proper if there is no genuine issue of material(cid:13) fact and if, viewing the facts in the light most favorable to the non-(cid:13) moving party, the moving party is entitled to judgment as a matter of(cid:13) law. See Fed. R. Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317(cid:13) (1986). The judge’s function at the summary judgment stage is not to(cid:13) weigh the evidence and determine the truth of the matter, but to(cid:13) determine whether there is a genuine issue for trial. See Anderson v.(cid:13) Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).(cid:13) 9(cid:13) protected conduct was a substantial or motivating factor in(cid:13) the decision to discipline him. Rauser v. Horn , 241 F.3d(cid:13) 330, 333 (3d Cir. 2001) (adopting Mount Healthy Bd. of(cid:13) Educ. v. Doyle, 429 U.S. 274, 287 (1977)). Once a prisoner(cid:13) has made his prima facie case, the burden shifts to the(cid:13) defendant to prove by a preponderance of the evidence that(cid:13) it "would have made the same decision absent the protected(cid:13) conduct for reasons reasonably related to penological(cid:13) interest." Id. at 334 (incorporating Turner v. Safley, 482(cid:13) U.S. 78, 89 (1987)).(cid:13) The Supreme Court has made clear that decisions of(cid:13) prison administrators are entitled to great deference. In(cid:13) crafting the appropriate standard of review for prisoners’(cid:13) constitutional claims, the Court observed that "[r]unning a(cid:13) prison is an inordinately difficult undertaking." Turner, 482(cid:13) U.S. at 85. Moreover, the Court noted that " ‘courts are ill(cid:13) equipped to deal with the increasingly urgent problems of(cid:13) prison administration and reform.’ " Id. (quoting Procunier v.(cid:13) Martinez, 41 U.S. 396, 405 (1974)). Thus, "[p]rison(cid:13) administrators should be accorded wide-ranging deference(cid:13) in the adoption and execution of policies and practices that(cid:13) in their judgment are needed to preserve internal order and(cid:13) discipline and to maintain institutional security." Bell v.(cid:13) Wolfish, 441 U.S. 520, 547 (1979).(cid:13) In this case, Carter was never charged with misconduct(cid:13) for helping other inmates with legal matters or having their(cid:13) legal materials in his cell. Rather, he was charged with(cid:13) misconduct for undisputed violations of prison policy. The(cid:13) search and seizure of items from his cell were related to(cid:13) these various violations. Carter was discovered with a(cid:13) stolen typewriter in his cell. The cell search uncovered an(cid:13) envelope containing two receipts for the typewriter,(cid:13) identical to the sales receipt and credit card sales slip faxed(cid:13) by the vendor. As a result, Carter was disciplined with sixty(cid:13) days in the RHU.(cid:13) Moreover, it is not disputed that Carter corresponded(cid:13) with Unger in violation of prison policy. Carter conceded(cid:13) that he wrote a note to Unger without seeking authorization(cid:13) for that correspondence. His cell was searched in(cid:13) connection with this allegation; he was written up and(cid:13) subsequently disciplined with thirty days for this conduct.(cid:13) 10(cid:13) Additionally, there is no dispute that the amount of(cid:13) property kept by Richard Carter and Dana Carter in their(cid:13) cell exceeded the amount allowed by fire and safety(cid:13) regulations. The materials were seized for this reason, and(cid:13) Carter was allowed to select up to two boxes of his personal(cid:13) material to keep in his cell. Finally, in the course of(cid:13) searching Carter’s cell in connection with the unauthorized(cid:13) use of the mails, prison officials found the newsletter, "The(cid:13) Last Line of Defense," a publication of which Carter was the(cid:13) editor and for which he had not requested or obtained(cid:13) approval by the SCI-Mahanoy administration. The foregoing(cid:13) represents a sizeable quantum of misconduct evidence.(cid:13) Carter contends that notwithstanding these facts all of(cid:13) the actions taken against him were a reflection of(cid:13) defendants’ bias against jailhouse lawyers. We note in(cid:13) passing that inmates at SCI-Mahanoy are in fact permitted(cid:13) to act as jailhouse lawyers provided that they do not(cid:13) demand or receive payment for their services. The(cid:13) institution also provided both a law library and inmates(cid:13) assigned to work as legal aides in that library. All inmates(cid:13) have access to the law library, which was open all day,(cid:13) including evenings, from Monday to Friday; on weekends, it(cid:13) was open six to eight hours. Inmates are allowed to confer(cid:13) with each other in the library as long as they are not(cid:13) disruptive. Nevertheless, even assuming, for purposes of(cid:13) this case, that Carter’s activity was constitutionally(cid:13) protected, but see Shaw v. Murphy, 532 U.S. 223, 230-31(cid:13) (2001), supra, and that the searches and subsequent(cid:13) disciplinary action were motivated by hostility to this(cid:13) protected activity, Carter still cannot prevail.(cid:13) As this Court has previously held, "once a prisoner has(cid:13) demonstrated that his exercise of a constitutional right was(cid:13) a substantial or motivating factor in the challenged(cid:13) decision, the prison officials may still prevail by proving(cid:13) that they would have made the same decision absent the(cid:13) protected conduct for reasons reasonably related to a(cid:13) legitimate penological interest." Rauser , 241 F.3d at 334(cid:13) (emphasis added). Given the quantum of evidence of(cid:13) Carter’s misconduct, we cannot say that the prison officials’(cid:13) decision to discipline Carter for his violations of prison(cid:13) policy was not within the "broad discretion" that we must(cid:13) 11(cid:13) afford them. Thornburgh v. Abbott, 490 U.S. 401, 413(cid:13) (1989). Even if prison officials were motivated by animus to(cid:13) jailhouse lawyers, Carter’s offenses, such as receiving(cid:13) stolen property, were so clear and overt that we cannot say(cid:13) that the disciplinary action taken against Carter was(cid:13) retaliatory. Rather, we conclude that the there is no(cid:13) genuine issue of material fact that such action was(cid:13) "reasonably related to legitimate penological interests," and(cid:13) that Carter would have been disciplined notwithstanding(cid:13) his jailhouse lawyering. Turner, 482 U.S. at 90. The(cid:13) judgment of the District Court will therefore be affirmed.(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) 12(cid:13)
