Jamison v. Varano et al

Filing 96

MEMORANDUM re dfts' MOTION for Summary Judgment 77 (Order to follow as separate docket entry) Signed by Honorable William W. Caldwell on 08/06/15. (ma)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
DASHAUN JAMISON,
Plaintiff
vs.
DAVID A. VARANO, et. al.,
Defendants

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: CIVIL NO. 1:12-CV-1500
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MEMORANDUM
I.

Introduction
We are considering a motion for summary judgment. (Doc. 77). This

matter relates to a pro se complaint filed by Plaintiff Dashaun Jamison, an inmate within
the Pennsylvania correctional system. (Doc. 1). Pursuant to 42 U.S.C. § 1983, Plaintiff
alleges that fifty-four officials violated his constitutional rights while he was housed at the
State Correctional Institute in Coal Township, Pennsylvania. (Doc. 1). He also claims
that the defendants violated state criminal law and state tort law. (Id.). On September
15, 2014, Defendants moved for summary judgment on Plaintiff’s claims. (Doc. 77). For
the reasons discussed below, we will grant Defendants’ motion.
II.

Background
Between 2006 and 2010, Plaintiff was housed at the State Correctional

Institute in Coal Township. (Doc. 1 at 6, 30). For disciplinary reasons, in March of 2010,
he was assigned to the Restricted Housing Unit (RHU) for a period of eight months. (Id.).
On June 15, 2010, to determine whether he should remain in the RHU, a hearing was
held before the Program Review Committee. (Id. at 7). Plaintiff claims that upon his

arrival to the hearing, committee members had already completed and signed his review
form. (Id.). During the hearing, Plaintiff claimed that he only received negative reports
about his behavior because he filed grievances against staff. (Id.). He also ensured the
committee that those grievances would continue. (Id.). According to Plaintiff, committee
members answered by saying, “well, I guess you’ll be doing all your hole time into
November and maxing out.” (Id.). Thereafter, the committee denied Plaintiff’s release
from the RHU. (Doc. 90-8 at 32). In response, Plaintiff filed a grievance. (Id.). He
alleged that the committee denied him due process by completing the review form before
the hearing took place, and he alleged that the committee retaliated against him for filing
grievances. (Id.).
In his 266-paragraph complaint, Plaintiff alleges that in response to his
grievance against the Periodic Review Committee, Defendants routinely violated his
constitutional rights. (Doc. 1). Liberally construed, Plaintiff’s complaint asserts violations
of his First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights. (Doc. 60 at 2; Doc.
65). On October 23, 2012, Defendant Ronald Zanella filed a motion to dismiss any and
all claims asserted against him. (Doc. 25). We granted his motion. (Doc. 76). On
December 4, 2012, the remaining defendants filed a motion to dismiss some of Plaintiff’s
claims. (Doc. 31). We granted that motion also. (Doc. 65). In so doing, we dismissed
any claims based on supervisory liability or failure to investigate, any access to courts
claims, any claims asserted against the defendants in their official capacities, and any
claims based on verbal harassment. (Id.).

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Now Defendants1 seek summary judgment on the remainder of Plaintiff’s
claims. Despite requesting multiple extensions to file a brief in opposition, Plaintiff has
filed no opposition to Defendants’ motion. Nevertheless, we must address the
Defendants’ motion on its merits. See Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d
Cir. 1991)
III.

Discussion
A. Standard of Review
We will examine the motion for summary judgment under the well-

established standard: summary judgment will only be granted if there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(a); Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008). We
“must view all evidence and draw all inferences in the light most favorable to the nonmoving party” and we will only grant the motion “if no reasonable juror could find for the
non-movant.” Id. “Material facts are those ‘that could affect the outcome’ of the
proceeding, and ‘a dispute about a material fact is genuine if the evidence is sufficient to
permit a reasonable jury to return a verdict for the nonmoving party.’” Roth v. Norfalco,
651 F.3d 367, 373 (3d Cir. 2011) (citing Lamont v. New Jersey, 637 F.3d 177, 181 (3d
Cir. 2011)). Summary judgment will be granted “against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case,

1. The instant motion includes forty-nine of the remaining fifty-three defendants.
Defendants Kauffman, Knarr, Jane Doe Nurses, and John Doe Doctor were excluded.
(Doc. 77).

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and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). With this standard of review in mind, we turn to the merits of
Defendants’ motion.
B. Exhaustion of Administrative Remedies
Defendants argue that they are entitled to summary judgment on the vast
majority of Plaintiff’s claims because he failed to exhaust his administrative remedies.
(Doc. 87 at 16-21).
Pursuant to 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect
to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Porter v.
Nussle, 534 U.S. 516 (2002) (holding that § 1997e also applies to excessive force
claims). The Pennsylvania Department of Corrections’ administrative remedies include
the grievance process outline in policy number DC-ADM 804. Spruill v. Gillis, 372 F.3d
218, 232 (3d Cir. 2004). It requires an inmate to satisfy a three step process. First, the
prisoner must file an “initial grievance” within fifteen days of the event upon which the
grievance is based. (Doc. 90-3 at 31). If dissatisfied with the resolution of the initial
grievance, the inmate may appeal to the facility manager within ten days of the initial
grievance decision. (Id. at 33). Finally, if dissatisfied with the disposition of the appeal to
the facility manager, the inmate may appeal to the Secretary’s Office of Inmate
Grievances and Appeals (SOIGA). (Id. at 35). To exhaust this grievance process, and

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satisfy the requirements of § 1997e(a), the inmate must properly exhaust each step – that
is, the inmate must proceed through each step of the grievance process and comply with
the prison’s filing deadlines and procedural requirements for doing so. Woodford v. Ngo,
548 U.S. 81 (2006).
According to Defendants, Plaintiff has properly exhausted the grievance
process on only three claims: (1) Defendants denied him shower and exercise time on
June 16, 2010 (Grievance No. 324286); (2) Defendants denied him shower and exercise
time on July 9, 2010 (Grievance No. 327262); and (3) the Program Review Committee
denied him procedural due process and retaliated against him (Grievance No. 323423).
(Doc. 87 at 13). On all other claims, Defendants assert that Plaintiff failed to exhaust. As
an affirmative defense, Defendants bear the burden of pleading and proving that Plaintiff
has not properly exhausted all administrative remedies. Ray v. Kertes, 285 F.3d 287,
295 (3d Cir. 2002).
We find that Defendants have failed to satisfy that burden on ten additional
claims. First, Plaintiff alleges that he suffered injuries following a fall on November 7,
2010 and that Defendants failed to provide him with proper medical care. (Doc. 1 at 25).
On November 8, 2010, Plaintiff filed an initial grievance complaining about this incident.
(Doc. 90-5 at 24). Following the dismissal of that grievance, he filed appeals to the
facility manager and SOIGA, both of whom dismissed the grievance on its merits. (Doc.
88 at 26) (“this grievance was denied at all levels of review because the investigation
revealed that medical care was provided that was reasonable and appropriate”); (Doc.

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90-5 at 17-25). Because Plaintiff satisfied each step of the grievance process outlined in
DC-ADM 804, we find that Plaintiff has exhausted his administrative remedies on this
claim.
Next, Plaintiff’s complaint sets out the following nine claims: (1) on July 24,
2010, Defendants put maggots in his food; (2) on July 30, 2010, Defendants used
excessive force; (3) on September 16, 2010, Defendants placed Plaintiff on food loaf
restriction; (4) on September 23, 2010, Defendants used excessive force by placing
Plaintiff in a “RIPP belt;” (5) on September 23, 2010, Defendants turned off Plaintiff’s
water; (6) on October 11, 2010, Defendants placed Plaintiff on food loaf restriction and
refused to provide him with toilet paper; (7) between October 11 and October 17, 2010,
Defendants denied him access to his mail; (8) on October 17, 2010, Defendants
confiscated his magazines; and (9) on November 12, 2010, Defendants called him a
snitch. Plaintiff filed an initial grievance on each of these incidents and subsequently
appealed all of them to both the facility manager and SOIGA. (Doc. 88).
SOIGA dismissed these grievances on the grounds that Plaintiff did not
provide all the required documentation. The grievance policy requires that when an
inmate makes a final appeal to SOIGA, the inmate must provide photocopies of the initial
grievance and first appeal. (Doc. 90-3 at 36). SOIGA found that Plaintiff failed to provide
these documents because the photocopies he provided were illegible. Therefore,
Defendants argue that by failing to comply with the procedural requirements outlined in
the grievance policy, Plaintiff failed to properly exhaust these claims.

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“[U]nder Section 1997e(a)[,] the prisoner need only exhaust such
administrative remedies ‘as are available.’” Camp v. Brennan, 219 F.3d 279, 281 (3d Cir.
2000). “Available means capable of use; at hand.” Brown v. Croak, 312 F.3d 109, 11213 (3d Cir. 2002) (internal quotation marks omitted). The Third Circuit has recognized
that an administrative remedy is unavailable (not capable of use) if prison officials directly
caused the inmate’s procedural default. See Camp, 219 F.3d at 280-81.
Here, in an attempt to comply with the procedural requirements for filing an
appeal to SOIGA, Plaintiff requested and paid for prison officials to produce photocopies
of the required documents. See, e.g., (Doc. 90-4 at 18; 90-5 at 26) (indicating copies
produced in prison library). The copies produced were too faint to read, and SOIGA
denied Plaintiff’s appeals solely on the grounds that the documents were illegible.2 After
some of Plaintiff’s appeals were denied for this reasons, he reproduced the required
documents by hand. Those appeals too were denied – by policy, photocopies are
required. (Doc. 90-3 at 36) (“A proper appeal to final review shall include photocopies . .
. .”).
By producing illegible photocopies – the only reproduction method
permitted by policy – prison officials directly caused Plaintiff’s procedural default.
Accordingly, we find that the SOIGA appeal was not capable of use and was therefore
not available to Plaintiff. Because he filed an initial grievance and appealed to the facility
2. Plaintiff’s appeals were dismissed outright with no opportunity to cure the defect. Cf.
Stevenson v. Quateman, 78 F. App’x 941 (5th Cir. 2003) (finding that inmate failed to
exhaust because he failed to resubmit documents after given an opportunity to cure
defect).

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manager, exhausting the two remedies that were available, we find that Plaintiff has
exhausted his administrative remedies on these nine claims.
With respect to all other claims in Plaintiff’s complaint, we agree with
Defendants that Plaintiff has not properly exhausted his administrative remedies. See
(Doc. 90-3 - Doc. 90-8) (indicating that on all other claims Plaintiff failed to file
grievances, the grievances were untimely, or they failed to comply with procedural
requirements). Accordingly, we will grant Defendants summary judgment on all of
Plaintiff’s remaining claims and dismiss those claims without prejudice. Nifas v. Beard,
374 F. App’x 241, 245 (3d Cir. 2010) (dismissing without prejudice unexhausted claims).
C. Due Process Claim
Turning to Plaintiff’s exhausted claims, we start with his procedural due
process claim. He alleges that since his review form was completed and signed before
the periodic review hearing took place, the Program Review Committee denied him
procedural due process. (Doc. 1 at 7). Defendants first argue that they are entitled to
summary judgment on this claim because the statute of limitations has expired. (Doc. 87
at 6; Doc. 66 at 31).
In Pennsylvania, § 1983 claims are subject to a two-year statute of
limitations. Owens v. Okure, 488 U.S. 235, 249 (1989) (stating that § 1983 claims are
subject to state statute of limitations governing personal injury actions); 42 PA. CONS.
STAT. ANN. 5524(7) (stating there is a two-year limitation for bringing personal injury
actions in Pennsylvania). However, the two-year statute of limitations is tolled while an

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inmate exhausts his administrative remedies. Pearson v. Sec’y Dep’t of Corr., 775 F.3d
598 (3d Cir. 2015). Here, the periodic review hearing took place on June 15, 2010.
(Doc. 90-8 at 32). One week later on June 22, 2010, Plaintiff filed his initial grievance,
tolling the statute of limitations. (Doc. 90-8 at 46). Plaintiff’s administrative remedies
were exhausted on January 21, 2011, when SOIGA denied his final appeal. (Doc. 90-8
at 32). Thus, Plaintiff had until January 14, 2013 to file his due process claim – two years
minus one week from the date of exhaustion. Pursuant to the prisoner mailbox rule,
Plaintiff filed his complaint on July 31, 2012. (Doc. 1 at 33). Therefore, his due process
claim was timely.
Next, Defendants argue that they are entitled to summary judgment
because Plaintiff’s claim fails on its merits. (Doc. 87 at 7). The Fourteenth Amendment
provides that no state shall “deprive any person of life, liberty or property, without due
process of law.” U.S. CONST. amend. XIV. Thus, to establish a violation of procedural
due process, Plaintiff must first show that he had a life, liberty or property interest
protected by the Constitution. Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000).
According to Defendants, Plaintiff had none.
The Third Circuit has recognized that “inmates are generally not entitled to
procedural due process in prison discipline hearings because the sanctions resulting from
those hearings do not usually affect a protected liberty interest.” Burns v. Pa. Dep’t of
Corr., 642 F.3d 163, 171 (3d Cir. 2011). Only when the sanction imposes an “atypical
and significant hardship on the inmate in relation to the ordinary incidents of prison life” is

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a protected liberty interest implicated. Sandin v. Conner, 515 U.S. 472, 483-84 (1995).
We find that Plaintiff’s retention in the RHU does not reach this threshold.
First, the length of Plaintiff’s confinement to the RHU – eight months – was not an
atypical or significant hardship. Indeed, the Third Circuit has indicated that disciplinary
confinement as long as fifteen months is not an atypical or significant hardship. Griffin v.
Vaughn, 112 F.3d 703, 706 (3d Cir. 1997) (stating fifteen months not atypical); see also
Diaz v. Canino, 502 F. App’x 214, 218 (3d Cir. 2012) (stating twelve months not atypical).
Further, Plaintiff has produced no evidence that the conditions of his confinement in the
RHU were in any way different from what he would have experience outside of RHU
custody. Diaz, 502 F. App’x at 218. Because the length and conditions of Plaintiff’s
assignment to the RHU do not impose an atypical or significant hardship, we find that
Plaintiff did not have a constitutionally protected liberty interest. Accordingly, we will
grant Defendants summary judgment on this claim.
D. Eighth Amendment Claims
The majority to Plaintiff’s exhausted claims allege that Defendants imposed
cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.
We separate those claims into two categories – conditions of confinement and excessive
force – and address each in turn.
1. Conditions of Confinement Claims
The Eighth Amendment’s prohibition of cruel and unusual punishments
imposes a duty on prison officials to provide humane conditions of confinement. Farmer

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v. Brennan, 511 U.S. 825, 832 (1994). To establish that his conditions of confinement
violate this requirement, an inmate must satisfy two elements. The first element is
objective; it requires the inmate to show that the deprivation he suffered was sufficiently
serious to implicate the Eighth Amendment. Id. The second element is subjective; it
requires the inmate to show that the defendant acted with a sufficiently culpable state of
mind. Id. at 834. Defendants argue that they are entitled to summary judgment because
Plaintiff’s conditions-of-confinement claims fail to state violations of the Eighth
Amendment. (Doc. 87 at 29 n.5-6, 31-33).
We start with Plaintiff’s claims that: (1) he was denied showers and exercise
time; (2) maggots were placed in his food; (3) he was fed food loaf; (4) he was denied
water access; (5) he was denied toilet paper; (6) he was denied his mail; and (7) his
magazines were confiscated. (Doc. 1 at 8-10, 15, 18-21). The courts of appeals and our
sister courts have routinely held that these conditions, when limited in duration, are not
sufficiently serious to satisfy the first element of an Eighth Amendment claim. See e.g.,
Adderly v. Ferrier, 419 F. App’x 135, 139-40 (3d Cir. 2011) (holding denial of toiletries,
mail, and shower for seven days failed to satisfy first element); Williams v. Delo, 49 F.3d
442, 444-47 (8th Cir. 1995) (holding no violation when water in cell was turned off); Miller
v. Trometter, No. 4:11-CV-811, 2012 WL 5933015 at *11 (M.D. Pa. Nov. 27, 2012)
(holding that denial of exercise thirty-four times in a two month period failed to establish
first element); Jones v. Beard, No. 10-5544, 2011 WL 3611470 at *8 (E.D. Pa. August 16,
2011) (holding that temporary food loaf diet does not satisfy first element); Murray v.

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Allen, No. 10-1014, 2010 WL 4159261 at *2 (E.D. Pa. Oct. 21, 2010) (holding that
isolated incidents of maggots in food is not sufficiently serious). Accordingly, we will
grant Defendants summary judgment on these claims.
Next, Plaintiff alleges that Defendants were deliberately indifferent to his
medical needs after he suffered injuries from a fall. (Doc. 1 at 25). To satisfy the
objective element in the context of a medical indifference claim, Plaintiff must show that
he had a serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A serious
medical need is “one that has been diagnosed by a physician as requiring treatment or
one that is so obvious that a lay person would easily recognize the necessity for a
doctor’s attention.” Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991).
Additionally, ‘if unnecessary and wanton infliction of pain results as a consequence of
denial or delay in the provision of adequate medical care, the medical need is of the
serious nature contemplated by the Eighth Amendment.” Monmouth Cnty. Corr. Inst’l
Inmates v. Lanzaro, 834 F.2d 326, 346-47 (3d Cir. 1987).
Here, Plaintiff fails to establish that he suffered from a serious medical
need. His complaint merely states that he received injuries to his head, neck, and ankle.
He does not plead, much less produce any evidence, that the injuries were diagnosed by
a physician as requiring treatment, were obviously recognized as needing a doctor’s
attention, or that delay in treatment inflicted unnecessary pain. Accordingly, we will grant
Defendants summary judgment on this claim.

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Last, Plaintiff alleges that Defendants called him a “snitch.” Although we
previously dismissed all claims based on verbal harassment (Doc. 65), being labeled as a
snitch is cognizable as a conditions-of-confinement claim. See, e.g., Tabb v. Hannah,
No. 1:CV-10-1122, 2014 WL 820092 (M.D. Pa. March 3, 2014) (Caldwell, J.). Subsumed
in their duty to provide humane prison conditions, prison officials have a duty to protect
prisoners from violence at the hands of other prisoners. Id. at *3. If an inmate is labeled
as a snitch and prison officials fail to protect the inmate from harm imposed by other
prisoners, the inmate has a viable claim. To satisfy the objective element on such a
claim, the inmate must show that he was incarcerated under conditions posing a
substantial risk of serious harm. Wallace v. Doe, 512 F. App’x 141, 144 (3d Cir. 2013).
Plaintiff fails to do so. As with his medical claim, Plaintiff neither pleads nor produces any
evidence to establish that by being labeled a snitch, he was exposed to a substantial risk
of serious harm. See (Doc. 1 at 26). Because Plaintiff cannot satisfy the objective
element of this claim, we will grant Defendants summary judgment. Accord Tabb, 2014
WL 820092 at *3-4.
2. Excessive Force Claims
Plaintiff has two exhausted excessive force claims. First, he alleges that
Defendants used excessive force during a cell search on July 30, 2010. (Id.). He claims
that during the search Defendants moved him away from his cell, slammed him against a
wall, and pulled on his handcuff leash – which made it difficult for him to breath. (Doc. 1
at 11). From this incident, Plaintiff claims that he suffered cuts, bruises, and a small

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concussion. (Id.). In his second excessive force claim, Plaintiff avers that he was subject
to excessive force when he was placed in a “RIPP belt” – a belt with handcuffs on each
side. According to Plaintiff, the handcuffs were too tight, causing his hands to turn blue
and go numb. Defendants assert that they are entitled to summary judgment on these
claims because no reasonable juror could conclude that excessive force was applied.
The core inquiry in an excessive force claim is whether the “force was
applied in a good faith effort to maintain or restore discipline, or maliciously or sadistically
to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). Factors relevant to such a
determination include: (1) the need for the application of force; (2) the relationship
between the need and amount of force that was used; (3) the extent of injury inflicted; (4)
the extent of the threat to the safety of staff and inmates; and (5) any efforts made to
temper the severity of a forceful response. Whitley v. Albers, 475 U.S. 312, 321 (1986).
Applying these factors to the undisputed facts of this case, we find that no
reasonable trier of fact could conclude that Defendants applied the force maliciously or
sadistically to cause harm.3 First, in each instance there was a need for the application of

3. “The Eighth Amendment’s prohibition of “cruel and unusual punishment necessarily
excludes from constitutional recognition de minimis uses of physical force, provided that
the use of force is not of a sort repugnant to mankind.” Hudson, 503 U.S. at 9 (internal
quotation marks omitted). “An inmate who complains of a push or shove that causes no
discernible injury almost certainly fails to state a valid excessive force claim.” Wilkins v.
Gaddy, 559 U.S. 34, 38 (2010). We doubt Plaintiff’s claims surpass this objective
threshold. At most, Plaintiff is complaining about being pushed into a wall and
restrained in handcuffs, and he produces no evidence of discernible injury. See, e.g.,
Acosta v. McGrady, No. 96-2874, 1999 WL 158471 at *9 (E.D. Pa. March 22, 1999)
(holding that sharply pulling inmate’s hands behind his back, which were handcuffed,
and slamming him into a wall was de minimis); Gutridge v. Chesney, No. 97-3441, 1998
WL 248913 at *3 (E.D. Pa. May 8, 1998) (holding that being handcuffed and pushed

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force. During the cell search, Plaintiff was being loud and disruptive toward prison
officials while they were conducting the search. (90-1 at 78). Additionally, when Plaintiff
was placed in the RIPP belt, he had continually violated prison rules by covering the
window to his cell. (Doc. 88 at 14). Second, the relationship between the need and
amount of force was reasonable. Pushing Plaintiff against a wall and pulling on his
handcuffs limited Plaintiff’s movements while he was being disruptive. Likewise, using
the RIPP belt secured Plaintiff’s hands to his waist so that he was unable raise his hands
high enough to cover his window. Third, Plaintiff’s injuries, if anything, were minor. He
alleges that he suffered cuts, bruising, discoloration, numbness, and a “small” concussion
– which was apparently self-diagnosed.4 (Doc. 1 at 11; 18). The negligible nature of
Plaintiff’s injuries is underscored by the fact that (1) he never complained of injuries or
sought medical treatment after his cell search (Doc. 90-1 at 77-79), and (2) while he was
restrained in the RIPP belt, medical staff checked the tightness of the handcuffs and
determined that each wrist had capillary relief. (Doc. 90-4 at 4). Fourth, there was a risk
of danger in each instance. By becoming argumentative and disorderly, Plaintiff posed a
physical threat to the prison officials conducting the search of his cell and it created a risk
that other inmates in the restricted housing unit would also become agitated. Similarly,
Plaintiff posed safety risks to prison officials and inmates by covering his window; the
obstructions prevented prison officials from observing the inside of Plaintiff’s cell. And
against a wall was de minimis). Nevertheless, viewing the evidence in the light most
favorable to Plaintiff, we will analyze Plaintiff’s claim under the core inquiry.
4. Plaintiff produces no medical evidence to support these claims.

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finally, Defendants made efforts to temper the severity of force applied. In each case,
Defendants gave Plaintiff verbal instructions, which he refused to follow. (Doc. 88 at 14;
Doc. 90-1 at 78).
Because the undisputed facts establish that Defendants applied force in a
good faith effort to restore discipline, and not maliciously or sadistically to cause harm,
Plaintiff is unable to satisfy an essential element of his excessive force claims.
Accordingly, we will grant Defendants summary judgment.
E. First Amendment Claims
In Plaintiff’s final exhausted claims, he makes allegations implicating his
First Amendment rights. Those claims assert that Defendants (1) retaliated against him
for filing grievances and (2) denied him access to his mail. We address each in turn.
1. Retaliation
Plaintiff alleges that the denial of showers and exercise on June 16, 2010,
the use of force during the cell search on July 30, 2010, the confiscation of his magazines
on October 17, 2010, the restriction of water access on September 23, 2010, the denial
of adequate medical care after he suffered a fall, and his retention in the RHU were all
done in retaliation for filing grievances.5 To establish a retaliation claim, a prisoner “must

5. In his complaint, Plaintiff intermingles retaliation claims with underlying constitutional
violations. However, “[r]etaliation is a separate claim and prisoners must raise a specific
claim of retaliation in their prison grievance in order to exhaust administrative remedies.”
Andrews v. Tennis, No. 1:09-CV-1190, 2012 WL 911565 at * 2 (M.D. Pa. March 16,
2012) (Caldwell, J.). Of Plaintiff’s thirteen exhausted claims, these six are the only ones
in which he specifically alleged retaliation in his prison grievances. Therefore, to the
extent that Plaintiff’s complaint attempts to set out additional retaliation claims, those
claims are unexhausted, and Defendants are entitled to summary judgment.

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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,
and (3) a causal link between the exercise of his constitutional rights and the adverse
action taken against him.” Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003).
Defendants claim that they are entitled to summary judgment because Plaintiff fails to
establish either adverse action or causation on each of his claims.
We agree that Plaintiff has failed to establish that the denial of showers and
exercise, the denial of medical care, and the confiscation of magazines constitute
adverse actions. First, the lack of shower and exercise time were the result of Plaintiff’s
own refusals, not actions by Defendants.6 See (Doc. 90-1 at 5-6). The same is true with
his medical treatment. Indeed, Plaintiff’s own complaint admits that he was offered
medical treatment and he refused it. (Doc. 1; 90-1 at 89). Therefore, these are not
adverse actions by prison officials. Last, the magazines Defendants confiscated from
Plaintiff’s cell belonged to other inmates. The confiscation of another inmate’s property is
not sufficient to deter an ordinary citizen from exercising his constitutional rights. Burgos
v. Canino, 358 F. App’x 302, 307 (3d Cir. 2009) (holding that interference with newspaper
subscription insufficient to establish adverse action); Potter v. Fraser, No. 10-4200, 2011
WL 2446642 at *8 (D. N.J. June 13, 2011) (holding that confiscation of commissary

6. Even if he were denied showers and exercise by Defendants, such denials would not
be sufficiently adverse to deter an ordinary person. See Burgos v. Canino, 358 F. App’x
302, 307 (3d Cir. 2009); Hardwick v. Packer, No. 1:12-CV-1936, 2013 WL 4016495 at
*18 (M.D. Pa. Aug. 6, 2013); see also Clemens v. Locket, No. 11-1482, 2013 WL
6230648 at *2 (W.D. Pa. Dec. 2, 2013).

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purchases not adverse action). Accordingly, we find that no reasonable juror could
conclude that Plaintiff was subject to an adverse action.
On the remaining three retaliation claims, we agree that he cannot establish
a causal link. To show causation, the plaintiff has the initial burden to establish that
constitutionally protected activity was a substantial or motivating factor in the adverse
action against him. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Once the prisoner
has made his prima facie case, prison officials may still prevail by proving by a
preponderance of the evidence “that they would have made the same decision absent
the protected conduct for reasons reasonably related to penological interests.” Id.; see
also Carter v. McGrady, 292 F.3d 152, 158 (3d Cir. 2002).
Here, assuming that Plaintiff has made his prima facie showing, Defendants
have satisfied their burden. The maintenance of a safe and orderly facility is a legitimate
penological interest. Turner v. Safley, 482 U.S. 78, 89 (1987); Mincy v. Klem, 277 F.
App’x 239, 243 (3d Cir. 2008). When inmates disobey rules or orders, the imposition of
restrictions, including assigning inmates to restricted housing, is essential to that interest.
Mincy, 277 F. App’x at 243. Here, Defendants have produced evidence that Plaintiff was
denied release from the RHU because he continually disobeyed prison rules. (Doc. 90-8
at 36) (indicating Plaintiff received twelve misconducts). Likewise, they produced
evidence that he was extricated from his cell and placed in the psychiatric observation
cell – which is where the temporary water restriction was imposed – because he refused
to remove a covering from his window. (Doc. 90-4 at 15; Doc. 90-1 at 41). Finally, they

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produced evidence that Plaintiff’ was subject to force and restrained during the search of
his cell because he became loud and disruptive. Therefore, we find that Plaintiff’s
custody in the RHU, placement on water restriction, and physical restraint during his cell
search were reasonably related to maintaining a safe and orderly facility.
Because Plaintiff’s retaliation claims fail to satisfy either the adverse action
element or the causation element, we will grant Defendants summary judgment on these
claims.
2. Access to Mail
Finally, Plaintiff claims that his First Amendment rights were violated
because Defendants denied him access to incoming mail between October 11, 2010 and
October 17, 2010. “[P]risoner’s, by virtue of their incarceration, do not forfeit their First
Amendment right to use of the mails.” Jones v. Brown, 461 F.3d 353, 358 (3d Cir. 2006).
Thus, interference with inmate non-legal mail may amount to a denial of free speech
under the First and Fourteenth Amendments. Freeman v. Northumberland Cnty., 3:10CV-2502, 2014 WL 4447587 at *8 (M.D. Pa. Sept. 10, 2014). However, a prisoner’s
rights “must be exercised with due regard for the inordinately difficult undertaking that is
modern prison administration.” Thornburgh v. Abbott, 490 U.S. 401, 407 (1989).
“Accordingly, the right to receive and send mail can be restricted for legitimate
penological interests.” Holbrook v. Kingston, 552 F. App’x 125, 129 (3d Cir. 2014).
As discussed above, the maintenance of a safe and orderly facility is a
legitimate penological interest. Here, on the dates in question, Plaintiff was denied mail

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because he routinely violated prison rules by covering the window in his cell. (Doc. 90-4
at 30-32). Thus, Plaintiff’s lack of access to mail – material that he could use to cover his
window – served Defendants interest in maintaining an orderly facility. Accordingly, we
will grant Defendants summary judgment.
IV.

Conclusion
For the reasons discussed above, we will grant Defendants’ motion for

summary judgment. For the same reasons, we will also sua sponte dismiss Plaintiff’s
claims against the non-moving defendants.7 The claims addressed above will be
dismissed with prejudice, while Plaintiff’s unexhausted claims will be dismissed without
prejudice. Last, we will deny jurisdiction over Plaintiff’s pendent state law claims, see 28
U.S.C. § 1367(c)(3), and dismiss those claims without prejudice. We will issue an
appropriate order.
/s/William W. Caldwell
William W. Caldwell
United States District Judge

7. District courts “possess the power to enter summary judgment sua sponte, so long as
the losing party was on notice that she had to come forward with all of her evidence.”
Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). Here, Plaintiff had notice when
Defendants filed their motion for summary judgment and brief in support, and he had an
opportunity to respond by filing a brief in opposition.

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