Flynn v. Department of Corrections et al

Filing 64

MEMORANDUM (Order to follow as separate docket entry)Given the liberal treatment afforded to pro se litigants, the Plaintiff has arguably set forth a viable claim that his exercise of constitutionally protected conduct was a substantial or motivating factor for his RHU placement and cell search. Since this Court has been presented with only sparse facts which does not satisfy Remaining Defendants burden of showing that their actions would have been taken regardless of Plaintiffs submission of a grievance, the request for summary judgment will be denied. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 2/3/15. (cc)

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

DONALD FLYNN,
Plaintiff
v.
DEPARTMENT OF CORRECTIONS,
ET AL.,
Defendants

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CIVIL NO. 3:CV-12-1535
(Judge Conaboy)

_________________________________________________________________
MEMORANDUM
Background
Donald Flynn, an inmate presently confined at the State
Correctional Institution, Coal Township, Pennsylvania (SCI-Coal
Twp.), initiated this pro se civil rights action pursuant to 42
U.S.C. § 1983.

By Memorandum and Order dated August 26, 2013,

Defendants’ motion seeking partial dismissal was granted.
Specifically, dismissal was granted in favor of Defendants
Pennsylvania Department of Corrections (DOC) and the following DOC
officials, Secretary John Wetzel; Chief Grievance Officer Dorina
Varner; and Chief Hearing Examiner Robin Lewis.

See Doc. 33, p.

18.
Dismissal was also entered in favor of the following SCICoal Twp. Defendants:

Hearing Examiner Kerns-Barr; Unit Manager

Charles Custer; Major Miller; Licensed Psychologist Manager (LPM)
John Sidler; Cam II Michael Corbacio; Correctional Officer
Richards; ex-Deputy Superintendent Rhonda Ellet; Medical Director

1

McCarty; Unit Manager Williams; Correctional Officer Lahr; and
Captain Scicchitano.
As a result, the Remaining Defendants are the following SCICoal Twp. officials:

Superintendent David Varano; Mail Room

Inspector Terese Jellen; Captain Charles Stetler; Correctional
Officer Nowell; as well as Lieutenants Shipe and R.E. Long.
Plaintiff’s surviving claims are: (1) mail interference by
Defendant Jellen; (2) retaliation by Defendants Stetler, Shipe,
Long, and Varano; (3) improper taking of legal materials by
Defendants Nowell and Long; and (4) the Psychiatric Observation
Cell (POC) related claims against Defendants Stetler and Shipe.
Presently pending is Remaining Defendants’ motion seeking
entry of summary judgment.

See Doc. 39.
Discussion

Remaining Defendants contend that they are entitled to entry
of summary judgment on the grounds that: (1) Plaintiff does not
allege that he suffered any injury to a non-frivolous pursuit of a
legal remedy or was deprived of any other constitutional protection
as the result of the conduct attributed to Mail Room Inspector
Jellen; (2) Plaintiff failed to exhaust his administrative remedies
with respect to his POC related allegations; (3) Defendants Nowell
and Long did not confiscate Plaintiff’‘s legal materials but rather
those officials properly confiscated contraband; and (4) Plaintiff
has not established that his RHU placement was retaliatory.
Standard of Review
Summary judgment is proper if “the pleadings, the discovery
2

and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the
movant is entitled to a judgment as a matter of law.”

Fed. R. Civ.

P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d
Cir. 2001).

A factual dispute is “material” if it might affect the

outcome of the suit under the applicable law.
Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty

A factual dispute is

“genuine” only if there is a sufficient evidentiary basis that
would allow a reasonable fact-finder to return a verdict for the
non-moving party.

Id. at 248.

The court must resolve all doubts

as to the existence of a genuine issue of material fact in favor of
the non-moving party.

Saldana, 260 F.3d at 232; see also Reeder v.

Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Unsubstantiated arguments made in briefs are not considered
evidence of asserted facts.

Versarge v. Township of Clinton, 984

F.2d 1359, 1370 (3d Cir. 1993).
Once the moving party has shown that there is an absence of
evidence to support the claims of the non-moving party, the nonmoving party may not simply sit back and rest on the allegations in
its complaint.
(1986).

See Celotex Corp. v. Catrett, 477 U.S. 317, 324

Instead, it must “go beyond the pleadings and by [its] own

affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is
a genuine issue for trial.”

Id. (internal quotations omitted); see

also Saldana, 260 F.3d at 232 (citations omitted).

3

Summary

judgment should be granted where a party “fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden at
trial.”

Celotex, 477 U.S. at 322-23.

“‘Such affirmative evidence

– regardless of whether it is direct or circumstantial – must
amount to more than a scintilla, but may amount to less (in the
evaluation of the court) than a preponderance.’”

Saldana, 260 F.3d

at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458,
460-61 (3d Cir. 1989)).
Access to the Courts
The Complaint initially and generally alleges that between
2009-2012, Defendant Jellen and other unidentified SCI-Coal Twp.
mail inspectors intentionally destroyed, rejected, and lost
Plaintiff’s incoming and outgoing mail.

See Doc. 1, p. 3.

There

were also several instances were Flynn’s incoming and outgoing
legal mail was purportedly opened outside of his presence.

See id.

Remaining Defendants assert that to the extent that
Plaintiff is asserting a denial of access to the courts claim
against Jellen, said allegation must fail because Flynn has not
alleged that he suffered any injury to his pursuit of a nonfrivolous legal claim.
Prisoners enjoy a constitutional right of meaningful access
to the law libraries, legal materials, or legal services.
v. Smith, 430 U.S. 817, 821-25 (1977).

Bounds

Inmates have a right to

send and receive legal mail which is uncontroverted and implicates

4

both First and Sixth Amendment concerns, through the right to
petition the government and the right of access to the courts.
"When legal mail is read by prison employees, the risk is of a
'chill,' rendering the prisoner unwilling or unable to raise
substantial legal issues critical of the prison or prison
employees."

Proudfoot v. Williams, 803 F. Supp. 1048, 1052 (E.D.

Pa. 1992).
The United States Supreme Court in Lewis v. Casey, 518 U.S.
343, 351-54 (1996), clarified that an inmate plaintiff, in order to
set forth a viable claim under Bounds, must demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded.

A

plaintiff must also allege an actual injury to his litigation
efforts.

Under the standards mandated by Lewis, in order for an

inmate to state a claim for interference with his legal work, he
must demonstrate that he has suffered actual injury.

See Oliver v.

Fauver, 118 F.3d 175, 177-78 (3d Cir. 1997)(concluding that Lewis
effectively requires a showing of actual injury where interference
with legal mail is alleged).
Following a careful review of the Complaint, it is clear to
this Court that Flynn has failed to adequately demonstrate that he
suffered any injury to a non-frivolous legal claim as required
under Lewis.

There is no assertion that the alleged interference

by Defendant Jellen caused him to suffer any adverse determination
with respect to any action he was pursuing in federal or state
court.

5

Accordingly, this Court agrees that entry of summary
judgment should be granted in favor of Mail Room Inspector Jellen
with respect to any denial of access to the court claim.
Grievance Procedure
The Complaint also includes a vague assertion that Jellen
and other unidentified officials denied Plaintiff the right to file
a grievance at some point between 2009-2012.

See Doc. 1, p. 3.

Remaining Defendants contend that any claim by Plaintiff that
Defendant Jellen denied him the right to file an institutional
grievance must fail because the inmate did not enjoy a
constitutional right to a grievance procedure.

See Doc. 40, p. 6.

This Court agrees that prisoners have no constitutionally
protected right to a grievance procedure.

See Jones v. North

Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 137-38
(1977)(Burger, C.J., concurring) (“I do not suggest that the
[grievance] procedures are constitutionally mandated.”); Speight v.
Sims, No. 08-2038, 2008 WL 2600723 at *1 (3d. Cir. Jun 30,
2008)(citing Massey v. Helman, 259 F.3d 641, 647 (7th Cir.
2001)(“[T]he existence of a prison grievance procedure confers no
liberty interest on a prisoner.”)
While prisoners do have a constitutional right to seek
redress of their grievances from the government, that right is the
right of access to the courts which is not compromised by the
failure of prison officials to address an inmate’s grievance.

See

Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (federal grievance

6

regulations providing for administrative remedy procedure do not
create liberty interest in access to that procedure).

Pursuant to

those decisions, any attempt by Plaintiff to establish liability
against Defendant Jellen based upon her handling of his
administrative grievances or complaints does not support a
constitutional claim.

See also Alexander v. Gennarini, 144 Fed.

Appx. 924, 925 (3d Cir. 2005)(involvement in post-incident
grievance process not a basis for § 1983 liability); Pryor-El v.
Kelly, 892 F. Supp. 261, 275 (D. D.C. 1995) (because prison
grievance procedure does not confer any substantive constitutional
rights upon prison inmates, the prison officials' failure to comply
with grievance procedure is not actionable).

This request for

entry of summary judgment in favor of defendant Jellen will also be
granted.
Mail Interference
It is next argued that “Plaintiff does not establish any
other cognizable First Amendment violation by Defendant Jellen.”
Doc. 40, p. 6.

Remaining Defendants explain that the mail

interference claim against Jellen is “purely conclusory,” no
specific policies are identified as having been violated, and there
are no facts alleged which could sufficiently give rise to a viable
First Amendment claim.

Id. at p. 8.

Interference with inmate non-legal mail may amount to a
denial of free speech under the First and Fourteenth Amendments.
Taylor v. Oney, 196 Fed. Appx. 126, 128 (3d Cir. 2006)(the opening

7

of incoming legal mail outside of a prisoner’s presence impinges
upon the inmate’s First Amendment rights).

The Court of Appeals

for the Third Circuit in Hamm v. Rendell, 166 Fed. Appx. 599, 603
(3d Cir. 2006), stated that when district courts address claims of
improper mail inspections and intrusive mail regulations or any
actions involving outgoing inmate mail, the test developed by the
Supreme Court in Procunier v. Martinez, 416 U.S. 396, 412 (1974),
should be employed.

Specifically, courts should inquire as to

whether the prison restriction or conduct relating to outgoing
inmate mail furthered an important or substantial government
interest unrelated to the suppression of expression, and whether
the conduct was intrusive only to the degree necessary to protect
that interest.

Id.; see also, Nasir v. Morgan, 350 F.3d 366, 371-

74 (3d Cir. 2003)(Procunier should be applied to outgoing prisoner
correspondence issues).
In Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006), the
Third Circuit Court of Appeals reiterated that prisoners have a
First Amendment right with respect to their legal mail and that “a
state pattern and practice, or . . . explicit policy of opening
legal mail outside the presence of the addressee inmate interferes
with protected communications . . . and accordingly impinges upon
the inmate’s right to freedom of speech.”

The Court added that a

prisoner litigant pursuing such a claim is not required to allege
actual injury.

See id.

It is well settled that liberal treatment must be afforded
to filings made by pro se litigants.
8

However, “[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements do not suffice.”
__ ,129 S.Ct 1937, 1949 (2009).

Ashcroft v. Iqbal, __ U.S.

Legal conclusions must be supported

by factual allegations and a complaint must state a plausible claim
for relief.

See id. at 1950;

see also Phillips v. County of

Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).
This Court agrees that the Plaintiff’s general assertion
that between 2009-2012 prison officials including Jellen destroyed,
rejected and lost Plaintiff’s incoming and outgoing mail does not
satisfy the Iqbal criteria.

It is noted that there is no assertion

by Flynn that his incoming mail was opened outside of his presence
pursuant to any specific practice or policy.

The Plaintiff also

does not indicate how many incidents occurred or the purported role
played by Jellen with respect to any of those alleged instances.
Rather, Flynn only generally vaguely avers that his mail was
withheld or rejected, there is no specific contention that any of
his mail was actually opened outside of his presence.

In support

of there argument Defendants have also submitted a copy of a
response to Grievance No. 401871 which was filed by Plaintiff and
generally alleged mail interference.

The response to the non-

specific grievance denied relief generally noted that all of
Plaintiff’s mail was being handled in accordance with correctional
policies.
“Factual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).”
9

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

The reviewing

court must determine whether the complaint “contain[s] either direct
or inferential allegations respecting all the material elements
necessary to sustain recovery under some viable legal theory.”

Id.

at 562.
Based upon an application of the above standards Plaintiff’s
vague speculative wholly conclusory claim of mail interference by
Jellen does not satisfy the pleading requirements of Iqbal and
Twombly and as such cannot proceed.

Summary judgment will be

granted in favor of Defendant Jellen.
Administrative Exhaustion
Plaintiff alleges that he was placed in a POC1 dry cell for
several days on or about October 19, 2011.

While in the POC dry

cell, Flynn alleges that he was denied water, personal hygiene
supplies, clothing and needed medical attention by Stetler and
Shipe.
Remaining Defendants claim entitlement to summary judgment
with respect to this claim because Flynn failed to exhaust his
administrative remedies.

See Doc. 40, p. 12.

They assert that

although Flynn did file a grievance regarding his POC placement, his
submission was not addressed on its merits and was rejected because
of the Plaintiff’s failure to comply with grievance policy
procedures.

1. Presumably, Psychiatric Observation Cell (POC). Remaining
Defendants indicate that the placement was warranted because
Plaintiff had ingested drugs, conduct which was later confirmed by
urine testing.
10

Section 1997e(a) of title 42 U.S.C. provides:
No action shall be brought with respect
to prison conditions under Section 1979
of the Revised Statutes of the United
States (42 U.S.C. 1983), 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.
Section 1997e(a) requires administrative exhaustion
“irrespective of the forms of relief sought and offered through
administrative avenues.”

Porter v. Nussle, 122 S.Ct. 983, 992

(2002); Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001).

Claims for

monetary relief are not excused from the exhaustion requirement.
Nyhuis v. Reno, 204 F.3d 65, 74 (3d Cir. 2000).

Dismissal of an

inmate’s claim is appropriate when a prisoner has failed to exhaust
his available administrative remedies before bringing a civil rights
action.
2000).

Ahmed v. Sromovski, 103 F. Supp. 2d 838, 843 (E.D. Pa.
“[E]xhaustion must occur prior to filing suit, not while the

suit is pending.”

Tribe v. Harvey, 248 F.3d 1152, 2000 WL 167468,

*2 (6th Cir. 2000)(citing Freeman v. Francis, 196 F.3d 641, 645 (6th
Cir. 1999)); Oriakhi v. United States, 165 Fed. Appx. 991, 993 (3d
Cir. 2006).
An inmate is not required to specifically plead or
demonstrate exhaustion in his or her complaint.
549 U.S. 199, 216 (2007);

See Jones v. Bock,

see also Ray v. Kertes, 285 F.3d 287 (3d

Cir. 2002)(a prisoner does not have to allege in his complaint that
he has exhausted administrative remedies).

Rather, pursuant to the

standards announced in Williams v. Runyon, 130 F.3d
11

568, 573 (3d

Cir. 1997), it is the burden of a defendant asserting the defense of
non-exhaustion to plead and prove it.2

The United States Supreme

Court in Jones noted that the primary purpose of the exhaustion
requirement is to allow prison officials to address complaints
before being subjected to suit, reducing litigation to the extent
complaints are satisfactorily resolved, and improving litigation
that does occur by leading to the preparation of a useful record.
The administrative exhaustion mandate also implies a
procedural default component.
(3d Cir. 2004).

Spruill v. Gillis 372 F.3d 218, 222

As explained by the Third Circuit Court of Appeals,

a procedural default rule “prevents an end-run around the exhaustion
requirement.”

Id. at 230.

It also ensures “prisoner compliance

with the specific requirements of the grievance system” and
encourages inmates to pursue their administrative grievances “to the
fullest.”

Id.

Similarly, the Supreme Court has observed that

proper exhaustion of available administrative remedies is mandatory,
meaning that prisoners must comply with the grievance system’s
procedural rules, including time limitations.

Woodford v. Ngo, 548

U.S. 81 (2006).
The Court of Appeals for the Third Circuit has recognized
that “[t]here is no futility exception” to the exhaustion
requirement.

Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002)

2.
In Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003), the
United States Court of Appeals for the Third Circuit similarly
stated that “[f]ailure to exhaust administrative remedies is an
affirmative defense for the defendant to plead.”
12

(citing Nyhuis, 204 F.3d at 75.

A subsequent decision by the Third

Circuit Court of Appeals reiterated its no futility exception by
rejecting an inmate’s argument that exhaustion should be excused
because prisoner grievances were regularly rejected.
186 Fed.

Appx. 271, 274 (3d Cir.

2006).

Hill v. Smith,

The Court of Appeals has

also rejected “sensitive’ subject matter or ‘fear of retaliation’ as
a basis for excusing a prisoner’s failure to exhaust.”

Pena-Ruiz v.

Solorzano, 281 Fed. Appx. 110, 113 (3d Cir. 2008).
A Consolidated Inmate Grievance Review System has been
established by the Pennsylvania Department of Corrections (“DOC”).3
Section V of DC-ADM 804 (effective December 8, 2010) states that
“every individual committed to its custody shall have access to a
formal procedure through which to seek the resolution of problems or
other issues of concern arising during the course of confinement.”
See Doc. 29, p. 8.

It adds that the formal procedure shall be known

as the Inmate Grievance System and provides a forum of review and
two (2) avenues of appeal.

Section VI ("Procedures") of DC-ADM 804

provides that, after attempted informal resolution of the problem, a
written grievance may be submitted to the Facility Grievance
Coordinator within fifteen (15) working days after the events upon
which the claims are based, but allowances of extensions of time
will be granted under certain circumstances.
An appeal from the Grievance Coordinator's Initial Review
decision may be made in writing within ten (10) working days to the

3.

The DOC’s grievance system has been periodically amended.
13

Facility Manager or Superintendent.

A final written appeal may be

presented within fifteen (15) working days to the Secretary’s Office
of Inmate Grievances and Appeals (SOIGA).

A prisoner, in seeking

review through the DOC grievance system, may include reasonable
requests for compensation or other legal relief normally available
from a court.

However, an improperly submitted grievance will not

be reviewed.
A declaration under penalty of perjury submitted bu
Superintendent’s Assistant Trisha Kelley states that although
Plaintiff filed grievance No. 386960 it was dismissed for failure to
comply with administrative appeal provisions.
10.

See Doc. 42, p. 6, ¶

Accompanying copies of the grievance and responses confirm that

the grievance raised claims regarding the conditions of Flynn’s POC
cell which was addressed on its

merits by decision of Major Miller

dated December 9, 2011 at the initial level.
1, p. 20.

See id. at Exhibit A-

An administrative appeal was denied by Facility Manager

David Varano on December 15, 2011.

See id. at p. 22.

However,

a

final administrative appeal was dismissed by the DOC’s Chief
Grievance Officer for failure to “comply with submission
procedures.”

Id. at p. 8.

As discussed earlier, under Woodford prisoners are required
to comply with grievance system procedural rules when exhausting
their administrative remedies.

Since the undisputed record

establishes that Flynn’s failure to do resulted in the rejection of
his final administrative appeal, a finding of non-exhaustion and

14

entry of summary judgment under the well settled Spruill and
Woodford standards is appropriate.
Cell Search
Plaintiff claims that his cell was searched on August 12,
2010 by Defendant Nowell allegedly in retaliation for Flynn’s filing
of a grievance.

See Doc. 1, p. 3.

Flynn indicates that although he

was told that the search was investigative, it is his belief that
the search was retaliatory.

During this search Flynn contends that

243 pages of his legal materials were confiscated.
Remaining Defendants generally argue that this claim lacks
merit because Nowell and Long did not take legal materials but
rather confiscated pornographic material during an investigative
cell search which they properly determined was contraband.
40, p. 12.

See Doc.

They also contend that because cell searches are

routinely undertaken they are not adverse action for the purpose of
a retaliation claim.
The United States Supreme Court in Hudson v. Palmer, 468
U.S. 517 (1984), established that inmates have no privacy rights in
their cells, consequently, there is no constitutional prohibition
against prison officials conducting unauthorized cell searches.

Id.

at 525-26; Rambert v. Durant, No. Civ. A. 95-5636, 1996 WL 253322 *2
(E.D. Pa. May 10, 1996); Gilmore v. Jeffes, 675 F. Supp. 219, 221
(M.D. Pa. 1987).

However, it has also been held that while the

Fourth Amendment's prohibition on unreasonable searches does not
apply in prison cells, it does not mean that searches which
constitute "calculated harassment unrelated to prison needs" are
15

permissible.

Hudson, 468 U.S. at 530; Prisoners' Legal Ass'n v.

Roberson, 822 F. Supp. 185, 189 (D.N.J. 1993); Proudfoot v.
Williams, 803 F. Supp. 1048, 1051 (E.D. Pa. 1992) (stating that
searches conducted for 'calculated harassment' may constitute an
Eighth Amendment violation).

"Nor does it mean that prison

attendants can ride roughshod over inmates' property rights with
impunity."

Hudson 468 U.S. at 530.

There is no assertion that Flynn was subjected to repeated
cell searches or that the search was conducted in an inappropriate
manner.

Moreover, documents submitted by the Remaining Defendants

clearly shows that two file folders containing pornographic
photographs which are deemed contraband under correctional policy
were discovered and taken during the search.
A-2, p. 7.

See Doc. 42, Exhibit

Plaintiff also concedes that pornographic materials were

taken from his cell.
However, Flynn contends that in addition to those
photographs other items, namely legal material was also seized.
Admittedly, Plaintiff has not specifically identified the legal
materials which were allegedly taken.

However, Remaining Defendants

have not presented any evidence showing that only pornographic
material was seized during the cell.

Accordingly, this Court agrees

that there is no basis for a determination that the search resulted
only in an improper confiscation of pornographic materials.
request for entry of summary judgment will be denied.

The

Plaintiff’s

contention that the search was retaliatory will be addressed below.

16

Retaliation
Plaintiff asserts that he filed a grievance on August 8,
2010 regarding the implementation of “the J-Pay system and refusing
to accept money orders.”

Doc. 1, p. 3, ¶ 2.

It is alleged that

Defendants Stetler, Shipe, Long, and Varano retaliated against him
for filing that grievance by placing him in the prison’s Restricted
Housing Unit (RHU) and issuing him a misconduct charge when he
refused to withdraw the grievance.

He also contends that an August

12, 2010 cell search was also retaliatory.
The pending summary judgment motion argues that Plaintiff
has not established that his alleged exercise of constitutionally
protected conduct was a substantial or motivating factor for his RHU
placement.

See Doc. 40, p. 8.

They explain that Flynn was issued

an institutional misconduct charge and placed in the RHU as the
result of an August 12, 2010 investigative cell search the Plaintiff
was found to be in possession of contraband, specifically,
pornographic pictures.4

Therefore, Remaining Defendants conclude

that an actionable claim of retaliation has not been pled.
To establish a Section 1983 retaliation claim, a plaintiff
bears the burden of satisfying three (3) elements.

First, a

plaintiff must prove that he was engaged in a constitutionally
protected activity.
2001).

Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.

Second, a prisoner must demonstrate that he “suffered some

4. They note that the finding of guilt rendered against Flynn on
the misconduct charge (possession of contraband) was upheld at all
levels of administrative review.
17

‘adverse action’ at the hands of prison officials.”

(Id.)(quoting

Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)).

This

requirement is satisfied by showing adverse action “sufficient ‘to
deter a person of ordinary firmness’ from exercising his First
Amendment rights.”
235 (3d Cir. 2000)).

(Id.)(quoting Suppon v. Dadonna, 203 F.3d 228,
Third, a prisoner must prove that “his

constitutionally protected conduct was ‘a substantial or motivating
factor’ in the decision to discipline him.”

Rauser, 241 F.3d at

333-34(quoting Mount Health Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977)).
The mere fact that an adverse action occurs after either a
complaint or grievance is filed is relevant, but not dispositive,
for the purpose of establishing a causal link between the two
events.
2005).

See Lape v. Pennsylvania, 157 Fed. App’x. 491, 498 (3d Cir.
Only where the facts of a particular case are “unusually

suggestive” of a retaliatory motive will temporal proximity,
standing alone, support an inference of causation.

Krouse v.

American Sterlizer Co., 126 F.3d 494, 503 (3d Cir. 1997).
Once Plaintiff has made a prima facie case, the burden
shifts to Defendants to prove by a preponderance of the evidence
that they “would have made the same decision absent the protected
conduct for reasons reasonably related to penological interest.”
Carter v. McGrady, 292 F.3d 152, 158 (3d. Cir. 2002)(internal
quotation and citation omitted).

When analyzing a retaliation

claim, it must be recognized that the task of prison administrators
and staff is difficult, and the decisions of prison officials
18

require deference, particularly where prison security is concerned.
Rauser, 241 F.3d at 334.
As noted in Allah, a prisoner litigating a retaliation claim
need not prove that he had an independent liberty interest in the
privileges that he was denied.

Thus, the relevant inquiry is not

whether the alleged retaliatory conduct was unconstitutional.

On

the contrary, Plaintiff only needs to establish that he was
subjected to adverse action in retaliation for his engagement in
constitutionally protected conduct. The Remaining Defendants have
not provided this Court with sufficient facts to warrant a
determination that Plaintiff would have been subjected to a cell
search and placed in the RHU even if the inmate had not engaged in
any constitutionally protected activity.
Given the liberal treatment afforded to pro se litigants,
the Plaintiff has arguably set forth a viable claim that his
exercise of constitutionally protected conduct was a substantial or
motivating factor for his RHU placement and cell search.

Since this

Court has been presented with only sparse facts which does not
satisfy Remaining Defendants’ burden of showing that their actions
would have been taken regardless of Plaintiff’s submission of a
grievance, the request for summary judgment will be denied.
appropriate Order will enter.

S/Richard P. Conaboy
________________________________
RICHARD P. CONABOY
United States District Judge
DATED: February 3, 2015
19

An

20