NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

N O . 05-1545

DEMETRIUS BAILEY,

Appellant

v. C O N N E R BLAINE; DEPUTY STOWITZSKY;

D E P U T Y MILLER; MAJOR HASSETT;

G . BANKS; C.O. RICCI; C.O.MORALES;

C A P T . WYNFIELD; CAPT. LANTZ;

L T . ESMOND; KENT WARMAN; ROBERT BITNER;

T . D. JACKSON; F.J. ZABOROWSKI; C. ROSSI

On appeal From the United States District Court

F o r the Western District of Pennsylvania

(W .D . Pa. Civ. No. 00-cv-1638)

M a g is tra te Judge: Honorable Ila Jeanne Sensenich

S u b m itte d Under Third Circuit LAR 34.1(a)

M a y 9, 2006

B E F O R E : McKEE, FUENTES and NYGAARD, CIRCUIT JUDGES

(F ile d : May 19, 2006)

OPINION

PER CURIAM D e m e triu s Bailey filed this civil rights action pro se in the United States District C o u rt for the Western District of Pennsylvania pursuant to 42U.S.C. § 1983, alleging that A p p e llee s retaliated against him for filing grievances and lawsuits in connection with th e ir alleged violation of his constitutional rights. Bailey's complaint alleged that A p p ellee s, officials and employees at the State Correctional Institution at Greene ("SCIG re e n e " ) where Bailey was incarcerated at the time, violated his First Amendment rights b y confiscating magazines in his cell as well incoming magazines and newspapers while h e was in the Restricted Housing Unit ("RHU"). Bailey further alleged that, after he b e g a n filing grievances related to the magazine and newspaper confiscation, Appellee G e o rg e Banks, the former RHU manager, retaliated against him by issuing a m e m o ra n d u m which retroactively banned RHU inmates from possessing magazines in th e ir cells. Bailey also alleged that the other Appellees retaliated against him by f a b ric a tin g misconduct charges of which he was ultimately found guilty and punished by im p o s itio n of varying periods in disciplinary custody.1 T h e District Court granted Appellees' motion for summary judgment on Bailey's F irs t Amendment claim, holding that both the magazine confiscation and the publications p o licy were reasonably related to a legitimate penological interest. The District Court d e n ie d Appellees' motion for summary judgment on the retaliation claim, however, and th e case proceeded to a bench trial before the Magistrate Judge pursuant to 28U.S.C.

§ 636(c) and Federal Rule of Civil Procedure 73. B a ile y represented himself at the two-day bench trial and testified at length about th e events surrounding the misconduct charges, refuting the version of events presented in th e misconduct reports and in Appellees' testimony. Appellees' case-in-chief included th e testimony of George Banks; Marshal Warman, former chairman of the Publications R e v ie w Committee at SCI-Greene; Gayle Morales, a former Corrections Officer ("CO") a t SCI-Greene who had confiscated Bailey's newspapers and issued three of the five c h a lle n g e d misconduct reports; and CO Albert Ricci, who was involved in the magazine c o n f isc a tio n and had issued two of the disputed misconduct reports. The Magistrate Ju d g e entered judgment in favor of Appellees, holding that Bailey had failed to meet his b u rd e n of showing that his constitutionally protected activity was a substantial or m o tiv a tin g factor behind Appellees' actions. Bailey timely appealed, again proceeding p ro se.

T h e District Court had jurisdiction under 28U.S.C. §§ 1331 and 1343. We have ju ris d ic tio n pursuant to 28U.S.C. § 1291. On appeal, Bailey challenges only the District C o u rt's ruling on his retaliation claim. We review the District Court's findings of fact for clea r error, see Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 102 (3d Cir. 1 9 8 1 ), and exercise plenary review over the court's legal conclusions, see Koslow v. C o m m o n w e a lth of Pa., 302 F.3d 161, 167 (3d Cir. 2002).

To be successful in a retaliation claim, a plaintiff must prove by a preponderance o f the evidence that: a) the conduct leading to the alleged retaliation was constitutionally p ro te c te d ; b) he or she suffered an "adverse action" at the hands of prison officials; and c) th e protected activity was a substantial or motivating factor in the prison officials' a c tio n s . Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001). The Magistrate Judge h e ld that, although Bailey had satisfied the first two elements set forth in Rauser, he had n o t sustained his burden of proving causation.

As to the policy-based claim, Bailey argues that the Magistrate Judge failed to a c k n o w le d g e the chronology of events leading up to the Banks memorandum, which e sta b lis h e s causation. It is undisputed that Bailey's magazines were confiscated on D e c em b e r 4, 1999, and that he filed a grievance about this on December 6, 1999. Bailey e m p h a s iz e s that, although the Banks memorandum was dated December 13, 1999, one w e e k after he filed his grievance, the policy announced in the memorandum was made retroac tiv e to November 23, 1999, thereby including the date Bailey's magazines were c o n f is c a te d .

B a iley correctly recognizes that temporal proximity between the protected activity a n d the alleged retaliatory action can suggest causation. See Rauser, 241 F.3d at 334.

Contrary to Bailey's assertion, the Magistrate Judge did not ignore the issue of temporal p ro x im ity. Rather, the opinion acknowledged that the memorandum's conflicting dates h ad raised a question as to retaliatory motive before trial. See Opinion at 9. However, th e Magistrate Judge found credible Banks's testimony that the policy stemmed from p ro b lem s with RHU inmates using magazines to set fires and overflow the toilets in their c e lls ­ not from Bailey's grievances. See id. at 4. The Magistrate Judge also credited B a n k s 's testimony that he had mistakenly put the wrong date on the memo. See id. at 9.

The Magistrate Judge's determination as to witness credibility is not subject to our re v ie w . See United States v. Bethancourt, 65 F.3d 1074, 1078 (3d Cir. 1995). Accepting th is finding, as we must, we agree with the Magistrate Judge that Bailey did not sustain h is burden of proving causation for this claim. See Rauser, 241 F.3d at 334.

B a ile y' s second retaliation claim centers on the following misconduct charges, w h ic h Bailey argues were fabricated: a March 4, 2000, charge for failing to obey a direct o rd e r from CO Morales to remove two posters of nude women from his cell wall; a M a rc h 17, 2000, charge for verbally threatening Morales; a March 18, 2000, charge for re f u sin g to obey a direct order from CO Ricci to remove his arms from the "pie slot" in h is cell door; an April 13, 2000, charge for refusing to obey Ricci's order to step away f ro m his cell door during a random cell search; and an April 25, 2000, charge for refusing to "cuff up" in the law library when ordered to do so by Morales. Bailey testified that he d id not disobey any of these orders or commit any of the rule infractions described in the m is c o n d u c t reports and that Morales and Ricci fabricated the charges because he had filed g rie v a n c e s against them for their roles in confiscating his magazines and newspapers.

The Magistrate Judge credited Morales's and Ricci's testimony that the m is c o n d u c t charges were valid and concluded that Bailey had not shown a causal c o n n e ctio n between the misconduct reports and his grievances. The Magistrate Judge a lso observed that Bailey's testimony regarding the poster-related charge was internally in c o n s is te n t. See Opinion at 9.

On appeal, Bailey argues that the Magistrate Judge's credibility findings were b a se d on "false evidence" and that the Magistrate Judge "twisted the evidence to fit the d e f e n d a n ts ." Bailey does not offer any examples of the purportedly "false evidence." E v e n if he had, as we stated earlier, the District Court's credibility determinations are not s u b je c t to our review. See Bethancourt, 65 F.3d at 1078; Leeper v. United States, 756 F .2 d 300, 308 (3d Cir. 1985) (A district court's factual findings are reviewed only to a ss e ss whether enough supporting evidence is on record, regardless whether the evidence p e rm its different inferences to be drawn.) B a ile y next argues that the Magistrate Judge did not allow him to call witnesses w h o s e testimony would have corroborated his version of the events. A federal court may, in its discretion, issue a writ of habeas corpus ad testificandum to secure the appearance o f a state or federal prisoner as a witness, if it is necessary to bring him or her into court to testify or for trial. 28U.S.C. § 2241(c)(5). A district court's decision whether to issue th e writ will be reversed only for an abuse of discretion. Jerry v. Francisco, 632 F.2d 252, 2 5 6 (3d Cir. 1980).

After the trial testimony concluded, the Magistrate Judge gave Bailey an o p p o rtu n ity to present arguments for bringing two federal inmates, Brown and Byrd, to c o u rt to testify. Bailey argued that Brown, who was housed in the cell next to his, was an " e ar witness" to events leading up to several of the misconduct charges and could testify th a t Bailey was not given the direct orders described in the misconduct reports. Inmate B yrd was present during the law library incident, and, according to Bailey, could testify th a t CO Morales never gave Bailey an order to "cuff up." The Magistrate Judge denied B a ile y's requests for these witnesses, noting that Bailey had not provided the court with a s ta te m e n t of either witness's proposed testimony prior to trial and had not listed either B ro w n or Byrd as witnesses in any of the grievance or misconduct proceedings related to th e same events. Further, the Magistrate Judge expressed doubt that Brown would be a b le to remember events which had occurred years earlier and noted that Byrd's testimony re la te d to only a minor part of the case.

Although Brown and Byrd's proffered testimony appears to be relevant, our re v ie w of the trial transcript indicates that it would not have affected the outcome of the tria l and that, therefore, the issuance of a writ of habeas corpus ad testificandum was not req u ired . See United States v. Cruz-Jimenez, 977 F.2d 95, 100 (3d Cir. 1992) (not every re m o te ly relevant proffer will require issuance of the writ). Accordingly, we find no a b u se of discretion in the Magistrate Judge's denial of Bailey's motion.

B a iley argues that Magistrate Judge erred by not appointing counsel to assist him in prosecuting his case. When determining whether to appoint counsel, a court should f irs t consider whether the claimant's case has arguable merit in fact or law. Tabron v. G rac e, 6 F.3d 147, 155 (3d Cir. 1993). After this threshold criterion is met, a court s h o u ld consider the following factors: (1) the plaintiff's ability to present his case; (2) the d if f ic u lty of the legal issues; (3) the degree to which factual investigation will be n e c e ss a ry and the plaintiff's ability to pursue that investigation; (4) the plaintiff's ability to retain counsel on his own; (5) the extent to which the case is likely to turn on c re d ib ility determinations; and (6) whether the case will require expert testimony. Id. at 1 5 5 -5 7 . A district court's decision to deny counsel is reviewed for abuse of discretion.

Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997).

We agree with the Magistrate Judge's Tabron analysis and with the conclusion that B a ile y's self-representation was adequate. Throughout the proceedings, Bailey v ig o ro u sly prosecuted his case, filing and responding to motions as appropriate and ably c o n d u c tin g cross-examination at trial. We find no abuse of discretion in the Magistrate J u d g e 's denial of counsel.

Bailey's remaining arguments on appeal concern the relative importance of various D e p a rtm e n t of Corrections policies regarding publications and the ability of a unit m a n a g e r to create policy. As these issues were not raised during trial and are irrelevant to B a ile y's retaliation claim, we decline to address them.

For the foregoing reasons, we will affirm the District Court's judgment.

1 Bailey also alleged that his subsequent transfer to SCI-Frackville was retaliatory. H o w e v e r, this claim was stricken from the proceedings because Bailey had raised it in a se p a ra te lawsuit.