MCNEIL v. ATLANTIC COUNTY JUSTICE FACILITY et al

Filing 69

OPINION. Signed by Judge Robert B. Kugler on 1/19/2018. (tf, n.m.)

UNPUBLISHED OPINION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

Terry MCNEIL,
Plaintiff,
v.
ATLANTIC COUNTY JUSTICE FACILITY,
et al.,
Defendants.

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Civil No. 15-2939 (RBK/AMD)
OPINION

KUGLER, United States District Judge:
This matter comes before the Court on the Motion for Summary Judgment of Defendant
Sergeant Christopher Neall. (Doc. No. 59.) It is unopposed. This Court previously permitted
Plaintiff Terry McNeil to proceed on his First Amendment retaliation claim against Sgt. Neall.
(Doc. No. 35.) Since then, McNeill has not presented anything that could provide a basis in fact
for this lawsuit against Sgt. Neall. Defendant’s motion is therefore GRANTED.
I.

THE FACTS
Because McNeil has not opposed Sgt. Neall’s motion for summary judgment, the Court

will consider all facts presented by Sgt. Neall as undisputed for purposes of the motion. See Fed.
R. Civ. P. 56(e).
McNeil was serving a four-year sentence when he was transferred to the Atlantic County
Justice Facility on January 7, 2015. Upon arrival, he was given a handbook instructing him that if
he made a fictitious emergency claim, he would be subject to disciplinary action. Later on, McNeil
became alarmed by the presence of a “sick” cellmate and called the Crisis Hotline at the Atlantic
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County Justice Facility. Once on the line, McNeil was told it was a suicide hotline. McNeil
responded by saying he understood that, but complained about the conditions of his confinement.
For this, he was subject to disciplinary action—four hours of confinement in his cell—because he
did not call the line with an emergency.
McNeil filed suit against numerous defendants, asserting several claims. This Court
dismissed all of them except for a First Amendment retaliation claim brought against Sgt. Neall.
But it is now apparent that Sgt. Neall’s involvement in this incident is, at most, minimal. When
asked to describe Sgt. Neall, McNeil indicated that Sgt. Neall was African-American, about 5’8”,
and clean-cut. (Id. at 57:3-10.) However, Sgt. Neall is Caucasian. (See Def. Br. Ex. I.) When asked,
“Did Sgt. Neall do anything to retaliate against you beyond just not acting on your requests?”,
McNeil answered “No, he hasn’t.” (McNeil Dep. Tr. 90:21-91:2.) Review of McNeil’s deposition
indicates that a “Sergeant Neall” would frequently visit McNeil’s “pod,” and take notes about
McNeil’s complaints about his confinement. (McNeil Dep. Tr. 57:16-59:17.) The entirety of
McNeil’s complaint against Sgt. Neall appears to be that he did not get McNeil new sheets, shower
shoes, or a lower bunk bed. There are no other facts indicating Sgt. Neall’s involvement.
II.

THE SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the Court is satisfied that “there is no genuine

dispute as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine
dispute of material fact exists only if the evidence is such that a reasonable jury could find for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When a court weighs
the evidence presented by the parties, “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. at 255.
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The burden of establishing the nonexistence of a “genuine issue” is on the party moving
for summary judgment. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996).
The moving party may satisfy its burden either by “produc[ing] evidence showing the absence of
a genuine issue of material fact” or by “‘showing’—that is, pointing out to the district court—that
there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325.
If the party seeking summary judgment makes this showing, it is left to the nonmoving
party to “do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, to survive
summary judgment, the nonmoving party must “make a showing sufficient to establish the
existence of [every] element essential to that party's case, and on which that party will bear the
burden of proof at trial.” Celotex, 477 U.S. at 322. Furthermore, “[w]hen opposing summary
judgment, the nonmovant may not rest upon mere allegations, but rather must ‘identify those facts
of record which would contradict the facts identified by the movant.’” Corliss v. Varner, 247 F.
App'x 353, 354 (3d Cir. Sept. 17, 2007) (quoting Port Auth. of N.Y. and N.J. v. Affiliated FM Ins.
Co., 311 F.3d 226, 233 (3d Cir. 2002)).
In deciding the merits of a party's motion for summary judgment, the Court's role is not to
evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine
issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the fact
finder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
III.

DISCUSSION
Plaintiff asserts that Sgt. Neall retaliated against him for exercising his First Amendment

rights when he complained about the conditions of confinement to the “Crisis Hotline.” “A
prisoner alleging retaliation must show (1) constitutionally protected conduct, (2) an adverse action
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by prison officials sufficient to deter a person of ordinary firmness from exercising his
constitutional rights, and (3) a causal connection between the exercise of his constitutional rights
and the adverse action taken against him.” Mack v. Yost, 427 F. App'x 70, 72 (3d Cir. 2011)
(quoting Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)).
There is nothing in the record or in McNeil’s complaint that indicates Sgt. Neall did
anything to McNeill that could be considered an adverse action. Indeed from the facts before this
Court, taken in the light most favorable to the nonmovant, it is not even apparent that McNeil has
identified the right Sgt. Neall. Even assuming, though, that McNeil has identified the correct
defendant, McNeil himself has stated that Sgt. Neall did not do anything to retaliate against him.
McNeil therefore does not “make a showing sufficient to establish the existence of [every] element
essential to [his] case,” as he must to withstand summary judgment. Celotex, 477 U.S. at 322. The
Court must therefore grant summary judgment to Sgt. Neall. No version of the facts before this
Court today can sustain this complaint.
IV.

CONCLUSION
For the reasons stated above, Sgt. Neall’s motion is GRANTED. An order follows.

Dated:

01/19/2018

/s Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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