BANDA v. CORNIEL et al

Filing 206

OPINION. Signed by Judge Esther Salas on 2/4/2021. (bt, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

________________________
JOHN BANDA,
Plaintiff,
v.
Y. CORNIEL, et al.,
Defendants.

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Civil Action No. 13-4240 (ES) (MAH)

OPINION

________________________:
SALAS, DISTRICT JUDGE
This matter is before the Court upon plaintiff John Banda’s (“Plaintiff”) motion for
summary judgment 1 (D.E. No.185), and defendants Lilly Chiapetta, Kimberley Stokes, Valvonda
Brickhouse, Merrill Main, and Yaneris Corniel’s (collectively, “Defendants”) 2 cross-motion for
summary judgment (D.E. No. 201). For the reasons set forth below, the Court DENIES Plaintiff’s
motion and Defendants’ cross-motion.
I.

BACKGROUND
Plaintiff is currently detained at the Special Treatment Unit (“STU”) in Avenel, New

Jersey. (D.E. No. 1 (“Compl.”) at 6). Plaintiff was civilly committed as a sexually violent predator
(“SVP”) pursuant to the New Jersey Sexually Violent Predator Act (“SVPA”), N.J. Stat. Ann.
§ 30:4-27.24 et seq. (D.E. No. 201-4, at 1–9). Plaintiff filed the instant action under 42 U.S.C.

1

Plaintiff titles his submission “Dispositive Motion.” The Court treats the submission as a motion for
summary judgment.

2

As will be discussed, there were initially many additional defendants in this matter. However, to be clear,
this ruling only pertains to the collective Defendants named in this paragraph.

§ 1983, alleging that his First Amendment rights were violated when he was retaliated against for
engaging in protected conduct. (See generally Compl.). Specifically, Plaintiff alleges that
Defendants violated his First Amendment rights by placing him in a Modified Activities Program
(“MAP”) in retaliation for his excessive use of the grievance system and the manner in which he
expressed himself on grievance forms. (Id. at 26). As a result of the MAP, Plaintiff was stripped
of his institutional job, his television, and his ability to receive packages from outside vendors.
(Id. at 7).
On March 6, 2015, the Court screened Plaintiff’s complaint and permitted his retaliation
claim to proceed against 24 of 27 original defendants. (D.E. No. 28). The remaining defendants
filed a motion to dismiss on July 10, 2015, which the Court granted on March 29, 2016. (D.E.
Nos. 43, 64 & 65). The Court found that Plaintiff failed to allege that he suffered an adverse action
sufficient to deter a prisoner of ordinary firmness from exercising his constitutional rights. (D.E.
No. 63 at 5–7). The Court also found that Plaintiff failed to allege personal involvement of the
remaining nineteen defendants. (Id. at 3–5). Plaintiff then filed a motion for reconsideration (D.E.
No. 65), which was denied (D.E. Nos. 74 & 75). On March 15, 2017, the United States Court of
Appeals for the Third Circuit vacated the dismissal of Plaintiff’s retaliation claim against
Defendants and remanded the case for further proceedings consistent with its opinion. See Banda
v. Corniel, 682 F. App’x 170, 174 (3d Cir. 2017). The Third Circuit held that Plaintiff “sufficiently
pleaded an adverse action because his MAP placement—in addition to other significant
restrictions—cost him his job.” Id. The Third Circuit affirmed the remaining aspects of the
Court’s decision. Id.
Following remand (D.E. No. 83), Plaintiff filed a motion to reinstate the nineteen
terminated defendants (D.E. No. 84), which the Court denied (D.E. No. 91). Plaintiff then sought

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leave to amend his Complaint (D.E. No. 92), which was also denied (D.E. No. 97). Defendants
subsequently filed a motion to dismiss. (D.E. No. 101). The Court ordered additional briefing
from Defendants regarding Plaintiff’s claim that the retaliation was in response to his use of the
grievance system rather than the content that Plaintiff provided in the forms. (D.E. No. 115).
Following Defendants’ supplemental brief (D.E. No. 125) and Plaintiff’s reply (D.E. No. 126), the
Court denied Defendants’ motion to dismiss. (D.E. No. 127).
On January 25, 2019, Defendants filed an Answer to the Complaint. (D.E. No. 133
(“Answer”)). Following discovery, Plaintiff filed his motion for summary judgment on June 27,
2020. (D.E. No. 185). Defendants filed the cross-motion along with opposition to Plaintiff’s
motion for summary judgment. (D.E. No. 201 (“Def. Mov. Br.“)). Plaintiff filed an opposition to
Defendant’s cross-motion. (D.E. No. 205).
II.

LEGAL STANDARD
A court shall grant summary judgment under Rule 56 of the Federal Rules of Civil

Procedure “if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits . . . show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986). The mere existence of an alleged disputed fact is not enough. Rather,
the opposing party must prove that there is a genuine issue of a material fact. Id. An issue of
material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. at 248. A fact is material if, under the governing substantive law, a dispute
about the fact might affect the outcome of the lawsuit. Id. Factual disputes that are irrelevant or
unnecessary will not preclude summary judgment. Id.

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On a summary judgment motion, the moving party must first show that no genuine issue
of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts
to the nonmoving party to present evidence that a genuine issue of material fact compels a trial.
Id. at 324. To meet its burden, the nonmoving party must offer specific facts that establish a
genuine issue of material fact, not just “some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). Thus, the
nonmoving party cannot rely on unsupported assertions, bare allegations, or speculation to defeat
summary judgment. See Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir.
1999). The Court must, however, consider all facts and their reasonable inferences in the light
most favorable to the nonmoving party. See Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir.
1995).
III.

DISCUSSION
A.

Plaintiff’s Motion for Summary Judgment

On June 27, 2020, Plaintiff filed a two-page motion for summary judgment, stating that
Defendants “knew or should have known, that their actions violated clearly established law and
thereby deprived Plaintiff of his rights,” and requests “the Court enter judgement” and award
punitive and compensatory damages on Plaintiff’s behalf. (D.E. No. 185).
Regarding summary judgment motions, the Court’s Local Civil Rules require that
[o]n motions for summary judgment, the movant shall furnish a
statement which sets forth material facts as to which there does not
exist a genuine issue, in separately numbered paragraphs citing to
the affidavits and other documents submitted in support of the
motion. A motion for summary judgment unaccompanied by a
statement of material facts not in dispute shall be dismissed.
…
Each state of material facts shall be a separate document (not part of
a brief) and shall not contain legal argument or conclusions of law.

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L. Civ. R. 56.1 (a). Here, Plaintiff failed to submit the required statement of undisputed material
facts. Given Plaintiff’s pro se status, the Court will excuse Plaintiff’s failure to assert the
undisputed material facts in a separate statement; however, Plaintiff fails to assert any undisputed
facts in his motion. Without an assertion of undisputed facts, the Court is unable to conduct a
summary judgment analysis.
While Plaintiff’s motion fails based on this deficiency, Plaintiff also fails to address any
claims or defenses. Pursuant to the Federal Rules of Civil Procedure, “[a] party may move for
summary judgment, identifying each claim or defense—or the part of each claim or defense—on
which summary judgment is sought. 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.” Fed. R. Civ. P. 56(a). For this additional reason, Plaintiff’s motion fails.
Plaintiff’s motion is denied. 3
B.

Defendants’ Motion for Summary Judgment
1.

Retaliation

Plaintiff’s sole remaining claim alleges that Defendants violated his First Amendment
rights when they placed him in MAP in retaliation for exercising his constitutional right to file
grievances. (See Compl.) Defendants filed their cross-motion requesting summary judgment
based on the same-decision defense, alleging that the decision to place Plaintiff in MAP would
have been identical if Plaintiff regardless of any First Amendment issues. (Def. Mov. Br. at 14).
Defendants argue that the decision to place Plaintiff in MAP was not motivated by Plaintiff’s filing

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Additionally, the Court’s Local Civil Rules require that motions must be filed with moving papers and a
brief, where the brief is a separate document, unless the movant submits a statement setting forth the reasons why no
brief is necessary. L. Civ. R. 7.1 (d). The entirety of Plaintiff’s motion is a two-page document, which is not in
compliance with the local rules. Given Plaintiff’s pro se status, however, the Court does deny summary judgment on
this ground.

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of grievances; rather, the decision was based on the medically relevant content of those grievances.
(Id. at 10–13).
Prison officials may not interfere with a prisoner’s exercise of First Amendment rights
unless interference is reasonably related to a legitimate penological interest, nor may prison
officials retaliate against a prisoner for exercising his First Amendment rights. See Turner v.
Safley, 482 U.S. 78, 90 (1987). An incarcerated plaintiff pleads a claim for retaliation by alleging
that “(1) he engaged in constitutionally protected conduct[,] (2) he suffered an adverse action[,]
and (3) the constitutionally protected conduct was a substantial or motivating factor for the adverse
action.” Brant v. Varano, 717 F. App’x 146, 149 (3d Cir. 2017); see also Rauser v. Horn, 241
F.3d 330, 333–34 (3d Cir. 2001).
Prison grievance filings qualify as protected First Amendment conduct. Watson v. Rozum,
834 F.3d 417,422 (3d Cir. 2016). An action is adverse if it would be “sufficient to deter a person
of ordinary firmness from exercising his constitutional rights.” Mack v. Warden Loretto FCI, 839
F.3d 286, 297 (3d Cir. 2016); see also Watson, 834 F.3d at 422 n.6. A plaintiff can prove the third
element of a retaliation claim by demonstrating “(1) an unusually suggestive temporal proximity
between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism
coupled with timing to establish a causal link.” Watson, 834 F.3d at 424. If the plaintiff can
sufficiently allege that his engagement in the protected conduct was the motivating factor, “the
burden shifts to the defendant to prove by a preponderance of the evidence that it ‘would have
made the same decision absent the protected conduct for reasons reasonably related to a legitimate
penological interest.’” Oliver v. Roquet, 858 F.3d 180, 190 (3d Cir. 2017) (quoting Rauser, 241
F.3d at 333).

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Defendants concede that Plaintiff’s filing of grievances qualify as constitutionally
protected behavior. (Def. Mov. Br. at 9). The Third Circuit found that Plaintiff suffered the
adverse action of being placed in MAP because he lost his institutional job, television, and the
privilege of receiving packages from outside vendors. See Banda, 682 F. App’x at 174. The
parties disagree, however, as to whether those adverse actions stemmed from retaliatory animus.
(See generally Compl.; see also generally Def. Mov. Br.).
Defendants argues that the decision to place Plaintiff in MAP would have been identical
regardless of free speech considerations. (Def. Mov. Br. at 14). Defendants assert that the relevant
MAP is “instituted when a resident is unwilling to control his antisocial behaviors and has not
developed the behavior skills necessary to maintain appropriate control.” (D.E. 201-4 (“Statement
of Material Facts”) at 3 (citing D.E. No. 201-3, Ex. A at 44)). Defendants argue that Plaintiff was
placed in MAP because, despite counseling, he continued to use the STU’s grievance request
system inappropriately—by using offensive and abusive language—and refused to engage in
treatment. (Id. at 4 (citing D.E. No. 201-3, Ex. B)). Additionally, Defendants explain that Plaintiff
did “not utilize the grievance request system to note a grievance or make a request but instead to
express his views with offensive and abusive language.” (Id.) It was determined that Plaintiff was
effectively a treatment refuser. (Id. (citing D.E. No. 201-3, Ex. E)). Defendants argue that the
decision to place Plaintiff in MAP was not made because Plaintiff filed grievances, rather, the
decision was made based on the content of those grievances and the relevant collateral
consequences of that content, such as Plaintiff’s refusal to participate in treatment, poor judgment,
impaired impulse control, and antisocial behavior. (Def. Mov. Br. at 10–13). Plaintiff disputes
Defendants’ contention, arguing that Defendants threatened MAP if Plaintiff continued to file
grievances. (D.E. No. 205 at 2–3).

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The Third Circuit addressed the same-decision defense in Watson. In Watson, the inmate
plaintiff claimed that the officer defendant mishandled his radio, breaking the antenna and then
claiming that the antenna was already broken and secured by tape. See 834 F.3d at 420. The
defendant informed the plaintiff that a broken radio was contraband and must be confiscated,
which required the completion of certain paperwork. See id. While the paperwork was being
completed, the plaintiff became angry that the defendant would not take responsibility for breaking
the antenna. See id. The plaintiff requested a grievance form, which he was denied. See id. at
420–21. The plaintiff was later summoned to the prison security office where a different officer,
Coutts, allegedly told the plaintiff that he would be issued a misconduct for giving the staff a “hard
time” by requesting a grievance form. See id. The plaintiff later obtained a grievance form from
another inmate, but before he could file it, he was issued a misconduct notice from Coutts citing
him with a Class I misconduct. See id. The plaintiff was ultimately found guilty of a Class II
misconduct. See id. After the plaintiff’s appeals were denied, litigation ensued. See id. The
district court granted the defendant’s motion for summary judgment regarding the plaintiff’s
retaliation claim, finding that even if the plaintiff established a prima facia case of retaliation,
judgment in favor the defendants was warranted based on the same-decision defense. See id.
On appeal, the Third Circuit observed that “most prisoners’ retaliation claims will fail if
the misconduct charges are supported by the evidence.” Id. at 426 (citing Carter v. McGrady, 292
F.3d 152, 157 (3d Cir. 2002) 4). In that regard, the Circuit reiterated that the decisions of prison

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In Carter, the plaintiff claimed that he was given a misconduct because prison officials resented his
functioning as a jailhouse lawyer. See Carter, 292 F.3d at 153. In rejecting that claim, the Third Circuit noted that
most prisoners’ retaliation claims will fail if the misconduct charges are supported by the evidence, explaining that
“[e]ven if prison officials were motivated by animus to jailhouse lawyers, Carter’s offenses, such as receiving stolen
property, were so clear and overt that we cannot say that the disciplinary action taken against Carter was retaliatory.”
Id. at 159. The Third Circuit found that, given the force of the evidence that the plaintiff was guilty of receiving stolen
property, there was no genuine issue of material that his misconduct citation was reasonably related to legitimate
penological interests, and that the plaintiff would have been disciplined notwithstanding his jailhouse lawyering. Id.

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administrators in the context of disciplinary proceedings are entitled to “great deference.” See id.
To determine “whether the prison officials’ decision to discipline an inmate for his violations of
prison policy was within the broad discretion” they must be afforded, a court must “evaluate the
‘quantum of evidence.’” Id. at 426.
The Third Circuit distinguished the facts in Watson from those in Carter, where, “given
the force of the evidence that Carter was guilty of receiving stolen property, ... there was no
genuine issue of material fact that his misconduct citation was reasonably related to legitimate
penological interests, and that Carter would have been disciplined notwithstanding his jailhouse
lawyering.” Id. (citing Carter, 292 F.3d at 159). The Third Circuit explained that “Watson’s
broken radio was not so ‘clear and overt’ a violation that [the court] could conclude that [Waston]
would have been written up if he had not also given prison officials ‘a hard time.’” Id. The Third
Circuit noted that other inmate had radios with loose or broken antennas, but those inmates did not
receive a misconduct. Id. Accordingly, the Third Circuit found that a reasonable fact finder could
conclude “that the misconduct was issued in retaliation for Watson’s statement that he was going
to file a grievance, and not in furtherance of legitimate penological goals. Id.
Defendants contend that it was the medically relevant behavior of Plaintiff within the
content of the grievances and other medically relevant behaviors that led to the MAP placement.
(Id. at 10). Defendants allege three separate behaviors that Plaintiff exhibited that resulted in his
placement on MAP: (i) Plaintiff inappropriately utilized the grievance system by using offensive
and abusive language; (ii) Plaintiff exhibited poor judgment and impaired impulse control; and
(iii) Plaintiff was effectively a treatment refuser. (Id. at 10–14).
Defendants first argue that Plaintiff was placed in the MAP program because “despite
counseling, he continued to utilize the STU’s grievance/request system inappropriately (by using

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offensive and abusive language) and refused to meaningfully engage in treatment.” (Id. at 10).
Grievance/request forms from September and December of 2013 show that Plaintiff requested a
CD-Rom that had been delivered to the institution; he was provided with the CD-Rom. (D.E. No.
22 at 5 & 6 5).

In the December 2013 grievance/request form and a February 2014

grievance/request form, Plaintiff requested a copy of information accompanying the CD-Rom that
was allegedly relevant to a business opportunity; the document turned out to be an advertisement.
(Id. at 6 & 8). Plaintiff was informed that information he was requesting was an advertisement
and that staff was not responsible for providing Plaintiff with that information. (Id. at 8). In a
separate December 2013 form, Plaintiff alleged that staff was dictating how he should format his
legal work and overstepping their bounds. (Id. at 11). In February 2014, Plaintiff’s filed a
grievance/request form indicating that the “federal court has [his] complaint” and the staff should
“get [themselves] a[n] attorney.” (Id. at 12). In April 2014, Plaintiff’s grievance/request form
again asked which staff was keeping the website information, regarding a business opportunity of
buying and selling apartments, from Plaintiff. (Id. at 9). In June 2014, Plaintiff stated that he was
using the grievance system in a lawful manner and he wanted to know why he could not have
“information of selling apartment buildings.” (Id. at 10). Plaintiff asked why the staff was
“deliberately avoiding answering his question.” (Id.)
Defendants next assert that Plaintiff exhibited poor judgment and impaired impulse control.
(Def. Mov. Br. at 10). As support, Defendants attached an exhibit that contained an inter-office
communication indicating that on one occasion Plaintiff “removed a sign-up sheet put up by the
Recreation Department and kept it in his room, thus not allowing his fellow residents to sign-up
for the offered activity which resulted in the activity being canceled. [Plaintiff] then proceeded to

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Citations to Docket Entry Number 22 refer to the pagination generated by the Court’s Electronic Case Filing

System.

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write a Remedy/Grievance form regarding the lack of activity.” (D.E. No. 201-3, Ex. C). The
inter-office communication found that Plaintiff’s behaviors were consistent with the behavior
behind his MAP placement and that Plaintiff showed poor understanding of boundaries and an
inflated sense of entitlement. (Id.).
Defendants further allege that Plaintiff was a “treatment refuser,” which led to the decision
to place him on MAP. (Def. Mov. Br. at 11–12). In support, Defendants attach a November 2012
inter-office communication informing Plaintiff that he was free to express specific issues;
however, Plaintiff was only expressing thoughts about staff and the system in an abusive manner.
(Id.; D.E. No. 201-3, Ex. D). The communication noted that Plaintiff spent an “inordinate amount
of time victim stancing and debating what [he] perceive[d] as system issues.” (D.E. No. 201-3,
Ex. D). Plaintiff was instructed that he could benefit from focusing on and in engaging in
treatment. (Id.). Dr. Main’s January 18, 2013 correspondence indicated that the staff at the facility
have “bent over backwards” to get Plaintiff to engage in treatment. (Id., Ex. E). Instead of
engaging in his treatment, Plaintiff “challenges, debates, misrepresents legal issues, threatens legal
retribution, and personally insults therapists.” (Id.). His behavior was deemed as “effectively
refusing treatment.” (Id.). Dr. Main noted that Plaintiff was in MAP for several incidents because
he effectively refused treatment. (Id.). Dr. Main also indicated that Plaintiff’s MAP placement
was partly caused by him corresponding in a “deviant nature with a young man incarcerated in
Kansas” and “misrepresent[ing] himself as a paralegal in those interactions.” (Id.).
Defendants have failed to sufficiently show that it was the content of the grievances—
abusive and offensive language coupled with lack of legitimate grievances—and not the actual
protected act of filing a grievance, in combination with the other incidents listed above, that
prompted Plaintiff’s placement in MAP. As summarized, the grievance forms, while repetitive,

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do not appear to contain the “offensive and abusive” language alleged by Defendants. (See
generally D.E. 22). Although Defendants argue that the grievances did not contain actual
grievances, they do show that Plaintiff was grieving the denial of obtaining specific documents or
items. (Id.) For example, not only did Plaintiff request the CD-Rom, his grievance was successful
as he received it.
The Court recognizes that there is additional evidence, summarized supra, regarding
Plaintiff’s removal of an activity sign-up sheet and deviant communication with another
individual, however, those instances occurred after Petitioner was placed in MAP, and thus, were
not reasons Defendants placed Plaintiff in MAP in the first instance. (D.E. No. 201-3, Ex. C, D,
& E). The initial inter-office communication placing Plaintiff in MAP cited Plaintiff’s continuous
use of the grievance system inappropriately and his “abusive language toward staff members.”
(Id., Ex. B). The Court fails to see, and the Defendants fail to specifically cite to the offensive or
“abusive language.” The inter-office communication also appears to reflect that Plaintiff was
placed in MAP based on, in part, his filing of grievances. An inter-office communication from
November 14, 2012, again indicates Plaintiff was placed in MAP because he was argumentative,
disrespectful, abusive in expressing his opinions, and misusing the grievance system. (Id. at Ex.
D). The above discussed communication from Dr. Main regarding plaintiff being a treatment
refuser, also refers to plaintiff’s use of the grievance system, noting that Plaintiff insulting
therapists and threatening legal retribution. (D.E. No.201-3, Ex. E). As such, the Court finds that
the quantum of the evidence fails to show that Defendants would have made the same treatment
decision absent Plaintiff’s filing of grievances, and the treatment decision was related to the
treatment goals for SVPs. In short, Defendants have not provided any evidence, much less
sufficient evidence, that Plaintiff’s grievances contained such offensive and abusive material to

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show Petitioner was placed in MAP for the content of the grievances and not the act of the filing
them.
A reasonable fact finder could determine that Defendants’ decision to place Plaintiff in
MAP was based on Plaintiff’s filing of grievances. Defendants’ decision could be based on
Plaintiff’s medically relevant behaviors but that is not the only reasonable inference. 6 There
remains a genuine issue of material fact as to whether Plaintiff’s filing of grievances was what
motivated Defendants decisions. Defendants have failed to meet their burden to show the same
decision defense. Thus, the Court denies summary judgment to Defendants on Plaintiff’s sole
remaining First Amendment retaliation claim.
2.

Qualified Immunity

Finally, Defendants argue that they are entitled to qualified immunity. (Def. Mov. Br. at
15–18). Specifically, Defendants argue that “the issue of whether placing a STU committee on
program MAP status as medical treatment for improperly filing grievances with foul language and
threatening comments is not a clearly established First Amendment violation.” (Id. at 17).
“[G]overnment officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). “When properly applied, [qualified immunity] protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 744
(2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)) (cited in Spady v. Bethlehem Area
Sch. Dist., 800 F.3d 633, 637 (3d Cir. 2015)).

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Notably, Defendants expressly indicate that Plaintiffs misuse of the grievance system was a consideration in
his being assigned to MAP. However, Defendants do not demonstrate that Plaintiff used the abusive and offensive
language in the grievance process that is alleged.

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In determining qualified immunity, the first question is whether “the facts alleged, viewed
in the light most favorable to the party asserting the injury, show that the officer's conduct violated
a constitutional right[.]” Curley v. Klem, 298 F.3d 271, 277 (3d Cir. 2002) (citing Saucier v. Katz,
533 U.S. 194, 201 (2001)); see also Reedy v. Evanson, 615 F.3d 197, 223 (3d Cir. 2010). Second,
a court must decide whether the right at issue was “clearly established” at the time of defendant's
alleged misconduct. See Pearson v. Callahan, 555 U.S. 223, 232 (2009).
In order for a right to be clearly established, “there must be applicable precedent from the
Supreme Court, which there is not, and even if a robust consensus of cases of persuasive authority
in the Court of Appeals could itself establish the federal right.” Spady, 800 F.3d at 639 (internal
citations and quotations omitted). Although a plaintiff “does not have to produce a case directly
on point . . . existing precedent must have placed the statutory or constitutional question beyond
debate.” Id. (internal citations and quotations omitted). “Stated another way, a court need not find
that the very action in question has previously been held unlawful, but rather may conclude that
the firmly settled state of the law, established by a forceful body of persuasive precedent, would
place a reasonable official on notice that his actions obviously violated a clearly established
constitutional right.” Id.
In arguing for the application of qualified immunity, Defendants assert that Plaintiff needs
to point to some legal authority in the jurisdiction that would put them on notice that their alleged
misconduct violated a constitutional right. (Def. Mov. Br. at 17). Defendants argue that the issue
of whether placing Plaintiff in MAP as medical treatment for improperly filing grievances with
foul language is not a clearly established First Amendment violation, thus, Defendants are entitled
to qualified immunity. (Id). The Court disagrees with Defendants’ framing of the issue. The right
at issue is Plaintiff's First Amendment right to use the institution’s grievance system. Defendants

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do not claim that they were aware that Plaintiff had a clearly established First Amendment right to
use the grievance system; nor do Defendants assert that it was not clearly established that they
could not retaliate against Plaintiff for his exercise of that right. Consequently, Defendants have
failed to meet their burden of establishing qualified immunity. Thomas v. Independence Twp., 463
F.3d 285, 293 (3d Cir. 2006) (“[T]he burden of pleading qualified immunity rests with the
defendant, not the plaintiff.”).
IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment is denied. The Court

also denies Defendants’ cross-motion for summary judgment. An appropriate Order follows.

Dated: February 4, 2021
s/Esther Salas
Esther Salas, U.S.D.J.

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