HENDERSON v. BICKEL et al

Filing 100

MEMORANDUM OPINION denying 77 Plaintiff's Motion for Summary Judgment; granting 83 Defendants' Motion for Summary Judgment. Signed by Magistrate Judge Richard A. Lanzillo on December 21, 2018. (jbh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
WARREN HENDERSON,
Plaintiff,
v.
JOANNE BICKEL, ET AL.
Defendants.

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Case No. 1: 17-cv-0098
UNITED STATES MAGISTRATE JUDGE
RICHARD A. LANZILLO
MEMORANDUM OPINION ON
MOTION FOR SUMMARY JUDGMENT

This is a pro se prisoner civil rights action, which is before the Court today on a Motion
for Summary Judgment filed by the Plaintiff and a cross-motion for Summary Judgment filed by
Defendants. ECF Nos. 77, 83. For the reasons that follow, the Defendants’ motion [ECF No.
83] will be GRANTED. The Plaintiff’s motion [ECF No. 77] will be DENIED. 1
I.

Background
Plaintiff Warren Henderson (“Plaintiff” or “Henderson”), a prisoner incarcerated at the

State Correctional Institution at Albion, Pennsylvania (“SCI-Albion”), initiated this civil rights
action on April 25, 2017, by filing a pro se complaint pursuant to 42 U.S.C. § 1983 [ECF No. 4].
Plaintiff subsequently filed a supplemental complaint on or about August 31, 2017 [ECF No.
40], which added further allegations against the initial Defendants. Originally named as
Defendants were the following individuals, all of whom were employed at SCI-Albion during the
relevant time periods at issue: Librarian Assistant Joanne Bickel (“Bickel”); Kitchen Supervisors
Linda Traut (“Traut”) and Scott Breckenridge (“Breckenridge”); Grievance Coordinator
Martucci (“Martucci”); Grievance Officers Giles (“Giles”) and Kusiak (“Kusiak”); Corrections
School Principal Cindy Clark (“Clark”); Superintendent Michael Clark (“Supt. Clark”); Chief
The parties have consented to having a United States Magistrate Judge exercise jurisdiction over this matter. See
ECF Nos. 14, 57.

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Grievance Officer Dorina Varner (“Varner”); and Pennsylvania Department of Corrections
Secretary Wetzel (“Wetzel”).
Plaintiff claims that Defendants have retaliated against him for exercising his
constitutional rights and have discriminated against him based on his race in violation of the
Fourteenth Amendment’s Equal Protection Clause. Specifically, Henderson alleges that he was
given a false misconduct for assaulting Defendant Bickel on March 28, 2016, and was sanctioned
to 60 days of disciplinary custody, which was later reduced to 45 days. As a result of the
misconduct and disciplinary sanction, Plaintiff claims that he was denied access to the law
library on multiple occasions, and he lost his job in the kitchen. Plaintiff alleges further that
Defendants Traut and Breckenridge violated his equal protection rights by not allowing him to
return to his kitchen job after he was released from disciplinary custody, claiming that similarly
situated white and Hispanic prisoners were commonly given their jobs back after serving
disciplinary time. Further, Plaintiff alleged that Defendants Martucci, Giles, Kusiak, C. Clark,
M. Clark, Varner, and Wetzel all participated in the complained of misconduct by denying his
grievances regarding alleged retaliation and equal protection violations.
Defendants filed a motion to dismiss the complaint and supplemental complaint [ECF
No. 35] in which they argued that Henderson failed to allege the necessary personal involvement
of Defendants Wetzel, Giles, Kusiak, Varner, Martucci, C. Clark, and M. Clark in the alleged
misconduct, and failed to state claims upon which relief may be granted against Defendants
Bickel, Traut, and Breckenridge. Plaintiff filed two identical responses in opposition to
Defendants’ motion [ECF Nos. 41, 45], as well as a document entitled “second Plaintiff's motion
to amendment [sic] complaint and opposition to Defendants’ motion to dismiss” [ECF No. 52],
which is nothing more than a further response in opposition to Defendants’ motion. The Court

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granted the Defendants’ motion, in part, and dismissed Henderson’s claims against Defendants
Wetzel, Giles, Kusiak, Varner, Martucci, C. Clark, and M. Clark. See ECF No. 61.
Remaining in this litigation are claims of retaliation against Defendant Bickel and denial
of equal protection against Defendants Breckinridge and Traut. Both the Plaintiff and the
remaining Defendants have filed motions for summary judgment. See ECF Nos. 77, 83.
Defendants have also filed a brief in support of their motion (ECF No. 84) and a Concise
Statement of Material Facts (ECF No. 86). Plaintiff was permitted to supplement his motion for
summary judgment (ECF No. 82). He has also filed numerous notices purporting to update the
Court on various factual developments. See ECF Nos. 88. 89. 90, 91, 92, 93, 94, 96, 97, and 98.
Henderson has not filed a Concise Statement of Material Facts. 2 This case was reassigned to the
undersigned on September 24, 2018 and the pending motions for summary judgment are now
ripe for disposition. See ECF No. 95.
II.

Summary Judgment Standard
The standards by which a court grants or denies each party summary judgment do not

change by virtue of cross-motions being presented. Porter v. Pa. Dept. of Corr., 2018 WL
5846747 at *6 (W.D. Pa. Nov. 8, 2018) (citing Home for Crippled Children v. Prudential
Insurance Co., 590 F. Supp. 1490, 1495 (W.D. Pa. 1984)). “On cross-motions for summary
judgment, the law in our Circuit is clear—the Court considers each Motion on its own merits,

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, 520-521 (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. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d
552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read “with a measure
of tolerance”); Smith v. U.S. District Court, 956 F.2d 295 (D.C. Cir. 1992); Freeman v. Dep’t of Corrections, 949
F.2d 360 (10th Cir. 1991). 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). 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 Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
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tested against the standards of [Federal Rule of Civil Procedure 56].” U.S. Equal Employment
Opportunity Comm’n v. Bob Evans Farms, LLC, 275 F. Supp. 3d 635, 639 (W.D. Pa. 2017)
(internal citations omitted). As the Court of Appeals for the Third Circuit explained, “‘[c]rossmotions are no more than a claim by each side that it alone is entitled to summary judgment, and
the making of such inherently contradictory claims does not constitute an agreement that if one is
rejected the other is necessarily justified or that the losing party waives judicial consideration and
determination whether genuine issues of material fact exist.’” Lawrence v. City of Phila., 527
F.3d 299, 310 (3d Cir. 2008) (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir.
1968)).
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be
granted only if “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect
the outcome of the case. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). A dispute
of material fact is “genuine” only if the evidence “is such that a reasonable jury could return a
verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment
motion, all inferences “should be drawn in the light most favorable to the non-moving party, and
where the non-moving party’s evidence contradicts the movant's, then the non-movant's must be
taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
The party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes such a
showing, the non-movant must set forth specific facts, supported by the record, demonstrating

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that “the evidence presents a sufficient disagreement to require submission to the jury.”
Anderson, 477 U.S. at 251–52.
IV.

Discussion
A.

Retaliation Claim against Defendant Bickel

Henderson’s retaliation claim against Defendant Bickel was permitted to proceed to this
stage of litigation because he adequately pleaded that he engaged in a constitutionally protected
activity (the filing of a grievance) and that Bickel retaliated against him for it (by denying him
access to the prison law library). ECF No. 61 at 8. But now, Henderson “must point to some
evidence in the record that creates a genuine issue of material fact.” Berckeley Inv. Group, Ltd.
v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006) (citing Fed. R. Civ. P. 56(e)). “In this respect,
summary judgment is essentially ‘put up or shut up’ time for [Henderson]: [he] must rebut the
motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal
memoranda, or oral argument.” Id. (citing Jersey Cent. Power & Light Co. v. Lacey Twp., 772
F.2d 1103, 1109-10 (3d Cir. 1985)). “If, after adequate time for discovery, [Henderson] has not
met [his] burden, pursuant to Federal Rule of Civil Procedure 56, the court must enter summary
judgment against [him].” Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 637, 643 (3d
Cir. 2015) (citation omitted).
It is well settled that retaliation for the exercise of a constitutionally protected activity is
itself a violation of rights secured by the United States Constitution, which is actionable under
Section 1983. Rauser v. Horn, 341 F.3d 330 (3d Cir. 2001); White v. Napoleon, 897 F.2d 103,
112 (3d Cir. 1990). The mere allegation of retaliation, however, is insufficient to establish such
a claim. In order to prevail on a retaliation claim, a plaintiff must show three things: (1) that the
conduct in which he engaged was constitutionally protected; (2) that he suffered “adverse action”

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at the hands of prison officials; and (3) that his constitutionally protected conduct was a
substantial motivating factor in the defendants’ conduct. Rauser, 241 F.3d at 333 (adopting
Mount Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). The crucial third element,
causation, requires a plaintiff to 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. See Lauren W. ex rel. Jean W. v. DeFlaminis, 480
F.3d 259, 267 (3d Cir. 2007); Krouse v. American Sterilizer Co., 126 F.3d 494, 503–04 (3d Cir.
1997)). Once a plaintiff has made his prima facie case, the burden then shifts to the defendant to
prove by a preponderance of the evidence that he or she “would have made the same decision
absent the protected conduct for reasons reasonably related to penological interest.” Rauser, 241
F.3d at 334 (incorporating Turner v. Safley, 482 U.S. 78, 89 (1987)); Verbanik v. Harlow, 2012
WL 4378198 (W.D. Pa. Sept.25, 2012).
Defendant Bickel argues she is entitled to summary judgment because Henderson has not
brought forward any evidence showing he suffered an “adverse action,” which is defined as an
action “sufficient to deter a person of ordinary firmness from exercising his rights.” Verbanik v.
Harlow, No. 09–448, 2012 WL 4378198 (W.D. Pa. Sept.25, 2012) (quoting Bailey v. Lawler,
2010 WL 5018825 (M.D. Pa. Aug.11, 2010)). The Court agrees.
Henderson complains of two instances of perceived retaliation. First, he argues that he
was removed from the “call-out” list, thereby prohibiting his access to the law library after filing
grievances against Bickel. Evidence in the summary judgment record reveals the opposite,
however: Henderson was listed on the “call-out” list for the law library numerous times after he
submitted his grievances. See ECF No. 85-1. Henderson filed his grievance against Bickel on
May 26, 2016. ECF No. 4, at 7 ¶ 13. But Henderson appears on the list for library call-out on

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dates after he filed his grievance: May 31, 2016 (from 9:00 am until 10:45 am), June 7, 2016
(from 9:00 am until 10:45 am), and on June 14, 2016 (from 9:00 am until 10:45 am). Id. at 1-4.
Henderson has not brought forward any evidence contradicting or refuting these instances of
library access. Therefore, the Court agrees with Defendant Bickel that Henderson has not shown
that he suffered an adverse action after filing a grievance against her. Accordingly, Bickel is
entitled to summary judgment on Henderson’s retaliation claim against her.
This Court previously noted that Henderson’s retaliation claim “is not based solely on
Defendant Bickel’s denial of additional law library time that he allegedly required due a pressing
court deadline,” and he acknowledged in his Complaint that “extra time was not [at] issue.” ECF
No. 61 at 8 (citing ECF No. 4, at ¶¶ 21, 23). However, Henderson’s Motion for Summary
Judgment continues to reference his denial of additional library time because of a court deadline.
See ECF No. 77, at 9, ¶ 20 (“. . . staff members called and told Bickel that he had a deadline.”).
So then, to the extent Henderson continues to argue that Defendant Bickel retaliated against him
by denying him additional library time, the Court finds that Bickel is also entitled to summary
judgment. See ECF No. 85-2, at 1. The Defendant states that Henderson was not entitled to
additional time, per prison policy, because he did not have a pending court deadline. See ECF
No. 84, at 4 (citing DC-ADM § 1(D). The Court agrees. Nothing in the record establishes that
Henderson did indeed have a looming court date or deadline for filing that would have
necessitated his need for additional library time. Henderson has not provided any documents,
docket report, or other evidence establishing a court ordered deadline in a particular case. And,
as Defendant Bickel points, out, Henderson was given additional library time above and beyond
what he was entitled to on June 9, 2016 and June 17, 2016. See ECF No. 85-5, at 1-2.
Henderson has not brought forward any evidence to contradict Bickel’s evidence.

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As noted above, Henderson has asserted that three members of the prison staff—
Correctional Officers Hall, Steele, and Matlock—told Defendant Bickel that he “had a deadline
in his legal case,” yet Bickel denied Henderson law library access. ECF No. 77 at 4, 9. These
are allegations however, lacking any appropriate evidentiary support. Henderson, as the party
opposing summary judgment, “may not rest upon the mere allegations or denials” of the
pleading, but “must set forth specific facts showing that there is a genuine issue for trial.”
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 n.11 (1986)). “For an issue to be genuine, the
nonmovant needs to supply more than a scintilla of evidence in support of its position—there
must be sufficient evidence (not mere allegations) for a reasonable jury to find for the
nonmovant.” Coolspring Stone Supply v. Am. States Life Ins. Co., 10 F.3d 144, 148 (3d Cir.
1993); see also Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (noting that a
party opposing summary judgment “must present more than just bare assertions, conclusory
allegations or suspicions to show the existence of a genuine issue”) (internal quotation marks
omitted). He has not done so here.
B.

Equal Protection Claim against Defendants Breckenridge and Traut

In violation of the Fourteenth Amendment, Henderson claims that Defendants
Breckenridge and Traut discriminated against him because of his race (Henderson is African
American) by denying him employment in the prison kitchen after he was released from
disciplinary custody. See, e.g., ECF No. 4, at 7-8, ¶¶ 18-19. The basis for his claim is
Henderson’s belief that White and Hispanic prisoners were allowed to return to their jobs after
being in disciplinary confinement while African American prisoners were not. Id. at 10, ¶ 30-31,
11, ¶ 35, 18, ¶ 71. This claim survived the Defendants’ Motion to Dismiss because it was

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minimally sufficient, at the pleading stage, to implicate purposeful discrimination based on three
affidavits Henderson filed in which other inmates declared they witnessed racial disrespect and
discrimination. ECF No. 61 at 11.
At the outset, the Court agrees with the Defendants that Henderson has no
constitutionally protectable interest in a particular prison employment position, namely in the
prison kitchen. See James v. Quinlan, 866 F.2d 627, 629–30 (3d Cir. 1989) (recognizing that
inmates have no constitutional right to be assigned to a particular job; an inmate’s expectation of
keeping a specific prison job, or any job, does not implicate a property interest under the
Fourteenth Amendment); Bryan v. Werner, 516 F.2d 233, 240 (3d Cir. 1975) (“We do not
believe that an inmate’s expectation of keeping a particular prison job amounts either to a
‘property’ or ‘liberty’ interest entitled to protection under the due process clause.”); see also
Fidtler v. Pa. Dept. of Corrections, 55 Fed. Appx. 33, 35 (3d Cir. 2002) (“[W]e have held that a
state inmate does not have a liberty or property interest in prison employment”). Consequently,
Henderson has no Fourteenth Amendment due process right to his job in the prison’s kitchen.
However, racial discrimination in prisons is unconstitutional under the Fourteenth
Amendment, except for “the necessities of prison security and discipline.” Cruz v. Beto, 405
U.S. 319, 321 (1972) (per curiam). While the Due Process Clause of the Fourteenth Amendment
does not create a property or liberty interest in prison employment, racial discrimination in the
assignment of jobs may violate equal protection. See, e.g., Walker v. Gomez, 370 F.3d 969, 973
(9th Cir. 2004). The Equal Protection Clause provides that no state shall “deny to any person
within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. “This is
not a command that all persons be treated alike but, rather, ‘a direction that all persons similarly
situated should be treated alike.’” Artway v. Attorney General of State of N.J., 81 F.3d 1235,

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1267 (3d Cir. 1996) (quoting City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985)). This Court has previously stated:
[T]o demonstrate an equal protection violation, an inmate has the
burden of proving the existence of purposeful discrimination.
Hernandez v. New York, 500 U.S. 352 (1991); McCleskey v. Kemp,
481 U.S. 279, 292 (1987). Official action does not violate the
Equal Protection Clause solely because it results in a
disproportionate impact; proof of discriminatory intent or purpose
is required to show a violation. Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252, 265
(1977); Washington v. Davis, 426 U.S. 229, 239 (1976); Stehney v.
Perry, 101 F.3d 925, 938 (3d Cir. 1996). Discriminatory purpose
implies more than intent as volition or intent as awareness of
consequences. It implies that the decisionmaker selected a
particular course of action at least in part because of, not merely in
spite of, its adverse effects upon an identifiable group. Hernandez,
500 U.S. at 360. An inmate must offer evidence specific to his
own case that would support an inference that unlawful
considerations played a part in the adverse decision. McCleskey,
481 U.S. at 293.
Walker v. Campbell, 2011 WL 6153104, at *9 (W.D. Pa. Oct. 31, 2011), report and
recommendation adopted, 2011 WL 6176808 (W.D. Pa. Dec. 9, 2011).
In an attempt to show that “unlawful considerations [of race] played a part” in denying
him a position in the prison’s kitchen after he was released from disciplinary custody, Henderson
points to the declarations of two inmates he filed as a supplement to his Motion for Summary
Judgment as support for his contention that Hispanic and white inmates routinely receive
employment positions in the prison after they complete disciplinary custody while African
American inmates in the same situation do not. ECF No. 81-1, at 1-2. Authored by inmates
Báez and Thorpe, these declarations state they were given jobs as a block worker (Báez) and an
inside laborer (Thorpe). ECF No. 81-1, at 1-2. Neither of these positions are in the prison
kitchen. Missing from these declarations, however, is any indication of the race of these inmates
and their disciplinary history. The Defendants have filled-in these gaps, however. Documentary
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evidence, including a photograph of Inmate Thorpe, indisputably reveals that he is African
American. ECF No. 85-6 at 1. And, Inmate Báez has a clear record when it comes to
disciplinary actions. ECF No. 85-7. Neither of these declarations, therefore, advance
Henderson’s claims that similarly situated Hispanic and White inmates received kitchen
positions post-disciplinary custody while African American inmates did not. Thus, Henderson
has not brought forward evidence from which a reasonable jury could conclude that the
Defendants treated him differently because of his race. 3
Henderson’s supplemental filing contains additional evidence which cuts against his
discrimination claim. The Court observes that Henderson has filed ten “Inmate Request to Staff
Member” forms inquiring into securing an employment position within the prison. ECF No. 811, at 3-12. On these forms, Henderson asks for staff assistance in obtaining employment within
the prison. The staff responses, however, reveal that Henderson was only “interested in
maintenance jobs,” and that he was not approved for such a position by prison security. Id. at 3,
5, 7. For example, one staff member responded to Henderson’s request by stating “I spoke with
security about your request for maintenance jobs. You are not approved.” Id. at 3. Another staff
person responded to Henderson reminding him that “as previously addressed, you only asked for
jobs in maintenance. Security denied this.” Id. at 7. And notably, record evidence shows that
3
When considering the Defendants’ Motion to Dismiss [ECF No. 35], this Court noted the existence in the record of
affidavits from other inmates which generally declare they have witnessed Defendants Breckenridge and Traut “treat
black prisoners with racial discrimination and disrespect.” ECF No. 84 at 9 (quoting ECF No. 31-3, at 4-5, 7).
These affidavits all relate the same information: “About the third week of March 2016 myself and for [sic] other
inmates were standing on line 2 when Mr. Breckenridge of dietary came in the area and states, what are all you
niggers standing around eating for, when you should be working. We stated that all of our work is done. He in turn
stated that we should find something to do. We just hurried up and ate our food and left the line area. This was
done a couple other times. I reported this to Miss Trout [sic], who in turn stated that she would look into this matter,
but nothing was ever done about this incident or any of the others.” ECF No. 31-3 at 3. These affidavits have no
bearing on Henderson’s claim of racial discrimination beyond what the Court has already noted: that they are
general declarations of racial disrespect. Importantly, these affidavits do not state the affiants were denied
employment in the prison kitchen because of their race. Consequently, although these affidavits were barely
sufficient to save Henderson’s equal protection claim from dismissal under Fed. R. Civ. P. 12, they are irrelevant for
purposes of summary judgment.

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Henderson was told by prison authorities that his disciplinary history was preventing him from
obtaining a position in the maintenance department. ECF No. 85-8, at 1. Because the summary
judgment record contains no evidence of a discriminatory intent or purpose, and therefore no
evidence of racial discrimination in prisoner employment, the Court will grant summary
judgment to Defendants Breckenridge and Traut on Henderson’s Equal Protection claim.
C.

Plaintiff Henderson’s Motion for Summary Judgment

As the Court noted at the outset, Henderson filed a Motion for Summary Judgment. ECF
No. 77. He did not file a memorandum in support of his motion or a Concise Statement of
Material Facts. He has filed, however, fourteen notices and letters with the Court, purporting to
be updates on the continued retaliation and discriminatory actions leveled against him. ECF
Nos. 78, 80, 87, 88, 89, 90, 91, 92, 93, 94, 96, 97, 98, 99. Given the lenient standards we use
when reviewing pro se filings and to the extent possible, the Court will consider these filings as
supporting evidence for Henderson’s motion. That is not possible, however, in many instances
because the documents do not relate to the claims being litigated in this matter. The following is
a breakdown of the filings docketed after Henderson filed his summary judgment motion.
ECF Number

Date Filed

78

May 1, 2018

79

May 1, 2018

80

May 24, 2018

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Contents
Update to Court regarding a
malfunction of a machine in
the prison commissary, which
Henderson attributes to
retaliation for his filing of
grievances
Copy of a grievance form
Henderson filed regarding his
inability to use the prison
commissary
Relating alleged retaliation by
prison guards stemming from
the manner in which they
searched Henderson’s cell

87

July 2, 2018

88

July 9, 2018

89

July 10, 2018

90

July 16, 2018

91

July 16, 2018

92

July 20, 2018

93

August 29, 2018

94
96

September 7, 2018
October 18, 2018

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Informing Court that his mail
is being tampered with as
retaliation and that he has
filed a grievance
Informing Court that
Henderson requested a video
of the incident involving
Defendant Bickel and that his
request was denied
Informing Court of filing a
grievance regarding a strip
search imposed on Henderson
Filing appears to dispute
Defendants’ documentary
evidence (“defendants sent
documents that don’t have
anything to do with the facts
of the defendants retaliated
against Plaintiff.”); filing also
challenges the sufficiency of
the Defendants’ evidence in
refuting Henderson’s claims
of equal protection
Repetitive filing of ECF No.
87
Disputing Defendants’
Concise Statement of
Material Fact regarding Báez
and Thorpe’s employment.
Henderson appears to argue
that he was not raising a
racial discrimination in
employment claim, but
instead that he was denied
employment as retaliation for
filing a grievance
Relating that Henderson
remains without a job, that
his typewriter has not been
returned, and that his cell
continues to be searched
Same filing as ECF No. 93
Informing Court that
Henderson was retaliated
against by being searched

97

November 15, 2018

98

November 29, 2018

99

December 7, 2018

before and after participating
in a prison charity event
Repeat filing of ECF No. 96
because his mail was stolen
the first time he attempted to
send ECF No. 96 to the Court
(does not explain how ECF
No. 96 was filed if it had
been stolen from him)
Informing Court that pages
from Henderson’s Bible had
been “carefully torn out.”
ECF No. 98 at 2
Update on “relentless
retaliation” without any other
information

Of these documents, the Court will only consider ECF No. 92 because it specifically references
the Defendants’ Concise Statement of Material Facts and appears to challenge some of their
statements. The remaining filings are either irrelevant to this action or raise new claims that are
outside the scope of this litigation. 4
In ECF No. 92, identified as a “Motion Letter to Support Plaintiff’s Summary Judgment,”
Henderson argues that he is not raising a discrimination in employment claim but instead that the
Defendants’ refusal to give him a job in the kitchen was retaliation for filing a grievance against
Bickel. See ECF No. 92 at 2 (“They know Plaintiff was/is denied employment as retaliation.”).
But Henderson is wrong. He does indeed challenge his continued denial of employment as racial
discrimination. In his Complaint, Henderson alleges that “Defendants Breckenridge and Trout
[sic] are known by black prisoners, white prisoners and Hispanic prisoners at Albion for being
racist towards black prisoners,” and that these two Defendants “chose to act racist and
repunished plaintiff and deny plaintiff equal protection of the law … white and Hispanic inmates

These additional, unrelated claims, if Henderson chooses to pursue them, should be filed in separate lawsuits. See,
e.g., Everett v. Pierce, 2016 WL 6956426 at *2 (W.D. Pa. Nov. 29, 2016).

4

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who lost their jobs for disciplinary infractions and served RHU disciplinary punishment for work
and nonwork issue, and received their jobs back.” ECF No. 4, at 10, ¶¶ 30-31. Further, the
Complaint states that Henderson charged Defendant Traut with being a “racist,” and claimed that
“the Spanish prisoners and white prisoners go to the RHU for work related and non-work related
rule violations and they are let back into the kitchen to work.” Id. at 11, ¶ 35. Finally, under the
heading “Fourteenth Amendment Violation Racial Discrimination,” Henderson charges
Defendants Breckenridge and Bickel with acting “racists [sic], biased and discriminatory ... by
denying him right to be treated equally as all the Spanish and white prisoners similarly situated
and housed with him who received work and nonwork related misconducts and allowed to return
back to their jobs because they were Spanish and white and not black.” Id. at 18-19, ¶ 71.
Simply put, Henderson cannot change the nature of his claim in response to the Defendants’
Concise Statement of Material Facts. He has raised an equal protection claim based on racial
discrimination in employment and his charges have been analyzed as such.
In short, Henderson has not brought forward any evidence which would create a genuine
issue of material fact as to his retaliation or equal protection claim. Thus, his Motion for
Summary Judgment will be DENIED.
V.

Conclusion
Defendant Bickel will be GRANTED summary judgment on Henderson’s retaliation

claim. Defendants Breckenridge and Traut will be GRANTED summary judgment on
Henderson’s equal protection claim. The Defendants’ Motion for Summary Judgment [ECF No.
83] will be GRANTED. Plaintiff Henderson’s Motion for Summary Judgment [ECF No. 77]
will be DENIED. Final judgment will be entered in favor of the Defendants and against Plaintiff

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Henderson by separate Order in accordance with Rule 58 of the Federal Rules of Civil
Procedure.
An appropriate order will follow.
/s/ Richard A. Lanzillo
RICHARD A. LANZILLO
UNITED STATES MAGISTRATE JUDGE
Dated this 21st day of December, 2018.

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