Green v. Sneath et al

Filing 167

MEMORANDUM & ORDER denying pltf's MSJ 117 , granting defts' cross-MSJ 133 , directing Clrk of Ct to enter jdgmt in favor of defts & against pltf, denying pltf's supp'l MIL 110 , motion for ER inj 16 , motion for supp'l co mplaint 162 & motion for discovery 164 as MOOT, directing Clrk of Ct to CLOSE matter, & deeming any appeal from this order as frivolous & not in good faith. (See memo & order for complete details.) Signed by Honorable Christopher C. Conner on 03/26/12. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TYRONE GREEN,
Plaintiff
v.
DET. SNEATH, et al.,
Defendants

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CIVIL ACTION NO. 1:09-CV-0154
(Judge Conner)

MEMORANDUM
Plaintiff Tyrone Green (“Green” or “plaintiff”), a Pennsylvania state inmate
incarcerated at the State Correctional Institution at Huntingdon (“SCIHuntingdon”) initiated this civil rights action pursuant to 42 U.S.C. § 1983, on
January 26, 2009. Named as defendants are the following individuals:
Superintendent Raymond Lawler (“Lawler”); SCI-Smithfield Superintendent Jon
Fisher (“Fisher”); Deputy Superintendent Corbin (“Corbin”); Lieutenant Thomas
Holtz (“Holtz”); Lieutenant Cameron Kendrick (“Kendrick”); Corrections Officer
Lewis Tress (“Tress”); Corrections Officer Melvin Settle (“Settle”); Corrections
Officer Anthony Eberling (“Eberling”); Hearing Examiner Edward Mitchell
(“Mitchell”); Father George Koharchik (“Koharchik”) and Pennsylvania State
Trooper Daniel Sneath (“Trooper Sneath”). Presently pending are cross motions
for motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.
For the reasons set forth below, plaintiff’s motion (Doc. 117) will be denied and
defendants’ cross motion (Doc. 133) will be granted. Also pending are the following

motions filed by Green: supplemental motion in limine (Doc. 110); motion for an
emergency injunction (Doc. 161); motion for supplemental complaint (Doc. 162);
and motion for discovery (Doc. 164). The motions will be denied as moot.
I.

Standard of Review
Through summary adjudication the court may dispose of those claims that do

not present a “genuine issue as to any material fact” and for which a jury trial
would be an empty and unnecessary formality. See FED . R. CIV . P. 56(c). The
burden of proof is upon the non-moving party to come forth with “affirmative
evidence, beyond the allegations of the pleadings,” in support of its right to relief.
Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED . R. CIV . P.
56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence
must be adequate, as a matter of law, to sustain a judgment in favor of the
non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587-89 (1986); see also FED . R. CIV . P. 56(c), (e). Only if this threshold is met may the
cause of action proceed. Pappas, 331 F. Supp. 2d at 315.
II.

Statement of Material Facts
At all times relevant, Green was incarcerated at SCI-Huntingdon. (Doc. 134,

¶ 1; Doc. 147, ¶ 1; Doc. 145, ¶ 1; Doc. 151, ¶ 1.) On August 24, 2006, Pennsylvania
State Police Trooper Sneath was assigned to investigate a complaint by Green.
(Doc. 134, ¶ 3; Doc. 147, ¶ 3; Doc. 145, ¶ 3; Doc. 151, ¶ 3.) On that same day, Trooper
Sneath met with Green at J.C. Blair Memorial Hospital and Green informed
2

Trooper Sneath that he was pushed down the steps by a corrections officer whom
he could not identify. (Doc. 134, ¶ 5; Doc. 147, ¶ 5.) Green asked to look at
photographs of the corrections officers who were working on that day so he could
identify the culprit. (Doc. 134, ¶ 6; Doc. 147, ¶ 6.)
Following his discharge from the hospital, Green was transported to the
State Correctional Institution at Smithfield (“SCI-Smithfield”) to recuperate. (Doc.
147, ¶ 7; Doc. 147, ¶ 7.) While at SCI-Smithfield, he received three separate
misconducts charging him with Threatening an Employee. (Doc. 151, ¶ 4.) He was
found guilty of all charges and sanctioned to consecutive disciplinary custody in the
Restricted Housing Unit (“RHU”). (Id.)
Green returned to SCI-Huntingdon on September 6, 2006, and he was placed
in the RHU. (Doc. 147, ¶ 7; Doc. 147, ¶ 7; Doc. 151-1, ¶ 4.) While in the RHU, he sent
an inmate request to defendant Fisher seeking to be released into general
population. (Doc. 145, at 7; Doc. 151-2, ¶¶ 3-4.) Fisher responded stating, “I cannot
give you a specific date as to the length of your RHU confinement. I will tell you
this, [sic] you will remain AC status until conclusion of PSP investigation. Upon
that a decision will be made based on various staff input.” (Id. at ¶ 3) “As per
Department of Correction policy, when an inmate alleges he was assaulted by staff,
he is placed in Administrative Custody (“AC”) for his safety pending an
investigation. The inmate remains on AC until the resolution of the investigation.”
(Doc. 151-2, ¶ 4.)

3

On September 26, 2006, Trooper Sneath interviewed Green at SCIHuntingdon. At that time, Green gave Trooper Sneath a copy of the medical report
from the J.C. Blair Memorial Hospital. (Doc. 134, ¶ 10; Doc. 147 ¶ 8.) Green also
reported that he was mistreated while at SCI-Smithfield in that he was tortured
and issued fabricated misconducts. (Id.)
The next day, Trooper Sneath interviewed Corrections Officer Trainee
Montgomery. (Doc. 134, ¶ 11.) Officer Montgomery reported that on August 24,
2006, he was escorting Green with Corrections Officer Hollibaugh. (Id.) Hollibaugh
was behind Green to the left and Officer Montgomery was behind Hollibaugh. (Id.)
He stated that he was more than an arm’s length away from Green when Green
stumbled and went down the stairs and that he was too far away to grab him and
keep him from falling down the stairs and that neither he nor Hollibaugh pushed
Green. (Id. at ¶¶ 11-12.) Officer Montgomery recalled that after Green fell, someone
nearby had jokingly asked the officers why they pushed Green down the stairs. (Id.
at ¶ 13.)
After interviewing Officer Montgomery, Trooper Sneath states that he
showed Green an array of photographs from which Green identified Officer
Montgomery as the officer who escorted him and pushed him down the stairs.
(Doc. 134, ¶ 14). Green, however, denies that he was shown any photographs and
maintains that he was only escorted by one officer, and that was the same officer
who pushed him down the stairs. (Doc. 134, ¶ 15; Doc. 147, ¶¶ 14-15.)

4

On October 25, 2006, Trooper Sneath interviewed Officer Hollibaugh. (Doc.
134, ¶ 16.) Hollibaugh reported that he and Officer Montgomery escorted Green on
August 24, 2006, and that he, Officer Montgomery and Green, who was handcuffed
behind his back and walking slightly ahead of the two corrections officers, were
proceeding on the second tier of the cell block in the RHU. (Id.) He stated that
immediately before he reached the stairs, Green looked up to the third tier and
yelled to another prisoner while still walking toward the stairs. (Id. at ¶ 17.) It
appeared to Hollibaugh that Green misjudged the proximity of the first step, missed
the next step, lost his balance and fell down the stairs. (Id. at ¶ 18.)
On October 3, 2006, Green filed a civil lawsuit in the Court of Common Pleas
of Huntingdon County related to the August 24, 2006 incident naming various
corrections officers including Holtz and Fisher. (Doc. 80-1, at 7.)
A.

Retaliation
1.

December 19, 2006 Interview

Green was again interviewed by Trooper Sneath on December 19, 2006.
(Doc. 134, ¶ 19.) Defendants contend that Trooper Sneath informed Green that he
did not yet have sufficient information to arrest anyone (Doc. 134, ¶¶ 19-20), and
that Green requested that Trooper Sneath close the investigation so that he could
get out of the RHU (Doc. 151, ¶ 4). According to Trooper Sneath, the investigation
continued into February 2007, when he interviewed individuals employed at SCISmithfield in connection with Green’s complaints. (Doc. 134, ¶¶ 21-25.) Conversely,
Green contends that during the interview, Trooper Sneath and Fisher threatened
5

that if he did not drop his complaint against Officer Montgomery, he would remain
in the RHU for the duration of the investigation, which could take years. (Doc. 145,
¶ 4; Doc. 147, ¶¶ 19, 21.) He also contends that Trooper Sneath informed him that
the SCI-Smithfield employees were interviewed and that they had no recollection of
plaintiff. (Id.)
Because Trooper Sneath did not find any evidence to corroborate Green’s
claims that he was mistreated while at SCI-Smithfield, or that Officer Montgomery
pushed him down the stairs, the investigation was terminated on February 26, 2007.
(Id. at ¶¶ 25-26.) Green was released from the RHU on March 1, 2007. (Doc. 151, ¶ 5;
Doc. 151-1, ¶ 6.)
2.

April 10, 2008 RHU placement

On April 10, 2008, the Huntingdon County Court of Common Pleas denied
Greens motion for summary judgment. (80-1, at 9.) On that same day, he was
placed in administrative custody because he was charged with, or was under
investigation for, a violation of facility rules and there was a “need for increased
control pending disposition of charges or completion of the investigation.” (Doc.
149, ¶ 6; Doc. 145, at 10; Doc. 134, ¶ 27.) He remained in administrative custody for
approximately three weeks. (Doc. 145, ¶ 6; Doc. 149, ¶ 6; Doc. 151, ¶ 6.) Because the
Security Office investigation did not produce enough evidence to warrant a
misconduct, he was released to general population. (Doc. 134, ¶¶ 27-28; Doc. 134-3,
at 14; Doc. 151, ¶ 6.)
3.

December 8, 2008 RHU placement
6

On December 4, 2008, Officers Settle and Tress were sent to Green’s cell by
defendant Holtz. Holtz’s reasons for dispatching the officers to Green’s cell vary
slightly. In an affidavit dated January 15, 2010, Holtz stated that he received a
complaint about Green in the Security Office which prompted him to order an
investigative search of Green’s cell. (Doc. 80-1, ¶¶ 2-3.) The search uncovered
contraband in the form of a razor, which resulted in the issuance of a misconduct.
(Id. at ¶¶ 4-5.) When the officers attempted to transfer Green to the RHU pending
further investigation, he refused. (Id. at ¶ 6.) He then threatened to cut himself
with the razor. (Id. at ¶ 6.) Eventually, he agreed to be transferred to the RHU. (Id.
at ¶ 7.)
In his July 12, 2011 affidavit, Holtz states that “[o]n December 4, 2008, based
upon a complaint, I ordered Corrections Officers Settle and Tress to escort Tyrone
Green to the Restricted Housing Unit (“RHU”) pending an investigation concerning
him.” (Doc. 134-4, ¶ 6.) Green refused several orders directing him to place his
hands through the pie-hole in his cell door so that he could be handcuffed. (Doc.
134, ¶ 31; Doc. 147, ¶ 8; Doc. 151, ¶ 8.) He became increasingly agitated and then
grabbed a razor blade from his table and said, “I’m not going down like this. Come
on in. Let’s party then.” (Doc. 134, ¶ 32; Doc. 147, ¶ 32; Doc. 145, ¶ 8; Doc. 151, ¶ 8.)
Green placed the razor blade to his wrist and said, “I’m not going down like this.”
(Id.) Eventually he agreed to be handcuffed and escorted out of the cell; the razor
blade was confiscated and taken to the Security Office. (Doc. 134, ¶ 33; Doc. 147, ¶
33; Doc. 145, ¶ 8; Doc. 151, ¶ 8.) Because it was determined that Green was a
7

danger to himself, he was taken to the infirmary and placed on suicide watch and
observed at fifteen minute intervals. (Doc. 145, ¶ 9: Doc. 145, at 14, 20.)
On December 5, 2008, Green was issued what he describes as a fabricated
misconduct charging him with threatening an employee, refusing to obey an order,
and possession of contraband in the form of a weapon. (Doc. 145, at ¶ 10; Doc. 145,
14.) He was released from the infirmary on December 8, 2008, and taken to the
RHU. (Doc. 145, ¶ 11; Doc. 151, ¶ 11.)
4.

December 16, 2008 RHU transfer

On December 16, 2008, Green was escorted to a different RHU cell by
defendant Eberling. (Doc. 145, ¶ 12.) Green alleges that during the transfer,
Eberling commented “aren’t you the one that got Officer Montgomery in trouble.”
(Doc. 149, ¶ 13.) During this transfer, his Quran was left behind and thrown in the
trash. (Doc. 134, ¶ 35; Doc. 147, ¶ 35.)
On December 17, 2008, Green filed a grievance charging that defendant
Eberling purposely left his Quran behind and that it was discarded. (Doc. 145, ¶ 13;
Doc. 134, ¶ 44.) On January 13, 2009, grievance officer defendant Kendrick
responded to the grievance as follows:
Your Qur´an was left in the cell when you were moved out. You packed
your cell property and were responsible for making sure you had all your
belongings prior to moving. Once you moved out of the cell, the officers
who were moving the next inmate into the cell cleared out any remaining
items that were left in the cell. All items that were left in the cell were
considered trash and removed from the cell.
Iman Erogan talked to you on the 17th and furnished you with a Qur´an.
I talked to Father Koharchik on the 18th. He informed me that they are
8

making an effort to replace the Qur´an with the same version that you
had.
As far as the damages that you are requesting. I can not see how anyone
but yourself could be responsible for your Qur´an being left in your cell
but yourself. I suggest the next time you move to make sure you have all
your property prior to moving out of the cell. I find your grievance
without merit.
(Doc. 145, at 15.) Because Green was dissatisfied with this response, he filed an
appeal. Defendant Lawler responded in the following manner:
In your appeal, you repeat your claims from your initial grievance and
state it was the officers’ responsibility to ensure that your Quran was not
left behind. Lt. Kendrick investigated your complaint and found that
your Quran was left behind when you were moved to another cell and it
was destroyed. This was not done deliberately or maliciously, and there
was no attempt at religious discrimination. In fact, the Chaplaincy
Department was contacted, and you were provided another Quran. In
addition, I have been informed that the Chaplaincy Department has
ordered you a Quran that is the same version of the one which was
destroyed. There will be no cost to you for this replacement. When it
comes in, it will be delivered to you. I find that even though staff did
destroy your Quran, every effort is being made to replace it with the same
version. Your request for the officers’ names who threw your Quran
away is denied as is your request for $50,000.
(Doc. 80-1, at 54; Doc. 132, ¶ 47-48; Doc. 145, ¶ 14; Doc. 147, ¶ 48.) Defendant Corbin
was copied on this response. (Doc. 80-1, at 54.) His final level of appeal to the
Secretary’s Office of Grievances and Appeals was resolved in the following manner:
“Although your Quran was accidentally destroyed, the institution made every effort
to replace it. The record reflects that the religious department has ordered you the
same type of Quran that you had. The institution was contacted and it was
reported that your Quran was ordered and as soon as it arrives you will receive it.
Therefore, this issue is considered resolved. You have not provided any proof that
9

the officers deliberately left you Quran in your cell so that it could be placed in the
trash.” (Doc. 80-1, at 57.)

10

B.

Religious Discrimination

Upon learning of the loss of Green’s Quran during the December 16, 2008
transfer, defendant Kendrick contacted the Iman for assistance in replacing the
Quran. (Doc. 134, ¶ 36.) The Iman immediately provided Green with a Quran, but it
was not the same translation from which he practiced his faith. (Doc. 134, ¶ 37; Doc.
147, ¶ 37.) On December 17, 2008, he sent a request to the Iman stating that “You
said that you would order me the translation of the Quran that I had that the guards
in the RHU threw in the trash. . . .” (Doc. 80-1, at 55.) On December 22, 2008, the
Iman responded that “I think there was a misunderstanding. None of the DOC
employee disrespect our holy books. Maybe it was accident. I already informed
them this is something very serious in Islamic tradition. They will be more careful
after that. Your book request is in process. I have submit it last week.” (Id.)
In February 2009, Green filed another grievance charging that the Office of
Grievances and Appeals and the chaplains at SCI-Huntingdon lied to him when
they represented that they ordered a new Quran. (Doc. 80-1, at 58.) Defendant
Superintendent Lawler responded to the grievance indicating that the Business
Office’s misunderstanding of the resolution of the original grievance resulted in a
$38.00 credit to his inmate account rather than an order for a replacement Quran.
(Id. at 59.) The misunderstanding was resolved and a replacement Quran was
ordered. (Id.) Corbin was copied on this response. (Doc. 80-1, at 59.) He received
the new Quran sometime prior to April 21, 2009. (Doc. 134-3, at 16.)

11

C.

Due Process Violations

Green contends that the misconduct report issued on December 5, 2008, for
threatening an employee, refusing to obey an order and possession of contraband
(weapon) was fabricated. (Doc. 145, ¶ 10.) At the December 9, 2008 misconduct
hearing Green complained that he did not receive notice of the charges against him
because he was not provided a copy of the misconduct twenty-four hours prior to
the hearing. (Doc. 145, at 20.) However, defendant Mitchell noted that because he
was prohibited from having paperwork in the observation cell he was read the
report and that under the circumstances, this constituted sufficient notice of the
charges. (Id.) The hearing proceeded and Green pled guilty to the possession of
contraband charge and not guilty to the other charges. (Id.) The hearing examiner
concluded that he “was NON-compliant, made a threat and possessed a weapon,”
found him guilty, and sanctioned him to sixty days disciplinary custody. (Id.)
D.

Access to the Courts

Green states that on December 19, 2006, Trooper Sneath denied him the
opportunity to pursue criminal charges when he threatened him into dropping the
criminal complaint against Officer Montgomery. (Doc. 147, ¶¶ 21, 26.)
III.

Discussion
Section 1983 of Title 42 of the United States Code offers private citizens a

cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983.
The statute provides, in pertinent part, as follows:

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Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress. . . .
Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a plaintiff must allege
“the violation of a right secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a person acting
under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
A.

Retaliation

Green alleges a number of retaliation claims. The First Amendment offers
protection for a wide variety of expressive activities. See U.S. Const. amend I.
These rights are lessened, but not extinguished in the prison context, where
legitimate penological interests must be considered in assessing the
constitutionality of official conduct. See Turner v. Safley, 482 U.S. 78, 89 (1987).
Retaliation for expressive activities can infringe upon an individual’s rights under
the First Amendment. See Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000).
To prevail on a retaliation claim under 42 U.S.C. § 1983, plaintiff must demonstrate
(1) that he was engaged in protected activity; (2) that he suffered an “adverse
action” by government officials; and (3) that there is “a causal link between the
exercise of his constitutional rights and the adverse action taken against him.”

13

Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001) (quoting Allah, 229 F.3d at 225). The last
Rauser prong requires a prisoner to establish a causal link between the exercise of
his constitutional rights and the adverse action taken against him. The court
employs a burden-shifting regime to determine whether a causal link exists. The
prisoner bears the initial burden of proving that his constitutionally protected
conduct was a substantial or motivating factor in the decision to discipline him or
retaliate against him. See id. (citing Mount Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287 (1977)). The burden then shifts to the defendants to prove
by a preponderance of the evidence that they would have taken the same
disciplinary action even in the absence of the protected activity. See id. If
defendants prove that they would have made the same decision absent the
protected conduct for reasons reasonably related to a legitimate penological
interest, they will prevail in the retaliation action. See id. at 334.
1.

December 19, 2006 Interview

Green claims that he was retaliated against on December 19, 2006, when
defendants Trooper Sneath and Fisher threatened him and forced him to drop the
criminal investigation against Officer Montgomery or risk staying in the RHU until
the conclusion of the investigation, which could take years. (Doc. 143, at 2.)
This claim is barred by the statute of limitations. Federal civil rights statutes
do not contain a specific statute of limitations for § 1983 actions. Therefore, the
district court utilizes the appropriate state statute of limitations. See Wallace v.
Kato, 549 U.S. 384, 387-88 (2007). “The statute of limitations for a § 1983 claim
14

arising in Pennsylvania is two years.” Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009);
see 42 Pa. Cons. State § 5524(2). A cause of action accrues when a plaintiff knew or
should have known he was harmed. See Garvin v. City of Phila., 354 F.3d 215 (3d
Cir. 2003).
It is undisputed that Green’s retaliation claim arose on December 19, 2006. It
is also undisputed that this action was commenced by the filing of a complaint on
January 26, 2009. Consequently, this claim is barred by the statute of limitations
and defendants Trooper Sneath and Fisher are entitled to summary judgment.
Notably, even if the claim was timely filed, Green would still not prevail. It is
well established that “a private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another.” Linda R. S. v. Richard D., 410 U.S. 614,
619 (1973). Accordingly, Green had no constitutionally protected right to file a
criminal complaint. See Lane v. Carpinello, No. 9:07-CV-751, 2009 WL 3074344, at
*27 (N.D.N.Y., 2009, Sept. 24, 2009). If he were to overcome this hurdle, and meet
all other elements, he would still not prevail because it is clear from the record that
defendants would have made the same decision absent protected conduct. “As per
Department of Correction policy, when an inmate alleges he was assaulted by staff,
he is placed in Administrative Custody (“AC”) for his safety pending an
investigation. The inmate remains on AC until the resolution of the investigation.”
(Doc. 151-2, ¶ 4.) Green was specifically informed that he would remain in the RHU
pending completion of the Pennsylvania State Police investigation. (Doc. 34-2, at

15

20.) Trooper Sneath’s investigation did not conclude until February 26, 2007.
Green was released from the RHU on March 1, 2007.
2.

April 10, 2008, December 8, 2008, and December 16, 2008, RHU
Transfers

Green argues that defendants retaliated against him for pursuing a criminal
complaint against Officer Montgomery and for filing a civil action against
corrections officers in state court by being placed in the RHU on April 10, 2008, and
December 8, 2008, and by being moved from one RHU cell to another on December
16, 2008, and destroying his Quran. As noted above, pursuing a criminal complaint
does not constitute protected conduct.1 However, the filing of a lawsuit and access
to the courts is protected conduct covered by the First Amendment. See Mitchell v.
Horn, 318 F.3d 523, 530 (3d Cir. 2003); see also Allah, 229 F.3d at 224 (noting that it
is well settled that “prisoners have a constitutional right to access to the courts”);
Peterkin v. Jeffes, 855 F.2d 1021, 1036 (3d Cir. 1988); Cook v. Boyd, 881 F. Supp. 171,
176, n. 4 (E.D. Pa. 1995). Therefore, Green was clearly engaged in protected
conduct.

If Green’s pursuit of criminal charges against Officer Montgomery were
considered protected conduct, and his placement in the RHU constituted adverse
action, he would still fail on the third prong. He cannot establish causation because
the timing of this criminal complaint; the adverse action is not unduly suggestive.
In fact, there is a gap of approximately twenty-one months. Green initiated the
criminal complaint on August 24, 2006. The investigation into the criminal
complaint concluded on February 26, 2007. The adverse action of which he
complains took place on April 10, 2008, December 8, 2008 and December 16, 2008.
1

16

Once it is determined that the inmate was engaged in protected conduct he
must demonstrate that he has suffered some adverse action at the hands of prison
officials. See Rauser, 241 F.3d at 333 (citing Allah, 229 F.3d at 225). To show an
“adverse action,” the plaintiff must demonstrate that defendants’ actions were
“sufficient to deter a person of ordinary firmness from exercising his
[constitutional] rights.” Allah v. Al-Hafeez, 208 F. Supp. 2d 520, 535 (E.D. Pa. 2002),
quoting Allah, 229 F.3d at 225. Greens allegations that he was placed in the RHU
for filing a civil lawsuit is sufficient to constitute adverse action.
In analyzing the third element the court must determine whether there is a
causal connection between the exercise of the constitutional right and the adverse
action. The plaintiff must show that the protected activity was a substantial
motivating factor in the state actor’s decision to take the adverse action. This
“motivation” factor may be established by alleging a chronology of events from
which retaliation plausibly may be inferred. Tighe v. Wall, 100 F.3d 41, 42 (5th Cir.
1996); Goff v. Burton, 91 F.3d 1188 (8th Cir. 1996); Pride v. Peters, 72 F.3d 132
(Table) (7th Cir. 1995). It is plaintiff’s burden to prove that defendants were
motivated by retaliation. Hannon v. Speck, No. 87-3212, 1988 WL 131367, at *4 (E.D.
Pa. Dec. 6, 1988) (“In bringing a § 1983 action alleging such retaliation, an inmate
faces a substantial burden in attempting to prove that the actual motivating factor .
. . was as he alleged.”) (internal quotes and citation omitted), aff’d, 888 F.2d 1380 (3d
Cir. 1989) (Table). Where the prisoner seeks to establish this causal link based upon
the temporal proximity between the protected conduct and the alleged retaliatory
17

act, “the timing of the alleged retaliatory action must be unusually suggestive
before a causal link will be inferred.” Krouse v. American Sterilizer Co., 126 F.3d
494, 503 (3d Cir.1997); Rauser, 241 F.3d at 334; see also Thomas v. Town of
Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (concluding that the temporal
proximity, nearly six months, is not unduly suggestive and does not sufficiently
establish any causal link).
Green’s claims fail on this prong. He relies on the state court’s order of April
10, 2008, entered in the civil lawsuit in the Court of Common Pleas of Huntingdon
County to establish causation for Holtz’s decision of the same date to transfer him
to the RHU. This is both implausible and not indicative of retaliation. As of
April 10, 2008, the state court action had been pending for approximately eighteen
months. During that time, there was ongoing discovery and motion practice which
would require the involvement of Holtz as a party to the action. (Doc. 80-1, at 7-9.)
The April 10, 2008 decision was favorable to Holtz and would not suggest a
retaliatory response. Moreover, it is quite unlikely that defendant Holtz would have
been aware of the order on the very day it was issued as the county court docket
indicates that notice of the order was made via mailing to the addresses of record.
(Doc. 80-1, at 9.) For all of these reasons, Holtz is therefore entitled to an entry of
summary judgment on this claim.
Even if Green satisfied the causal link prong, it is clear that Holtz would have
made the same decision. According to the record, Green was placed in
administrative custody because he was charged with, or was under investigation
18

for, a violation of facility rules and there was a “need for increased control pending
disposition of charges or completion of the investigation.” (Doc. 149, ¶ 6; Doc. 145,
at 10; Doc. 134, ¶ 27.) He remained in administrative custody for approximately
three weeks. (Doc. 145, ¶ 6; Doc. 149, ¶ 6; Doc. 151, ¶ 6.) At the conclusion of the
investigation, he was released to general population because there was insufficient
evidence to issue a misconduct report. (Doc. 134, ¶¶ 27-28; Doc. 151, ¶ 6.)
The claims that the removal from his cell on December 4, 2008, that resulted
in the December 8, 2008 transfer to the RHU by defendants Tress and Settle at the
direction of defendant Holtz, and the December 16, 2008 cell move by Eberling and
destruction of his Quran were retaliatory, are even further removed in time from
both the filing of the civil suit and the April 10, 2008 county court decision.
Therefore, he fails to satisfy the causal link prong and defendants are entitled to an
entry of summary judgment.
B.

Exercise of Religion2

The First Amendment offers protection for a wide variety of expressive
activities. See U.S. CONST . amend I. These rights are lessened, but not

Although the plaintiff did not specifically raise a claim under the Religious
Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), the Court must
liberally construe the plaintiff's pro se pleadings and apply the applicable law,
regardless of whether he has mentioned it by name. See Dluhos v. Strasberg, 321
F.3d 365, 369 (3d Cir. 2003); see also Gray v. Occidental Life Ins. Co. of Cal., 387 F.2d
935, 936 (3d Cir. 1968). Accordingly, the Court will address Green’s free exercise
claim under both § 1983, which requires the Court to apply the Turner test, and
RLUIPA.
2

19

extinguished in the prison context, where legitimate penological interests must be
considered in assessing the constitutionality of official conduct. See Turner v.
Safley, 482 U.S. 78, 89 (1987). Although prisoners must be afforded “reasonable
opportunities” to exercise their religious freedom guaranteed by the First
Amendment, Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972), imprisonment necessarily
results in restrictions on some constitutional rights, including the First
Amendment’s right to the free exercise of religion. O’Lone v. Shabazz, 482 U.S. 342,
348-49 (1987). It is well-established that only those beliefs which are (1) sincerely
held, and (2) religious in nature are entitled to constitutional protection. Wisconsin
v. Yoder, 406 U.S. 205, 215-19 (1972); Dehart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000);
Africa v. Pennsylvania, 662 F.2d 1025, 1029-30 (3d Cir. 1981)(describing three indicia
of religion (1) an attempt to address “fundamental and ultimate questions”
involving “deep and imponderable matters”; (2) a comprehensive belief system; and
(3) the presence of formal and external signs like clergy and observance of
holidays.). It is undisputed that Green’s sincerely held religious beliefs are entitled
to Constitutional protection.
1.

Turner Analysis

Whether an inmate’s free exercise of religion has been impermissibly
burdened is governed by the four-part test set forth by the Supreme Court in
Turner, 482 U.S. 78. Specifically, Turner instructs courts to weigh four factors
when applying this standard: (1) whether the regulation bears a “valid, rational
connection” to a legitimate and neutral governmental objective; (2) whether
20

prisoners have alternative ways of exercising the circumscribed right; (3) whether
accommodating the right would have a deleterious impact on other inmates,
guards, and the allocation of prison resources generally; and (4) whether
alternatives exist that fully accommodate the prisoner’s rights at de minimis cost to
valid penological interests. Id. at 89-91.
The first factor requires consideration of whether the restrictions on the
plaintiff's religious rights bear a valid and rational connection to a legitimate and
neutral objective. Under this prong, courts accord great deference to the judgment
of prison officials, who are charged with the “formidable task” of running a prison.
Sutton v. Rasheed, 323 F.3d 236, 253 (3d Cir.2003) (quoting O’Lone, 482 U.S. at 353).
The first factor is “foremost” in the Court's analysis, in that a rational connection is
a “threshold requirement.” Id. (quoting Wolf v. Ashcroft, 297 F.3d 305, 310 (3d Cir.
2002)). The second factor requires consideration of whether inmates have
alternative means of exercising the constitutional right at issue. In the free exercise
context, the Court considers whether the inmate has other means of practicing his
religion generally, not whether he has other means of engaging in any particular
practice. Sutton, 323 F.3d at 255 (quoting DeHart, 227 F.3d at 55). The third and
fourth Turner factors focus on the specific religious practice or expression at issue
and the consequences of accommodating the inmate for guards, for other inmates,
and for the allocation of prison resources. Sutton, 323 F.3d at 257 (quoting DeHart,
227 F.3d at 57).

21

Defendants Kendricks, Koharchik, Corbin and Lawler are entitled to an
entry of summary judgment on this claim because Green has failed to establish that
he suffered restrictions on his religious rights. When his Quran was thrown away
on December 16, 2008 during a cell transfer, action was immediately taken by
defendants Kendricks and Koharchik and by Iman Erogan to remedy the situation.
He was immediately provided with a replacement Quran on December 17, 2008.
Although it was not the precise version Green preferred, it is undisputed that he
was given a Quran within one (1) day after he reported his Quran to be missing. He
chose to reject the replacement Quran and wait for a preferred version. The
following day, Kendrick communicated with Koharchik, who informed Kendrick
that efforts were being made to replace the Quran with Green’s preferred
translation. Green filed a grievance and Lawler assured him that the efforts were
being made to replace the Quran. In February 2009, Green filed another grievance
because he had not yet received his new Quran. Defendant Lawler advised him
that the Business Office’s misunderstanding of the resolution of the original
grievance resulted in a $38.00 credit to his inmate account rather than an order for
a replacement Quran. The misunderstanding was resolved and a replacement
Quran was ordered and received by Green sometime prior to April 21, 2009. (Doc.
134-3, at 16.) While it is evident that there was delay in procuring the preferred
translation, there is simply nothing to lead this Court to conclude that Green’s
ability to practice his faith was restricted or that he was prohibited from practicing

22

his religion in any manner during this time period. Therefore, defendants are
entitled to an entry of summary judgment.
2.

Religious Land Use and Institutionalized Persons Act of 2000

Section 3 of Religious Land Use and Institutionalized Persons Act of 2000
(“RLUIPA”) provides, in relevant part, that “[n]o government shall impose a
substantial burden on the religious exercise of a person residing in or confined to
an institution . . . even if the burden results from a rule of general applicability,”
unless the government establishes that the burden furthers “a compelling interest,”
and does so by the “least restrictive means.” 42 U.S.C. § 2000cc-1(a)(1)-(2).
RLUIPA defines “religious exercise” to include “any exercise of religion, whether or
not compelled by, or central to, a system of religious belief.” 42 U.S.C. §
2000cc-5(7)(A); see also Cutter v. Wilkinson, 544 U.S. 709, 715 (2005).
Although Congress intended that RLUIPA be construed “in favor of broad
protection of religious exercise,” see 42 U.S.C. § 2000cc-3(g), Congress also
“anticipated that courts would apply the Act’s standard with ‘due deference to the
experience and expertise of prison and jail administrators in establishing necessary
regulations and procedures to maintain good order, security and discipline,
consistent with consideration of costs and limited resources.’” Cutter, 544 U.S. at
723. Congress indicated that in the event an inmate’s request for religious
accommodation would “become excessive, impose unjustified burdens on other
institutionalized persons, or jeopardize the effective functioning of an institution,
the facility would be free to resist the imposition.” Id. at 726.
23

Under RLUIPA, the plaintiff must show that his religious exercise has been
burdened substantially by the challenged conduct. Washington v. Klem, 497 F.3d
272, 277-78 (3d Cir. 2007). The Third Circuit Court of Appeals has found that for the
purposes of RLUIPA, a substantial burden exists where: “1) a follower is forced to
choose between following the precepts of his religion and forfeiting the benefits
otherwise generally available to other inmates versus abandoning one of the
precepts of his religion in order to receive a benefit; of 2) the government puts
substantial pressure on an adherent to substantially modify his behavior and to
violate his beliefs. Id. at 280. If the plaintiff shows that prison administrators’
action or inaction has imposed a substantial burden on the exercise of the plaintiff's
religion, the prison administrator must establish that the challenged conduct
furthers a compelling governmental interest and that it is the least restrictive
means of furthering that interest. Id. at 283.
Green fails to establish that he suffered a substantial burden on the practice
of his religion. Consequently, defendants will be granted summary judgment on the
RLUIPA claim.
C.

Due Process
1.

Fabricated Misconduct

Green alleges that his constitutional rights were violated when he was issued
a fabricated misconduct on December 5, 2008. In Heck v. Humphrey, 512 U.S. 477
(1994), the Supreme Court ruled that a constitutional cause of action for damages
does not accrue “for allegedly unconstitutional conviction or imprisonment, or for
24

other harm caused by actions whose unlawfulness would render a conviction or
sentence invalid,” until the plaintiff proves that “the conviction or sentence has
been reversed on direct appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or called into question by a
federal court's issuance of a writ of habeas corpus.” Id. at 486–87. This rationale
was later extended to disciplinary proceedings. Edwards v. Balisok, 520 U.S. 641
(1997). As such, an inmate may not bring a civil rights action related to an inmate
disciplinary proceeding without first challenging and overturning, via appropriate
proceedings, the disciplinary hearing in question. Id. at 646–47. To summarize, “a
state prisoner’s § 1983 action is barred (absent prior invalidation—no matter the
relief sought (damages or equitable relief), no matter the target of the prisoner's suit
(state conduct leading to conviction or internal prison proceedings)— if success in
that action would necessarily demonstrate the invalidity of the confinement or its
duration.” Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005).
Green seeks relief for allegedly false disciplinary charges that were filed
against him and resulted in a finding of guilt and disciplinary sanctions. As any
type of award in Green’s favor would call into question the validity of the
underlying disciplinary proceedings, he cannot state a claim unless he can
demonstrate that the decision finding him guilty of the misconduct charges was
invalidated on administrative appeal or through the issuance of a writ of habeas
corpus. Because it is clear that he has not successfully challenged or invalidated
the proceedings at issue, he is unable to set forth facts that would support a
25

“plausible claim for relief,” and summary judgment will be entered in favor of
defendants.
2.

Notice

At the December 9, 2008, misconduct hearing Green complained that he did
not receive notice of the charges against him because he was not provided a copy of
the misconduct twenty-four hours prior to the hearing. The Fourteenth
Amendment of the United States Constitution provides in pertinent part that “No
State shall . . . deprive any person of life, liberty, or property, without due process of
law. . . .” The Due Process Clause does not provide protection against the
imposition of discipline, including disciplinary confinement and the loss of various
privileges inasmuch as these other forms of discipline do not “impose[ ] atypical
and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Torres v. Fauver, 292 F.3d 141, 150–51 (3d Cir. 2002) (citing Sandin v.
Conner, 515 U.S. 472, 486 (1995)). Confinement in administrative or punitive
segregation is insufficient, without more, to establish the kind of “atypical”
deprivation of prison life necessary to implicate a liberty interest. Sandin, 515 U.S.
at 486; see Griffin v. Vaughn, 112 F.3d 703, 706-07 (3d Cir. 1997).
Defendant Mitchell noted that because he was prohibited from having
paperwork in the observation cell in the infirmary he was read the report and that
under the circumstances, this constituted sufficient notice of the charges and
proceeded with the hearing. He was found guilty and sanctioned to sixty days
disciplinary custody. The disciplinary sanction at issue, sixty days of disciplinary
26

custody does not constitute “an atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 483; see also,
Smith v. Mensinger, 293 F.3d 641 (3d Cir. 2001) (finding that seven months in
disciplinary segregation is insufficient to trigger a due process violation). Hence,
Green has no protected interest and defendants are entitled to an entry of summary
judgment.
D.

Access to the Courts

Green alleges that on December 19, 2006, Trooper Sneath denied him the
opportunity to pursue criminal charges when he threatened him into dropping the
criminal complaint against Officer Montgomery. Initially, this claim is barred by
the statute of limitations. As noted supra, the applicable statute of limitations for a
§ 1983 claim arising in Pennsylvania is two years, Kach, 589 F.3d at 634; see 42 Pa.
Cons. State § 5524(2), and the cause of action accrues when a plaintiff knew or
should have known he was harmed. See Garvin, 354 F.3d 215 . It is undisputed that
Green’s access to courts claim arose on December 19, 2006. It is also undisputed
that the complaint in this matter was filed on January 26, 2009. Consequently, this
claim is barred by the statute of limitations and defendant Trooper Sneath is
entitled to an entry of summary judgment.
Green would fare no better if the claim were timely filed. Prisoners have a
constitutional right to “adequate, effective and meaningful” access to the courts.
Bounds v. Smith, 430 U.S. 817 (1977). In order to state a claim for a denial of the
right of access to the courts, a plaintiff must also show actual injury. Lewis v.
27

Casey, 518 U.S. 343 (1996). The plaintiff must demonstrate that as a result of the
defendant’s actions, he lost the ability to present an “arguably actionable claim”
against the validity of his sentence under direct or collateral appeal or a claim
challenging his conditions of confinement in a civil rights action. Id. at 355. The
“impairment of any other litigating capacity is simply one of the incidental (and
perfectly constitutional) consequences of conviction and incarceration.” Id. A
plaintiff must allege both an underlying cause of action, whether anticipated or lost,
and official acts frustrating the litigation. Christopher v. Harbury, 536 U.S. 403
(2002).
As noted supra, “a private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another.” Linda R. S. v. Richard D., 410 U.S. at
619. Accordingly, Green cannot demonstrate that he lost the ability to present an
arguably actionable claim.
IV.

Conclusion
Based on the foregoing, plaintiff’s motion for summary judgment (Doc. 117)

will be denied and defendants’ cross motion for summary judgment (Doc. 133) will
be granted. Additionally, plaintiff’s supplemental motion in limine (Doc. 110) and
motion for an emergency injunction (Doc. 161) will be denied as moot. An
appropriate Order follows.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
Dated:

March 26, 2012

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TYRONE GREEN,
Plaintiff
v.
DET. SNEATH, et al.,
Defendants

:
:
:
:
:
:
:

CIVIL ACTION NO. 1:09-CV-0154
(Judge Conner)

ORDER
AND NOW, this 26th day of March, 2012, upon consideration of plaintiff’s
motion for summary judgment (Doc. 117) and defendants’ cross motion for
summary judgment (Doc. 133), and for the reasons set forth in the accompanying
memorandum, it is hereby ORDERED that:
1.

Plaintiff’s motion for summary judgment (Doc. 117) is DENIED.

2.

Defendants’ cross motion for summary judgment (Doc. 133) is
GRANTED.

3.

The Clerk of Court is directed to ENTER judgment in favor of
defendants and against plaintiff.

4.

Plaintiff’s supplemental motion in limine (Doc. 110), motion for an
emergency injunction (Doc. 161), motion for supplemental complaint
(Doc. 162), and motion for discovery (Doc. 164) are DENIED as moot.

5.

The Clerk of Court is directed to CLOSE this matter.

6.

Any appeal from this order is DEEMED frivolous and not in good faith.
See 28 U.S.C. § 1915(a)(3).

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge