MARTEN v. CHERNOSKY
Filing
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MEMORANDUM OPINION re 36 MOTION for Summary Judgment filed by JOHN CHERNOSKY. Order to follow. Signed by Magistrate Judge Susan Paradise Baxter on 9/29/16. (lrw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JEFFREY MARTEN,
Plaintiff,
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v.
JOHN CHERNOSKY,
Defendant.
Civil Action No. 1:14-cv-00303
Magistrate Judge Susan Paradise Baxter
MEMORANDUM OPINION1
Presently pending before this Court is Defendant’s motion for summary judgment. ECF No.
36. For the reasons set forth below, the motion for summary judgment will be denied.
A. Relevant Procedural History
Plaintiff Jeffrey Marten, acting pro se, initiated this civil rights action on December 5,
2014, [ECF No. 3] and filed an amended complaint on May 11, 2015. ECF No. 13. Plaintiff
alleges that, during a period of incarceration at the State Correctional Institution at Forest (“SCIForest”), Defendant, John Chernosky, retaliated against him on four separate occasions after
Plaintiff filed grievances against him. Plaintiff alleges that Defendant prevented him from
leaving his cell causing Plaintiff to miss work, evening meals, group meetings, showers and
recreation time.
Defendant has moved for summary judgment and Plaintiff has filed a brief in opposition.
ECF No. 36; ECF No. 43. This motion is ripe for disposition by this Court.
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In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily
consented to have a United States Magistrate Judge conduct proceedings in this case, including
the entry of a final judgment.
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B. Standards of Review
1.
Pro Se Litigants
Pro se pleadings, however inartfully pleaded, “must be held to less stringent standards
than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the
court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it
should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax
and sentence construction, or litigant’s unfamiliarity with pleading requirements. See Boag v.
MacDougall, 454 U.S. 364 (1982). Under our liberal pleading rules, during the initial stages of
litigation, a district court should construe all allegations in a complaint in favor of the
complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997), overruled on other grounds by AbdulAkbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001); See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d
Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Company,
906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this Court will
consider facts and make inferences where it is appropriate.
2.
Motion for Summary Judgment Pursuant to Rule 56
Rule 56(a) provides that summary judgment shall be granted if the “movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” When applying this standard, the court must examine the factual record and
reasonable inferences therefrom in the light most favorable to the party opposing summary
judgment. Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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The moving party has the initial burden of proving to the district court the absence of
evidence supporting the non-moving party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317, 330
(1986). The burden then shifts to the non-movant to come forward with specific facts showing a
genuine issue for trial. Fed.R.Civ.P. 56(e); Williams v. Borough of West Chester, Pa., 891 F.2d
258, 460-61 (3d Cir. 1989)(the non-movant must present affirmative evidence-more than a
scintilla but less than a preponderance-which supports each element of his claim to defeat a
properly presented motion for summary judgment). The non-moving party must go beyond the
pleadings and show specific facts by affidavit or by information contained in the filed documents
(i.e., depositions, answers to interrogatories, and admissions) to meet his burden of proving
elements essential to his claim. Celotex, 477 U.S. at 322. The non-moving party “must present
more than just bare assertions, conclusory allegations, or suspicions to show the existence of a
genuine issue.” Garcia v. Kimmell, 2010 WL 2089639, at *1 (3d Cir. 2010) quoting Podobnik v.
U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005).
When considering a motion for summary judgment, the court is not permitted to weigh
the evidence or to make credibility determinations, but is limited to deciding whether there are
any disputed issues and, if there are, whether they are both genuine and material. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
C. Retaliation
It is well-settled that “[g]overnment actions, which standing alone, do not violate the
Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire
to punish an individual for exercise of a constitutional right.” Mitchell v. Horn, 318 F.3d 523,
530 (3d Cir. 2003) quoting Allah v. Seiverling, 229 F.3d 220, 224-24 (3d Cir. 2000).
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In order to state a prima facie case of retaliation, a prisoner plaintiff must show:
1) The conduct in which he was engaged was constitutionally protected;
2) He suffered “adverse action” at the hands of prison officials; and
3) His constitutionally protected conduct was a substantial or motivating factor
in the decisions to discipline him.
Carter v. McGrady, 292 F.3d 152, 157-58 (3d Cir. 2002) quoting Rauser v. Horn, 241 F.3d 330,
333 (3d Cir. 2001). It is Plaintiff’s burden to establish the three elements of a prima facie
retaliation claim.
The filing of grievances or a lawsuit satisfies the constitutionally protected conduct prong
of a retaliation claim. Rauser, 241 F.3d at 333; Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d
Cir. 1981).
To show the “adverse action” necessary to fulfill the second prong, the prisoner plaintiff
must demonstrate that defendants’ action were “sufficient to deter a person of ordinary firmness
from exercising his [constitutional] rights.” Allah v. Al-Hafeez, 208 F.Supp.2d 520, 535 (E.D.
Pa. 2002) quoting Allah, 229 F.3d at 225.
To satisfy the third prong of his retaliation claim, the plaintiff must show a causal
connection between his constitutionally protected activity of filing complaints and grievances
and the adverse action he allegedly suffered at the hands of the defendants. “To establish the
requisite causal connection a plaintiff usually must prove either (1) an unusually suggestive
temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a
pattern of antagonism coupled with timing to establish a causal link.” Lauren W. v. DeFlaminis,
480 F.3d 259, 267-68 (3d Cir. 2007). “In the absence of that proof the plaintiff must show that
from the ‘evidence gleaned from the record as a whole’ the trier of the fact should infer
causation.” Id. quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000). The
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Third Circuit has emphasized that courts must be diligent in enforcing these causation
requirements Id.2
D. The Evidence before this Court
From July through December, 2014, Plaintiff was housed in the E-Unit at SCI-Forest. On
July 27, 2014, during Plaintiff’s afternoon recreational time, Plaintiff testifies Defendant failed to
make his required periodic security rounds. ECF No. 42-1, Declaration of Jeffrey Marten, ¶ 5.
Plaintiff avows he spoke to Defendant, informed him that he would be filing a grievance against
him, and subsequently filed Grievance No. 520101 for the failure to make such rounds.3 Id. at
¶¶6-9.
Later that same afternoon, Plaintiff asserts Defendant retaliated against him. First,
Plaintiff attests Defendant told Plaintiff that he would stay in his cell because of the grievance
Plaintiff filed. Id. at ¶ 11. Thereafter, Defendant did not allow Plaintiff to leave his cell for early
evening chow causing Plaintiff to be late for his prison work assignment. ECF No. 38, ¶¶ 16-17;
ECF No. 42-1, ¶ 10.
The next three alleged retaliation incidents occurred on November 23, 2014, November
26, 2014, and December 29, 2014. Each incident involved Defendant allegedly not opening
Plaintiff’s cell door. Plaintiff swears that his cell is in clear view of the control bubble, which
2
Following the satisfaction of the initial burden, the burden then shifts to the defendants to
demonstrate, by a preponderance of the evidence, that their actions would have been the same,
even if plaintiff were not engaging in the constitutionally protected activities. Carter, 292 F.3d at
158. At this stage, “the prison officials may still prevail by proving that they would have made
the same decision absent the protected conduct for reasons reasonably related to a legitimate
penological interest.” Rauser, 241 F.3d at 334. The Third Circuit has specifically recognized
“that the task of prison administration is difficult, and that courts should afford deference to
decisions made by prison officials who possess the necessary expertise.” Id.
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In total, Plaintiff would file four separate grievances against Defendant pertaining to the events
on July 27, 2014. ECF No. 38, ¶ 25; ECF No. 42, ¶ 25.
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showed Defendant in control of Plaintiff’s cell door and was the one who refused to open it. ECF
No. 42-1, ¶¶ 13, 18, 24, 28. During each instance, Plaintiff testifies Defendant made verbal
remarks to Plaintiff stating the reason Plaintiff would remain in his cell is due to all of the
grievances Plaintiff filed against Defendant. Id. at ¶¶ 14-17, 20-23, 26-27. Plaintiff claims
Defendant’s actions were in direct retaliation for Plaintiff’s filing of the numerous grievances
against him.
E. Defendant’s Motion for Summary Judgment
Defendant moves for summary judgment arguing that Plaintiff has failed to meet his
burden on the second and third prongs of his retaliation claim.4
As an initial observation, this Court notes that there is a disputed issue of material fact as
to whether Defendant was in control of Plaintiff’s cell door on these four occasions. Defendant
swears that, as a Unit Manager, he would not generally operate the cell doors or other inmate
movements, which is the control bubble officer's responsibility. ECF No. 39-1, Declaration of
Defendant, ¶ 3. Thus, Defendant argues he would have had no control over Plaintiff's cell door
during the alleged incidents of retaliation. In direct contrast, Plaintiff testifies that his cell is in
clear view of the control bubble and Plaintiff saw Defendant control the cell doors on each of the
four separate occasions. ECF No. 42-1, ¶ ¶ 13, 18, 24, and 28.
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Defendant mentions Plaintiff did not satisfy the first prong of the retaliation claim; however, in
his brief in support of his motion for summary judgment, Defendant admits that Plaintiff did in
fact file multiple grievances against him. ECF No. 37. Instead, Defendant attempts to highlight
the timing of Plaintiff’s grievances and the lack of Defendant’s knowledge of them. These
arguments are more appropriate at the causation prong of the retaliation analysis. Whether
Defendant knew about the grievances, Plaintiff’s acts of filing grievances are a constitutionally
protected activity and satisfy the first prong of his retaliation claim.
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Defendant argues that, even if he was in control of Plaintiff's cell door, Plaintiff has not
established that he suffered the requisite adverse action. Defendant summarizes what Plaintiff
would have missed if all his allegations are taken as true. Defendant calculates that Plaintiff
would have missed a total of three meals, two recreation periods and shower opportunities and
one telephone opportunity. ECF No. 37, page 5.5 Defendant then argues that these missed
opportunities are not sufficiently adverse to Plaintiff because on other occasions Plaintiff
voluntarily chose not to attend other meals or recreation when Defendant was not on duty.
In opposition, Plaintiff argues that while any of the alleged single acts may be
"considered only a de minimis inconvenience," taken together over a five-month period,
Defendant's actions are "substantial in gross." ECF No. 43, page 11. It is true that this evidence
demonstrates a “pattern of antagonism.” Lauren W., 480 F.3d at 267-68. Generally, an adverse
consequence need not be great in order to be actionable, but rather, the action need only be more
than de minimis. See McKee v. Hart, 436 F.3d 165 (3d Cir. 2006); Watson v. Rozum, 2016 WL
4435624, at *3 (3d Cir. Aug. 23, 2016); Suppan v. Dadonna, 203 F.3d 228 (3d Cir. 2000)
(finding that acts which are de minimis individually, may be actionable when viewed as a
whole).
In particular, courts have found that alleged retaliatory denial of food is sufficient to
withstand a motion to dismiss. See Thomas v. SCI-Dallas, 2007 WL 2319805, at *5 (M.D. Pa.
Aug. 13, 2007); Rivera v. Chesney, 1998 WL 639255, at *4-5 (E.D.Pa. Sept.17, 1998) (finding
that plaintiff’s retaliation claim survives motion to dismiss when the plaintiff attested that the
defendant refused to permit the plaintiff from leaving his cell for evening meal and the defendant
stated, “Now, go file a grievance on that!”). Moreover, courts have found that a fact finder could
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Plaintiff disagrees with this summary.
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conclude alleged retaliatory actions such as reduced access to phone calls, reduced access to
recreation, or confinement to a cell could deter a person of ordinary firmness from exercising his
First Amendment rights. Allah, 229 F.3d at 225-26. Here, Plaintiff testifies Defendant repeatedly
approached him, referenced the grievances Plaintiff filed against Defendant, and refused Plaintiff
from leaving his cell. ECF No. 42-1, ¶¶ 9-12, 14-21, 23, 26-27. Accordingly, Plaintiff has met
his burden to show adverse action.
Next, Defendant claims that Plaintiff has failed to establish the causation element of his
prima facie case. Plaintiff alleges the first retaliation claim occurred on July 27, 2014. Defendant
admits to becoming aware of only one grievance filed by Plaintiff when Major Ennis contacted
him on August 1, 2014. ECF No. 38, ¶ 26. Thus, Defendant attests he could not have retaliated
against Plaintiff on July 27, 2014 without knowledge of such protected activity. ECF No. 37. As
for the other three alleged retaliation incidents, Defendant contends there cannot be a causal link
when nearly five months had passed since the only grievance Defendant knew about. However,
Plaintiff testified that he spoke to Defendant about each grievance he filed and that Defendant
made specific retaliatory remarks about Plaintiff’s grievances during each of the four alleged
incidents.6 ECF No. 42-1, ¶ ¶ 15-17, 19-21, and 27. These contradictions in the evidence raise
material issues of fact and preclude summary judgment in this case.
For the reasons set forth above, Defendant’s motion for summary judgment [ECF No. 36]
will be denied.
An appropriate Order follows.
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In a couple of the alleged incidents, Plaintiff testified he spoke to Defendant prior to filing a
grievance against him. ECF No. 42-1, ¶¶ 8-9, 23. This Court recognizes that a threat to file a
grievance is not protected conduct for retaliation purposes, but that is not the case here.
Plaintiff’s alleged comments were not empty threats, as Plaintiff followed up his statements by
filing actual grievances against Defendant.
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/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge
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