Howard v. Coupe et al
Filing
76
MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 7/14/2020. (nms)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KEVIN HOWARD,
Plaintiff,
: Civil Action No. 17-1548-RGA
V.
MICHAEL LITTLE ,
Defendant.
Kevin Howard , James T. Vaughn Correctional Center, Smyrna , Delaware. Pro Se
Plaintiff.
Carla Anne Kingery Jarosz, Deputy Attorney General , Delaware Department of Justice,
Wilmington , Delaware . Counsel for Defendant.
MEMORANDUM OPINION
July 14, 2020
Wilmington , Delaware
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/s/ Richard G. Andrews
ANDREWS, U.S. District Judge:
Plaintiff Kevin Howard, an inmate at the James T. Vaughn Correctional Center
("JTVCC") in Smyrna , Delaware , commenced this action pursuant to 42 U.S.C. § 1983.
(D .I. 2) . He proceeds prose and has been granted leave to proceed in forma pauperis.
(D.I. 4, 9) . Before the Court are Howard 's motion for an order to amend the Court's
February 4, 2020 Order and motions to compel (D .I. 56, 63 , 64) and Defendant's motion
for summary judgment (D .I. 65). Briefing is complete. (D.I. 67 , 74 , 75).
I.
BACKGROUND
The case proceeds against Defendant Michael Little on Count I of the Verified
Amended Complaint. (See 0 .1. 22 ; 0 .1. 34) . A verified complaint is treated as an
affidavit in the summary judgment posture. Real Alternatives, Inc. v. Secretary Oep 't of
Health & Human Services, 867 F.3d 338, 371 n. 9 (3d Cir. 2017) . Count I alleges
retaliation by Little , who at the time was employed as a legal services administrator at
JTVCC. (D.I. 22 at
,m 28-43) . In this position Little oversaw the four libraries at JTVCC
and one of his duties included hiring inmates for inmate law clerk positions. (D .I. 66-4 at
1-2). Howard alleges retaliation when Little did not hire him in the JTVCC law library
because Howard was a litigant in a pending civil action against Department of
Correction ("DDOC") officials that he and other inmates had filed in the Delaware Court
of Chancery. (D .I. 22 at 28). Howard alleges that Little's actions deterred him from
filing a contemplated civil action against the JTVCC inmate commissary fund and a
§ 1983 action for an inadequate law library and inadequate legal assistance. (Id. at
33 , 34) .
1
,m
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Howard wrote to Little in September 2013 and requested a job in the JTVCC law
library. (D .I. 22 at,l 15; 0 .1. 66-1 at 1). On September 24 , 2013 , Little responded that,
at the time, he would not consider hiring Howard , and, that to be considered for
employment in the law library, Howard must be infraction free for one year and either
have current employment or possess the requis ite education or experience to be hired
immediately. (Id. at ,116).
On November 3, 2014 , Howard, along with other inmates, filed an action in the
Court of Chancery against former DDOC Commissioner Robert Coupe , then DDOC
Commissioner Perry Phelps , and then JTVCC Warden David Pierce, C.A. No. 10307VCN , but did not name Little as a defendant. (D .I. 22 at ,122) ; see Hall v. Coupe, 2016
WL 3094406 (Del. Ch . May 25 , 2016) .
Howard wrote to Little on July 9, 2015 , and advised Little that he had obtained a
paralegal certificate of completion and was resubmitting his name for a job in the law
library. (D.I. 22 at ,117) . Little responded that there were no positions available. (D .I.
66-1 at2).
In September 2015, Little opened a position for an inmate law clerk in the main
JTVCC law library. (D .I. 66-4 at 4) . Little states that the qualifications for an inmate law
clerk included that:
the inmate be writeup free for one year, be computer literate, and either
have a job or relevant work experience or knowledge. Inmate law clerks
are responsible for assisting inmates with their legal needs in the law
library including interviewing inmates about their confidential legal matters.
They interact with both civilian and inmate populations and are allowed
privileged access to the library's copier machines, controlled legal
reference material, confidential inmate legal material and library supplies .
2
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(D .I. 66-4 at 2) . Little hired inmates who could get along with others , but not be bullied ;
would not take advantage of the law library's copying machine to make betting slips or
pornography; and would be able to keep the confidences of other inmates. Little states
that having pending or prior litigation against the DDOC or any of its staff, including
Little, had no bearing on whether he hired an inmate for an inmate law clerk position.
(Id.) .
In September 2015, Howard spoke to paralegal Maria Lyons about the position
that had become available at the JTVCC law library, and she told Howard the criteria for
employment in the law library was the inmate: (1) must be computer literate; (2) had
filed no litigation against the DDOC ; and (3) had no disciplinary write-ups with in one
year. (D.I. 22 at
,m 18, 19).
On September 8, 2015, Howard sent a memo to Little and asked to be assigned
to an open law library position . (D .I. 48 at 25) . According to Howard , he met the criteria
for the position : he had a prison job, had no disciplinary report for over one year, and
he had a certification of completion of paralegal studies. (D .I. 66-2 at 8) . At the time
Howard had a pending lawsuit against the DDOC. (Id.).
Little does not recall Howard applying for the position and he did not interview
him. (D.I. 66-4 at 4) . He states that inmates frequently sent him letters requesting a law
library job, but he did not consider or store requests when he was not actively seeking
an inmate law clerk. (Id. at 3) . Little states that he would respond to each request and
advise the inmate that a position was not currently open . (Id.).
Little's standard procedure when actively seeking an inmate law clerk was to :
3
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(1) create a notice for the position and give it to the civilian staff to post in the main law
library; (2) collect the applications; (3) consult current civilian and inmate staff of the law
libraries and members of the Institutional Based Classification Committee about the
applicants and ask about temperament, experience, institutional reputation and record ;
and (4) interview candidates and select the best one for the position . (Id. at 3) . Little
states that the balance of personalities in the law library is of crucial importance to the
safety and security of the prison . (Id.). Little interviewed several inmates and hired
inmate William Hudson because he had a good institutional record , was calm , cool ,
level-headed , and contributed to the balance in law library.1 (Id.) Little was not aware if
Hudson had filed litigation against the DDOC or any of its staff. (Id.).
On October 27 , 2015 , Howard learned that he had not been hired for the inmate
law clerk position . (0 .1. 66-2 at 5) . According to Howard , on that day he asked Little
why he was not hired for the law library job and was told that he was not considered
because of his pending litigation against the DDOC . (0.1. 22 at
,m 20 , 21 ). Little denies
that he told Howard he did not hire him because of the Chancery Court lawsuit. (Id.).
According to Little , he was not aware of the lawsuit Howard had filed against DDOC
officials in Chancery Court until he received the lawsuit in this case. (0 .1. 66-4 at 4).
Howard submitted a document that shows Little investigated a grievance submitted by
Howard on December 11 , 2014 , regarding law library time. (0.1. 61-11 at 1). Little
1
All law library inmate clerks are required to sign a document upon their
acceptance of the job agreeing to fulfill the responsibilities of the position and to adhere
to a list of rules for behavior including not accepting money from inmates for work
performed , not taking work related items out of the library, and not working on their own
legal work while they are on shift. (D .I. 66-5 at 1-2). Inmate law clerks are permitted to
work on their own legal cases in the law library when they are off-duty. (Id. at 2) .
4
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stated in the investigation report that Howard "does have active litigation" but it does not
identify the litigation . (Id.).
Howard submitted affidavits from several inmates, all of whom stated a criterion
for consideration of an inmate law clerk position is that the inmate have no active
litigation against the OOOC or the prison or no history of filing litigation against the
OOOC . (0 .1. 66-3 at 16-19). Little submitted a document that shows between
November 2011 and September 2015 , several inmate law clerks had filed litigation
against the OOOC or OOOC officials , either prior to or during their employment. (0.1.
66-6 at 1-2; 0 .1. 66-7 at 1-2) .
On November 2, 2015 , Howard submitted a grievance complain ing of retaliation
when Little did not employ him in the law library because Howard had filed suit against
the OOOC . (0 .1. 22 at 1J 23) . On May 24 , 2016 , the Chancery Court dismissed the
lawsuit filed by Howard and other inmates . See Hall v. Coupe , 2016 WL 3094406 at *1.
II.
DISCOVERY MOTIONS
A.
Motion for an Order to Amend the Court's February 4, 2020 Order
On February 20 , 2020 , the Court denied Howard 's motion for an order to obtain
the location of persons with discoverable information . (0.1. 55) . The Court determined
that Howard had attempted to use the Court as a means to side-step prison
administration security measures and that he provided no basis why he wanted to
locate certain individuals . (Id.).
Howard seeks to amend the order. (0 .1. 56) . He states that he is not attempting
to circumvent OOOC policy. Rather, he is attempting to secure witnesses for trial , he
provides a description of the testimony anticipated from each proposed witness , and
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requests subpoenas to find out what other relevant information they may have. In the
alternative, he requests counsel or requests that Little stipulate to paragraphs one
through five of the motion. (Id.) Little did not respond to the motion .
As discussed below, Little's motion for summary judgment will be granted in part
and denied in part. As a result, this matter will proceed to a bench trial. The testimony
Howard describes seems to be duplicative of what is already contained in the record .
At this juncture, I am not inclined to side-step prison rules designed to preserve internal
order and maintain institutional security. In addition, Howard has made no showing that
he has the financial resources to pay witness fees and costs under 28 U.S.C. § 1821 ,
for either depositions or trial testimony. See Jacobs v. Heck, 364 F. App 'x 744 , 748 (3d
Cir. 2010) (district court did not err in requiring indigent prisoner to "pay the fees and
costs for any prison official he wished to subpoena for trial"); Hill v. Lappin, 2020 WL
708927 , at *3 (M .D. Pa . Feb. 12, 2020) (denying request for subpoenas because
indigent prisoner had "not demonstrated that he has the means to pay all costs
associated with a witness's appearance"); Ledcke v. Pennsylvania Dep 't of Corr. , 2016
WL 74769, at *5 (M .D. Pa. Jan. 7, 2016) (collecting cases and noting that "plaintiffsincluding those proceeding in forma pauperis--are required to pay the fees and costs for
non-incarcerated witnesses who are subpoenaed to testify at ... trial ").
Finally, the Court denies Howard 's renewed request for counsel. This case
raises one issue, is not complex, and Howard has ably represented himself. Therefore ,
the request will be denied .
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Accordingly, Court will deny the motion to amend the February 4, 2020 Order.
(D.I. 56). Howard may raise the issue of trial witnesses during the pretrial conference
which will be held at a later date, yet to be determined .
B.
Motions to Compel
Howard has filed two motions to compel. (D.I. 63, 64) . The first motion (D.I. 63) ,
seeks an order compelling Little to respond to Howard's second set of interrogatories
and document requests on the grounds that Little did not timely respond to the requests.
Little responds that he has responded to the discovery requests and, therefore, the
motion to compel at Docket Item 63 is moot. (D .I. 67 at 2) . The court docket reflects
this is the case. Therefore , the motion to compel (D.I. 63) will be dismissed as moot.
The second motion (D.I. 64) seeks an order to compel Little to fully answer
Howard 's second set of interrogatories and to produce documents. Howard specifically
refers to Interrogatories Nos. 1, 7, 9, 13, 20, and 21 . (Id. at 2-3) . Howard also contends
that Little did not adequately respond to production requests 1-20 and that Little's
attorney has the legal right to obtain the documents on demand from a state agency.
He seeks counsel to assist in obtaining requests 21-25 because, as a prisoner, the
information sought is not available under 11 Del. C. § 4322.
In response , Little indicates that he has been retired from the DDOC for over a
year, he answered the questions to the best of his knowledge and , to the extent he did
not provide dates or specific names, it is because he did not know them. (Id.). Little
indicates that he provided documents in the possession or control of the DDOC
because he was employed by the DDOC during the relevant time-frame. (Id.) . For
those documents Plaintiff seeks from the Office of Management and Budget, Little
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states that he has never been employed by it, is not in possession or control of those
documents, and does not have a responsibility to subpoena it to obtain documents for
Howard . (Id.). Finally, Little opposes counsel on the grounds that counsel has
previously been denied , the case is limited to one claim of retaliation against one
defendant, and the case is not so factually or legally complex that requesting an
attorney is warranted . (/d.) .
Pursuant to Fed. R. Civ. P. 26 , ["p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's claim or defense and proportional to
the needs of the case , considering the importance of the issues at stake in the action ,
the amount in controversy , the parties' relative access to relevant information, the
parties' resources , the importance of the discovery in resolving the issues , and whether
the burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence to be
discoverable." Fed. R. Civ. P. 26(b)(1 ).
The Court has reviewed the answers to interrogatories. Little adequately
answered Interrogatories Nos. 1, 7, 9, 13, 20 , and 21. Little cannot provide answers
when he does not know the answer or does not remember specifics . Nor is he required
to provide responses in the manner Howard believes he should . In addition , Little
objected to, yet still answered , Interrogatories Nos . 13, 20 , and 21.
The Court has also reviewed the requests for production of documents. Little
adequately responded to Requests Nos . 1, 2, 3, 4 , 5, 6 , 7, and 21-25. To the extent
Little objected to the foregoing requests and Howard still seeks the documents , the
objections are sustained . With regard to Request No . 1, if Howard has the financial
8
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ability to do so , he may seek documents from the Office of Management and Budget by
subpoena.
I am aware that Little is no longer employed by the DDOC and , therefore , no
longer has access to certain documents. He is, however, provided a defense by the
State of Delaware and, therefore , he will be required to produce documents to the
extent they exist and are located within the DDOC and , more particularly, at the JTVCC ,
including to Request Nos . 8, 9, 11-14, and 16-20.
As discussed above, Howard's renewed request for counsel will be denied .
Accordingly , the second motion to compel (D .I. 64) will be granted in part and
denied in part.
Ill.
SUMMARY JUDGMENT
A.
Legal Standards
"Summary judgment is proper when , viewing the evidence in the light most
favorable to the nonmoving party and drawing all inferences in favor of that party, there
is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law." Drumgo v. Kuschel, _ F. App 'x _ , 2020 WL 2316047 , at
*2 (3d Cir. May 11 , 2020) (citing Fed. R. Civ. P. 56(a)). A fact in dispute is material
when it "might affect the outcome of the suit under the governing law" and is genuine "if
the evidence is such that a reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) . "In considering a
motion for summary judgment, a district court may not make credibility determinations
or engage in any weighing of the evidence ; instead , the nonmoving party's evidence 'is
to be believed and all justifiable inferences are to be drawn in his favor." Marino v.
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Indus. Crating Co., 358 F.3d 241 , 247 (3d Cir. 2004) (quoting Anderson , 477 U.S. at
255). A court's role in deciding a motion for summary judgment is not to evaluate the
evidence and decide the truth of the matter but rather "to determine whether there is a
genuine issue for trial. " Anderson, 477 U.S. at 249 .
A party moving for summary judgment has the initial burden of showing the basis
for its motion and must demonstrate that there is an absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S . 317 , 323 (1986) . The burden then
shifts to the nonmoving party to show that there is a "genuine issue for trial. " Id. at 324 .
To withstand a properly supported motion for summary judgment, the nonmoving party
must identify specific facts and affirmative evidence that contradict the moving party.
Anderson , 477 U.S. at 250 .
There is "no genuine issue as to any material fact" if a party "fails to make a
showing sufficient to establish the existence of an element essential to that party's
case. " Celotex Corp., 477 U.S. at 322. "If reasonable minds could differ as to the import
of the evidence," however, summary judgment is not appropriate . See Anderson, 477
U.S. at 250-51 .
B.
Discussion
1.
Retaliation
Little moves for summary judgment on the grounds that the retaliation claim fails
as a matter of law, he is immune from suit by reason of qualified immunity, and he
cannot be held liable under 42 U.S.C . § 1983 for claims raised against him in his official
capacity. (D.I. 66) . Howard opposes the motion on the grounds that there are disputed
issues of material fact, he has established the elements of a retaliation claim , and Little
10
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is not entitled to qualified immunity. Howard did not address the issue of Little's
immunity from suit for claims raised against him in his official capacity.
A prisoner litigating a retaliation claim need not prove that he had an independent
liberty interest in the privileges that he was den ied . Allah v. Seiverling, 229 F.3d 220 ,
224-25 (3d Cir. 2000) . "A prisoner alleging retaliation must 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,2 and (3) a causal link
between the exercise of his constitutional rights and the adverse action taken against
him ." Sloan v. Pennsylvania Dep 't of Corr., 800 F. App'x 143, 148 (3d Cir. 2020)
(quoting Mitchell v. Hom , 318 F.3d 523 , 530 (3d Cir. 2003) (quoting Rauser v. Hom , 241
F.3d 330 , 333 (3d Cir. 2001 ))). Filing a state court lawsuit is constitutionally protected
conduct. Milhouse v. Carlson , 652 F.2d 371 , 373 (3d Cir. 1981).
The causation element usually3 requires a plaintiff to prove "either: (1) an
unusually suggestive temporal proximity between the protected activity and the
allegedly retaliatory action , or (2) a pattern of antagonism coupled with timing that
suggests a causal link. " Watson v. Rozum , 834 F.3d 417 , 422 (3d Cir. 2016) ; Brant v.
Varano , 717 F. App'x 146, 149-51 (3d Cir. 2017) .
2
"An adverse consequence 'need not be great in order to be actionable[;]' rather, it
need only be 'more than de minimis."' Sloan , 800 F. App 'x at 148 (quoting Watson v.
Rozum , 834 F.3d at 423).
3
I say "usually" because here Plaintiff offers direct evidence; usually a plaintiff
relies only upon circumstantial evidence. See Watson v. Rozum , 834 F.3d at 422
("Because motivation is almost never subject to proof by direct evidence ," inmates
"must rely on circumstantial evidence to prove a retal iatory motive.").
11
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"[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. " Rauser,
241 F.3d at 334. When analyzing a retaliation claim , courts consider that the task of
prison administrators and staff is difficult, and that the decisions of prison officials
require deference, particularly where prison security is concerned. Id.
Defendant does not contest Howard's showing that he has met the first two
elements of a retaliation claim: he engaged in constitutionally protected activity when
he filed the November 3, 2014 lawsuit, and he was subjected to adverse action when
Little did not hire him for the inmate law clerk position. (D.I. 66 at 8). The Court turns to
the next element - causation.
Little contends that Howard fails to establish causation and argues there is no
suggestive temporal proximity, pointing to the almost one year between the filing of the
November 3, 2014 complaint and Little's failure to hire Howard in September or October
2015 . Timing itself may be "sufficient to establish " that retaliation was a substantial or
motivating factor, but "the timing of the alleged retaliatory action must be 'unusually
suggestive' of retaliatory motive. Estate of Smith v. Marasco, 318 F.3d 497 , 513 (3d
Cir. 2003). "[T]iming plus other evidence may be an appropriate test where the
temporal proximity is not so close as to be 'unduly suggestive ."' Id. (quoting Farrell v.
Planters Lifesavers Co., 206 F.3d 271 , 130 (3d Cir. 2000) .
Here, there remains a material issue of fact whether Howard was not hired for a
prison law clerk position in retaliation for his pending Chancery Court litigation against
12
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DDOC employees. Howard produced a memo dated September 8, 2015 , asking to be
assigned to the open law library position .4 Little states that he does not recall Howard
applying for position. Little did not interview Howard . Howard states that Little told him
he was not hired because of the pending litigation , while Little states that he knew
nothing about the litigation until he was notified of the instant lawsuit. 5 Howard provided
affidavits of inmates who state that an inmate's litigation against the DDOC was
considered in the hiring process, while Little states that an inmate's prior or pending
litigation had no bearing on whether the inmate was hired. Accordingly , there is a
genuine issue of material fact on the issue of causation .
The issue of causation , however, does not end the analysis . Assuming arguendo
that Howard met his burden of proving a prima facie case of retaliation , the Court must
determine whether Little met his burden to show that he would have made the same
decision to hire Hudson absent Howard 's protected conduct for reasons reasonably
related to a legitimate penological interest. See, e.g. , Davis v. Harlow, 632 F. App 'x
687 , 691 (3d Cir. 2015) (in summary judgment context, "prison officials may still prevail
4
Little suggests that Howard did not actually apply for the position because
Howard 's memo is not date-stamped and Howard did not produce an accompanying
denial memo as was standard practice for Little . (See D. I. 66 at 5 n.1 ). Howard ,
however, produced a memo indicating that he did apply for the position and , as the nonmoving party, the Court construes the evidence in the light most favorable to Howard.
5
A fact-finder could consider the grievance investigation report submitted by
Howard as supporting his position that Little was aware of the Chancery Court litigation.
While it does not identify the litigation as the Chancery Court litigation , it indicates that
Howard had pending litigation. The fact-finder could conclude that if Little knew that
Howard had litigation, that fact made it more likely that he knew what that litigation was .
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by proving that they would have made the same decision absent the protected conduct
for reasons reasonably related to a legitimate penological interest") .6
In his declaration , Little indicates that inmates repeatedly sought jobs in the law
library and that openings were infrequent. He lists the qualification and characteristics
he required when hiring inmate law clerks. In addition to legal and computer skills and
the ability to maintain a job, for the safety and security of the inmates and civilians in the
law library, Little hired inmates who could get along with others , would not be bullied ,
would not take advantage of the copying machine, and who could keep the confidences
of other inmates. After interviewing several inmates, Little states that he hired Hudson
because he had a good institutional record, was calm , cool , level-headed , and
contributed to the balance in the law library. While Little provides reasons for hiring
Hudson, Little does not explain or provide facts why he hired Hudson over Howard . The
Court is unable to glean from Little's declaration whether Little would have made the
same decision to hire Hudson absent Howard 's protected conduct for reasons
reasonably related to a legitimate penological interest. In viewing the evidence and all
justifiable inferences in the light most favorable to Howard , the Court finds that at this
stage of the litigation , Little has not produced sufficient evidence to show a nonretaliatory justification for his actions .
6
The Court of Appeals, like other courts of appeals, adopted this burden-shifting
standard from employment law. Rauser v. Horn , 241 F.3d at 333-34. It seems to make
more sense in the disciplinary context, where the focus is on what happened to the
plaintiff. Here, once the burden shifts to Defendant, the focus is on the person hired .
Given the desirability of the inmate law clerk job, it would seem in the usual case a
difficult task for an inmate to dispute a prison official's explanation for the hiring
decision .
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Because there remain issues of fact, the motion for summary judgment on the
retaliation claim will be denied.
2.
Qualified Immunity
Little raises a qualified immunity defense stating, "if the Court determines there is
sufficient evidence to support a claim for retaliation ," he is entitled to qualified immunity
because "it is not clearly established that failing to hire an inmate for a particular job is
an adverse action which is required to substantiate a claim of retaliation. " (0.1. 66 at
10).
"Qualified immunity attaches when an official's conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known ." City of Escondido v. Emmons , _ U.S._ , 139 S. Ct. 500 , 503 (2019) (per
curiam) (quoting Kise/av. Hughes, 584 U.S._, 138 S.Ct. 1148, 1152 (2018) (per
curiam)) . "To be clearly established , a right must be sufficiently clear that every
reasonable official would have understood that what he is doing violates that right. "
Reichle v. Howards, 566 U.S. 658, 664 (2012) (cleaned up). The clearly established
right must be defined with specificity, and the Supreme Court has "repeatedly told
courts .. . not to define clearly established law at a high level of generality." Kise/a v.
Hughes, 584 U.S._, 138 S. Ct. 1148, 1152 (2018) (per curiam) .
While the question of qualified immunity is generally a question of law, "a
genuine issue of material fact will preclude summary judgment on qualified immunity."
Giles v. Kearney, 571 F.3d 318 , 326 (3d Cir. 2009) ; see also Curley v. Klem , 298 F.3d
271 , 278 (3d Cir. 2002) (noting that "a decision on qualified immunity will be premature
when there are unresolved disputes of historical fact relevant to the immunity analysis.")
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Here, qualified immunity is not warranted because there is a genuine dispute of
material fact, inasmuch as no reasonable officer could conclude that the refusal to hire a
qualified inmate for a prison job in retaliation for the exercise of his First Amendment
rights comports with the Constitution .7 See, e.g., Mitchell v. Horn, 318 F.3d 523 , 529-30
(3d Cir. 2003). Given the unresolved questions of fact as to retaliation claim , it would be
premature for the Court to determine the issue under the disputed facts presented by
the parties.
Therefore, the Court will deny that portion of the motion for summary judgment
on the grounds of qualified immunity.
3.
Official Capacity Claims
Finally, Little moves for summary judgment on the claims raised against him in
his official capacity. Howard did not oppose this portion of Little's motion. Howard 's
claims against Little in his official capacity are prohibited by the Eleventh Amendment.
See Stevenson v. Carroll, 474 F. App'x 845 , 848 (3d Cir. 2012) Barring consent, a state
Little argues that it is not clearly established that failing to hire an inmate for a
particular prison job is an adverse action , a required element of retaliation . (0 .1. 66 at
10-11). In taking this position, Little relies upon Kelly v. York Cty. Prison , 340 F. App 'x
59, 61 (3d Cir. 2009); Wisniewski v. Fisher, 857 F.3d 152, 156 (3d Cir. 2017) , and Pepe
v. Lamas, 679 F. App'x 173, 175 (3d Cir. 2017). The cases do not support Little's
position . These cases considered adverse actions for the purposes of retaliation to
include: (1) the failure to hire an inmate for a prison job, Kelly v. York Cty. Prison , 340
F. App'x at 61 ; (2) the termination of an inmate's prison employment as an "Inmate
Legal Reference Aide ," Wisniewski v. Fisher, 857 F.3d at 157; and (3) the failure to
reinstate an inmate to his prison "kitchen job, " Pepe v. Lamas, 679 F. App 'x at 175.
I am not entirely sure how much sense Little's qualified immunity argument
makes. He is not arguing that the constitutional right is not clearly established . Instead ,
he is arguing that the particular form of adverse action is not clearly established to be an
adverse action . It would be the equivalent of, in an excessive force case involving an
accusation that an officer head-butted a prisoner, arguing that no previous case had
ever involved head-butting so the officer was entitled to qualified immunity.
16
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Case 1:17-cv-01548-RGA Document 76 Filed 07/14/20 Page 18 of 18 PageID #: 927
or one of its agencies is immune from suit in federal court under the Eleventh
Amendment. See Kimel v. Florida Bd. of Regents, 528 U.S. 62 , 73, 120 S.Ct. 631
(2000). The Eleventh Amendment bars a suit for monetary damages against state
officials sued in their official capacities . Stevenson v. Carroll, 474 F. App'x at 848 (citing
Melo v. Hafer, 912 F.2d 628 , 635 (3d Cir. 1990)).
Accordingly, the Court will grant that portion of the motion for summary judgment
on the claims raised against Little in his official capacity.
IV.
CONCLUSION
For the above reasons , the Court will : (1) deny Plaintiff's motion for an order to
amend the Court's February 4, 2020 Order (0 .1. 56) ; (2) dismiss as moot Plaintiff's first
motion to compel (0.1. 63) ; (3) grant in part and deny in part Plaintiff's second motion to
compel (64); and (4) grant in part and deny in part Defendant's motion- for summary
judgment (0.1. 65) .
An appropriate order will be entered .
17
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