HARRIS v. WILLIAMS et al

Filing 92

MEMORANDUM OPINION & ORDER re 67 MOTION for Summary Judgment filed by BENJAMIN BERINGER, MELINDA L. ADAMS, NANCY GIROUX, MELANIE KOSINSKI, NICOLE NORTON. Summary Judgment will be GRANTED to Defendant Behringer on Harris's Eigh th Amendment claim due to a failure to exhaust administrative remedies. Summary Judgment will also be GRANTED to Defendants Giroux and Kosinski on Harris' claims under the ADA and Rehabilitation Acts. Defendants Norton, Adams, and Behringer's motion for summary judgment on Harris's First Amendment Retaliation claim is DENIED and that claim will proceed to trial. An appropriate order will be filed separately. Signed by Magistrate Judge Richard A. Lanzillo on 1/25/2019. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JORGE HARRIS, a/k/a GEORGE
HARRIS,
Plaintiff,
vs.
NANCY GIROUX, ET AL.
Defendants.

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Case No. 1:16-cv-0038 (Erie)

RICHARD A. LANZILLO
UNITED STATES MAGISTRATE JUDGE

MEMORANDUM OPINION

I.

Introduction
Initially acting prose, Plaintiff Jorge Harris, a/k/a George Harris, Jr. ("Harris"),

commenced this action by filing a complaint against thirteen individuals employed by the
Pennsylvania Department of Corrections based upon events and actions that occurred while
Harris was incarcerated at the Pennsylvania State Correctional Institution at Albion ("SCIAlbion").1 On January 6, 2017, Harris filed a three-count amended complaint asserting claims
pursuant to 42 U.S.C. § 1983 for violations of rights secured by the U.S. Constitution and for
violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the
Rehabilitation Act, 29 U.S.C. § 701. [ECF No. 23]. By Order dated July 19, 2017, the Court
dismissed the claims against all defendants except Superintendent Nancy Giroux, Deputy
Melinda L. Adams, Counselor Nicole Norton, Correction Officer Benjamin Behringer, and
Acting Major of Unit Management Melanie Kosinski. [See ECF No. 32]. These defendants

1

Specifically, the Complaint named the following SCI-Albion personnel as defendants: Superintendent Nancy
Giroux; Deputy Melinda L. Adams; Deputy Michael R. Clark; Deputy Barry R. Smith; Counselor Nichole Norton;
COi Benjamin Beringer; Hearing Examiner Ryan Szylewski; Grievance Coordinator Ronnie Martucci; Unit
Manager Bryan E. Flinchbaugh; Intelligence Captain Earl J. Jones; Acting Major of Unit
Management Melanie Kosinski; and DOC Secretary Wetzel.

1

have now moved for summary judgment on the remaining claims of Harris's amended
complaint. ECF No. 67. For the reasons that follow, their motion will be GRANTED in part
and DENIED in part.
II.

Relevant Procedural History
This Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1331 and

§ 1343. All parties have consented to the jurisdiction ofa United States Magistrate Judge in this
matter. ECF No. 4, ECF No. 18. See also 28 U.S.C. § 636(c). On September 24, 2018, this case
was reassigned from United States Magistrate Judge (now United States District Judge) Susan
Paradise Baxter to the undersigned. ECF No. 63.
Harris initiated this action by filing a pro se complaint on February 11, 2016. ECF No. 1.
On January 6, 2017, following the entry of appearances by counsel for Harris, he filed an
amended complaint. ECF No. 23. Harris's amended complaint asserted three causes of action:
Count I, a First Amendment retaliation claim alleging that Defendants retaliated against him for
filing grievances and inmate requests by unjustifiably confining him in the restricted housing
unit ("RHU") for almost four months, refusing his numerous requests for reasonable
accommodations for his disabilities, and subjecting him to constant verbal and emotional abuse.
(ECF No. 23, 11 104-111 ); Count II, a claim under both the Rehabilitation Act and the ADA
asserting that Defendants discriminated against him and refused to provide reasonable
accommodations on account of his disabilities. (Id. at 11 112-118); and Count III, an Eighth
Amendment claim arising from Harris' s confinement in the RHU for 108 days. (Id. at 11 119127).
Defendants filed a motion to dismiss the amended complaint on January 20, 2017, (ECF
No. 25), which motion the Court granted in part by Order dated July 19, 2017. ECF No. 31; ECF

2

No. 32. The Court dismissed (1) all claims for monetary damages against the Defendants in their
official capacities based upon Eleventh Amendment immunity, (2) all constitutional claims
against Giroux, Clark, Adams, Smith, Norton, Szelewski, Martucci, Flinchbaugh, Jones,
Kosinski, and Wetzel based upon their lack of personal involvement, (3) Harris's Eighth
Amendment claim to the extent it is based upon the length of his confinement in the RHU,
Defendants' failure to accommodate his disabilities, and verbal and emotional abuse, and
(4) Harris's ADA and Rehabilitation Act claims for monetary damages against Defendants in
their individual capacities. Id. The following claims survived the Motion to Dismiss:
(1) Harris's Eighth Amendment claim against Defendant Benjamin Behringer based upon his
alleged deprivation of food for fifteen days; (2) Harris' s First Amendment retaliation claim
against Defendants Nicole Norton, Melinda L. Adams and Behringer for confining Harris in the
RHU from May 11, 2015 until August 27, 2015, allegedly in retaliation for his filing of a prior
lawsuit and submission of several grievances; and (3) Harris' s ADA and Rehabilitation Act
claims against Defendants Giroux and Kosinski, in their official capacities only, for prospective
injunctive relief relating to the denial of a telephone for the hearing-impaired and a vibrating
watch. ECF No. 32.
The remaining Defendants filed an answer to Harris's amended complaint on August 2,
2017. ECF No. 33. On October 15, 2018, following the completion of discovery, the
Defendants filed their motion for summary judgment. ECF No. 67. Defendants contend that
they are entitled to judgment as a matter oflaw on all remaining claims based upon Harris's
failure to exhaust available administrative remedies. Alternatively, they argue that Harris's
retaliation claim and Eighth Amendment claim are legally insufficient based upon the record and
that Harris's ADA and Rehabilitation Act claims for prospective injunctive relief should be

3

dismissed as moot based upon his release from incarceration. 2 The motion has been fully briefed
and is ripe for decision.
III.

Factual Background
The following relevant factual background is taken from Defendants' Concise Statement

of Material Facts [ECF No. 69], Harris' s Response to the Defendants' Concise Statement and
Statement of Additional Material Facts [ECF No. 84], and Defendants' Response to Harris's
Statement of Additional Material Facts [ECF No. 88]. Unless otherwise specified, the facts
recited in this section are undisputed. Where material, disputed facts are noted.
Harris was incarcerated at SCI-Albion from May 11, 2015 until March 9. 2018. ECF No.
69, at ,i 7; ECF No. 84, at 7. Harris was placed in the institution's RHU upon his arrival on
May 11 and remained housed in the RHU until August 27, 2015. Id. at ,i,i8-9. Although
Defendants dispute the extent ofHarris's disabilities and limitations, ECF No. 88, at 1, ,i 1, the
record supports that Harris is blind in one eye and functionally deaf. ECF No. 84 at 12, ,i 1. The
prison intake medical records state that Harris is hard of hearing/deaf, suffers from chronic
illness, needs or wears glasses and hearing aids, and is vision-impaired. ECF No. 86-6, at 3.
Further, that record indicates that Harris cannot undertake work where binocular vision is
required. Id. at 2. Harris's blindness in one eye is also noted in the record of a lawsuit he filed
several years earlier in the United States District Court for the Eastern District of Pennsylvania,
challenging the care he received for an eye injury while incarcerated at SCI-Graterford. Harris

2

In his brief, Harris agreed that his release from custody rendered his ADA and Rehabilitation Act claims moot.
ECF No. 68 at 7; ECF No. 85, at 12. The Court concurs in this assessment and will grant summary judgment in
favor of Defendants Giroux and Kosinski on those claims.

4

v. Arias, et al., 2013 WL 5777027 at* 1 (E.D. Pa. Oct. 25, 2013) (quoting deposition testimony

of physician that Harris's sight was "permanently lost in that eye."). 3
The fact of Harris' s prior lawsuit is particularly relevant to the instant litigation. Indeed,
Harris's remaining claim ofretaliation is based in large part on the existence of this lawsuit. 4
Despite what they deem a "reasonable investigation," the Defendants claim they are without
sufficient knowledge or information to admit the existence of Harris' s prior lawsuit against the
Department of Corrections. See ECF No. 33, at 6,

~~

26-37. Regardless, the Court takes judicial

notice of this prior lawsuit because it is a matter of public record. See, e.g., Guidotti v. Legal
Helpers Debt Resolution, 716 F.3d 764, 772 (3d Cir. 2013) (citation omitted); Staehr v. Hartford
Fin. Servs. Grp., Inc., 547 F3d 406, 425 (3d Cir. 2008) (explaining that the court may take

judicial notice of prior lawsuits). 5

3

The District Court noted that Harris's blindness was actually confirmed during a previous stay at SCI-Albion.
Harris v. Arias, et al., 2015 WL 5777027 at *5 (E.D. Pa. Oct. 25, 2013). See also ECF No. 23, at 6, 128.

4

There is confusion with regard to this lawsuit, the nature of the retaliation claim, and the scope of the Court's prior
ruling on Defendants' motion to dismiss. See generally ECF No. 31. In their Concise Statement of Material Facts,
Defendants urge the Court to take judicial notice of Harris's prior lawsuit. Indeed, much of the Defendants'
argument attacking the merits ofHarris's claim of retaliation focuses on this prior lawsuit. See, e.g., ECF No. 68, at
11-16. But Harris, in his Response to the Defendants' Concise Statement, objects to judicial notice of this lawsuit,
claiming that the Court already rejected the prior lawsuit as a basis for his retaliation claim. ECF No. 84, at 8-9, 139
and n. 13. Harris misapprehends the Courts' ruling on the motion to dismiss. In the opinion on the Defendants'
motion to dismiss, this Court did note that" ... any alleged connection between Defendants' more recent denials and
Plaintiffs prior lawsuit is too remote and tenuous to establish retaliatory animus." ECF No. 31, at 10. This holding
was limited, however, to the claims raised against Giroux and Kosinski. The general discussion in that section of
the Court's opinion dealt with the personal liability of Norton, Szelewski, Martucci, Giroux, and Kosinski. Id. at 9.
In the paragraph preceding that holding, the Court specifically held that Harris had successfully alleged a retaliation
claim against Norton. No discussion of Adams and Behringer was contained in that paragraph. Next, the Court
turned to the personal involvement of the other identified defendants and found Harris's claims wanting. Id. at 9-10.
Then, the Court focused specifically on Giroux and Kosinski, noting Harris's argument that they were both named
as defendants in his prior lawsuit. Limited solely to Giroux and Kosinski, the Court determined that the connection
between their actions in this case, and their participation in Harris's prior litigation was too slim a reed to support
Harris's retaliation claim in the instant case. Id. Contrary to the interpretation stated in Harris's Response to
Concise Statement of Material Facts, that holding does not reject a plausible causal nexus between that prior lawsuit
and the remaining Defendants' alleged retaliatory conduct.
5

"[A] court may take judicial notice of relevant prior court orders, including orders in other cases." United States v.
Hoffert, 2018 WL 4828628, at *l (W.D. Pa. Oct. 4, 2018) (citing Mina v. United States Dist. Court for E. Dist. of
Pennsylvania, 710 Fed. Appx. 515, 517 n.3 (3d Cir. 2017)).

5

The record from Harris's prior lawsuit indicates that he suffered a serious injury to his
right eye during a basketball game while incarcerated at SCI-Graterford. Harris v. Atria, et al.,
2013 WL 5777027 at *1 (E.D. Pa. Oct. 25, 2013). The record from the case further indicates that
Harris developed uncontrolled pressure in the injured eye and that prison physicians allegedly
failed to provide him with adequate or proper treatment for that condition. Id. at *5. After
completing initial treatment, he was transferred to SCI-Albion. Id. While at SCI-Albion, the
problem was diagnosed and the correct treatment identified, but, according to the claims asserted
in the prior lawsuit, it was too late to save Harris's sight in his right eye. Id. Harris sued and the
matter was ultimately settled. Harris v. Atria, E.D. Pa. No. 2: 10-cv-00848, ECF No. 142,
(September 22, 2014).
As the factual basis for his First Amendment retaliation claim against Defendants Norton,
Adams and Behringer, Harris asserts that these three defendants retaliated against him for the
filing of his prior lawsuit against the Department and for the filing of grievances while he was in
the RHU. Norton is a counselor at SCI-Albion. ECF No. 23 at~ 18; ECF No. 33 at 118. Harris
asserts that Norton retaliated by purposely delaying his request for a "Z-Code" for three-months.
ECF No. 23, at 9, ~ 51. Z-Code status entitles an inmate to be housed in a single occupancy cell.

See, e.g., Myer v. Giroux, 2018 WL 6831147 at *2 (W.D. Pa. Dec. 28, 2018). Harris submitted
his request for a Z-Code to Norton. In his request, Harris claimed that he had been granted a ZCode during his prior period of incarceration and stated, in part, "technically you know I am not
even supposed to be in Albion because of the litigation." ECF No. 86-3 at 29. Harris claims that
when he asked Norton about the delay, Norton taunted him by saying, "look at it this way, at
least you have a single cell in the RHU." ECF No. 23, at 9,

6

~

51.

Harris's retaliation claim against Adams is similarly based. Adams is the Deputy
Superintendent for Centralized Services at the prison. Id. at 3,, 15; ECF No. 33, at 4,, 15.
During his previous incarceration at SCI-Albion, Adams was the Grievance Coordinator. Id.
Harris claims that Adams was a member of at least one Program Review Committee ("PRC")
that denied his request for a Z-Code. Harris alleges that Adams failed to provide a reason for
keeping him in the RHU and that she did so because Harris successfully prosecuted a lawsuit
against officials and employees of the Department. ECF No. 23 at,, 52, 77.
Behringer worked as a corrections officer in the RHU at SCI-Albion during Harris's
period of incarceration. Harris' s retaliation claim against Behringer asserts that he fabricated a
misconduct charge against him while he was confined to the RHU. Harris claims that Behringer
filed the false misconduct charge because of Harris' s prior lawsuit against the Department.
Harris also raises an Eighth Amendment claim against Defendant Behringer based on
Behringer' s alleged spitting in his food from approximately August 12, 2015 until August 21,
2015. ECF No. 23 at,, 81, 84.
Having identified the claims at issue and the factual basis for those claims, the Court now
turns to the threshold question of whether Harris has exhausted the administrative remedies
available to him as to each of the remaining claims. See Rinaldi v. United States, 904 F.3d 257,
264-65 (3d Cir. 2018) (noting exhaustion of administrative remedies is a threshold question).
V.

Exhaustion of Administrative Remedies
A.

Governing Law and Standards

The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), provides that "no
action shall be brought with respect to prison conditions under section 1983 of this title ... by a
prisoner confined in any jail, prisons, or other correctional facility until such administrative

7

remedies as are available are exhausted." Id. In enacting the PLRA, Congress replaced the
"weak exhaustion provision" of prior statutes with the "invigorated" administrative remedy of
exhaustion. Woodford v. Ngo, 548 U.S. 81, 84 (2006). The requirement that an inmate exhaust
administrative remedies applies to all inmate suits regarding prison life, including those that
involve general circumstances as well as particular episodes. Porter v. Nussle, 534 U.S. 516
(2002).
The exhaustion of administrative remedies is "a non-jurisdictional prerequisite to an
inmate bringing suit and, for that reason, ... it constitutes a 'threshold issue that courts must
address to determine whether litigation is being conducted in the right forum at the right time."'
Rinaldi, 904 F.3d at 265 (quoting Small v. Camden Cnty., 728 F.3d 265,270 (3d Cir. 2013)). The
purpose of the exhaustion requirement is "to alert prison officials to a problem, not to provide
personal notice to a particular official that he may be sued." Williams v. Beard, 482 F.3d 637,
640 (3d Cir. 2007). The exhaustion requirement is not a technicality, but instead a federal law
which federal district courts are required to follow. Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir.
2000) (by using language "no action shall be brought," Congress has "clearly required
exhaustion"). See also Woodford, 548 U.S. at 85.
The PLRA requires "proper exhaustion," meaning that a prisoner must complete the
administrative review process in accordance with the applicable procedural rules of that
grievance system. Woodford, 548 U.S. at 87-91 ("Proper exhaustion demands compliance with
an agency's deadlines and other critical procedural rules ... "). Importantly, the exhaustion
requirement may not be satisfied "by filing an untimely or otherwise procedurally defective ...
appeal." Id. at 83. "Compliance with prison grievance procedures, therefore, is all that is
required by the PLRA to 'properly exhaust.' The level of detail necessary in a grievance to

8

comply with the grievance procedures will vary from system to system and claim to claim, but it
is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion."
Jones v. Bock, 549 U.S. 199, 218 (2007).

However, the PLRA contains a "textual exception to mandatory exhaustion." Ross v.
Blake, 136 S. Ct. 1850, 1858 (2016). "Under§ 1997e(a), the exhaustion requirement hinges on

the 'availability' of administrative remedies: An inmate, that is, must exhaust available remedies,
but need not exhaust unavailable ones." Id. The Supreme Court has defined "available" in the
exhaustion context as "capable of use for the accomplishment of a purpose" and that which "is
accessible or may be obtained." Booth v. Churner, 532 U.S. 731, 737-38 (2001) (quoting
Webster's Third New International Dictionary 150 (1993)). Where prison staff"thwart inmates
from taking advantage of a grievance process through machination, misrepresentation, or
intimidation," administrative remedies are not available and exhaustion is not required.
Wooqford, 548 U.S. at 102; Ross, 136 S. Ct. at 59-60. See also Mitchell v. Horn, 318 F.3d 523,

529 (3d Cir. 2003) ("A grievance procedure is not available even if one exists on paper if the
defendant prison officials somehow prevent a prisoner from using it."); Berry v. Klem, 283 Fed.
Appx. 1, 5 (3d Cir. 2009) ("[Plaintiff] argued that the administrative grievance process was not
available to him because he feared serious harm for filing a grievance. While that claim may not
ultimately prevail, his allegations put in question the availability of the remedy."). Notably, the
Court of Appeals for the Third Circuit joined several other Circuits in holding that
"administrative remedies are not 'available' under the PLRA where a prison official inhibits an
inmate from resorting to them through serious threats of retaliation and bodily harm." Rinaldi,
904 F.3d at 267 (citing precedential opinions from the Second, Seventh, Ninth, Tenth, and
Eleventh Circuit Courts of Appeal).

9

It is not a plaintiffs burden to affirmatively plead exhaustion. Jones v. Bock, 549 U.S. at
217 (" ... failure to exhaust is an affirmative defense under the PLRA, and thus inmates are not
required to specially plead or demonstrate exhaustion in their complaints."). Instead, the failure
to exhaust must be asserted and proven by the defendants. Ray v. Kertes, 285 F.3d 287, 295 (3d
Cir. 2002). However, "once the defendant has established that the inmate failed to resort to
administrative remedies, the onus falls on the inmate to show that such remedies were
unavailable to him." Rinaldi, 904 F.3d at 268 (citing Tucke! v. Grover, 660 F.3d 1249, 1253-54
(10th Cir. 2011)). In order to defeat a failure-to-exhaust defense, an inmate must prove "(1) that
the threat was sufficiently serious that it would deter a reasonable inmate of ordinary firmness
and fortitude from lodging a grievance and (2) that the threat actually did deter this particular
inmate." Id. at 269-70. Importantly, each specific, individual claim must be exhausted.
Woodford, 548 U.S. at 85. Accordingly, Harris cannot argue exhaustion generally simply
because he filed "twenty-five grievances and thirteen inmate requests while he was in the hole
for 108 days." ECF No. 85 at 14. 6
B. Harris's Grievance History

The parties agree that while housed in the RHU, Harris filed numerous grievances. ECF
No. 69 at ,r,r 11, 12, 13, 22, 23,25; ECF No. 84, at i13; ECF No. 88, at i13. And, the parties
generally agree on the requirements of the relevant inmate grievance and appeal procedures. See
ECF No. 88 at ,r 4, 5, 6, 7. Specifically, because Harris was housed in the RHU, he was required
to place a completed grievance form in his cell door. Upon doing so, a prison staff member was

6

The requirement that each specific claim be exhausted negates Harris's argument that his grievances were being
"slow-rolled" and "pigeonholed." ECF No. 85 at 16. This is a general characterization, lacking specific reference to
any particular grievance and devoid of explanation of how it related to either his retaliation claim or his Eighth
Amendment claim. See, e.g., Locke v. Pa. DOC, 2015 WL 1285882 at *3 (M.D. Pa. March 20, 2015) (noting that
prisoners must exhaust all available remedies as to each claim, "even when those remedies cannot grant the relief the
prisoner seeks") (citation omitted).

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to collect the grievance, which is not sealed or placed in any type of envelope, from the cell door
and place it in the grievance box. This special procedure is necessary because inmates in the
RHU cannot place a grievance in the appropriate box themselves. Id. at~ 4-7.
Harris filed his first grievance within days of his arrival at SCI-Albion and his immediate
placement in the RHU. ECF No. 84 at~ 8; ECF No. 88 at~ 8. 7 This was grievance number
566943 and concerned Harris's bringing his shower shoes and soap dish with him from the
Crawford County jail. ECF No. 86-3 at 3-6. All told, the record includes twenty-five grievances
and thirteen inmate requests filed by Harris while he was confined to the RHU. ECF No. 86-3 at
2-46; ECF No. 86-4, at 2-47. Of those, Harris identifies the following grievances and inmate
requests as relevant to his remaining claims:
•

Grievance 567999 (May 23, 2015) concerning the lack of accommodations for disabled
persons in the RHU. ECF No. 86-3 at 11-12.

•

Grievance 569626 (May 28, 2015) concerning Harris's fear that he will suffer some form
of retaliation for his prior successful lawsuit against the Department of Corrections. ECF
No. 86-3 at 23-28.

•

Grievance 570372 (June 4, 2015) concerning the characterization of his grievances as
"untimely" and his concerns that this was being done as retaliation. ECF No. 86-3 at 3536.

•

Grievance 570377 (June 3, 2015) concerning the arbitrary and retaliatory nature of
Harris's continued housing in the RHU. ECF No. 86-3 at 37-39.

•

Inmate Request (June 8, 2015) asking for a letter to the superintendent relating to the
denial of his grievances. ECF No. 86-3 at 40.

•

Inmate request (June 23, 2015) stating Harris's belief that his grievances are being denied
out of retaliation. ECF No. 86-3 at 47.

7

Harris states that his first grievance was filed within three days of his arrival; the Defendants say it was four days.
ECF No. 84 at, 8; ECF No. 88 at, 8. The difference of one day is not material. The undisputed fact is that Harris
began to file grievances soon after his placement in the RHU.

11

•

Inmate Request (June 28, 2025) stating Harris's belief that he as being held in the RHU
as an arbitrary punishment. ECF No. 86-4.

•

Grievance 573604 (June 29, 2015) stating Harris's belief that he is being held in the RHU
"for non[-]disciplinary reasons." ECF No. 86-4 at 3-4.

•

Grievance 573956 (June 29, 2015) concerning Harris's request for a phone call to his
attorney and a judge because his confinement to the RHU was for non-disciplinary
reasons. ECF No. 86-4 at 5-9.

•

Grievance 577257 (July 20, 2015) concerning improper meal distribution procedures
being used by Defendant Behringer. ECF No. 86-4 at 24-26.

•

Inmate Requests (August 10, 2015 and August 13, 2015) requesting contact with Internal
Affairs because of Harris's belief that he is "being threatened and abused." 40, 42-43.
C.

Harris properly exhausted administrative remedies regarding his First Amendment
retaliation claim.

As noted above, Harris alleges that the defendants retaliated against him for filing his
prior lawsuit and for filing various grievances during his confinement in the RHU. Defendants
argue that Harris failed to follow the proper grievance procedures and, thus, failed to exhaust his
administrative remedies. The Court disagrees.
The Court measures whether Harris "exhausted his administrative remedies against the
yardstick of the grievance procedures set forth in the relevant [Department] regulations."

Rinaldi, 904 F.3d at 265. Inmates incarcerated with the Pennsylvania Department of Corrections
have the following administrative grievance process available to them:
The DC-ADM 804 grievance system consists of three separate
stages. First, the prisoner is required to timely submit a written
grievance for review by the facility manager or the regional
grievance coordinator within fifteen days of the incident, who
responds in writing within ten business days. Second, the inmate
must timely submit a written appeal to intermediate review within
ten working days, and again the inmate receives a written response
within ten working days. Finally, the inmate must submit a timely
appeal to the Central Office Review Committee, also known as the
Secretary's Office of Inmate Grievances and Appeals ("SOI GA"),
within fifteen working days, and the inmate will receive a final
12

determination in writing within thirty days. See Booth v. Churner,
206 F.3d 289,293 n.2 (3d Cir. 1997), ajf'd, 532 U.S. 731 (2001).
DC-ADM 804 provides that the grievance must include "a
statement of the facts relevant to the claim," "shall identify
individuals directly involved in the events," and "shall specifically
state any claims he wishes to make concerning violations of
Department directives, regulations, court orders, or other law."
DC-ADM 804, § l(A)(l l).
Hughes v. Hayes, 2018 WL 6697184 at *4 (W.D. Pa. Dec. 20, 2018). The parties agree that

Harris only completed the grievance process outlined above in two instances: Grievance No.
569626 and Grievance No. 569848. Grievance No. 569626 specifically mentions the retaliation
claim he now brings.
Harris grieved the following: first, that during his prior period of incarceration, he was
previously transferred out of SCI-Albion due to a "conflict of interest" stemming from litigation
he brought against the prison and other departmental officials. ECF No. 86-3 at 27. He further
states that he received "a million dollar plus settlement" before being transferred. Id. Next,
Harris grieved that upon returning to SCI-Albion for a parole violation, he was unjustifiably kept
in the RHU and that he feared "that some form [of] retaliation will be affronted towards me in
the form of frivilous (sic) misconducts ... " Id. He stated his inability to "voice objection" to his
confinement in the RHU for "fear of being retaliated against." Id. at 28. He connected this fear
of retaliation with his "being awarded a settlement." Id. And, Harris specifically states that
"[t]his grievance deals with and addresses me being retaliated against by being placed in the
RHU for this extended period" under false pretenses. Id. And this grievance was appealed to
final review. ECF No. 70-4 at 3, 112. Thus, the Court concludes that Harris properly exhausted
his administrative remedies as to his First Amendment retaliation claim. 8

8

Indeed, Harris argues that Grievance No. 569626 exhausted only his First Amendment retaliation claim. See ECF
No. 85, at 15 ("Per the Defendants, Grievance #569626 relates to Harris 'being held in the Restrictive Housing Unit

13

D.

Harris failed to exhaust administrative remedies regarding his Eighth Amendment
claim.

The more difficult question is whether Harris exhausted his Eighth Amendment claim
against Behringer. Harris alleges that Behringer violated his Eighth Amendment rights by
tampering with his food, thereby causing Harris to go without eating for eleven days. Harris did
not mention this claim in either of the grievances he exhausted. Grievance No. 569626 was filed
on May 28, 2015, several months before the alleged food interference by Behringer. ECF No.
86-3, at 27. The only other grievance Harris appealed to final review was Grievance No.
573956, which was filed on June 29, 2015-also well before any accusation that Behringer was
spitting in his food. ECF No. 86-4, at 9. Moreover, there is no unexhausted grievance anywhere
in the record discussing the allegations that Behringer tampered with Harris's food. 9 As noted,
failure to exhaust under the PLRA is an affirmative defense, with the burden of proof on the
defendant. Ray, 285 F.3d at 295. Defendants have met their burden.
The burden shifts now shifts to Harris, and he must show that such remedies were
unavailable. Rinaldi, 904 F.3d at 268. That is, the onus is now on Harris to point to evidence in
the record of the unavailability of the grievance process for his Eighth Amendment claim. Id.
He has not done so.
There are several ways in which administrative remedies may not be available to
prisoners. The Supreme Court has noted, for example, an administrative remedy is unavailable:
when a prison grievance system "operates as a simple dead-end-with officers unable or

out of retaliation."' ECF No. 68. That is the heart ofHarris's First Amendment retaliation claim. See ECF No. 23,

11 104-111.").
9

The prison medical record backs this up. Progress notes indicate that Harris refused to inform prisoner officials of
the reasons for his refusal to eat. On August 19, 2015, Harris told prisoner health care providers that he refused to
eat because "of my mistreatment. I'll go into details with internal affairs." ECF No. 86-15 at 2. Later that same
day, he again refused to say why he would not eat, other than the nonspecific claim of"mistreatment." Id.

14

consistently unwilling to provide any relief to aggrieved inmates," or when the process is "so
opaque that it becomes, practically speaking, incapable of use," because an ordinary prisoner
cannot discern or navigate it, or in situations where "prison administrators thwart inmates from
taking advantage of a grievance process through machination, or intimidation." Ross v. Blake,
136 S. Ct. 1850, 1859-60 (2016). The Court of Appeals for the Third Circuit has also indicated
that exhaustion is unavailable to an inmate where a "plaintiff alleged he was given misleading
filing instructions, resulting in a procedural default, and argued 'essentially that officials in the
security department of the prison thwarted his efforts to exhaust his administrative remedies."'
Rinaldi, 904 F.3d at 267 (quoting Brown v. Croak, 312 F.3d 109, 113 (3d Cir. 2002)).
Exhaustion is unavailable where the prison failed to timely respond, under its own rules, to a
prisoner's grievance and then continuously ignored the prisoner's follow-up requests for a
decision. Id. (quoting Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 154 (3d Cir.
2016)).
No evidence similar to any of the foregoing situations can be found in this record.
Harris first argues that the grievance process was rendered unavailable to him because prison
officials were "slow-rolling" responses to his grievances and "pigeonholing" his grievances as
"untimely." ECF No. 85 at 16. Harris applies these undefined characterizations generally to all
of the grievances he filed during his incarceration in the RHU. He notes that because he was
confined to the RHU, he must turn his grievance paper over to a guard who then places it in the
grievance box-prisoners in the RHU cannot do so themselves and must instead rely on the
guard to make sure their grievances are appropriately lodged in the system. Id. Behringer does
not dispute this process. ECF No. 88, at 2, 114-6; ECF No. 86-1 at 25.

15

But again, this is a general observation, which cannot be specifically linked to any
frustration of Harris's ability to exhaust his Eighth Amendment claim because the record
contains no evidence that Harris ever attempted to grieve that claim to prison officials. In his
amended complaint, Harris claims that Behringer thwarted his efforts to pursue a grievance by
refusing to take his grievance forms to the grievance box. ECF No. 23 at 14, ~ 83. But there is
no evidence in the record to support this assertion. Behringer was not questioned in his
deposition regarding this accusation. And, although Behringer acknowledged that Harris filed
grievances against him, he testified to being generally unaware of any other grievances Harris
had filed. ECF No. 86-1, at 133-34. For his part, Harris offers nothing beyond the allegation of
his amended complaint (which he does not reiterate in his declaration), that could provide the
Court with the requisite factual basis to determine whether the administrative remedies were
effectively unavailable. Of course, it is now well-established that "a party opposing a properly
supported motion for summary judgment 'may not rest upon the mere allegations or denials of
his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial."'

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986) (citing Fed. R. Civ. Pro. 56(e)). See,
e.g., Jones v. Roque, 2013 WL 4426515 at *3 (N.D. Cal. Aug. 15, 2013).
Harris alleged in his amended complaint that unnamed Defendants refused to place his
grievances in the box, threw them away, delayed their processing, and denied them without
adequate explanation or justification, thereby thwarting his attempts to utilize the grievance
process. ECF No. 23 at 16, ~97. As before, Harris has the burden to provide evidence to support
these allegations, and he has not done so. Thus, the record does not support the conclusion that
prison officials thwarted Harris's attempts to exhaust this claim by interfering with his attempts
to avail himself of administrative remedies.

16

Harris also argues that administrative remedies were unavailable to him due to his fear of
retaliation from prison officials. The Court of Appeals for the Third Circuit recently recognized
that "administrative remedies are not 'available' under the PLRA where a prison official inhibits
an inmate from resorting to them through serious threats ofretaliation and bodily harm."
Rinaldi, 904 F.3d at 267 (citing McBride v. Lopez, 807 F.3d 982, 986-87 (9 th Cir. 2015)); see
also Tucke! v. Grover, 660 F.3d 1249, 1252-53 (10 th Cir. 2011); Turner v. Burnside, 541 F.3d

1077, 1084-86 (11 th Cir. 2008); Kaba v. Stepp, 45 8 F .3d 678, 684 (7 th Cir. 2006); Hemphill v.
New York, 380 F.3d 680, 686-87 (2d Cir. 2004). Citing the Tenth Circuit's decision in Turkel,

the Third Circuit explained that it is "difficult to accept the proposition that an administrative
remedy is available in any meaningful sense if its use will result in serious retaliation and bodily
harm." Id. at 267 (citing Turkel, 660 F .3d at 1252).
In Rinaldi, the Court of Appeals announced a two-part test to determine whether an
inmate can defeat a failure-to-exhaust defense based on a fear of retaliation by prison officials.
First, an inmate must show "that the threat was sufficiently serious that it would deter a
reasonable inmate of ordinary firmness and fortitude from lodging a grievance." Id. at 269. This
is an objective inquiry. Id. at 268. The second inquiry is subjective: whether the retaliation or
threat thereof "actually did deter this particular inmate" from filing a grievance. Id. at 269.
Assuming without deciding the satisfaction of the objective component of the Rinaldi test, Harris
cannot meet the subjective element. The record conclusively shows that Harris was undeterred
in filing grievances and inmate requests during the time period he refused his meals.
Harris began to refuse his meals on August 12, 2015. ECF No 70-16 at 28. That same
day, he filed an appeal to the facility manager of Grievance No. 577257. ECF No. 86-4 at 26.
The next day, August 13, 2015, Harris filed an inmate request to staff form with prison

17

personnel. Id. at 42. On August 14, 2015, the third day of his refusal to eat, the record contains
a reference to Grievance No. 582099, which Harris apparently filed. Id. at 44. 10 Then, on
August 17, 2015, the sixth day of his refusal of meals, Harris filed Grievance No. 582100. Id. at
46. Thus, even if the record contained evidence of Behringer' s alleged actions, or of threats or
actions he made to retaliate against Harris for filing grievances about his actions, Harris was
undeterred. Therefore, the Court cannot conclude that retaliation or the threat thereof actually
deterred Harris from filing grievances. Administrative remedies were therefore available to
Harris for his Eighth Amendment claim, and he did not avail himself of them. Thus, his Eighth
Amendment claim was not exhausted.
V.

Summary Judgment is Denied on Harris's First Amendment Retaliation Claim.
"Retaliating against [an inmate] for the exercise of his constitutional rights is

unconstitutional." Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir.2012) (citing Mitchell v. Horn,
318 F.3d 523, 529-31 (3d Cir.2003)). To prevail on a claim ofretaliation, a prisoner-plaintiff
must first establish that he was engaged in constitutionally protected conduct. See Rauser v.
Horn, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Allah v. Seiverling, 229 F.3d 220,225 (3d Cir.

2000)). Harris has done so here. The filing of his prior lawsuit against the Department was
constitutionally protected conduct. 11 Peto.ff v. Yeaney, 2018 WL 1522191 at * 8 (W.D. Pa. March
28, 2018) (citing Rauser v. Horn, 241 F.3d 330,333 (3d Cir. 2001)). See also Williams v.
Varano, 2015 WL 14 707 63 at * 11 (M.D. Pa. March 31, 2015). So too is the filing of grievances

in the prison system. Ingram v. Lane, 2018 WL 3370673, at *4 (W.D. Pa. May 22, 2018). And,

10

Although the prison's Initial Review Response to this grievance is in the record (noting the date of the original
filing of the grievance), the grievance itself is not provided.
11

Contrary to Harris's interpretation, the Court again clarifies that its prior ruling on Defendants' Motion to Dismiss
did not reject Harris's prior lawsuit as a basis for his retaliation against the remaining Defendants. See supra., n. 3.

18

requesting a disability accommodation is constitutionally protected conduct. See, e.g., Prince v.
Dep 't Social Servs. of Oneida Cty., 2016 WL 3526071 at* 11 (N.D.N.Y. May 5, 2016).
Next, Harris must establish that he suffered, at the hands of a state actor, an adverse
action that would be sufficient to deter a person of ordinary firmness from exercising his
constitutional rights. Rauser, 241 F.3d at 333. 12 Harris contends that, in retaliation for filing his
prior lawsuit, for the continued filing of grievances, and for requesting accommodations for his
disabilities, he was ( 1) held in the RHU for 108 days, (2) that prison official denied his request
for items needed for his disability, such as a case for his glasses, (3) that he was prevented from
telephoning his attorney and family, (4) that Defendant Behringer fabricated a misconduct
charge against him, and (5) that he was deprived of food for eleven days. 13 Separately, and
certainly together, these actions are sufficient to deter a prisoner of ordinary firmness from
exercising his or her constitutional rights. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.
2003) (several months in disciplinary confinement would deter a reasonably firm prisoner from
exercising First Amendment rights); Smith, v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002)
(fabricated misconduct charge against inmate sufficiently deterring); Williams, 2015 WL
14 70763 at * 11 (serving inmate tampered-with food sufficiently deterring); Jones v. Mathai,
2010 WL 1286390 at *4 (E.D. Mich. March 31, 2010) (cancellation of accommodation
sufficiently deterring); Porter v. Van Tatenhove, 2012 WL 405622 at *6 (W.D. Mich. Feb. 8,
2012) (denying telephone call to attorney may be sufficiently deterring).

12

That Defendants Norton, Adams, and Behringer are state actors is not in dispute. See Coleman v. Tice, 2018 WL
5724125 at *3, n. 4 (W.D. Pa. Oct. 10, 2018) (citing Lorenzano v. Link, 2014 WL 5795568 (W D. Pa. 2014)).
13
Here, Defendants' analysis completely misses the mark. For example, Plaintiff need not have a constitutional
right to a particular housing assignment in order for the denial of a housing assignment to be retaliatory.
"Retaliation for the exercise of constitutionally protected rights is itself a violation of rights secured by the
Constitution actionable under§ 1983." White v. Napoleon, 897 F.2d 103, 111-12 (3d Cir. 1990).

19

As Harris has satisfied the first two elements, he must now prove a causal link between
his constitutionally protected conduct and the adverse actions. Rauser, 241 F.3d at 333. To do
so, he must prove that his constitutionally protected conduct was "a substantial or motivating
factor" for the adverse actions. Id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 287 (1977)). To show a causal connection, Harris must demonstrate "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. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (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." Lauren W., 480 F.3d at 267 (quoting Farrell v.

Planters Lifesavers Co., 206 F.3d 271,281 (3d Cir. 2000)). Here, all of the alleged adverse
actions are close in time to the protected activity (filing grievances and requesting
accommodations) as they all occurred within the 108-day period of Harris' s RHU confinement.
When taken together, these alleged adverse actions also demonstrate a pattern of antagonism
toward Harris sufficient to establish the required causal link. Thus, he has made out a prima
facie case.
Defendants, however, may yet 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 interest." Carter v. McGrady, 292 F.3d 152, 158 (3d Cir.
2002) (internal quotation and citation omitted). Put another way, Defendants may defeat
Harris's retaliation claim and win summary judgment if they can point to evidence that
demonstrates that they would have taken the same action based on a legitimate penological
reason. Id. (a defendant must prove by a preponderance of the evidence that it "would have

20

made the same decision absent the protected conduct for reasons reasonably related to
penological interest"); Rauser, 241 F.3d at 334. Each alleged adverse action against Harris will
be addressed separately.
1.

Harris' s confinement in the RHU for 108 days.

Defendants argue that the lack of available bed space (from May 11, 2015 to August 9,
2015) was a legitimate penological reason for keeping Harris confined to the RHU. In support of
this argument, Defendants point to a report from the PRC dated May 22, 2015, explaining that
Harris would remain on Administrative Custody status due to a lack of bed space in the general
population. ECF No. 70-7 at 1. 14 However, Defendants have provided no evidence of a lack of
bed space from May 23, 2015 until August 10, 2015. For his part, Harris has brought forth
evidence showing that between May 11, 2015 and August 10, 2015 there were an average of
twenty-three beds available per day and evidence which indicates that there was never fewer than
two beds available in general population on any given day during that time period. See ECF No.
86-7, at 1-81. Defendant Norton additionally testified that inmates changing bed/cell
assignments was commonplace during this time period. ECF No. 86-10 at 33. Thus, there is a
genuine issue of fact regarding available bed space, which raises the question whether the
Defendants had a legitimate penological reason for confining Harris to the RHU for 108 days.
This precludes the entry of summary judgment in favor of the Defendants.
2.

Fabricated Misconduct Charge

Harris claims Behringer also retaliated against him by issuing a false misconduct charge.
Defendants claim that Harris's failure to follow proper meal distribution procedures justified the
issuance of the misconduct, which extended his stay in the RHU from August 10, 2015 to

14

Harris appears to have been initially assigned to the RHU pending medical clearance. ECF No 70-6 at I.

21

August 27, 2015. See ECF No. 86-5 at 2. "In general, 'most prisoners' retaliation claims will
fail if the misconduct charges are supported by the evidence' because courts afford prison
officials 'great deference in the context of prison disciplinary proceedings.'" Whitehead v.
Wetzel, 720 Fed. Appx. 657, 663 (2017) (quoting Watson v. Rozum, 834 F.3d 417,425 (3d Cir.
2016)). "To determine whether the prison officials' discipline of the prisoner was within the
bounds of their broad discretion, courts evaluate the 'quantum of evidence' of the underlying
misconduct charges." Id. (citing Watson, 834 F.3d at 426). Where an inmate has been found
guilty of the charges in a purportedly retaliatory misconduct report after a disciplinary hearing
has taken place, the finding of guilt is considered strong evidence that the misconduct report was
issued for a legitimate penological reason. See Nifas v. Beard, 374 Fed. Appx. 241, 244 (3d Cir.
2010). A finding of guilt on a misconduct charge, combined with "a meaningful written
statement of the evidence relied on and the reasons for the action taken," establishes a "quantum
of evidence" of misconduct sufficient to warrant summary judgment. Williams v. Folino, 664
Fed. Appx. 144, 148-49 (3d Cir. 2016) (quoting Watson, 845 F.3d at 426; Dyson v. Kocik, 689
F.2d 466, 467 (3d Cir. 1982). "Prison officials are entitled to summary judgment for
disciplining a prisoner, even if their actions were motivated by animus, as long as the prisoner's
offenses 'were so clear and overt' such that there was no genuine issue of material fact that the
officials' actions were reasonably related to legitimate penological interests." Batista v. Eckard,
2018 WL 1428163, at *8 (M.D. Pa. March 22, 2018) (citing Carter, 292 F.3d 154). Here, the
quantum of record evidence pertaining to the misconduct report at issue is insufficient, thereby
raising a genuine issue of material fact whether the misconduct charge against Harris was
premised on a legitimate penological issue.

22

On August 10, 2015, Behringer issued Misconduct No. B691228 charging Harris with the
Class 1 offense of using abusive, obscene, or inappropriate language to an employee (Class 1,
charge 33) and the Class 1 offense of refusing to obey an order (Class 1, charge 35). ECF No.
70-8 at 1. Behringer described the incident as follows: "On the above date and approximate time
while picking up trays on C-pod, this reporting officer gave [inmate] Harris, George DQ2948
several direct orders to come to his door with his tray. I/M Harris DQ2948 relied 'YOU ARE A
FUCKING RACIST, I AIN'T GIVING YOU THIS FUCKING TRAY TILL YOU LEARN
HOW TO TALK.' With this statement all orders were refused." Id.
Harris testified at a hearing on this misconduct charge and denied making such
statements. Id. at 2. He also denied refusing to give back his meal tray. Id. He asked that the
hearing officer review video footage of the incident. The hearing officer apparently did so,
noting in his report that" ... reviewed camera footage. Nothing relevant shown, camera rotating
in normal operation." Id. Harris also offered his written version of the events. Id. at 4. He
stated that he did not see or hear Behringer at the time of incident. Harris pointed out that he is
visually and hearing impaired, and has a sign on his cell door indicating as much. Id. Due to
these disabilities, Harris maintains he could not see or hear Behringer make the request for the
meal trays. Id. He further alleges that the misconduct was in retaliation for him contacting
internal affairs about Behringer and for securing a "1.9 million dollar settlement" against the
Department in his earlier lawsuit. Id.
In finding Harris guilty, the hearing examiner stated that be believed Behringer over
Harris's version of events. Id. at 2. Typically, the quantum of evidence in these cases includes
testimony from other corrections officers and/or other inmates, a written statement of the
evidence relied on, the reasons for the action taken, and video footage of the incident under

23

review. See, e.g., Rivera v. McCoy, 2017 WL 3980790, at *3 (M.D. Pa. Sept. 11, 2017);

Williams, 664 Fed. Appx. At 148-49 (quoting Watson, 834 F.3d at 426); Batista, supra. at *8-9.
See also Dyson, 689 F.3d at 467 (finding of misconduct must include "a meaningful written
statement of the evidence relied on and the reasons for the action taken."). The hearing examiner
in this case based his decision on a "preponderance of evidence," but no evidence or testimony
from other corrections officers in support of Behringer's version of events was offered. Nor can
the hearing examiner's report be considered a "meaningful written statement of the evidence
relied on and the reasons for the action taken." Id. And as previously noted, the video footage
revealed nothing. ECF No. 70-8 at 2.
Harris appealed the misconduct, once again arguing that he could not see or hear
Behringer's order. Id. at 6. In affirming the hearing examiner's decision, the PRC noted that
"the evidence was sufficient to support the decision of the Hearing Examiner." Id. at 7. It
appears, however, that the only evidence considered was Behringer's version of the incident.
Further, although Behringer issued a misconduct against Harris on August 10, 2015,
Harris had expressed his fear of having a false misconduct charge issued against him well before
that-actually within weeks of his return to SCI-Albion. ECF No. 86-3 at 27. Less than a
month before being issued the misconduct, he filed a grievance against Behringer relating to
meal distribution procedures. ECF No. 86-4 at 24. And, the misconduct in question was issued
the same date Harris filed an inmate request asking to speak to a representative of the
Department's internal affairs office. ECF No. 86-4 at 40.
The Court readily acknowledges "that the task of prison administrators and staff is
difficult, and the decisions of prison officials require deference, particular Iy where prison
security is concerned." Rauser, 241 F.3d at 334. However, in this case, given the minimal

24

quantum of evidence supporting the guilt on Misconduct No. 691228, a genuine issue of material
fact exists whether there was a legitimate penological reasons for the issuance of the misconduct
charge, thereby precluding the award of summary judgment to the Defendants.
3.

Other Adverse Actions

The Defendants offer no argument on the remaining adverse actions Harris identifies and
the Court is under no obligation to search the record in order to find evidence to support their
position. Granny's Alliance Holdings, Inc. v. Farrow Construction Specialties, Inc.
2013 WL 12121497, at *4 (S.D. Miss. July 12, 2013). At the summary judgment stage, it is not
the court's responsibility to go beyond the arguments and materials referenced in the parties'
briefs. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (noting
that "[t]here is no burden on the district court to distill every potential argument that could be
made based upon the materials before it on summary judgment" and stating that "the onus is
upon the parties to formulate arguments ... "). Further, the Court is not obligated to make
Defendants' case for them or to "wade through and search the entire record" for some specific
facts that might support their motion. lnterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th
Cir. 1989).
Thus, Defendants have presented no evidence to suggest that their actions in allegedly
depriving Harris of food, telephone access, and accommodations for his disability were in
furtherance of a legitimate penological interest. See Turner v. Safley, 482 U.S. 78, 87 (1987).
These alleged adverse actions, therefore, deserve no deference from the Court and a jury could
reasonably determine that they were retaliatory. Summary judgment is therefore inappropriate.

25

VI.

Conclusion
Accordingly, summary judgment will be GRANTED to Defendant Behringer on Harris's

Eighth Amendment claim due to a failure to exhaust administrative remedies. Summary
Judgment will also be GRANTED to Defendants Giroux and Kosinski on Harris's claims under
the ADA and Rehabilitation Acts. Defendants Norton, Adams, and Behringer's motion for
summary judgment on Harris's First Amendment Retaliation claim is DENIED and that claim
will proceed to trial. An appropriate order will be filed separately.

~2~4

Richard A. Lanzill
United States Magistrate Judge

Entered this 25 th day of January, 2019.

26