VERBANIK v. HARLOW et al
Filing
115
ORDER denying 93 Motion in Support of Third Circuit's Remand, which has been construed as a Motion for Summary Judgment; granting 95 Motion for Summary Judgment. Signed by Magistrate Judge Lisa Pupo Lenihan on September 25, 2012.(kcc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ROBERT R. VERBANIK,
Plaintiff,
v.
SUPERINTENDANT MICHAEL
HARLOW, et al.,
Defendants.
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Civil Action No. 09 – 448
Chief Magistrate Judge Lisa Pupo Lenihan
ECF Nos. 93, 95
MEMORANDUM OPINION AND ORDER
This case is before the Court on Plaintiff’s Motion in Support of Third Circuit’s Remand
(ECF No. 93), which this Court has construed as a Motion for Summary Judgment, and
Defendants’ Motion for Summary Judgment (ECF No. 95). For the following reasons, Plaintiff’s
Motion will be denied and Defendant’s Motion will be granted.
I.
PROCEDURAL HISTORY
Plaintiff, Robert R. Verbanik, an inmate presently incarcerated at the State Correctional
Institution in Albion, Pennsylvania, commenced this civil action on April 16, 2009 pursuant to
the Civil Rights Act of 1871, 42 U.S.C. § 1983. Plaintiff filed a Second Amended Complaint on
January 6, 2010, against various officers and employees of the State Correctional Institution at
Mercer (“SCI-Mercer”).1 (ECF No. 47.) Defendants filed a Motion to Dismiss (ECF No. 49),
1
Plaintiff names as Defendants: Superintendent Michael Harlow (“Harlow”); Captain Conrad De Chant
(“De Chant”); Sergeants Thomas Mills (“Mills”) and Eric Yohe (“Yohe”); and Corrections Officers Michael
Schuller (“Schuller”), Jason Andrews (“Andrews”); Walter Yourema (“Yourema”), and A. Gordon (“Gordon”).
1
which this Court granted on April 29, 2010 (ECF No. 58). Plaintiff appealed and the Third
Circuit Court of Appeals remanded for further proceedings. (ECF No. 77.)
Plaintiff subsequently filed a Motion in Support of Third Circuit’s Remand (ECF No.
93), which this Court construed as a Motion for Summary Judgment following a status
conference held on December 29, 2011 (ECF No. 94). Defendants filed a Brief in Opposition to
Plaintiff’s Motion (ECF No. 98) along with their own Motion for Summary Judgment (ECF No.
95), Brief in Support thereof (ECF No. 96), and Concise Statement of Undisputed Material Facts
(ECF No. 97). Plaintiff filed a Response in Opposition to Defendants’ Motion (ECF No. 103), a
Brief in Support thereof (ECF No. 104), a Response to Defendants’ Concise Statement of
Undisputed Material Facts (ECF No. 105), and his own Concise Statement of Undisputed
Material Facts (ECF No. 106). The Motions are now ripe for review.
II.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if, drawing all inferences in favor of the non-moving
party, the record indicates that “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). Summary judgment
may be granted against a party who fails to adduce facts sufficient to establish the existence of
any element to that party’s case and for which that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of
identifying evidence or the lack thereof that demonstrates the absence of a genuine issue of
material fact. National State Bank v. Federal Reserve Bank of New York, 979 F.2d 1579, 1582
(3d Cir. 1992). Once that burden has been met, the non-moving party must set forth “specific
facts showing that there is a genuine issue for trial” or the factual record will be taken as
presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec.
2
Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue is genuine only if the
evidence is such that a reasonable jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The inquiry, then, involves determining
“whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Brown v. Grabowski,
922 F.2d 1097, 1111 (3d Cir. 1990) (quoting Anderson, 477 U.S. at 251-52). If a court, having
reviewed the evidence with this standard in mind, concludes that “the evidence is merely
colorable . . . or is not significantly probative,” then summary judgment may be granted.
Anderson, 477 U.S. at 249-50. Finally, while any evidence used to support a motion for
summary judgment must be admissible, it is not necessary for it to be in admissible form. See
Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324; J.F. Feeser, Inc., v. Serv-A-Portion, Inc., 909
F.2d 1524, 1542 (3d Cir. 1990).
III.
DISCUSSION
The Court construes Plaintiff’s Second Amended Complaint to contain the following
claims: retaliation, due process violations, verbal harassment, supervisory liability, equal
protection violations, conspiracy, and several state law claims. Defendants move for summary
judgment on all claims and on the basis that Plaintiff has failed to exhaust his administrative
remedies as to all claims whereby exhaustion must be accomplished through the prison grievance
process.2
2
In light of the Third Circuit’s Opinion remanding this case for further proceedings, the Court declines to
grant summary judgment on the basis that Plaintiff failed to exhaust his administrative remedies with respect to all
claims whereby he was required to utilize the prison’s inmate grievance system. See Verbanik v. Harlow, 441 F.
App’x 931 (3d Cir. 2011).
3
A. Retaliation
Plaintiff alleges numerous instances of retaliation. It is well settled that retaliation for the
exercise of a constitutionally protected activity is itself a violation of rights secured by the
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). However, merely alleging the fact
of retaliation is insufficient; 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”3 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)).
1. Housed in A-block for Four Months
3
An adverse action is one “sufficient to deter a person of ordinary firmness from exercising his rights.”
Bailey v. Lawler, No. 3:07-CV-2058, 2010 U.S. Dist. LEXIS 128271, at *12 (M.D. Pa. Aug. 11, 2010).
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As to Plaintiff’s first claim of retaliation, he alleges that he was improperly housed in Ablock for four months upon untrue rumors that he was a racist. In this instance, however,
Plaintiff fails to satisfy the first element of a retaliation claim, i.e. that he engaged in
constitutionally protected conduct for which he suffered an adverse action. Moreover, even had
Plaintiff engaged in protected conduct, he has not presented evidence demonstrating that the
conditions in A-block were so severe as to constitute an adverse action sufficient enough to deter
a person of ordinary firmness from exercising his constitutional rights. See section III(A)(2),
infra. As such, Defendants are entitled to summary judgment as to this claim of retaliation.
2. Cell Transfer
As to Plaintiff’s second claim of retaliation, he alleges that he received a housing
demotion from Defendant Schuller in retaliation for filing a grievance against Defendant
Schuller the previous day. Plaintiff contends that when Defendant Schuller transferred Plaintiff
from one housing unit to the other, Defendant Schuller stated, “you’ll never win.”
While Plaintiff has certainly satisfied the first element of a retaliation claim in this
instance by engaging in protected activity, the filing of grievances, see Booth v. King, 346 F.
Supp. 2d 751, 762 (E.D. Pa. 2004); Allah v. Al-Hafeez, 208 F. Supp. 2d 520, 535 (E.D. Pa.
2002), the Court finds that Plaintiff has not proven that his alleged housing demotion was an
adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional
rights. Although courts have found that cell transfers to undesirable areas of a prison could have
a strong deterrent effect, see Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir. 1999)
(placement in area of prison used to house mentally disturbed inmates combined with harassment
and physical threats could constitute a sufficient adverse action for retaliation purposes), Allah v.
Seiverling, 229 F.3d 220, 225-26 (3d Cir. 2000) (continued placement in administrative
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confinement which resulted in reduced privileges could deter a person of ordinary firmness from
exercising his First Amendment rights), the Third Circuit has stated that whether a prisoner has
met this prong of his retaliation claim will depend on the facts of the particular case, Allah, 229
F.3d at 225.
Here, Plaintiff has alleged nothing more than he was transferred from the
downstairs dorm room to the upstairs dorm room. Although he conclusively claims that this was
a “housing demotion,” he has not shown through evidence how the new location was any less
desirable than his old location, for example, that he was subjected to increased security or loss of
privileges. Simply put, he has not demonstrated that a fact finder could conclude that this
transfer, what the Court presumes to be inconsequential, was sufficient to deter a person of
ordinary firmness from exercising their First Amendment rights. See Griffin v. Williams, No.
1:CV-10-02472, 2011 U.S. Dist. LEXIS 88524, at *18 (M.D. Pa. Aug. 10, 2011) (dismissing
plaintiff’s claim that his cell move from one double-bunk cell to another double-bunk cell in the
same cell block was an adverse action sufficient to deter him from exercising his constitutional
rights). As such, Defendants are entitled to summary judgment as to this claim of retaliation.
3. Left in Shower
Plaintiff claims that he was left in the RHU shower for almost two hours in retaliation for
filing a grievance against Defendant Harlow. According to Plaintiff, when Defendants Andrews
and Mills came to retrieve him, Plaintiff asked if he was left in the shower to be punished and
Defendant Andrews replied, “write-up [Defendant Harlow] again and see what happens to you.”
He claims that Defendant Mills acquiesced in Defendant Andrews’ retaliation by failing to
intervene, thereby retaliating himself.
While the Court finds that Plaintiff has satisfied the first element of a retaliation claim by
filing a grievance complaining about a prison official, see Booth, 346 F. Supp. 2d at 762; Allah,
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208 F. Supp. 2d at 535, the Court concludes that being left in the shower for a little more than an
hour over what is required by DOC rules and regulations does not constitute an adverse action
sufficient enough to satisfy the second element of a retaliation claim. Indeed, Plaintiff has not
even alleged that he was cold or that the conditions were such that they could be described as
unenjoyable to an ordinary inmate in a similar situation. Under these circumstances and based
on the record presented before the Court, Plaintiff has failed to demonstrate that a reasonable fact
finder could conclude that being left in the shower for the amount of time alleged would be
sufficient enough to deter someone of ordinary firmness from exercising his or her constitutional
rights. As such, Defendants are entitled to summary judgment on this retaliation claim.
4. Issuance and Fabrication of Misconduct #A552586
Plaintiff claims that he was issued Misconduct #A552586 in retaliation for writing
complaints to Defendant Harlow about Defendant Schuller’s harassing and retaliatory behavior.
He further contends that the Misconduct was fabricated by Defendant De Chant, the
investigating officer, out of retaliation of a perceived lawsuit that he believed Plaintiff to be
filing against Defendant Schuller.
As to Misconduct #A552586, Plaintiff was charged and found guilty of using abusive,
obscene, or inappropriate language and refusing to obey an order. As a result, he received sixty
days of disciplinary confinement in the RHU. Defendants contend that Plaintiff received the
Misconduct because he came into a staff office and, in an argumentative manner, demanded of
Defendant Schuller that the lights be turned off in the dayroom. Defendant Schuller explained
that the rule was that the dayroom lights be left on and he then gave Plaintiff a direct order to
leave the office. Plaintiff again entered the office and continued to argue claiming that the other
inmates wanted the lights off too. Defendant Schuller investigated and found this to be a lie.
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When leaving the staff office, Plaintiff turned to Defendant Schuller and said, “I’m going to
fucking talk to somebody about you.”
Plaintiff has proved both the first and second elements of a retaliation claim in this
instance. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (holding that a prisoner’s
allegation that he was falsely charged with misconduct in retaliation for filing complaints against
a prison official “implicates conduct protected by the First Amendment” and that “several
months in disciplinary confinement would deter a reasonably firm prisoner from exercising his
First Amendment rights”). Without addressing the third element, however, the Court finds that
Plaintiff cannot succeed on this retaliation claim because Defendants have met their burden of
showing that Plaintiff would have been issued the Misconduct for reasons reasonably related to
penological interests even had he not complained about Defendant Schuller’s behavior.
Based on evidence presented, which included the misconduct report issued by Defendant
Schuller, the incident report issued by Defendant De Chant, and Plaintiff’s version of events
including his timeline demonstrating Defendant Schuller’s biased actions, the Hearing Examiner
found Plaintiff guilty of the charged offenses. The Court finds that there was “some evidence”
sufficient to support the prison disciplinary conviction. See Superintendent v. Hill, 472 U.S. 445,
455-56 (1985);4 see also Speight v. Minor, 245 F. App’x 213, 217 (3d Cir. 2007) (“As the
District Court correctly noted, this disciplinary hearing record, specifically the charging officer’s
report, although meager, constitutes some evidence supporting the DHO’s decision in Speight’s
case.”) Because Plaintiff was found guilty of the Misconduct based upon some evidence that he
did engage in the acts he was accused of, even if Plaintiff had presented sufficient evidence to
4
The “some evidence” standard does not require examination of the entire record, independent assessment of
the credibility of witnesses, or weighing of the evidence. Hill, 472 U.S. at 455-56. “[T]he relevant question is
whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Id.
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support his prima facie case of retaliation, he is essentially barred from succeeding on this
retaliation claim because such a finding of guilt as to the Misconduct charge conclusively
establishes that Defendants would have taken the same action for legitimate penological reasons
regardless of any protected activity engaged in by Plaintiff. See Alexander v. Fritch, 396 F.
App’x 867, 874 (3d Cir. 2010) (nonprecedential) (holding that “because there was evidence to
support the hearing examiner’s finding of guilty, there was a legitimate penological reason for
the charge and punishment”); Carter v. McGrady, 292 F.3d 152, 159 (3d Cir. 2002) (affirming
summary judgment in favor of defendants on retaliation claim where “the quantum of evidence”
of the prisoner’s misconduct showed that he would face disciplinary action notwithstanding his
protected activity); Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994) (stating that a finding
of “some evidence” in support of a disciplinary determination “checkmates” a retaliation claim).
Consequently, Defendants are entitled to summary judgment as to this claim.
5. Issuance and Fabrication of Misconduct #B025225
Plaintiff also claims that he was issued Misconduct #B025225 in retaliation for
complaining to Captain Zetwo the previous day about Defendants Yourema, Gordon, and Yohe’s
harassing behavior. He also claims that this Misconduct was fabricated in order to retaliate
against him.
With respect to Misconduct #B025225, Plaintiff was charged and found guilty of
threatening an employee or their family; using abusive, obscene, or inappropriate language; and
refusing to obey an order. He received 105 days of disciplinary confinement. Defendants
contend that Plaintiff received the Misconduct because he was both verbally and physically
abusive to Defendant Yohe who was escorting him and as a result had to be placed in handcuffs.
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Assuming arguendo that the verbal complaints Plaintiff made to Captain Zetwo are
sufficient to constitute protected activity and that Plaintiff is able to satisfy the second and third
elements of this retaliation claim, he is afforded no relief because Defendants have demonstrated
that they would have issued Plaintiff the aforementioned Misconduct for reasons reasonably
related to penological interests even had he not complained.
The evidence presented at Plaintiff’s misconduct hearing included the misconduct report
issued by Defendant Yohe and incident reports issued by CO Swartz, Sgt. Wyza, Lt. Yocum,
Defendant Gordon, and Kenneth Wint. Plaintiff also presented his version of events, which
included evidence that the Misconduct was issued in retaliation and a timeline of further
retaliation for filing grievances and complaints. The Hearing Examiner took this evidence into
consideration but found Plaintiff guilty of the charged offenses. Plaintiff was sanctioned to 120
days of disciplinary confinement, which was later reduced to 105 days upon appeal. As with the
previous Misconduct, the Court finds that there was “some evidence” sufficient to support the
Hearing Examiner’s finding of guilt, thereby demonstrating that there was a legitimate
penological reason for the charge and punishment as to this Misconduct. Therefore, Plaintiff
cannot succeed on this retaliation claim and Defendants are entitled to summary judgment
accordingly. See section III(A)(4), supra.
B. Due Process
1. Falsification of Misconducts #A552586 and #B025225
Plaintiff claims that Misconducts #A552586 and #B025225 were false and fabricated in
retaliation. The issue of retaliation as it relates to these Misconducts has been addressed supra;
however, to the extent Plaintiff is attempting to allege a constitutional violation simply based on
the fact that the Misconducts were allegedly false, it is well established that the act of filing a
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false disciplinary charge does not itself violate a prisoner’s constitutional rights even if it may
result in the deprivation of a protected liberty interest. See Freeman v. Rideout, 808 F.2d 949,
951 (2d Cir. 1986) (A “prison inmate has no constitutionally guaranteed immunity from being
falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty
interest”), cert. denied, 485 U.S. 982 (1988). Instead, inmates have the right not to be deprived
of a protected liberty interest without due process of law. Thus, where the prisoner is provided
due process, no constitutional violation results from being falsely accused of a misconduct. See
id. at 952-53 (holding that “the mere filing of [a false] charge” does not constitute a cognizable
claim under § 1983 as long as the inmate “was granted a hearing, and he had the opportunity to
rebut the unfounded or false charges”); Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir. 1984)
(finding that so long as prison officials provide a prisoner with the procedural requirements
outlined in Wolff v. McDonell, 418 U.S. 539, 558 (1974), then the prisoner has not suffered a
constitutional violation); Strong v. Ford, 108 F.3d 1386, published in full-text format at 1997
U.S. App. LEXIS 5176, 1997 WL 120757 (9th Cir. 1997) (the alleged making of a false charge,
however reprehensible or violative of state law or regulation, does not constitute deprivation of a
federal right protected by section 1983 when it does not result in the imposition of atypical
hardship on the inmate in relation to the ordinary incidents of prison life). See also Creter v.
Arvonio, No. 92-4493, 1993 U.S. Dist. LEXIS 11016, 1993 WL 306425, at *7 (D. N.J. Aug. 5,
1993); Duncan v. Neas, No. 86-109, 1988 U.S. Dist. LEXIS 12534, 1988 WL 91571, at *1 (D.
N.J. Aug. 30, 1988) (determining that “the alleged knowing falsity of the charge [does not state]
a claim of deprivation of a constitutionally protected liberty interest . . . where procedural due
protections were provided”).
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The threshold question presented by Plaintiff’s claim is whether Defendants’ actions
impacted a constitutionally protected liberty interest. A liberty interest may arise either from the
Due Process Clause itself, or from a statute, rule, or regulation. Hewitt v. Helms, 459 U.S. 460,
466 (1983). A liberty interest inherent in the Constitution arises when a prisoner has acquired a
substantial, although conditional, freedom such that the loss of liberty entailed by its revocation
is a serious deprivation requiring that the prisoner be accorded due process. Gagnon v. Scarpelli,
411 U.S. 778, 781 (1973). Interests recognized by the Supreme Court that fall within this
category include revocation of parole, Morrissey v. Brewer, 408 U.S. 471 (1972), and the
revocation of probation, Gagnon, 411 U.S. at 778. The Due Process Clause, however, does not
create an inherent liberty interest to remain free from administrative segregation. See, e.g.,
Hewitt, 459 U.S. at 468; Wolff, 418 U.S. at 556; Montayne v. Haymes, 427 U.S. 236, 242
(1976); Sheehan v. Beyer, 51 F.3d 1170, 1175 (3d Cir. 1995); Layton v. Beyer, 953 F.2d 839,
845 (3d Cir. 1992). Accordingly, Plaintiff can succeed under the Due Process Clause only if
state law or regulation has created a constitutionally protected liberty interest in remaining free
from administrative detention.
In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court pronounced a new
standard for determining whether prison conditions deprive a prisoner of a liberty interest that is
protected by due process guarantees. Specifically, the Supreme Court held that prison conditions
do not impact a protectable liberty interest unless they result in “atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 483.
Applying this test, the Supreme Court concluded that the prisoner in Sandin did not have a
protected liberty interest in remaining free of disciplinary detention or segregation because his
thirty-day disciplinary detention, though punitive, did not present a dramatic departure from the
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basic conditions of his sentence. In making this determination, the Supreme Court looked at two
basic factors: (1) the amount of time the prisoner was placed into disciplinary segregation; and
(2) whether the conditions of his confinement in disciplinary segregation were significantly more
restrictive. After reviewing these two factors, the Supreme Court concluded that thirty days in
disciplinary detention, which was similar in many respects to administrative custody, did not
present the type of atypical, significant deprivation in which a state might conceivably create a
liberty interest.
Here, Plaintiff has failed to demonstrate that he had a constitutionally protected liberty
interest that was offended by Defendants’ actions in issuing an alleged false misconduct.
Specifically, in deciding whether a protected liberty interest exists under Sandin, a federal court
must consider the duration of the disciplinary confinement and the conditions of that
confinement in relation to other prison conditions. Mitchell v. Horn, 318 F.3d 523, 532 (3d Cir.
2003) (citing Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000)). In this case, Plaintiff received
60 days of disciplinary time for Misconduct #A552586 and 105 days disciplinary time for
Misconduct #B025225. Courts within this Circuit and the State of Pennsylvania, applying
Sandin in various actions, have found no protected liberty interest implicated by placement in
disciplinary custody for similar amounts of time. See Smith v. Mensinger, 293 F.3d 641, 652 (3d
Cir. 2003) (Seven months disciplinary confinement did not implicate liberty interest); Griffin v.
Vaughn, 112 F. 3d 703, 708 (3d Cir. 1997) (Finding that fifteen months in administrative
custody did not deprive plaintiff of a liberty interest and thus he was not entitled to procedural
due process protection.); Young v. Beard, 227 F. App’x 138, 141 (3d Cir. 2007) (holding that
absent allegations showing that conditions in disciplinary confinement for 930 days imposed
atypical and significant hardship on an inmate in relation to ordinary incidents of prison life, the
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inmate was not entitled to procedural protections required by due process during prison
disciplinary proceedings); Abney v. Walker, No. 2:06cv1248, 2007 U.S. Dist. LEXIS 36166,
2007 WL 1454265, at *3 (W.D. Pa. May 17, 2007) (adopting Report and Recommendation
finding that 75 days in the RHU did not trigger due process protections); Brown v. Blaine, 833
A.2d 1166, 1172 (Pa. Commw. Ct. 2003) (Four months in the long term segregation unit was not
an “atypical and significant hardship.”). The facts before this Court simply do not support an
entitlement to procedural due process protections. As such, Defendants are entitled to summary
judgment as to this claim.
C. Verbal Harassment
Plaintiff alleges numerous instances whereby he claims to have been verbally harassed by
multiple Defendants. First, Plaintiff claims that Defendant Shculler harassed him in reference to
an incident that occurred involving Plaintiff receiving a black card for sleeping-in on August 26,
2008.5 He also alleges that Defendant Schuller further harassed him between August 29, 2008
and September 7, 2008, about a misconduct he received when he was previously incarcerated at
SCI-Somerset, which he claims Defendant Schuller should not have been informed or aware of.
Next, Plaintiff claims that he was harassed by Defendants Gordon, Yourema, and Yohe when he
was called in for questioning about allegedly threatening Defendant Gordon on November 18,
2008.
Although Plaintiff denied the threat, he states that Defendants continued to “gang
question” him for four straight days at which time they harassed, verbally abused, and threatened
him with bodily harm. Finally, Plaintiff claims that officers working the 2 to 10 shift swore at
5
He alleges that Defendant Schuller made the following harassing comments: “one more black card and you
get a misconduct,” “lose your level 2 housing and get moved to level 3 then lose your parole,” and “have a good
time waking up tomorrow.”
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and harassed him when he attempted to ask them questions and show them information relating
to his claims of retaliation.
To the extent Plaintiff attempts to raise a claim of verbal harassment, his claim is not
actionable. Assuming Plaintiff’s allegations are true, it is well-settled that the use of words
alone, no matter how violent, do not amount to a constitutional violation under § 1983. See
Burkholder v. Newton, 116 F. App’x 358, 360 (3d Cir. 2004); DeWalt v. Carter, 224 F.3d 607,
612 (7th Cir. 2000); McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.) (“mere threatening
language and gestures of a custodial office[r] do not, even if true, amount to constitutional
violations”), cert. denied, 464 U.S. 998 (1983); Wilson v. Horn, 971 F. Supp. 943, 948 (E.D. Pa.
1997) (verbal abuse and harassment, although not commendable, does not rise to the level of a
constitutional violation), aff’d, 142 F.3d 430 (Table) (3d Cir. 1998); Maclean v. Secor, 876 F.
Supp. 695, 698 (E.D. Pa. 1995) (threat by BOP guard to “see to it” that “pieces of s-” like
plaintiff would be “taken care of” was not adequate to make out a constitutional claim as “[i]t is
well-established that verbal harassment or threats . . . will not, without some reinforcing act
accompanying them, state a constitutional claim”). Accordingly, Defendants are entitled to
summary judgment on this claim.
D. Supervisory Liability
Plaintiff claims that Defendant Harlow is liable for the retaliatory and harassing acts of
his subordinates because he was aware of their behavior and did nothing to stop it. To establish
personal liability against a defendant in a section 1983 action, that defendant must have personal
involvement in the alleged wrongs; liability cannot be predicated solely on the operation of
respondeat superior. Rizzo v. Goode, 423 U.S. 362 (1986). Accordingly, individual liability
can be imposed under section 1983 only if the state official played an “affirmative part” in the
15
alleged misconduct. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); Chinchello v.
Fenton, 805 F.2d 126, 133 (3d Cir. 1986). Personal involvement by a defendant can be shown
by alleging either personal direction or actual knowledge and acquiescence in a subordinate’s
actions. Rode, 845 F.2d at 1207; see also Keenan v. Philadelphia, 983 F.2d 459, 466 (3d Cir.
1992); Andrews v. Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990).
Moreover, a supervising public official has no affirmative constitutional duty to supervise
and discipline so as to prevent violations of constitutional rights by his or her subordinates.
Chinchello, 805 F.2d at 134. Notwithstanding, when a supervising official knowingly permits a
continuing custom or policy that results in harm to the plaintiff, 1983 liability may attach.
Colburn v. Upper Darby Township, 838 F.2d 663, 673 (3d Cir. 1988), cert. denied, 489 U.S.
1065 (1989) (Colburn I). However, at a minimum such liability may be imposed “only where
there are both (1) contemporaneous knowledge of the offending incident or knowledge of a prior
pattern of similar incidents, and (2) circumstances under which the supervisor’s inaction could be
found to have communicated a message of approval to the offending subordinate.” Id. (quoting
Chinchello, 805 F.2d at 133); see also Bonenberger v. Plymouth Township, 132 F.3d 20, 25 (3d
Cir. 1997).
Here, Plaintiff must show that Defendant Harlow had actual knowledge of his
subordinates’ harassing and retaliatory actions and acquiesced in such conduct. Of importance,
however, is that the absence of an underlying constitutional violation precludes any supervisory
liability on a “knowledge or acquiescence” or “failure to train” theory. Crawford v. Lappin, 446
F. App’x 413, 416 (3d Cir. 2011) (nonprecedential) (citing Argueta v. U.S. Immigration and
Customs Enforcement, 643 F.3d 60, 70 (3d Cir. 2011)); JGS v. Titusville Area Sch. Dist., 737 F.
Supp. 2d 449, 458 (W.D. Pa. 2010) (summary judgment granted on supervisory liability claim
16
when the underlying constitutional claim lacked merit). As Plaintiff has failed to demonstrate
the existence of an underlying violation of his constitutional rights for retaliation and verbal
harassment, Defendant Harlow cannot be liable under a theory of supervisory liability for such
conduct. As such, Defendant Harlow is entitled to summary judgment.
E. Equal Protection – Selective Enforcement of Prison Rules and Regulations
Plaintiff claims that he was the only inmate reprimanded for sleeping-in on August 26,
2008, despite the fact that he and his two cellmates all failed to wake up due to a faulty hallway
speaker that had been broken for months. Although one of his cellmates initially received a
misconduct for the incident, he claims that the Captain tore it up and that he was the only one to
receive a black card. Plaintiff also claims that he was discriminatorily charged with Misconduct
#A552583 for possessing contraband in the form of paper clips even though the paper clips
belonged to his cellmate and a prison official had repeatedly warned his cellmate not to have
them.
Equal protection means that “similarly situated persons are to receive substantially
similar treatment from their government.” Tapalian v. Tusino, 377 F.3d 1, 5 (1st Cir. 2004). To
establish an equal protection violation based on selective enforcement, a plaintiff must introduce
sufficient evidence from which a jury reasonably could conclude that, compared with others
similarly situated, the plaintiff was treated differently based on an “unjustifiable standard, such
as race, or religion, or some other arbitrary factor, . . . or to prevent the exercise of a fundamental
right.” Hill v. City of Scanton, 411 F.3d 118, 125 (3d Cir. 2005). Equal protection does not,
however, require prison staff to treat all inmate groups the same when differentiation is
necessary to avoid a threat to prison security. See, e.g., Jones v. N.C. Prisoners’ Labor Union,
Inc., 433 U.S. 119, 136 (1977).
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Here, Plaintiff has to show that the prison rule at issue was selectively enforced against
him based on an “unjustifiable standard.” The record before the Court, however, is devoid of
any such evidence. Moreover, the record evidence demonstrates that Plaintiff was not charged
with possession of contraband in the form of paper clips but rather was charged with and pled
guilty to possession of contraband in the form of a broken TV cable and failure to report the
presence of contraband. Nowhere in the misconduct report does it mention anything about
possessing or failing to report the presence of contraband in the form of paper clips.
This Court will not second-guess hundreds (and perhaps thousands) of decisions made
every single day by prison officials in the exercise of their professional judgment, something the
United States Supreme Court has long held is an activity for which federal courts are unqualified.
See Bell v. Wolfish, 441 U.S. 520, 546-47 (1979) (prison officials “should be accorded wideranging deference in the adoption and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and to maintain institutional security”).
While Plaintiff has not forfeited all constitutional protections by reason of his conviction and
confinement in prison, Wolfish, 441 U.S. at 545, he enjoys no constitutional right to disobey
legitimate prison rules and regulations.
Accordingly, Defendants are entitled to summary
judgment as to this claim.
F. Conspiracy
In order to demonstrate a § 1983 civil conspiracy, a plaintiff is required to show that “two
or more conspirators reached an agreement to deprive him or her of a constitutional right under
color of law.” Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 700 (3d Cir. 1993); see
also Royster v. Beard, 308 F. App’x 576, 579 (3d Cir. 2009). However, “the gravamen of a civil
action for conspiracy is found in the overt act which results from the conspiracy and culminates
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in damage to the plaintiff.” Henis v. Compania Agricola De Guatemala, 116 F. Supp. 223, 226
(D. Del. 1953), aff’d 210 F.2d 950 (3d Cir. 1954); see Adams v. Teamsters Local 115, 214 F.
App’x 167, 172 (3d Cir. 2007) (the principal elements of a civil conspiracy “is an agreement
between the parties to inflict a wrong against or injury upon another, and an overt act that results
in damage”) (internal quotations omitted). As stated by the Supreme Court, “the well-settled rule
is that no civil action lies for a conspiracy unless there be an overt act that results in damage to
the plaintiff.” Nalle v. Oyster, 230 U.S. 165, 182 (1913); see Loughman v. Consol-Pennsylvania
Coal Co., 6 F.3d 88, 105 (3d Cir. 1993) (“In its charge on civil conspiracy, the court instructed
the jury: Plaintiffs are required to prove each of the following in order to prevail on this claim: . .
. (4) that the plaintiffs suffered damages as a result [of the conspiracy].”) (emphasis within);
Waits v. McGowan, 516 F.2d 203, 208 (3d Cir. 1975) (Civil rights complaint that defendants had
conspired to withhold information showing alleged illegal removal of plaintiff from Canada to
New York without any extradition procedures or warrant failed to allege a cause of action under
civil rights conspiracy provision, since plaintiff did not allege a conspiracy to deprive him of the
equal protection of the United States laws or of equal privileges and immunities under the laws
and an overt act in furtherance of the object of the conspiracy with resulting injury to plaintiff.)
(emphasis added).
Plaintiff’s conspiracy claim is that Defendants Gordon, Yourema, and Yohe conspired to
have inmate Larry McNeal “beat the hell” out of Plaintiff. Assuming that this is, in fact, true,
Plaintiff points to no injury or deprivation of right that he suffered from Defendants’ purported
conspiracy and there is no evidence in the record to suggest that the request was carried out.
Defendants are therefore entitled to summary judgment accordingly.
G. State Law Claims
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To the extent Plaintiff’s Second Amended Complaint contains any state law claims
against Defendants, the Court declines to exercise supplemental jurisdiction over these claims as
permitted by 28 U.S.C. § 1367(c)(3) (“(c) The district courts may decline to exercise
supplemental jurisdiction over a claim under (a) if - . . . (3) the district court has dismissed all
claims over which it has original jurisdiction”).
AND NOW, this 25th day of September, 2012;
IT IS HEREBY ORDERED that Plaintiff’s Motion in Support of Third Circuit’s
Remand (ECF No. 93), which has been construed as a Motion for Summary Judgment, is
DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (ECF
No. 95) is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules
of Appellate Procedure, Plaintiff has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.
_________________________
Lisa Pupo Lenihan
Chief United States Magistrate Judge
cc: Robert R. Verbanik
CV 6719
SCI Albion
10745 Route 18
Albion, PA 16475
Counsel of record.
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