HILL v. BARNACLE et al

Filing 169

MEMORANDUM OPINION re 135 MOTION for Summary Judgment filed by KENNETH R. HOLLIBAUGH, STEVEN GLUNT, JAMES BARNACLE, DAVID CLOSE, HEATHER MOORE, BRUMBAUGH, and 158 REPORT AND RECOMMENDATION re 135 MOTION for Summary Judgm ent filed by KENNETH R. HOLLIBAUGH, STEVEN GLUNT, JAMES BARNACLE, DAVID CLOSE, HEATHER MOORE, BRUMBAUGH. Based on the memorandum opinion, the Court sustains Plaintiffs Objections, declines to adopt the Report and Recommendation 158 , and Defendants Motion for Summary Judgment 135 is denied. Details more fully stated in the opinion. An appropriate Order follows. Signed by Judge Nora Barry Fischer on 12/21/20. (cjo)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DONNA M. HILL,

)
Plaintiff,

)
)

vs

)
)

JAMES BARNACLE, et al.,

Civil Action No. 13-1604
Judge Nora Barry Fischer

)

Defendants.

)

MEMORANDUM OPINION
I.

INTRODUCTION
In this Section 1983 civil rights action, Plaintiff Donna Hill brings a First Amendment

retaliation claim against Defendants Byron Brumbaugh, David Close, and Steven Glunt, who are
Corrections Officials at SCI Houtzdale—where her husband was serving a life sentence before he
was transferred to another state correctional institution. Hill alleges that Defendants suspended her
visitation privileges in retaliation for engaging in a letter-writing campaign regarding her
husband’s mistreatment, filing a petition in state court, and her history of engaging in activities as
a prisoners’ rights advocate. The parties dispute whether Hill’s constitutionally protected conduct
was a substantial or motivating factor in the decisions to suspend her visitation privileges, and, if
so, whether Defendants would have made the same decision absent the protected conduct for
reasons reasonably related to a legitimate penological interest.
The United States Magistrate Judge issued a Report and Recommendation on August 26,
2020, recommending that Defendants’ Motion for Summary Judgment be granted. (Docket No.
158). Presently before the Court are Plaintiff’s Objections to the Report and Recommendation and
Brief in Support (Docket Nos. 159; 161), Defendants’ Response in Opposition (Docket No. 166),

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and Plaintiff’s Reply (Docket No. 168). After conducting a de novo review of the Report and
Recommendation and having carefully considered all of the parties’ submissions, this Court
sustains Plaintiff’s Objections and declines to adopt the Report and Recommendation. For the
reasons more fully stated herein, the Court denies Defendants’ Motion for Summary Judgment.
II.

LEGAL STANDARD
The Federal Magistrate Judges Act governs the Court’s review of a Report and

Recommendation:
When objections are filed to a magistrate judge’s report and
recommendation, the district court “shall make a de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1)(C); see also United States v. Raddatz, 447 U.S.
667, 674-75, 100 S. Ct. 2406, 65 L.Ed.2d 424 (1980) (explaining the
standard for a district court’s review of a magistrate judge’s report
and recommendation). The district court may accept, reject or
modify—in whole or in part—the magistrate judge’s findings or
recommendations. § 636(b)(1)(C). Although the standard of review
is de novo, § 636(b)(1) permits whatever reliance the district court,
in the exercise of sound discretion, chooses to place on a magistrate
judge’s proposed findings and recommendations. Raddatz, 447 U.S.
at 676, 100 S. Ct. 2406; see also Goney v. Clark, 749 F.2d 5, 7 (3d
Cir. 1984) (noting the discretion district courts have in their use of
magistrate judges’ reports).
Bonasorte v. City of Pittsburgh, No. CV 18-0243, 2019 WL 1593720, at *1 (W.D. Pa. Apr. 15,
2019) (internal citation omitted).
Summary judgment is appropriate when the moving party establishes “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). A genuine dispute of material fact is one that could affect the outcome of
litigation. Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). However, “[w]here the record taken
as a whole could not lead a rational trier of fact to find for the non-moving party, there is no

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genuine issue for trial.” N.A.A.C.P. v. North Hudson Reg’l Fire & Rescue, 665 F.3d 464, 475 (3d
Cir. 2011) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)).
The initial burden is on the moving party to adduce evidence illustrating a lack of genuine,
triable issues. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). Once the moving party satisfies its burden, the
non-moving party must present sufficient evidence of a genuine issue, in rebuttal. Santini v.
Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (citing Matsushita, 475 U.S. at 587). When considering
the parties’ arguments, the court is required to view all facts and draw all inferences in the light
most favorable to the non-moving party. Id. (citing United States v. Diebold, Inc., 369 U.S. 654,
655 (1962)). The benefit of the doubt will be given to allegations of the non-moving party when
in conflict with the moving party’s claims. Bialko v. Quaker Oats Co., 434 F. App’x 139, 141 n.4
(3d Cir. 2011) (citing Valhal Corp. v. Sullivan Assocs. Inc., 44 F.3d 195, 200 (3d Cir. 1995)).
The non-moving party must resort to affidavits, deposition testimony, admissions, and/or
interrogatories to demonstrate the existence of a genuine issue. Guidotti v. Legal Helpers Debt
Resol., L.L.C., 716 F.3d 764, 772 (3d Cir. 2013) (citing Celotex Corp., 477 U.S. at 324). 1 Under
Fed. R. Civ. P. 56(e), either party that chooses to submit an affidavit in support of or in opposition
to the motion for summary judgment must observe the following requirements: “The affidavits
must be made on personal knowledge, set forth such facts as would be admissible in evidence, and

1

The Court notes that Defendants in this case filed declarations, not affidavits. See
DECLARATION, Black’s Law Dictionary (11th ed. 2019) (“A formal, written statement—
resembling an affidavit but not notarized or sworn to—that attests, under penalty of perjury, to
facts known by the declarant. • Such a declaration, if properly prepared, is admissible in federal
court with the same effect as an affidavit. 28 USCA § 1746.”).

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clearly demonstrate that the affiant is competent to testify to the matters identified in the affidavit.”
Disilverio v. Serv. Master Prof’l, No. CIV.A. 05-1368, 2007 WL 1029759, at *7 (W.D. Pa. Mar.
31, 2007). “Thus, Rule 56(e) limits the proper contents of an affidavit to facts, and the facts
presented must be alleged on personal knowledge.” Id.; Fed. R. Civ. P. 56(c)(4). In evaluating a
summary judgment motion, “[t]he court need consider only the cited materials, but it may consider
other materials in the record.” Fed. R. Civ. P. 56(c)(3). However, the district court “may not make
credibility determinations or weigh the evidence.” Id. (citing Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000)).
Finally, this Court “strictly applie[s]” Local Rule 56(C) and 56(E). Polansky v. Vail Homes,
Inc., No. CV 13-296, 2016 WL 2643253, at *4 (W.D. Pa. May 10, 2016) (citing Janokowski v.
Demand, 2008 WL 1901347, at *1 (W.D. Pa. Apr. 25, 2008) (defendant’s statement of material
facts were deemed admitted for the purpose of summary judgment because of the plaintiff’s
violation of Local Rule 56.1(C)); GNC Franchising LLC v. Kahn, 2008 WL 612749, at *1 (W.D.
Pa. Mar. 3, 2008) (the facts set forth in plaintiffs’ statement of facts were deemed admitted by
defendants due to defendants’ violation of Local Rule 56.1(E)); Ferace v. Hawley, 2007 WL
2823477, at *1 (W.D. Pa. Sept. 26, 2007)). Under Local Rule 56(E), undisputed facts “will for the
purpose of deciding the motion for summary judgment be deemed admitted unless specifically
denied or otherwise controverted by a separate concise statement of the opposing party.” W.D. Pa.
L.Cv.R. 56(E) (2013).
III.

BACKGROUND
A.

Factual History

Plaintiff Donna Hill is a longtime prisoners’ rights advocate, serving on the boards of
various advocacy groups and “work[ing] to expose wrongs by prison officials against those

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persons serving time.” 2 (Hill Decl., Docket No. 149-1 at 2-3). Hill’s husband, Dwayne Hill, and
daughter are both serving life sentences in the custody of the Pennsylvania Department of
Corrections (“DOC”). (Id. at 3). Hill married her husband while he was in DOC custody, with the
DOC’s permission, in 2011. (Id.). Hill claims that she is well known by the DOC and its leadership
because of her 30-plus year history of visiting inmates, organizing protests, writing letters to
government officials, and generally criticizing the DOC for its treatment of prisoners—in addition
to the fact that her communications with her husband are monitored, where she discusses these
activities. (Id. at 3-4).
1.

The November 5, 2011 Letter

Hill’s claims are based upon events alleged to have occurred while her husband was
incarcerated at SCI Houtzdale in 2011 and 2012. At this time, Steven Glunt was the Superintendent
at this facility, David Close was the Deputy Superintendent for Facilities Management, and Byron
Brumbaugh was the Intelligence Captain.
In 2011, Hill learned that her husband had been sexually assaulted by a DOC officer at SCI
Houtzdale and that the mental health unit was denying him necessary mental health treatment and
medication. (Id. at 4). In response, Hill wrote letters to various news outlets, state lawmakers, and
prison officials, including a letter dated November 5, 2011 to DOC Secretary John E. Wetzel. (Id.

2

Plaintiff currently serves on the Board of Directors for Let’s Get Free: the Women and
Trans Prisoner Defense Committee. Let’s Get Free educates and organizes around issues of prison
injustice, addressing policies, contributing factors and collateral consequences of mass
incarceration, as well as envisioning new systems of transformative justice and healing. She is also
co-founding member of the Coalition to Abolish Death by Incarceration (CADBI – West), a
member of the Human Rights Coalition, and served as president of Fight For Lifers West for 15
years. In addition, she has worked on sub-committees under former Pennsylvania State Senator
Stewart Greenleaf and is active in other advocacy groups that work toward providing humane
treatment for prisoners in Pennsylvania and beyond. She also previously served as a member of
the Pennsylvania Prison Society. (Hill Decl., Docket No. 149-1 at 2-3).

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at 4; Docket No. 149-4, hereinafter “the November 5 letter”). The November 5 letter reflects that
copies were also sent to “Supt. Glunt, State lawmakers, news media and Dwayne Hill.” (Docket
No. 149-4). This letter expressed Hill’s concerns about her husband’s physical and mental health.
Mr. Hill had been assigned to single-cell status (a.k.a. “Z-Code”) throughout most of his twentyyear period of incarceration because of his claustrophobia, COPD, and, in Hill’s opinion, PTSD.3
(Id.). Now, SCI Houtzdale was trying to force him to move in with another inmate, who was a
reported sex offender. (Id.). The November 5 letter requested an investigation as to why Hill’s
“husband was so abruptly no longer seen by a therapist, taken off the mental health tracking list
and was forced to be placed into a cell with another prisoner, which terrified him.” (Id.).
2.

The April 5, 2012 Incident

Five months later, on April 5, 2012, there was an incident between Mr. Hill and a
corrections officer (“CO”). The nature of this incident is disputed. Defendants claim that Mr. Hill
attacked a CO, without provocation, punching him in the head and face. 4 (Brumbaugh Report,
Docket No. 138-1 at 15). Hill and her husband dispute that Mr. Hill ever assaulted the CO.
(Dwayne Hill Decl., Docket No. 149-2 at 4). Rather, Hill asserts that when Mr. Hill was released
from isolation, prison officials attempted to place him in a cell with a known violent offender, and
Mr. Hill informed the CO that he feared for his life and could not be double-celled. (Id.). Instead
of reporting these concerns, the CO became combative, began making orders and threats, and then
attempted to push Mr. Hill into the cell. (Id.). When that was unsuccessful, the CO falsely accused
Mr. Hill of assaulting him. (Id.).

3

“A Z code is a single cell status for an inmate where they live in a cell all by themselves.
They do not have a cell partner.” (Brumbaugh Depo., Docket No. 138-2 at 45).
4

Although Defendant Glunt referenced video evidence of the assault, it was never
produced to the Court. (Glunt Depo., Docket No. 138-3 at 36).

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On April 12, 2012, Hill went to visit her husband (for the first time since writing the
November 5 letter) but was told that her visiting privileges were suspended and was directed to
leave without further explanation. (Hill Decl., Docket No. 149-1 at 4). That same day, Hill called
SCI Houtzdale and spoke to Defendant Brumbaugh, who had her come back inside to discuss her
suspension. (Id. at 5). Defendant Brumbaugh and Hill continued to speak in the following weeks,
during which Hill states that Brumbaugh questioned mail that she had sent and made threats
towards her regarding her relationship with her husband. (Id.). Specifically, Hill states that
Brumbaugh called her husband “a bad person, a monster, and threatened that [he] would never get
out of solitary confinement” and that Brumbaugh threatened that he “would end my marriage.”
(Id.). Defendant Brumbaugh denies having made these remarks. (Brumbaugh Depo., Docket No.
138-2 at 79-80).
3.

The Brumbaugh Report

Defendant Brumbaugh was assigned to investigate the April 5 incident. The information
and conclusions in his report (the “Brumbaugh Report” or “report”), dated April 11, 2012, are
heavily disputed by the parties. With respect to the incident itself, the Brumbaugh Report
concludes that Mr. Hill committed an unprovoked physical assault on CO Rightnour. (Brumbaugh
Report, Docket No. 138-1 at 15). Specifically, the report states:
Rightnour stated that as he was making a guard tour, [Mr.] Hill
informed him that he wasn’t going to do the “double cell” thing
Rightnour responded by telling Hill that if he refused to enter the
cell upon termination of block out, he would have to issue Hill a
[misconduct]. Hill replied by saying, “Well, I’m not going in when
block out is over.” When Rightnour turned and walked away from
Hill, Hill began punching Rightnour in his face and head with a
closed fist. At this point, Rightnour tucked his head and attempted
to “cover up” but Hill continued to strike him. As staff arrived, Hill
stopped and stood in his doorway saying, “. . . come get some.” As
additional staff began to arrive, Hill entered his cell and the door
was secured. Staff observed Hill inside of his cell pick up a Bic pen

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from the desk and state, “Come on . . . I wanna kill one of you.”
Eventually Hill agreed to be cuffed through the cell wicket and was
escorted to the Restricted Housing Unit without further incident.
Id.
Based on a letter written by Hill to her husband and a telephone call between Hill and her
husband, the Brumbaugh Report concludes that Hill had prior knowledge of her husband’s intent
to assault a CO and had actually encouraged him to commit this assault. (Id.; Brumbaugh Decl.,
Docket No. 138-1 at 36).
The report details that the letter, which was dated April 2, 2012 and addressed to Mr. Hill
from an “Angel Jackson,” stated: “I also think they don’t want to mess with you about the Z Code
until your time is up. If I was you, I know what I’d do, but I can’t say. They would use it against
me.” 5 (Id. at 16). According to the report, during the telephone call that took place on April 5,
2012, Hill told her husband “to do what he needs to do and she supports him no matter what he
does and its [sic] no big deal for her . . . .” (Id.). The report also concludes that Hill was using a
different telephone number “as [to] not rouse suspension, [sic] and not to be monitored.” (Id.).
Hill acknowledges that she wrote this April 2 letter to her husband, but that by “I know
what I’d do,” she was referring to her advocacy work and not encouraging violence. (Hill Decl.,
Docket No. 149-1 at 6-7). Hill denies making the statement attributed to her during the April 5
phone call. (Id. at 7). A transcript of the call confirms that Hill never made such a statement, but
that Hill was using the alias “Angel Jackson.” (Transcript of April 5 Call, Docket No. 149-6).

5

Defendants failed to produce a copy of the April 2 letter. See Fed. R. Civ. P. 56(c)(1)(A)
advisory committee notes (“Materials that are not yet in the record—including materials referred
to in an affidavit or declaration—must be placed in the record.”).

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The Brumbaugh Report also references several previous incidents involving Hill that took
place either at SCI Houtzdale or institutions where her husband was formerly incarcerated. These
are: a previous suspension of Hill’s visiting privileges for engaging in sexual acts; a previous
suspension for supplying her husband with “contraband”; and a previous suspension for
“disrespecting staff.” (Brumbaugh Report, Docket No. 138-1 at 16). Hill claims that these past
incidents are a misrepresentation of her record. (Hill Decl., Docket No. 149-1 at 7).
First, the report states that Hill had been suspended permanently in 2008 for introducing
contraband—“implements of escape (maps)”—when Mr. Hill was housed at SCI Huntingdon, and
that this suspension was lifted in 2010. (Brumbaugh Report, Docket No. 138-1 at 16). Hill clarifies
that her visiting privileges were suspended after the DOC claimed that she supplied her husband
with one aerial satellite photograph of SCI Huntington, but that she never provided her husband
with such a photograph. (Hill Decl., Docket No. 149-1 at 7-8).
Regarding the sexual conduct suspension, in his deposition, Defendant Brumbaugh
admitted that he does not know when Hill was suspended for “sexual acts” or of the circumstances
underlying that suspension. (Brumbaugh Depo., Docket No. 138-2 at 71-72). Hill admits that her
visiting privileges at SCI Forest were initially suspended on August 13, 2007, but after learning of
her suspension, Hill asked the facility’s superintendent, Raymond Sobina, to reinstate her
privileges because she claimed that the grounds upon which the suspension was based were not
true. (Hill Decl., Docket No. 149-1 at 7). In response, Mr. Sobina rescinded her suspension on
September 4, 2007. (Id.; see also Sobina Letter, Docket No. 149-3).
Lastly, Defendants have since admitted that the DOC has never suspended Hill’s visitation
privileges for disrespecting staff. (Brumbaugh Depo., Docket No. 138-2 at 77-78).

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4.

The Decisions to Suspend Hill’s Visitation Privileges

Based upon this investigation and report, Defendant Brumbaugh recommended that Hill
“be permanently suspended from visiting inmate Dwayne Hill, BQ5093.” (Brumbaugh Report,
Docket No. 138-1 at 17). Deputy Superintendent Close, who was filling in for Superintendent
Glunt at the time, reviewed the report and made the decision to suspend Hill’s visiting privileges
at SCI Houtzdale indefinitely pending further investigation. (Close Decl., Docket No. 138-1 at 3031). Hill was notified of Defendant Close’s decision in a letter dated April 12, 2012, which did not
provide an explanation for the suspension. (See Close Letter to Hill, Docket No. 138-1 at 7).
Defendant Glunt’s signature appears on this letter, even though it was signed by Defendant Close,
a customary practice in the Superintendent’s absence. (Id.; Close Decl., Docket No. 138-1 at 31).
The matter was then referred to DOC’s Office of Special Investigations and Intelligence (“OSII”)
for further investigation. (Close Decl., Docket No. 138-1 at 31).
On June 19, Hill filed a petition for a writ of mandamus in the Commonwealth Court of
Pennsylvania (the “Commonwealth Court petition”) seeking to enjoin the suspension of her
visiting privileges and “direct[] Glunt to explain the basis for the suspension.” 6 (Hill Decl., Docket
No. 149-1 at 5; see Commonwealth Court Docket, Docket No. 138-1 at 19-2). Shortly thereafter,
in a letter dated June 26, 2012, Defendant Glunt advised Hill that he made the decision to suspend
her visiting privileges indefinitely. (Glunt June 26 Letter, Docket No 138-1 at 9). Glunt did not
provide Hill with an explanation for the suspension. (See id.). Glunt has since stated that his

6

The Pennsylvania Commonwealth Court ultimately dismissed Hill’s petition on the
merits. See Hill v. Dep’t of Corr., No. 419 M.D. 2012, 2013 WL 3970256, at *2 (Pa. Commw. Ct.
2013), aff’d, 80 A.3d 376 (Pa. 2013). “[A] court may take judicial notice of a prior judicial opinion
and matters of public record.” United States v. Shumaker, No. CR 09-87, 2011 WL 13176084, at
*10 n.11 (W.D. Pa. Mar. 28, 2011), aff’d, 475 F. App’x 817 (3d Cir. 2012) (citing McTernan v.
City of York, 577 F.3d 521, 526 (3d Cir. 2009)).

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decision was based on the OSII investigation and the Brumbaugh Report. (Glunt Decl., Docket
No. 138-1 at 25).
On July 17, 2012, Hill wrote to Defendant Glunt asking why her visiting privileges were
suspended. (Hill Letter to Glunt, Docket No. 138-1 at 11). Glunt responded in a letter dated July
30, 2012, which read:
[Y]our actions and support of your husband’s behavior poses a
threat to the safety and security of this facility. Serious staff injury
resulted . . . . You have been suspended indefinitely on prior
occasions and have been reinstated, only to return to behavior that
poses a threat to the safety and security of the facility that houses
your husband. The broad discretion shown by reinstating your
visiting privilege has not yielded the expected positive results. As
such, the suspension will continue.
(Glunt July 30 Letter, Docket No. 138-1 at 13). 7
B.

Procedural History

In November 2013, Hill initiated this action pro se by filing a Complaint alleging that
Defendants retaliated against her by suspending her visiting privileges were suspended in
retaliation for engaging in protected activity. 8 (See Docket No. 3). This case has a lengthy history,
having been appealed to and vacated and remanded by the Third Circuit three times. See Hill v.
Barnacle, 598 F. App’x 55 (3d Cir. 2015); Hill v. Barnacle, 655 F. App’x 142 (3d Cir. 2016); Hill
v. Barnacle, 751 F. App’x 245 (3d Cir. 2018).

7

The suspension of Hill’s visiting privileges did not limit or bar visits with her daughter,
who was in DOC custody at another state correctional institution. (Glunt July 30 Letter, Docket
No. 138-1 at 13).
8
Hill’s Complaint was originally also against Defendants James Barnacle, Kenneth
Hollibaugh, and Heath Moore, and included claims related to the interference with Hill’s mail and
suspension of her mail privileges. Hill has since indicated that she is no longer pursuing these
claims (see Docket Nos. 147 at 5 n.1; 161 at 4 n.1), and on October 19, 2020, this Court granted
Defendants’ Motion for Summary Judgment, in part, as to all claims against Barnacle, Hollibaugh,
and Moore and “claims related to the inference with her mail” and “suspension of her mail
privileges,” (Docket No. 163).

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Upon the third remand, the Magistrate Judge appointed counsel and the parties engaged in
discovery. Relevant here are Defendants’ Motion for Summary Judgment and Brief in Support,
Plaintiff’s Response in Opposition, and Defendants’ Reply Brief. (See Docket Nos. 135; 136; 147;
155). The United States Magistrate Judge then issued a Report and Recommendation,
recommending that Defendants’ Motion for Summary Judgment be granted. (Docket No. 158).
Presently before the Court are Plaintiff’s Objections to the Report and Recommendation and Brief
in Support (Docket Nos. 159; 161), Defendants’ Response in Opposition (Docket No. 166), and
Plaintiff’s Reply (Docket No. 168).
IV.

ANALYSIS
In Rauser v. Horn, the Third Circuit set forth the elements of a prisoner’s cause of action

for retaliation and the burden of proof he must carry to succeed. 9 241 F.3d 330, 333 (3d Cir. 2001).
“In order to establish illegal retaliation for engaging in protected conduct, [Hill] must prove that:
(1) [her] conduct was constitutionally protected; (2) [s]he suffered an adverse action at the hands
of prison officials; and (3) [her] constitutionally protected conduct was a substantial or motivating
factor in the decision to discipline [her].” Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016)
(citing Rauser, 241 F.3d at 333).
As to the third factor, “[b]ecause motivation is almost never subject to proof by direct
evidence, [Hill] must rely on circumstantial evidence to prove a retaliatory motive.” Id. She “can
satisfy [her] burden with evidence of 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 that suggests a causal link.” Id. (citing Lauren W. ex rel. Jean W. v.

9

As the Third Circuit has previously noted, “Hill may maintain a retaliation claim against
prison officials even though she is not a prisoner,” and “[t]he standard applicable to non-prisoners
is the same.” Hill v. Barnacle, 655 F. App’x at 146 (internal citations omitted).

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DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)). “However, even if [Hill] establishes a prima facie
case, prison officials may still prevail if they establish that ‘they would have made the same
decision absent the protected conduct for reasons reasonably related to a legitimate penological
interest.’” Id. (quoting Rauser, 241 F.3d at 334).
The Court first examines whether Hill has established a prima facie case of retaliation and
then evaluates whether Defendants would have made the same decision despite Hill’s protected
activity. In this Court’s estimation, for the reasons stated below, a genuine issue of material fact
exists as to whether Hill’s November 5 letter, her petition in the Pennsylvania Commonwealth
Court, and her history of prisoner rights’ advocacy were a substantial or motivating factor in
Defendant Brumbaugh’s recommendation, Close’s initial suspension, and Glunt’s ultimate
indefinite suspension of her visitation privileges. This Court also concludes that the violations
attributed to Hill that formed the basis of Defendants’ decisions were not so “clear and overt” to
allow the Court to conclude that there is no genuine issue of material fact as to whether Defendants
would have made the same decisions absent her protected activity. See id. at 425-26.
A.

Prima Facie Case of Retaliation

Defendants concede the first and second prongs of Hill’s prima facie case of retaliation—
that is, that Hill was engaged in protected conduct and suffered an adverse action. However, since
this Court ultimately concludes that the evidence is sufficient to survive summary judgment, it first
briefly explains why Hill has satisfied these first two prongs.
1.

Protected Activity

It is important to define the scope of Hill’s protected activity, as the parties discuss this in
different ways. Defendants concede that “the November 5, 2011 letter in which [Hill] expressed
concerns to a number of people about the treatment her husband was receiving” and “the

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mandamus action in Commonwealth Court” constitute constitutionally protected activity. (Docket
No. 136 at 8). Hill argues that, in addition to those two specific instances, her protected activity
includes her “history of letter writing campaigns and advocacy for prisoner rights.” (Docket No.
161 at 8).
Whether an activity is protected is a question of law. Hill v. Borough of Kutztown, 455 F.3d
225, 241 (3d Cir. 2006). “The First Amendment’s Petition Clause protects individuals from
retaliation for filing non-sham lawsuits, grievances, and other petitions directed at the government
or its officials.” Carey v. City of Wilkes-Barre, No. CV 3:05-2093, 2008 WL 11492767, at *5
(M.D. Pa. Feb. 1, 2008), report and recommendation adopted, No. 05-CV-2093, 2008 WL
11492789 (M.D. Pa. Feb. 21, 2008) (citing San Filippo v. Bongiovanni, 30 F.3d 424, 439 (3d Cir.
1994), cert. denied, 513 U.S. 1082 (1995)); see also Hammonds v. Collins, No. 12-CV-00236,
2016 WL 1621986, at *5 (M.D. Pa. Apr. 20, 2016) (filing lawsuits and grievances are protected
activities under the First Amendment).
As such, the November 5 letter and the Commonwealth Court petition are plainly
constitutionally protected activities. Admittedly, the record is limited regarding Hill’s history of
letter writing campaigns and advocacy for prisoner rights, that is, apart from general descriptions
of the organizations for which Hill works. (See Hill Decl., Docket No 149 at 2-3 (discussing how,
for the past thirty years in her role at various prisoner advocacy groups, Hill “continually work[ed]
to expose wrongs by prison officials against those persons serving time,” and “campaign[ed] for
prisoner rights.”)). To the extent that Hill’s more general history involves filing grievances or
petitions, it is also included in her protected activity.

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2.

Adverse Action

Defendants also do not contest that Hill suffered an adverse action. (Docket No. 158 at 16).
Indeed, the suspension of Hill’s visitation privileges constitutes an adverse action, as it is
“sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights.” Allah
v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (internal quotation marks and citation omitted); see
also Cooper v. Hoover, No. CIV 1CV-06-0729, 2006 WL 3544711, at *2 (M.D. Pa. Dec. 8, 2006)
(inmate alleging that he was punished by being denied visits from his daughter stated valid
retaliation claim).
However, the parties appear to discuss only one adverse action—the final, indefinite
suspension of her visitation. Rather, there are three adverse actions at issue: Defendant
Brumbaugh’s investigation and initial recommendation found in his report; Defendant Close’s
decision to suspend visitation pending a further investigation; and Defendant Glunt’s indefinite
suspension. Each action is “sufficient to deter a person of ordinary firmness from exercising his
constitutional rights,” and Defendant Glunt could not have made his final decision without the first
two actions. (See Glunt decl., Docket No. 138-1 at 25 (“Both the initial decision . . . and the final
decision to suspend Plaintiff’s visiting privileges . . . were based on the information learned
through the previously identified investigations and reports.”)).
3.

Causation as to Defendants Brumbaugh and Close

In her objections, Hill argues that a reasonable jury could conclude that Defendants
Brumbaugh and Close were aware of Hill’s protected activity—which includes both the November
5 letter and her history of letter writing campaigns and advocacy for prisoner rights—and that
Defendants’ actions were motivated by this protected activity because of:
•

Hill’s long history of prisoners’ rights advocacy;

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•

Hill’s frequent telephone and mail communications with her
husband, which DOC officials monitored, and during which she
openly discussed her advocacy;

•

The carelessness and flawed nature of the investigation that
relied upon purported instances of misconduct by Hill, which
may be reasonably interpreted as mere pretext;

•

The pattern of antagonism Defendant Brumbaugh exhibited
against Hill in telephone calls before the investigation was
completed;

•

Defendants’ repeated failure to provide a specific or honest
explanation for Hill’s indefinite suspension.

(Docket No. 168 at 2). Defendants argue that “Plaintiff has not presented any evidence that these
two DOC officials were aware of the specific advocacy asserted to be the predicate of the instant
retaliation claim.” (Docket No. 166 at 5).
As noted earlier, Hill can establish causation with evidence of: “(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.” Watson, 834 F.3d at 424.
“Where the temporal proximity is not ‘unusually suggestive,’ we ask whether ‘the proffered
evidence, looked at as a whole, may suffice to raise the inference.” LeBoon v. Lancaster Jewish
Cmty. Ctr. Ass’n, 503 F.3d 217, 232-33 (3d Cir. 2007) (quoting Farrell v. Planters Lifesavers Co.,
206 F.3d 271, 280 (3d Cir. 2000)). “Among the kinds of evidence that a plaintiff can proffer are
intervening antagonism or retaliatory animus, inconsistencies in the [defendant’s] articulated
reasons . . . or any other evidence in the record sufficient to support the inference of retaliatory
animus.” Id.
The question before the Court is whether Hill has established a genuine issue of material
fact as to whether her protected activity was a substantial or motivating factor in Defendant
Brumbaugh and Defendant Close’s actions. This is not the simple case where the plaintiff can
point to an “unusually suggestive temporal proximity between the protected activity and the

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allegedly retaliatory action.” See Rauser, 241 F.3d at 334. Rather, the question here is if the record
as a whole creates an inference of causation.
In this Court’s estimation, there are simply too many disputed issues of material fact to
grant summary judgment. At the outset, the Court notes that Defendants filed a Response to
Plaintiff’s Statement of Additional Material Facts Not in Dispute, in accordance with Local Rule
56(C) and (D); however, Defendants respond to many of Hill’s additional facts merely by stating
“[i]t is not disputed that Plaintiff so stated in her declaration.” (See Docket No. 156). Under Local
Rule 56(E), “[a]lleged material facts set forth in the . . . opposing party’s Responsive Concise
Statement, which are claimed to be undisputed, will for the purpose of deciding the motion for
summary judgment be deemed admitted unless specifically denied or otherwise controverted by a
separate concise statement of the opposing party.” W.D. Pa. L.Cv.R. 56(E) (2013). Defendants’
indirect responses neither “specifically den[y] or otherwise controvert[]” Hill’s declarations and,
as those declarations clearly conflict with Defendants’ declarations and deposition testimony, they
underscore the questions of fact throughout the record.
Further, Defendants begin each of their declarations with “the following information is true
and correct to the best of my personal knowledge or information and belief,” and this qualifies the
entirety of the information contained within them. (Docket No. 138-1 at 23, 29, 34) (emphasis
added). “Rule 56(e) limits the proper contents of an affidavit to facts, and the facts presented must
be alleged on personal knowledge. . . . Ultimate or conclusory facts . . . as well as statements made
on belief or ‘on information and belief,’ cannot be utilized on a summary judgment motion.”
Disilverio, 2007 WL 1029759, at *7; see also Donald J. Trump for President, Inc. v. Sec’y of
Pennsylvania, No. 20-3371, 2020 WL 7012522, at *5 (3d Cir. Nov. 27, 2020) (“‘Upon information

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and belief’ is a lawyerly way of saying that [a party] does not know that something is a fact but
just suspects it or has heard it.”).
Bearing this in mind, and turning to whether Defendants Brumbaugh and Close were aware
of Hill’s protected activity, Defendants only claim that they “do not recall seeing” or were not
“specifically aware” of the November 5 letter, and “consequently, [it] had no impact on [their]
decision[s].” 10 (Brumbaugh Decl., Docket No. 138-1 at 37; Close Decl., Docket No. 138-1 at 32).
Not only are these “credibility determinations,” which would be improper for the Court to make
on summary judgment, they are also improperly conclusory on a retaliation claim. Anderson, 477
U.S. at 255 (“Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge, [when she] is ruling
on a motion for summary judgment.”); Hendricks v. Pittsburgh Pub. Schs., 2015 WL 540030, at
*7 (W.D. Pa. Feb. 10, 2015) (citing cases) (failure to recollect creates a jury question); Maldonado
v. Ramirez, 757 F.2d 48, 51 (3d Cir. 1985) (“[T]he affiant must ordinarily set forth facts, rather
than opinions or conclusions. An affidavit that is ‘‘essentially conclusory’ and lacking in specific
facts’ is inadequate to satisfy the movant’s burden.”).
Furthermore, the above dispute, combined with the evidence of a pattern of antagonism
from Defendant Brumbaugh (the threats he made in his phone calls to Hill) and the fact that his
report contained both exaggerations and inaccuracies, on the whole, creates an inference of
causation. 11 Specifically, during phone calls between Defendant Brumbaugh and Hill during the

10

Defendants Brumbaugh and Close also state generally that they were “familiar with the
Plaintiff,” (see Brumbaugh Decl., Docket No. 138-1 at 35; Close Decl., Docket No. 138-1 at 29),
and Brumbaugh stated that he “did not believe [he] was aware of” Hill’s membership in prison
advocacy groups (Brumbaugh Depo., Docket No. 138-2, at 25-26).
11

The Report and Recommendation acknowledges that “there were inaccuracies in the
[Brumbaugh] Report that were not adequately explained.” (Docket No. 158 at 23).

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initial investigation, Hill stated that Brumbaugh “called my husband a bad person, a monster, and
threatened that my husband would never get out of solitary confinement . . . and said that he would
end my marriage.” (Hill Decl., Docket No. 149-1 at 5). Defendant Brumbaugh denies ever having
made these statements. (Brumbaugh Depo., Docket No. 138-2 at 79-80).
Defendant Brumbaugh also relied on exaggerations and unsupported claims against Hill in
his report that recommended an indefinite suspension of Hill’s visiting privileges, which
Defendant Close evaluated and used to form his decision. First, the report includes a reference to
the April 5 telephone call wherein Hill allegedly tells Mr. Hill “to do what he needs to do and she
supports him no matter what he does and its no big deal for her.” 12 (Brumbaugh Report, Docket
No. 138-1 at 16). However, Defendant Brumbaugh does not recall listening to this phone call and
a transcript of the call reveals that Hill never made such a statement. (Brumbaugh Depo, Docket
No. 138-2 at 50; Transcript of April 5 Call, Docket No. 149-6).
Next, the report refers to a letter from Hill to her husband in which she stated, “I also think
they don’t want to mess with you about the Z Code until your time is up . . . If I was you, I know
what I’d do, but I can’t say. They would use it against me.” (Brumbaugh Report, Docket No. 1381 at 16). According to the Brumbaugh Report, this meant Hill had knowledge of the impending
assault and encouraged Mr. Hill to use violence. (Id.). But according to Hill, “I know what I’d do”
consisted of her advocacy work—her protected activities. (Hill Decl., Docket No. 149-1 at 6). This
is a disputed issue of material fact, and at the summary judgment stage, the inference must be
drawn in Hill’s favor.

12

An “Automated Inmate Telephone System Record/Monitoring Log Book” form was also
made part of the Court’s record that shows that an officer listened to this call and also did not
record the alleged statement from Hill. (See Docket No. 152). Defendants did not produce a
declaration, affidavit, or testimony from this officer.

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The Brumbaugh Report also states that Hill “has been suspended on numerous occasions
for sexual acts, introducing contraband, and disrespecting staff.” 13 (Brumbaugh Report, Docket
No. 138-1 at 17). However, Defendants have since admitted that the DOC has never suspended
Hill’s visitation privileges for disrespecting staff. (Brumbaugh Depo., Docket No. 138-2, at 7778). Hill also disputes the truth of the grounds upon which the sexual acts suspension was based,
(Hill Decl., Docket No 149-1 at 7), and this suspension was rescinded immediately after Hill wrote
the superintendent at SCI Forest contesting the same, (Sobina Letter, Docket No. 149-3). While
Hill was suspended for providing her husband with one aerial satellite photo of the facility where
he was then housed (the report states multiple “maps”), Hill continues to deny this allegation. (See
Brumbaugh Report, Docket No. 138-1 at 16; Hill Decl., Docket No. 149-1 at 7-8). Hill even
disputes that her husband attacked CO Rightnour, stating that this is a false accusation. (Dwayne
Hill Decl., Docket No. 149-2 at 4). In fact, it appears that the only substantiated fact contained in
the report was Hill’s use of aliases to communicate with her husband, which is a violation of DOC
rules. (See Transcript of April 5 Call, Docket No. 149-6 (call between Dwayne Hill and “Angel
Jackson”); Glunt Decl., Docket No. 138-1 at 24). Lastly, Defendant Close did not give a reason
for the initial suspension of Hill’s visitation rights, contrary to DOC policy. (See Close Letter to
Hill, Docket No. 138-1 at 7; DOC Policy DC-ADM 812, Inmate Visiting Privileges,
https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/812%20Inmate%20Visiting
%20Privileges.pdf (last visited December 21, 2020)).

13

In answering questions about his report, Defendant Brumbaugh often does not know
where he got the information contained within it. (Brumbaugh Depo., Docket No. 138-2, at 69-70,
71-72, 77-78 (Q: “How did you become aware of [the contraband] incident?” A: “I don’t recall.”;
Q: “Do you know anything about the circumstances underlying [the sexual acts] suspension?” A:
“No”; Q: “Do you know where you substantiated [the disrespecting staff suspension]?” A: “No.”).

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This is not as clear cut a case as Watson, where only a few hours had elapsed between the
plaintiff’s protected activity and the adverse action. See Watson, 834 F.3d at 424. Indeed,
Brumbaugh’s investigation and recommendation and Close’s initial suspension occurred five
months after Hill’s November 5 letter. But the timing, pattern of antagonism, and circumstantial
evidence here—nearly all of which the parties dispute—is enough to conclude that the record as a
whole supports the inference of causation as to Defendants Brumbaugh and Close. Farrell, 206
F.3d at 280–81 (holding that “timing plus other evidence may be an appropriate test where the
temporal proximity is not so close as to be ‘unduly suggestive’” and “[a]lthough timing and
ongoing antagonism have often been the basis for the causal link, our case law clearly has allowed
a plaintiff to substantiate a causal connection for purposes of the prima facie case through other
types of circumstantial evidence that support the inference”). In addition, though Defendants
challenge causation by arguing that too long a time had passed between the November 5 letter and
the decisions to suspend visitation in April and June, and therefore they could not have relied on
the letter, this argument is undermined by the fact that they do rely on disputed events that predate the letter in the Brumbaugh Report to support their decision to suspend visitation.
Taken as a whole, a reasonable jury could find that Hill’s protected activities were known
to Defendants and that the investigation and findings were motivated based upon Plaintiff’s
protected activity. Because this is a ruling on summary judgment where the evidence must be
viewed in the light most favorable to the non-moving party, this Court finds that there is a genuine
issue of fact as to whether the record as a whole establishes causation between Hill’s protected
activity and Defendant Brumbaugh’s recommendation and Defendant Close’s initial suspension
of visitation privileges. See Hill v. City of Scranton, 411 F.3d 118, 127 (3d Cir. 2005) (noting “that
the first prong of the First Amendment retaliation test presents questions of law for the court while

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the second and third prongs present questions of fact for the jury,” as long as those questions of
fact are genuine).
4.

Causation as to Defendant Glunt

While “it is only intuitive that for protected conduct to be a substantial or motiving factor
in a decision, the decisionmakers must be aware of the protected conduct,” Ambrose v. Twp. of
Robinson, Pa., 303 F.3d 488, 493 (3d Cir. 2002), “[p]roof of knowledge can come from direct or
circumstantial evidence.” Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 664 (3d Cir. 2002).
“Where the temporal proximity between the protected activity and the adverse action is ‘unusually
suggestive,’ it is sufficient standing alone to create an inference of causality and defeat summary
judgment.” LeBoon, 503 F.3d at 232. “[S]uch an inference [can] be drawn where two days passed
between the protected activity and the alleged retaliation . . . but not where 19 months had elapsed.”
Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003) (citing Jalil v. Avdel Corp., 873 F.2d
701, 708 (3d Cir. 1989); Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997).
In this Court’s estimation, a reasonable jury could conclude that Glunt had knowledge of
both the November 5 letter and the Commonwealth Court petition and that they were a substantial
or motivating factor in the decision to suspend her visitation privileges. As to the November 5
letter, while Glunt stated that he “do[es] not recall receiving that letter,” he admitted that the letter
reflects that a copy was sent to him. (Glunt Depo., Docket No. 138-3 at 27-28). Defendants further
admit in their responses to Plaintiff’s Requests for Admissions that “Defendant Glunt did review
this letter and did note that a copy had been sent to him; however, he did not have any specific
recollection of this letter.” (See Docket No. 157-1 at 5); Hendricks, 2015 WL 540030, at *7
(failure to recollect creates a jury question).

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Defendant Glunt also denies knowledge that the Commonwealth Court petition was filed,
though he admits being familiar with Hill and consulting with OSII in order to further investigate
her. (Glunt Decl., Docket No. 138-1 at 25-26). Given this, and given that the purpose of the petition
was to “seek[] an order directing Glunt to explain the basis for the suspension,” a reasonable jury
could conclude that Glunt knew of the Commonwealth Court petition. (Hill Decl., Docket No.
149-1 at 5). Further, the Commonwealth Court docket reflects that preliminary objections were
filed on July 16, which was about two weeks before Glunt responded to Hill’s letter requesting an
explanation for why her visitation was suspended. (See Docket No. 138-1 at 13; 20).
Finally, because less than a week passed between when Hill filed her petition in the
Pennsylvania Commonwealth Court on June 20, 2012 and Glunt’s June 26, 2012 letter announcing
that the investigation was complete and Hill’s visiting privileges would be suspended indefinitely,
there is an “unusually suggestive temporal proximity between the protected activity and the
allegedly retaliatory action.” See, e.g., Hyman v. Giorla, No. 10-499, 2014 WL 881137, at *3 (E.D.
Pa. Mar. 5, 2014) (“Ordinarily, a period of less than one week is unusually suggestive.”); (Glunt
June 26 Letter, Docket No. 138-1 at 9; Commonwealth Court Docket, Docket No. 138-1 at 19).
Glunt’s June 26 letter also did not provide an explanation for why Hill’s visiting privileges were
being suspended, and DOC Policy states that “[i]f the Facility Manager suspends a visitor’s visiting
privileges for any reason, that Facility Manager shall notify the visitor of the reasons for the
suspension.”

(See

DOC

Policy

DC-ADM

812,

Inmate

Visiting

Privileges,

https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/812%20Inmate%20Visiting

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%20Privileges.pdf (last visited December 21, 2020)). 14 For these reasons, and those already
discussed in the prior section, Hill has demonstrated a triable issue of fact as to causation.
***
In conclusion, there is a genuine issue of material fact as to whether Hill’s November 5
letter, her Commonwealth Court petition, and her history of prisoner rights’ advocacy were a
substantial or motivating factor in Defendant Brumbaugh’s recommendation, Close’s initial
suspension, and Glunt’s ultimate indefinite suspension of her visitation privileges.
Therefore, Hill has established a prima facie case of retaliation and the burden shifts to
Defendants to prove that they would have made the same decision absent the protected conduct
for reasons reasonably related to legitimate penological interests.
B.

The “Same Decision Defense”

Even if Hill establishes a prima facie case of retaliation, Defendants may still prevail with
the “same decision defense”—that is, if they prove that “they would have made the same decision
absent the protected conduct for reasons reasonably related to a legitimate penological interest.”
Rauser, 241 F.3d at 334. This Court is mindful of the “great deference [afforded to prison officials]
in the context of prison disciplinary proceedings.” Harris v. Giroux, No. 1:16-CV-0038, 2019 WL

14

The effective date on this DOC Policy is September 27, 2018. Though a copy of the
policy was not made part of the Court’s record, Defendant Glunt referenced this policy in his July
30 letter to Hill, which answered Hill’s request for a reason for her suspension. (See Glunt July 30
Letter, Docket No. 138-1 at 13 (“As previously indicated, your actions and support of your
husband’s behavior poses a threat to the safety and security of this facility. Serious staff injury
resulted. In accordance with DC-ADM 812, Section 1.B.8., your visiting privileges have been
suspended indefinitely. You may view this policy on our public website at www.cor.state.pa.us.”)).
The Court can also take judicial notice of the policy, as it is a public document, “capable of accurate
and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”
See Shumaker, 2011 WL 13176084, at *10 n.11 (quoting Fed. R. Evid. 201(b)).

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330459, at *10 (W.D. Pa. Jan. 25, 2019) (quoting Watson, 834 F.3d at 426). “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.” Id. at *10 (citing Carter v. McGrady, 292 F.3d 152, 154 (3d Cir. 2002)).
For instance, in Harris v. Giroux, the Court held that “[w]here 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.” 2019 WL 330459 at *10 (internal citations omitted). This,
plus “a meaningful written statement of the evidence relied on and the reasons for the action taken,
establishe[d] a quantum of evidence of misconduct sufficient to warrant summary judgment.” Id.
(internal quotation marks and citations omitted). In Harris, however, the quantum of record
evidence was insufficient because the facts surrounding plaintiff’s misconduct charge were
disputed, and though the hearing examiner found plaintiff guilty of the misconduct, the defendant’s
version of events was not supported by evidence or testimony from other COs or video footage.
Id. at *11-12.
Similarly, in this Court’s estimation, the “quantum of record evidence” pertaining to Hill’s
violations is insufficient, thereby raising a genuine issue of material fact as to whether the
suspension of her visiting privileges was premised on a legitimate penological issue. As previously
discussed, Hill contests that her husband committed an unprovoked assault on a CO and that she
encouraged him to do so in the April 2 letter or April 5 telephone call with her husband. Given
these disputed facts, the Court cannot accept the “same decision defense” advanced here and grant
summary judgment on this basis.

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Indeed, the only substantiated violation contained in the Brumbaugh Report was Hill’s use
of aliases to communicate with her husband, but Defendants do not argue that this violation alone
would support the permanent ban on her visitation privileges. (See Transcript of April 5 Call,
Docket No. 149-6). The remaining violations that form the basis of Defendants’ decisions to
recommend and suspend Hill’s visitation privileges are in dispute, including: the meaning of “I
know what I’d do” in Hill’s letter; the basis for the sexual conduct suspension; and, the basis for
the map suspension. 15 Further, Defendants admit that the DOC has never suspended Hill’s
visitation privileges for “disrespecting staff,” and the transcript of the April 5 call does not include
a statement by Hill to her husband to “do what he needs to do.” (Brumbaugh Depo., Docket No.
138-2, at 77-78; Transcript of April 5 Call, Docket No. 149-6).
In sum, viewing the evidence in the light most favorable to Hill, her alleged violations were
not so “clear and overt” as to allow the Court to conclude that there is no genuine issue of material
fact as to whether Defendants would have made the same decisions absent her protected activity.
V.

CONCLUSION
Based on the foregoing, the Court sustains Plaintiff’s Objections, declines to adopt the

Report and Recommendation [158], and Defendants’ Motion for Summary Judgment [135] is
denied. An appropriate Order follows.
s/Nora Barry Fischer
Nora Barry Fischer
U.S. District Judge
Dated: December 21, 2020
15

The Pennsylvania Department of Corrections website states that “[t]here will be an
indefinite ban for any visitor caught introducing contraband into visit rooms.” See
https://www.cor.pa.gov/family-and-friends/Pages/Visiting-Rules.aspx (last visited December 21,
2020). However, it is unclear if this was the policy in effect at the time of the asserted violation.
See also Shumaker, 2011 WL 13176084, at *10 n.11 (“a court may take judicial notice of . . .
matters of public record”).

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cc/ecf: All counsel of record.

27