Monroe v. Phelps et al

Filing 104

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 8/8/12. (dzb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CHARLES THOMAS MONROE,
Plaintiff,

v.
MICHAEL BRYAN,
Defendant.

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) Civ. No. 09-1004-SLR
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Charles Thomas Monroe. James T. Vaughn Correctional Center, Smyrna, Delaware.
Pro se Plaintiff.
Ryan Patrick Connell, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendant.

MEMORANDUM OPINION

g,

Dated: August
2012
Wilmington, Delaware

I. INTRODUCTION

Plaintiff Charles Thomas Monroe ("plaintiff'), an inmate at the James T. Vaughn
Correctional Center ("VCC"), Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C.

§ 1983 on December 29, 2009 alleging violations of his constitutional rights. (0.1. 2) He
proceeds pro se and has been granted leave to proceed in forma pauperis. Presently
before the court are cross-motions for summary judgment, and plaintiffs request for
counsel. (0.1. 76, 86, 95, 99) The court has jurisdiction pursuant to 28 U.S.C. § 1331.
For the following reasons, the court will deny plaintiffs motion for summary judgment;
will grant defendants' motion for summary judgment; and will deny without prejudice
plaintiffs request for counsel.

II. PROCEDURAL AND FACTUAL BACKGROUND
The claims against defendants Warden Perry Phelps ("Phelps") and Correctional
Officer Raymond Hannum ("Hannum") have been disrnissed. (See 0.1. 18,51) The
remaining claims as asserted in the complaint are as follows: On January 7,2008
defendant Michael Bryan ("defendant") came up behind plaintiff, grabbed him in a choke
hold, and slammed him to the floor, injuring plaintiffs back and neck. (0.1. 2 at 3,

~

2)

Defendant never called any security codes prior to the attack. (/d.) Additionally, plaintiff
alleges that defendant fabricated several disciplinary reports against him in an attempt
to either justify his actions or retaliate against plaintiff for threatening to seek legal
recourse. (Id.)
In an incident report prepared by defendant, he described seeing plaintiff on
January 7, 2008. At the time, plaintiff was housed in the V building which mainly

houses inmates in drug treatment programs. Defendant saw plaintiff make contact with
another inmate and saw the inmate hand plaintiff a small, white object. Plaintiff took the
object and went into a telephone booth. Defendant approached plaintiff and asked him
for the object that he had received from the inmate. Plaintiff states that he received a
small, folded-up piece of paper, about the size of an index card, from an inmate.
According to plaintiff, defendant snuck up on him. According to defendant, plaintiff
stated that he did not have anything, but defendant thought he could see the object in
plaintiffs hand. Defendant told plaintiff to "hand over" the object. According to
defendant, plaintiff put the object in his mouth and began to chew. Defendant thought
that the item might be drugs so he placed plaintiff in a choke hold and order him to spit
out what was in his mouth. Plaintiff describes the same movement by defendant, but
denies placing an object in his mouth. (0.1.76, exs. A-1; 0.1. 87, pl.'s dep. 4,5,8-10,
13)
Correctional officer Sandra Werda ("Werda") reported that she heard defendant
order plaintiff to "spit it out." According to Werda, plaintiff resisted and defendant took
plaintiff to the floor on his knees. According to plaintiff, he heard something along the
lines of "give me" and the next thing he knew, defendant had slammed him onto the
floor facedown. According to defendant and Werda, plaintiff then complied and spit out
a white piece of paper. According to plaintiff, he had the paper in his hand, and let it
drop to the floor. Plaintiff testified that the incident popped his back and neck. (0.1. 76,
exs. A-1, B-1; 0.1. 87, pl.'s dep. 10, 11, 13)
Plaintiff was handcuffed after he was on the floor. Both defendant and Werda
report that they handcuffed plaintiff. Hannum heard defendant call his name and when
2

he arrived, plaintiff was on the floor and cuffed. Werda and Hannum assisted defendant
in restraining plaintiff, and Hannum helped plaintiff to his feet. The lieutenant on duty
was notified of the incident, and plaintiff was escorted to the group room by Hannum.
While there, plaintiff was sitting in a chair making strange faces and then he rolled onto
the floor. Plaintiff states that he lost his balance fell from the chair. Plaintiff, Hannum,
correctional officer Strong ("Strong"), and Werda went into the group room to check on
plaintiff. (D.I. 76, exs. A-2, B-2, C-1; D.1. 87, pl.'s dep. 14-15)
Plaintiff was taken by wheelchair to the infirmary. There, he was seen by nurse
Bob Davenport ("Davenport") who examined him and gave him Tylenol 3 after speaking
to the physician on call. Medical notes for January 7, 2008, indicate that plaintiff
reported lower back pain stating, "it's taken me year to back from a gunshot injury in
1996, now I'm hurt." The note indicates that plaintiff had complaints of back pain as
early as July 2006. 1 Plaintiff was referred for follow-up and told to take warm showers,
to keep moving when possible, and he was provided with an analgesic balm. (D.I.76,
ex. A-3; D.1. 87 pi's dep. 15, 16; D.1. 88, ex. C)
A few days later, on January 10, 2008, plaintiff fell out of his top bunk. He was
seen by medical the same day and given crutches. An x-ray of the left hip, taken on
January 11, 2008, was normal. On January 17, 2008, plaintiff was given a back brace
and knee brace to support his knee and back. On the same date, medical requested
plaintiff be given a bottom bunk assignment. The braces and bottom bunk assignment

1Medical records indicate that plaintiff complained of continued pain, cramping,
and arthritic-type problems with his back, legs and feet on February 29,2007,
approximately one year prior to the incident in question, and on December 10, 2007,
approximately one month prior to the January 2008 incident. (D.1. 72)
3

were for a three-month period. On February 12, 2008, medical ordered a cane for
plaintiff, noting that he needed a cane instead of crutches. The request indicates the
end date for use of the cane is "indefinite," and plaintiff used a cane for almost two
years. (0.1. 72 at 621,678,688-692; 0.1. 87 pl.'s dep. 16, 17,23)
When plaintiff was seen by medical on May 7, 2008, he complained that his
lower back pain had worsened since January 2008 when he was wrestled to the ground
by correctional officers. A May 30, 2008 x-ray of plaintiffs lumbar spine found normal
soft tissues, minimal scoliosis, and no evidence of fracture. Medical records indicate
that plaintiff continued to complain of back pain through 2008 and that he was
prescribed Tylenol throughout 2008. (0.1.72 at 677,694,710-752; D.1. 88, exs. G, D)
As a result of the January 7, 2008 incident, plaintiff was charged with disorderly
or threatening behavior, giving a false alarm, abuse of privileges, failing to obey an
order, lying, off limits, and possession of non-dangerous contraband. Plaintiff was
found guilty of the infractions. (0.1. 2, ex. G)
Medical records produced by defendants include mental health records that
indicate that plaintiff receives continuing mental health treatment. (See D.1. 59, 72)
Therefore, the court first addresses whether plaintiff is competent within the meaning of
Fed. R. Giv. P. 17(c) and considers his request for counsel. (See 0.1. 95)

III. RULE 17(c)
A. Legal Standard

The district court has a responsibility to inquire sua sponte, under Fed. R. Giv. P.
17(c)(2), whether a pro se litigant is incompetent to litigate his action. Powell v.
Symons, 680 F.3d 301, 303, 307 (3d Gir. 2012). Rule 17(c)(2) provides that "[t]he court

4

must appoint a guardian ad litem - or issue another appropriate order - to protect a
minor or incompetent person who is unrepresented in an action."
Rule 17(c) applies "[i]f a court [is] presented with evidence from an appropriate
court of record or a relevant public agency indicating that the party had been
adjudicated incompetent, or if the court receive[s] verifiable evidence from a mental
health professional demonstrating that the party is being or has been treated for mental
illness of the type that would render him or her legally incompetent." Powell, 680 F.3d
at 307 (3d Cir. 2012) (citing Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196,201
(2d Cir. 2003». The court "need not inquire sua sponte into a pro se plaintiffs mental
competence based on a litigant's bizarre behavior alone, even if such behavior may
suggest mental incapacity" but, "if there has been a legal adjudication of incompetence .
. . that is brought to the court's attention, the Rule's provision is brought into play." Id.
(citations omitted). The decision whether to appoint a next friend or guardian ad litem
rests with the sound discretion of the district court. Powell, 680 F.3d at 303.

B. Discussion
The record reflects that plaintiff has a mental health history. As mandated by the
Third Circuit, the court inquires into plaintiffs competency pursuant to Rule 17(c).
Neither plaintiff nor defendants question plaintiffs competency.
At one time, plaintiff was diagnosed as paranoid schizophrenic - stable. 2 (D.1. 72
at 599) As of April 2011, plaintiff was diagnosed with a generalized anxiety disorder
and a paranoid personality disorder. (D.1. 59 at 143) The most recent mental health

21n the past, at least one physician opined that he did not think plaintiff had the
mental disorder. (D.1. 72 at 610)
5

status examination that is contained in the record is dated April 18, 2011, and it contains
normal findings. (0.1. 59 at 137) The mental health record appears to establish that
plaintiff responds well to treatment. (0.1. 59, 72) While there is evidence that plaintiff is
being treated for mental illness, there is no medical opinion in the record that he
incompetent. Nor is there is evidence that plaintiff has been adjudicated incompetent by
any court. Moreover, in reviewing plaintiffs pleadings, it is apparent that he
understands the nature of the action he has commenced. He has responded
appropriately to orders entered by the court and his filings are coherent and logical.
The court has considered the medical evidence of record in conjunction with its
own experience with plaintiff. It finds that, under the circumstances, the evidence does
not suffice to conclude that plaintiff is incompetent. Inasmuch as there is no substantial
question regarding the competence of plaintiff, it is not necessary to conduct a Rule
17(c) competency hearing. For the above reasons, the court finds plaintiff is currently
competent and declines to appoint a guardian or counsel to represent his interests.

IV. REQUEST FOR COUNSEL
Plaintiff requests counsel but provides no reasons why counsel is necessary.

(0.1. 95) A pro se litigant proceeding in forma pauperis has no constitutional or statutory
right to representation by counsel. 3 See Brightwell v. Lehman, 637 F.3d 187, 192 (3d
Cir. 2011); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). However, representation

3See Mallard V. United States Dist. Court for the S. Dist. of Iowa, 490 U.S. 296
(1989) (§ 1915(d) (now § 1915(e)(1» does not authorize a federal court to require an
unwilling attorney to represent an indigent civil litigant, the operative word in the statute
being "request.").

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by counsel may be appropriate under certain circumstances, after a finding that a
plaintiffs claim has arguable merit in fact and law. Tabron, 6 F.3d at 155.
After passing this threshold inquiry, the court should consider a number of factors
when assessing a request for counsel, including:
(1) the plaintiffs ability to present his or her own case;
(2) the difficulty of the particular legal issues; (3) the degree

to which factual investigation will be necessary and the ability

of the plaintiff to pursue investigation; (4) the plaintiffs capacity

to retain counsel on his own behalf; (5) the extent to which a

case is likely to turn on credibility determinations; and

(6) whether the case will require testimony from expert witnesses.
See Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Gir. 2002); Tabron, 6 F.3d at 155­

57. The list is not exhaustive, nor is anyone factor determinative. Tabron, 6 F.3d at
157.
The court finds that plaintiffs claims have merit given that some issues survived
initial screening. Therefore, the court proceeds to weigh the above factors to determine
if appointed counsel is warranted. The first factor for consideration is plaintiffs ability to
present his own case. In making this determination, the court considers his literacy,
education, prior work experience, prior litigation experience, and restraints placed upon
him by virtue of his incarceration. Tabron, 6 F.3d at 156. As discussed above,
plaintiffs submissions demonstrate he is able to adequately present his case. He sets
forth issues and states the factual grounds on which he seeks relief. Although not an
attorney, plaintiffs lack of legal training is common for pro se litigants.
The court next considers the complexity of the legal issues presented.
Representation by counsel may be appropriate when the legal issues are complex.
Here, plaintiff alleges excessive force and retaliation. After reviewing the record, the

7

court does not find that the legal issues raised by plaintiff claims are unduly complex or
burdensome.
Next, the court considers the degree to which factual investigation will be
necessary, and the ability of the plaintiff to pursue such investigation. Even where the
ultimate legal issue in a case may be comprehensible, a court must consider the
complexity of the discovery involved. Parham v. Johnson, 126 F.3d 454, 459 (3d Cir.
1997). Where claims are likely to require extensive discovery and compliance with
complex discovery rules, representation by counsel may be warranted. Tabron, 6 F.3d
at 156. Also, the court considers the extent to which plaintiff, while in confinement, may
face problems in pursuing his claims. Id. at 156. The record reflects that discovery has
been produced to plaintiff.
The court considers plaintiffs financial ability to attain and afford counsel on his
own behalf. Plaintiff has been granted leave to proceed in forma pauperis and,
therefore, has demonstrated an inability to afford counsel. If a case will be "solely a
swearing contest" and will rely heavily on credibility determinations, this should weigh in
favor of representation. Parham, 126 F.3d at 460; see Woodham v. Sayre Borough
Police Dep't, 191 F. App'x 111, 116 (3d Cir. 2006 (not published). The record before

the court does not indicate that the case will be "solely a swearing contest." Indeed, for
the most part, the parties agree upon the facts. Hence this factor does not support
representation by counsel. Finally, the court considers the extent to which expert
testimony may be required. Appointed counsel may be warranted where the case will
require testimony from expert witnesses. After reviewing the pleadings, the court
concludes that expert testimony will not be required.

8

The court concludes that the above factors do not weigh in favor of
representation by counsel. As discussed above, the case is not so factually or legally
complex that requesting an attorney is warranted. To date, the filings in this case
demonstrate plaintiff's ability to articulate his claims and represent himself. In these
circumstances, the court will deny without prejudice plaintiff's request for counsel. (0.1.
95)

V. MOTIONS FOR SUMMARY JUDGMENT
A. Standard of Review
"The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law."4 Fed. R. Civ. P. 56(a). The moving party bears the burden of proving
that no genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 n.10 (1986). "Facts that could alter the outcome are
'material,' and disputes are 'genuine' if evidence exists from which a rational person
could conclude that the position of the person with the burden of proof on the disputed
issue is correct." Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n.1
(3d Cir. 1995) (internal citations omitted). If the moving party has demonstrated an
absence of material fact, the nonmoving party then "must come forward with 'specific
facts showing that there is a genuine issue for triaL'" Matsushita, 475 U.S. at 587

4Rule 56 was revised by amendment effective December 1, 2010. "The standard
for granting summary judgment remains unchanged," and "[t]he amendments will not
affect continuing development of the decisional law construing and applying these
phrases." Fed. R. Civ. P. 56 advisory committee's note to 2010 Amendments.

9

(quoting Fed. R. Civ. P. 56(e». The court will "view the underlying facts and all
reasonable inferences therefrom in the light most favorable to the party opposing the
motion." Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231,236 (3d Cir. 1995). The
mere existence of some evidence in support of the nonmoving party, however, will not
be sufficient for denial of a motion for summary judgment; there must be enough
evidence to enable a jury reasonably to find for the nonmoving party on that issue. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If the nonmoving party fails
to make a sufficient showing on an essential element of its case with respect to which it
has the burden of proof, the moving party is entitled to judgment as a matter of law.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The rules are no different when
there are cross-motions for summary judgment. Lawrence v. City of Philadelphia, 527
F.3d 299, 310 (3d Cir. 2008).
Plaintiff moves for summary judgment on the grounds that: (1) contradictions in
the record make it clear that prison officials tried to cover up the fact that defendant
used excessive force; (2) no jury can conclude that the defense witnesses are credible;
(3) discovery has not been provided regarding defendant's past conduct;5 (4) defendant
has not provided a complete copy of plaintiffs medical records;6 and (5) with regard to
the retaliation claim, if given a fair chance, plaintiff can prove that he is not guilty of the
allegations defendant made on January 7,2008. (D.1. 76,99) Defendant moves for

5Typically, claims of awareness of a pattern or practice of unconstitutional abuse
are raised against prison administrators or officials. See In re Bayside Prison Litigation,
157 F. App'x 545 (3d Cir. 2005) (not published).
6The record reflects that defendant produced medical records to plaintiff in July,
September, and October 2011. (D.I. 58, 59, 71, 72, 81, 82)
10

summary judgment on the grounds that: (1) his actions did not constitute force in
violation of the Eighth Amendment; (2) he is entitled to qualified immunity; (3) he is
immune from suit to the extent that he is named as a defendant in his official capacity;
and (4) there is no evidence of retaliation. (D.I. 87, 100)

B. Discussion
1. Excessive force
The Eighth Amendment protects inmates against cruel and unusual punishment,
but it does not protect an inmate against minimal use of force. Smith v. Mensinger, 293
F.3d 641,648 (3d Cir. 2002). Not "every malevolent touch by a prison guard gives rise
to a federal cause of action." Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citing Johnson
v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)) ("Not every push or shove, even if it may

later seem unnecessary ... violates a prisoner's constitutional rights"). The core judicial
inquiry when a prisoner alleges that prison officers used excessive force against the
prisoner is not whether a certain quantum of injury was sustained, but rather whether
force was applied in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm. See Wilkins v. Gaddy, _U.S._, 130 S.Ct. 1175
(2010).
Prison guards who maliciously and sadistically use force against an inmate
violate "contemporary standards of decency even if the resulting injuries are not
significant." Smith v. Mensinger, 293 F.3d at 647. In determining whether a
correctional officer has used excessive force in violation of the Eighth Amendment,
courts look to several factors including: (1) the need for the application of force; (2) the
relationship between the need and the amount of force that was used; (3) the extent of
11

the injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as
reasonably perceived by responsible officials on the basis of facts known to them; and
(5) any efforts made to temper the severity of the forceful response. Smith, 293 F.3d at
649 (citations omitted). In an Eighth Amendment excessive force claim, summary
judgment in favor of a defendant is appropriate where the evidence, viewed in the light
most favorable to the plaintiff, does not support "a reliable inference of wantonness in
the infliction of pain." Thomas v. Ferguson. 361 F. Supp. 2d 435,438 (D.N.J. 2004)
(quoting Whitley v. Albers, 475 U.S. 312, 322 (1986».
Plaintiff argues that the written reports of defendant, Werda, and Hannum give
three completely different versions of the January 7,2008 incident. He points out that
all three reports state that he was not sent to the medical unit, but that defendant's
report, nonetheless, indicates that plaintiff was seen by the nurse. Plaintiff asks: (1)
why was it necessary to take him to his knees or on the floor if he complied and spit out
the paper; (2) why was he handcuffed after he complied; and (3) why CIO Strong, who
was present, did not prepare a report. Plaintiff concludes that the reports "make it clear"
that defendant, Werda, and Hannum tried to cover up defendant's use of force.
Defendant argues that he has a reasonable explanation why it was necessary to apply
force. He further argues that the evidence of record demonstrates there was no use of
excessive force or that plaintiff suffered an injury as a result of the incident.
After reviewing the evidence, the court concludes that no reasonable finder of
fact could determine that defendant acted maliciously or sadistically to cause harm to
plaintiff. Contrary to plaintiffs position, the reports prepared by the correctional officers
do not provide differing versions of the events of January 7, 2008. Defendant saw
12

plaintiff take something from another inmate. Plaintiff acknowledges that an inmate
handed him a folded piece of paper. Both parties agree that defendant ordered plaintiff
to hand him the object. According to both plaintiff and defendant, plaintiff did not give
defendant the paper until after defendant took the measures he did. 7 Plaintiffs initial
failure to give defendant the object after a command to do so would have been sufficient
to warrant some use of force by defendant. Hence, there was justification for the use of
some force. Moreover, plaintiffs main complaint was back pain, a complaint he has had
for many years prior to the incident. 8 Finally, the record reflects that the amount of force
used was reasonable under the circumstances, and the force used is not the type upon
which a reasonable inference of malice and intent to cause pain could be based.
For the above reasons, the court will grant defendant's motion for summary
judgment on the issue of excessive force and will deny plaintiffs motion for summary
judgment on the same issue.

2. Eleventh Amendment
Defendant moves for summary judgment on all claims raised against him in his
official capacity. Plaintiff did not respond to this issue.

7The parties dispute the method used by plaintiff to give defendant the paper.
Defendant's position is that plaintiff had placed the paper in his mouth and spit it out.
Plaintiffs position is that the paper was in his hand and he let it drop to the floor. These
differences are not material ones.
8Plaintiff received medical treatment immediately following the incident. He
presented with low back pain, was prescribed medication and scheduled for a follow-up.
Three days later, plaintiff fell from his bunk and injured himself. Regardless, a May 30,
2008 lumbar x-ray revealed normal soft tissues, minimal scoliosis, and no evidence of
fracture.

13

The Eleventh Amendment of the United States Constitution protects an
unconsenting state or state agency from a suit brought in federal court by one of its own
citizens, regardless of the relief sought. See Seminole Tribe of Fla. v. Florida, 517 U.S.
44,54 (1996); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984);

Edelman v. Jordan, 415 U.S. 651 (1974). "[A] suit against a state official in his or her
official capacity is not a suit against the official but rather is a suit against the official's
office. As such, it is no different from a suit against the State itself." Will v. Michigan

Oep't of State Police, 491 U.S. 58, 71 {1989} (internal citations omitted); Ali v Howard,
353 F. App'x 667, 672 (3d Cir. 2009) (not published). Accordingly, § 1983 claims for
monetary damages against a state, state agency, or a state official in his official
capacity are barred by the Eleventh Amendment. See id.
Defendant is immune from suit for damages in his official capacity. Therefore,
the court will grant defendant's motion for surnmary judgment to the extent that plaintiff
seeks monetary damages from him in his official capacity.

3. Retaliation
According to plaintiff, his retaliation claim rests upon the fact that, if given a fair
chance, he can prove that he is not guilty of the allegations made by defendant on
January 7,2008. Plaintiff contends that defendant fabricated the allegations in
retaliation for plaintiffs seeking legal recourse as a result of the assault. Plaintiff
provides no evidence to support the retaliation claim. Defendant moves for summary
judgment on the basis that plaintiff failed to demonstrate the elements necessary to
support a retaliation claim.

14

"Retaliation for the exercise of constitutionally protected rights is itself a violation
of rights secured by the Constitution actionable under § 1983." White v. Napoleon, 897
F.2d 103, 111-12 (3d Cir. 1990). It has long been established that the First Amendment
bars retaliation for protected speech. See Crawford-EI v. Britton, 523 U.S. 574, 592
(1998); Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir. 1981). Proofofa retaliation
claim requires that plaintiff demonstrate: (1) he engaged in protected activity; (2) he
was subjected to adverse actions by a state actor; and (3) the protected activity was a
substantial motivating factor in the state actor's decision to take adverse action. Rauser
v. Hom, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Mt. Healthy Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977»; see also Allah v. Seiverling, 229 F.3d 220 (3d Cir. 2000) (a
fact finder could conclude that retaliatory placement in administrative confinement would
"deter a person of ordinary firmness from exercising his First Amendment rights"
(citations omitted». U[O]nce a prisoner demonstrates that his exercise of a constitutional
right was a substantial or motivating factor in the challenged decision, the 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. at 334.
The court first considers whether plaintiff engaged in constitutionally protected
activity. Under the First and Fourteenth Amendments, prisoners have the right to
petition the government for redress of grievances and to freely access the courts.
Milhouse v. Car/son, 652 F.2d at 373-374. A prisoner's exercise of his First
Amendment freedoms may be curtailed if his speech poses "the likelihood of disruption
to prison order or stability, or otherwise interferes with the legitimate penological
15

objectives of the prison environment. Jones v. North Carolina Prisoners' Labor Union,
Inc., 433 U.S. 119, 132 (1977). A threat is distinguished from constitutionally protected

speech. Watts v. United States, 394 U.S. 705, 707 (1969).
Plaintiff asserts the protected activity occurred when he indicated that he would
seek legal recourse against defendant for assault. Other than plaintiffs bald assertions,
the record does not indicate whether or when plaintiff indicated to defendant that he
would seek legal action.
Nonetheless, assuming for purposes of this proceeding that plaintiff has made a
showing sufficient to demonstrate that he engaged in constitutionally protected activity,
the record does not support a finding that he was subject to adverse actions of the type
that would deter a prisoner of ordinary firmness from exercising his constitutional rights.
More specifically, following the January 7,2008 incident report authored by defendant
and the resulting charges, plaintiff took the following actions with regard to the incident:
(1) submitted a grievance dated January 9, 2008; (2) wrote to Richard E. Seifert, Deputy
Bureau Chief on June 19, 2008, (3) submitted a grievance on March 3, 2008
complaining of the hearing on the disciplinary charges that resulted from the January 7th
incident; (4) wrote to Bureau Chief Rick Kearney on February 13, 2008; (5) on March
17,2008 asked Internal Affairs to conduct an investigation; and (6) filed the instant
complaint on December 29,2009. (See 0.1. 2 exs. A-1, A-2, A-3, C-2, G-1, G-2, 1-1, 1-2,
1-3) In addition, plaintiff has continued to write to prison officials and submit grievances
regarding a host of issues. (See 0.1. 2, exs.); see Heller v. Keenhold, 2006 WL 759647
(M.D. Pa. Mar. 24, 2006) (the filing of multiple grievances failed to demonstrate that
plaintiffs housing deterred him from exercising his constitutional rights).
16

Finally, again assuming arguendo that plaintiff engaged in protected activity,
there is no evidence of record that defendant would not have made the same decision,
absent the protected conduct, to prepare the incident report and charge plaintiff with
violations of prison regulations following the January 7th incident.
Based upon the foregoing, no reasonable jury could find in favor of plaintiff.
Accordingly, the court will grant defendant's motion for summary judgment as to the
retaliation issue and will deny plaintiff's motion for summary judgment on the same
issue.
VI. CONCLUSION
For the above reasons, the court finds plaintiff competent, will deny without
prejudice plaintiff's request for counsel, will deny plaintiff's motions for summary
judgment, and will grant defendants' motion for summary judgment. 9
An appropriate order will issue.

~he court will not address the issue of qualified immunity inasmuch as there has
been no violation of plaintiff's constitutional rights.

17