CLAY v. OVERMYER et al

Filing 17

MEMORANDUM ORDER granting 10 Motion to Dismiss Complaint with prejudice; adopting Report and Recommendations 14 ; and closing case. A copy of this Order sent to Plaintiff via US Mail. Signed by Judge Terrence F. McVerry on 2/13/15. (mh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GARY CLAY,

Plaintiff,
v.

MICHAEL D. OVERMYER,
ERIC TICE,
WILLIAM COLE,
PAUL ENNIS,
EDWARD HEBERLING, and
DAVID PERRY,
Defendants.

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C.A. No. 14-103 Erie

MEMORANDUM ORDER
This prisoner civil rights action was referred to United States Magistrate Judge Susan
Paradise Baxter for report and recommendation in accordance with the Magistrates Act, 28
U.S.C. ' 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.
Plaintiff Clay filed his initial Complaint on April 4, 2014.

On July 2, 2014, Defendants

jointly filed a MOTION TO DISMISS (ECF No. 10), with brief in support.

Plaintiff Clay filed

a response in opposition to the motion (ECF No. 13). On January 13, 2015, Magistrate Judge
Baxter issued a seven-page Report and Recommendation (“R&R”), which recommended that the
Motion to Dismiss be GRANTED.

Plaintiff Clay filed timely Objections to the R&R (ECF No.

15), and Defendants filed a response to the Objections (ECF No. 16). The matters are ripe for
disposition.
After de novo review of the complaint and documents in the case, together with the R&R,
and the Objections thereto, the Court agrees with the thorough and persuasive analysis of the

Magistrate Judge.

In order to state a prima facie claim for First Amendment retaliation, Clay

must allege that he engaged in constitutionally protected activity.

His mere threat to file a

lawsuit against prison officials will not support a retaliation claim. Although a threat to sue
may constitute “protected activity” in the employment context, a prisoner-plaintiff must actually
file the lawsuit to make out a prima facie claim for retaliation in the unique prison context.

See

generally Ortiz v. Baird, 2013 WL 1290555 at *8-9 (W.D. Pa. 2013) (and cases cited therein);
but see Harcum v. Shaffer, 2007 WL 4167161 (E.D. Pa. 2007).
The Court finds that it would be futile to grant Clay leave to file an amended complaint.
The Magistrate Judge correctly determined that he cannot make out a prima facie case because
he did not engage in protected activity.

In addition, the Court notes that he has not pled

sufficient facts to establish a plausible causal connection between the alleged protected activity
on January 1, 2013 and the alleged adverse action in July 2013 (increase of Clay’s custody level
and assignment of “H-code” to label Clay a security threat).
The following order is hereby entered:
AND NOW, this 13th Day of February, 2015, IT IS HEREBY ORDERED,
ADJUDGED and DECREED that Defendants’ MOTION TO DISMISS (ECF No. 10) is
GRANTED and Plaintiff’s Complaint is DISMISSED WITH PREJUDICE.
The report and recommendation of Magistrate Judge Baxter, issued January 13, 2015, is
adopted as the opinion of the court.

The clerk shall docket this case closed.
/s Terrence F. McVerry
TERRENCE F. McVERRY
United States District Judge

cc:

U.S. Magistrate Judge Susan Paradise Baxter
All parties of record
(Plaintiff by US Mail)