Wambold v. Varner et al

Filing 31

MEMORANDUM (Order to follow as separate docket entry)Based on those factors and Plaintiffs failure to oppose this argument, it is clear that Plaintiffs vague contention of retaliation by Altmanshofer is not supported any facts which could establish t hat his exercise of a constitutionally protected right was a substantial or motivating factor behind the alleged acts of retaliation as required by Rauser. Therefore, entry of summary judgment is also appropriate with respect to the claim of retaliation against Altmanshofer. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 9/8/16. (cc)

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

JASON WAMBOLD,

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Plaintiff
v.
DORINA VARNER, ET AL.,
Defendants

CIVIL NO. 3:CV-14-2206
(Judge Conaboy)

_________________________________________________________________
MEMORANDUM
Background
Jason Wambold (Plaintiff), an inmate presently confined at
the Smithfield State Correctional Institution, Huntingdon,
Pennsylvania (SCI-Smithfield), initiated this pro se civil rights
action pursuant to 42 U.S.C. § 1983.

Prior to service of either

the Original or Amended Complaints, Wambold filed a second amended
complaint (Doc. 9).

Service of the Plaintiff’s Second Amended

Complaint was previously ordered.
Named as Defendants are Chief Grievance Officer Dorina
Varner of the Pennsylvania Department of Corrections (DOC); and the
following SCI-Smithfield officials: Superintendent Jon Fisher;
Health Care Administrator William Dreidelis; Nurse Practitioner
Lynn Gonzalez; Doctor Zimmerly; Sergeant Ricaback, and Nurse
William Alman Shofer.1

Plaintiff describes himself as suffering

1. Commonwealth Defendants’ spellings of their names as being
Michael Reulbach; William Dreibelbis, and William Altmanshofer will
(continued...)
1

from scoliosis and degenerative disc disease.

According to the

Second Amended Complaint, he has also been diagnosed as having
bipolar disease, anxiety, depression, and has a history of suicide
attempts.
Wambold states that he reentered prison in 2012 following a
parole violation.

He was later transferred to a Restricted Housing

Unit (RHU) presumably at SCI-Smithfield for multiple misconducts.
While in the RHU for a two year period, Plaintiff was allegedly
denied adequate mental health care as well as back pain treatment.
Specifically, Wambold contends that Defendant Gonzalez
improperly stopped his pain medication, failed to provide him with
requested medical testing, falsified his medical records and
improperly charged him a five dollar co-payment for a sick call
visit on October 18, 2013.

It is also asserted that Gonzalez’s

action were taken in retaliation for the inmate’s initiation of
institutional grievances.
The Plaintiff next claims that Nurse Altmanshofer denied
him mental health medication; provided him with the wrong
medication on other occasions; and issued him a falsified
misconduct report “out of retaliation.”

Doc. 9. ¶ 29.

On November

6, 2013, Plaintiff states that he was held in a psychiatric
observation cell following a suicide attempt when he was seen by
Doctor Zimmerly for back pain.

When Wambold refused a directive to

1. (...continued)
be accepted.
2

walk naked, Zimmerly purportedly became angry and walked away
without providing any further care.
Wambold further asserts that on December 27, 2013 Sergeant
Ricaback ignored his multiple claims of being suicidal.

Later that

same night, Plaintiff attempted suicide by cutting his wrist.

The

Second Amended Complaint seeks injunctive and declaratory relief as
well as compensatory and nominal damages.
Presently pending is a motion for summary judgment filed by
Defendants Fisher, Reulbach, Dreibelbis, and Altmanshofer
(collectively the Commonwealth Defendants).

See Doc. 27.

The

unopposed motion is ripe for consideration.
Discussion
Commonwealth Defendants assert that they are entitled to
entry of summary judgment on the grounds that: (1) there are no
allegations of personal involvement in unconstitutional acts set
forth against Fisher, Varner and Dreibelbis; (2) Plaintiff failed
to exhaust his administrative remedies; (3) a viable claim of
deliberate indifference has not been alleged; (4) Plaintiff has not
properly pled a claim of retaliation; (5) they are entitled to
qualified immunity; and (6) declaratory relief is not available.
Standard of Review
Summary judgment is proper if “the pleadings, the discovery
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
3

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).

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
4

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)).
Declaratory Relief
The Commonwealth Defendants argue in part that declaratory
judgment relief2 is inappropriate in the pending case since
Plaintiff is seeking relief under § 1983.

See Doc. 30, p. 22.

In

Travelers Ins. Co. v. Davis, 490 F.2d 536 (3d Cir. 1974), the Court
of Appeals for the Third Circuit stated:

The objectives of the Federal Declaratory Judgment
Act are: '. . . to avoid accrual of avoidable
damages to one not certain of his rights and to
afford him an early adjudication without waiting
until his adversary should see fit to begin suit,
after damage had accrued.' An additional purpose is
to clarify legal relationships before they have
been disturbed or a party's rights violated. The
granting of a declaratory judgment is discretionary
and not mandatory.

Id. at 543 (quoting E. Edelman & Co. v. Triple-A Specialty Co., 88
F.2d 852, 854 (7th Cir. 1937)).

Accord Witasick v. Heaphy, 425

Fed. Appx.137, 139 (3d Cir. 2011)(“the purpose of the Act is to
clarify legal relationships before damages have accrued or rights
have been violated”).

Based upon an application of those standards

as well as Plaintiff’s failure to oppose the summary judgment
motion, he has failed to establish that the granting of declaratory

2.

See 28 U.S.C. §§ 2201 and 2202.
5

judgment relief would be an appropriate exercise of this Court’s
discretion in this § 1983 action.
Personal Involvement
The second summary judgment argument asserts that there are
no allegations of personal involvement in unconstitutional acts
raised against Defendants Superintendent Fisher, Chief Grievance
Officer Varner, and Health Care Administrator Dreibelbis.

See Doc.

30, p. 10.
A plaintiff, in order to state an actionable civil rights
claim, must plead two essential elements: (1) that the conduct
complained of was committed by a person acting under color of law,
and (2) that said conduct deprived the plaintiff of a right,
privilege, or immunity secured by the Constitution or laws of the
United States.

Groman v. Township of Manalapan, 47 F.3d 628, 638

(3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 114142 (3d Cir. 1990).
Civil rights claims brought cannot be premised on a theory
of respondeat superior.
(3d Cir. 1988).

Rode v. Dellarciprete, 845 F.2d 1195, 1207

Rather, each named defendant must be shown, via

the complaint's allegations, to have been personally involved in
the events or occurrences which underlie a claim.

See Rizzo v.

Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials,
546 F.2d 1077 (3d Cir. 1976).

As explained in Rode:

A defendant in a civil rights action must have
personal involvement in the alleged wrongs. . .
. [P]ersonal involvement can be shown through
allegations of personal direction or of actual
knowledge and acquiescence. Allegations of
participation or actual knowledge and
6

acquiescence, however, must be made with
appropriate particularity.
Rode, 845 F.2d at 1207.
Superintendent Fisher, Chief Grievance Officer Varner, and
Health Care Administrator Dreibelbis are clearly employed in
supervisory capacities.

Based upon a review of the Second Amended

Complaint, this Court agrees with the Commonwealth Defendants’
observation that there are no facts alleged pertaining to those
three Defendants and there is no indication that they were involved
in Wambold’s medical care.

Under the standards announced in Rode,

Superintendent Fisher, Chief Grievance Officer Varner, and Health
Care Administrator Dreibelbis are clearly entitled to entry of
summary judgment since it appears that Plaintiff is attempting to
establish liability against those officials solely on the basis of
their respective supervisory capacities.
It is also possible that Plaintiff may be attempting to
establish liability against Defendants Fisher, Varner, and
Dreibelbis based upon their responses or non-response to
administrative grievances or complaints.

However, 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.

7

2001)(“[T]he existence of a prison grievance procedure confers no
liberty interest on a prisoner.”)
While inmates 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
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 Superintendent Fisher, Chief Grievance Officer Varner, and
Health Care Administrator Dreibelbis based upon their 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).

Accordingly, the

unopposed request for entry of summary judgment in favor of
Superintendent Fisher, Chief Grievance Officer Varner, and Health
Care Administrator Dreibelbis will be granted.
Deliberate Indifference
Commonwealth Defendants next argue that the claim that they

8

were deliberately indifferent to Plaintiff’s medical needs “fails
as a matter of law.”

Doc. 30, p. 16.

The Eighth Amendment “requires prison officials to provide
basic medical treatment to those whom it has incarcerated.”

Rouse

v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v.
Gamble, 429 U.S. 97 (1976)).

In order to establish an Eighth

Amendment medical claim, an inmate must allege acts or omissions by
prison officials sufficiently harmful to evidence deliberate
indifference to a serious medical need.

See Spruill v. Gillis, 372

F.3d 218, 235-36 (3d Cir. 2004); Natale v. Camden Cty. Correctional
Facility, 318 F.3d 575, 582 (3d Cir. 2003).

In the context of

medical care, the relevant inquiry is whether the defendant was:
(1) deliberately indifferent (the subjective component) to (2) the
plaintiff’s serious medical needs (the objective component).
Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d
Cir. 1987); West v. Keve, 571 F.2d 158, 161 (3d Cir. 1979).

Dental

care has been recognized an important medical need of inmates.
Petrazzoulo v. United States Marshals Service, 999 F. Supp 401, 407
(W.D.N.Y. 1998)
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.”

Mines v. Levi, 2009 WL 839011 *7 (E.D. Pa. March 26,

2009)(quoting Colburn, 946 F.2d at 1023); Monmouth Cty. Corr. Inst.
Inmates, 834 F.2d at 347.

“[I]f unnecessary and wanton infliction

of pain results as a consequence of denial or delay in the
9

provision of adequate medical care, the medical need is of the
serious nature contemplated by the Eighth Amendment.” Young v.
Kazmerski, 266 Fed. Appx. 191, 193 (3d Cir. 2008)(quoting Monmouth
Cty. Corr. Inst. Inmates, 834 F.2d at 347).

Based upon the

Plaintiff’s description of his mental and physical health problems
this Court finds that the Second Amended Complaint satisfies the
serious medical need threshold, at this juncture in the
proceedings.

It is also noted that there is no argument by the

Commonwealth Defendants that the serious medical need requirement
was not met.
With respect to the subjective deliberate indifference
component, the Supreme Court has established that the proper
analysis for deliberate indifference is whether a prison official
“acted or failed to act despite his knowledge of a substantial risk
of serious harm.”

Farmer v. Brennan, 511 U.S. 825, 841 (1994).

A

complaint that a physician or a medical department “has been
negligent in diagnosing or treating a medical condition does not
state a valid claim of medical mistreatment under the Eighth
Amendment [as] medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.”

Estelle, 429

U.S. at 106.
When a prisoner has actually been provided with medical
treatment, one cannot always conclude that, if such treatment was
inadequate, it was no more than mere negligence.
O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993).

See Durmer v.

It is true, however,

that if inadequate treatment results simply from an error in
10

medical judgment, there is no constitutional violation.

See id.

However, where a failure or delay in providing prescribed treatment
is deliberate and motivated by non-medical factors, a
constitutional claim may be presented.

See id.; Ordonez v. Yost,

289 Fed. Appx. 553, 555 (3d Cir. 2008)(“deliberate indifference is
proven if necessary medical treatment is delayed for non-medical
reasons.”).

The Court of Appeals for the Third Circuit in Durmer

added that a non-physician defendant can not be considered
deliberately indifferent for failing to respond to an inmate's
medical complaints when he is already receiving treatment by the
prison's medical staff.

However, where a failure or delay in

providing prescribed treatment is deliberate and motivated by nonmedical factors, a constitutional claim may be presented.

See id.

Superintendent Fisher, Chief Grievance Officer Varner, and
Sergeant Reulbach are non-medical defendants.

Second, this is not

a situation where Plaintiff was not provided with needed medical
attention.

Rather, the Second Amended Complaint acknowledges that

Wambold was under the care of the prison medical staff while at
SCI-Smithfield and there is no assertion that any of those nonmedical Defendant officials delayed or denied any prescribed
treatment.

Accordingly, under the standards announced in Durmer,

granting of the unopposed request for entry of summary judgment in
favor of SFisher, Varner and Reulbach is appropriate with respect
to the claim of deliberate indifference to Plaintiff’s health care
needs.

11

With respect to medical Commonwealth Defendant Dreibelis,
the Second Amended Complaint does not contend that said defendant
was personally involved in Plaintiff’s medical care or that the
denied or delayed any needed treatment.

As such, Dreibelis is also

entitled to entry of summary judgment.
While the contention that Altmanshofer gave Wambold the
wrong medication sounds in negligence and is constitutionally
insufficient under Estelle, the claim that Nurse Altmanshofer
intentionally denied Plaintiff prescribed medication is sufficient
to set forth a viable claim of deliberate indifference.
9, ¶ 30.

See Doc.

The Commonwealth Defendants with the exception of

Altmanshofer are entitled to entry of summary judgment on the
deliberate indifference claim.
Administrative Exhaustion
The second argument for summary judgment contends that
Plaintiff did not properly exhaust his administrative remedies with
respect to the claims asserted against the Commonwealth Defendants.
See Doc. 30, p. 11.

Specifically, it is asserted that only one

grievance pertaining to a Commonwealth Defendant, Nurse
Altmanshofer, was appealed to final administrative review and said
grievance was procedurally defaulted since the final administrative
appeal was dismissed as being untimely.

As previously noted, this

argument is unopposed.
Section 1997e(a) of Title 42 U.S.C. provides:

No action shall be brought with respect
to prison conditions under Section 1979
12

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.”

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

Porter v. Nussle, 534 U.S. 516, 529-532 (2002).

The Third Circuit

Court of Appeals in Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir.
2003), held that “[f]ailure to exhaust administrative remedies is an
affirmative defense for the defendant to plead.”

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, it is the burden of a defendant asserting the

defense to plead and prove it; Williams v. Runyon, 130 F.3d 568, 573
(3d Cir. 1997).
Entry of summary judgment is appropriate when a prisoner
litigant has failed to exhaust his available administrative remedies
before bringing a civil rights action.

See generally Ahmed v.

Sromovski, 103 F. Supp. 2d 838, 843 (E.D. Pa. 2000).

“[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).
The United States Supreme Court in Jones v. Bock, 127 S.Ct.
910, 923 (2007), stated that the primary purpose of the exhaustion
requirement is to allow “a prison to address complaints about the
13

program it administers 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.”

Id.

The administrative exhaustion mandate

also implies a procedural default component.

Spruill v. Gillis 372

F.3d 218, 222 (3d Cir. 2004).
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).
A supporting declaration under penalty of perjury by
Defendant Varner establishes that a Consolidated Inmate Grievance
Review System has been established by the DOC.3
2.

See Doc. 29-1, ¶

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

3. The DOC’s grievance system has been periodically amended and a
copy of the policy accompanies Varner’s declaration.
14

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 to the 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.
Varner states that based upon a review of Inmate Wambold’s
DOC grievance history Plaintiff never exhausted any grievance which
included claims against Superintendent Fisher, Health Care
Administrator Drebelbis, Sergeant Reulbach, or herself.
29-1, ¶ 14.

See Doc.

Moreover, the appeal of a grievance regarding alleged

actions taken by Nurse Altmanshofer was dismissed as untimely and
therefore not properly exhausted.

See id. at ¶ 15.

Furthermore,

Plaintiff failed to pursue a final administrative appeal regarding
multiple other grievances which he filed against the Commonwealth
Defendants.
15

The Commonwealth Defendants have also provided a declaration
under penalty of perjury by SCI-Smithfield Superintendent’s
Assistant Lisa Hollibaugh.

See Doc. 29-2.

The declarant states

that her duties at SCI-Smithfield include the racking, review and
recording of all inmate grievances.

Hollibaugh similarly

acknowledges that Plaintiff filed a number of grievances some of
which regard the claims presently before this Court.

However,

Hollibaugh indicates that none of the claims asserted against the
Commonwealth Defendants in this action were fully and properly
exhausted.

Also submitted for consideration are copies of various

grievances and administrative appeals filed by Plaintiff at SCISmithfield.
As previously discussed, Plaintiff has not opposed the
pending motion for summary judgment.

Based upon the undisputed

evidence the Commonwealth Defendants have satisfied their burden of
establishing that Wambold did not fully and properly exhaust his
administrative remedies with respect to his pending claims.
Accordingly, entry of summary judgment on the basis of nonexhaustion is appropriate.
Retaliation
Plaintiff alleges that Altmanshofer retaliated against him
by issuing a falsified a misconduct charge and intentionally denying
him prescribed medication.

The summary judgment motion argues that

those allegations of retaliatory mistreatment fail because there is
no evidence showing that Wambold was given wrong medication or that

16

the misconduct charge was false.

It is again noted that Plaintiff

has not opposed this argument.
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

‘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).

17

Once a 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
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.
Based on those factors and Plaintiff’s failure to oppose
this argument, it is clear that Plaintiff’s vague contention of
retaliation by Altmanshofer is not supported any facts which could
establish that his exercise of a constitutionally protected right
was a substantial or motivating factor behind the alleged acts of
retaliation as required by Rauser.

18

Therefore, entry of summary

judgment is also appropriate with respect to the claim of
retaliation against Altmanshofer.

An appropriate Order will enter.4

S/Richard P. Conaboy
________________RICHARD P. CONABOY
United States District Judge

DATED: SEPTEMBER 8, 2016

4. Based upon the Court’s determinations herein a discussion as to
the merits of the qualified immunity argument is not required.
19