MACK v. YOST et al

Filing 114

MEMORANDUM OPINION AND ORDER denying 99 Motion for Summary Judgment, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 9/13/2018. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHARLES MACK,

)

Case No. 3:10-cv-264

)

Plaintiff,

)

JUDGE KIM R. GIBSON

)

v.

)
)

JEFF STEVENS, trust officer;
D. VESLOSKY, correctional officer; and
. DOUG ROBERTS, correctional officer,

)
)
)
)

Defendants.

)

MEMORANDUM OPINION
I.

Introduction

Presently pending before the Court is the Motion for Summary Judgment (ECF No. 99)
filed by Defendant Jeffrey Stephens ("Stephens"), Defendant Samuel Venslosky ("Venslosky"),
and Defendant Douglas Roberts ("Roberts"). 1 This Motion has been fully briefed (see ECF Nos.
99-102, 105-108, 111-113) and is ripe for disposition.
Plaintiff Charles Mack ("Mack"), a former inmate at the Federal Correctional Institution
in Loretto, Pennsylvania ("FCI-Loretto"), seeks damages for alleged religious discrimination
under constitutional and statutory theories. After extensive motions practice and appeals, only
two claims remain before this Court: (1) a claim against all remaining Defendants for First
Amendment retaliation in connection with Mack's termination from his paid work assignment in

Throughout this Memorandum Opinion, the Court has spelled Defendants' names in accordance with the
spellings used by Plaintiff and Defendants in all of the summary-judgment-related filings in this case. (See
ECF Nos. 99, 100, 101, 102, 105, 106, 107, 108.) However, the Court has not altered the spelling of the
Defendants' names in the caption from that used by Mack in his Amended Complaint. (See ECF No. 22.)
It appears to be appropriate for the parties to address this issue through a motion to correct caption.
1

the commissary and (2) a claim against Roberts and Venslosky for a violation of Mack's rights
under the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb-l(a), for alleged antiMuslim harassment and hostility which caused Mack to limit his praying at work. See Mack v.

Warden Loretto FCI, 839 F.3d 286, 306 (3d Cir. 2016).
In the instant Motion, Defendants move for the dismissal of these remaining claims. (See
ECF Nos. 99, 100.)

However, Defendants do little more than repeat the same unavailing

arguments that the United States Court of Appeals for the Third Circuit has already rejected in

this case. See id. Thus, because this Court is not persuaded that the summary judgment record
materially differs from the allegations of Mack's Amended Complaint or that there has been an
intervening change of law since the Third Circuit's most recent opinion in this case,2 this Court
must allow the two remaining claims to proceed to trial.
For the reasons that follow, Defendants' Motion for Summary Judgment (ECF No. 99) is
DENIED.

II.

Jurisdiction and Venue
All of Mack's claims arise under the Constitution and laws of the United States. Therefore,

this Court has jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1343.
A substantial portion of the events giving rise to Mack's claims occurred in the Western
District of Pennsylvania. Thus, venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2).

The Third Circuit has issued two opinions in this case. See Mack v. Yost, 427 F. App'x 70 (3d Cir. 2011);
Mack v. Warden Loretto FCI, 839 F.3d 286, 293-94 (3d Cir. 2016). Unless otherwise specified, all references in
this Memorandum Opinion to a decision by the Third Circuit in this case are references to the latter of these
two opinions, i.e., the opinion filed on October 11, 2016. See Mack, 839 F.3d at 293-94.
2

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III.

Relevant Procedural History3
Mack filed the operative seven-page Amended Complaint in this case on May 4, 2012.

(ECF No. 22.) Extended litigation before this Court and the United States Court of Appeals for
the Third Circuit ensued. 4
Following the Third Circuit's second remand of this case on October 11, 2016, two claims
remain pending before this . Court: (1) a claim against all remaining Defendants for First
Amendment retaliation in connection with Mack's termination from his paid work assignment in
the commissary and (2) a claim against Roberts and Venslosky for a violation of Mack's rights
under RFRA for alleged anti-Muslim harassment and hostility which caused Mack to refrain from
praying at work. See Mack, 839 F.3d at 306.
Most pertinent here, the remaining Defendants timely 5 filed the instant Motion for
Summary Judgment, Brief in Support thereof, Concise Statement of Undisputed Material Facts,
and Appendix thereto on June 20, 2018. (See ECF Nos. 99-102.) Mack timely 6 filed his Response
in Opposition to Defendants' Motion for Summary Judgment and Brief in Opposition to

Due to the extensive procedural history of this case, the Court includes only the procedural history
pertinent to the instant Motion for Summary Judgment. However, this Court relies on, and incorporates
by reference, the procedural history authored by the United States Court of Appeals for the Third Circuit
in its precedential opinion in this case. See Mack, 839 F.3d at 293-94 (providing a detailed procedural history
in Part I.C of the opinion). The Third Circuit's procedural history, see id., summarizes the major procedural
happenings in this case that are not included in the instant Memorandum Opinion's procedural history.
See infra Part III.
4 See supra note 3.
5 On June 11, 2018, this Court granted a Consent Motion, extending the deadline for filing motions for
summary judgment by two weeks. (See ECF Nos. 95, 96.)
6 On July 19, 2018, this Court granted a Consent Motion, extending the deadline for filing opposition to
Defendants' Motion for Summary judgment by two weeks. (ECF Nos. 103, 104.)
3

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Defendants' Motion for Summary Judgment on August 3, 2018. (ECF Nos. 105, 106.) Defendants
filed their reply opposing Mack's submissions on September 7, 2018. 7 (ECF Nos. 111-113.)
The Court has fully reviewed and considered all of the relevant filings pertaining to
Defendants' Motion for Summary Judgment. Accordingly, Defendants' Motion for Summary
Judgment is now ripe for disposition.

IV.

Relevant Factual History
The following facts are undisputed unless otherwise noted. 8
Mack is a practicing Muslim and a former inmate at FCI-Loretto. (ECF No. 1011{ 1; ECF

No. 1081{ 1.) Mack worked for pay in FCI-Loretto's commissary from May 26, 2009 until he was
terminated on October 21, 2009. (ECF No. 1011{ 2; ECF No. 1081{ 2.)
Throughout the events pertinent to this case, Stephens was the FCI-Loretto Trust Fund
Officer with supervisory oversight of the commissary and over Roberts and Venslosky. (ECF No.
101 1I 3; ECF No. 108 1I 3.) However, Stephens did not have responsibility for hiring or firing
inmate workers in the commissary. (ECF No. 1011{ 4; ECF No. 1081{ 4.) Roberts worked in the
commissary, where his duties included supervising the inmate workers and selling commissary
items to inmates. (ECF No. 101 1I 5; ECF No. 108 1I 5.) Venslosky was a Material Handler

On August 27, 2018, the Court granted a Consent Motion, granting an extension nunc pro tune for the filing
of Defendants' reply until September 7, 2018. (ECF No. 110.) The Court notes that this Consent Motion
was filed four days after the deadline for filing a reply passed on August 17, 2018. See LCvR 56.D ("Within
14 days of service of the opposing party's submission in opposition to the motion for summary judgment,
the moving party may reply to the opposing party's submission in the same manner as set forth in LCvR
56.C."). Despite this late filing, the Court has permitted the extension and fully considered Defendants'
reply.
8 The Court derives these facts from a combination of Defendants' Concise Statement of Undisputed
Material Facts (ECF No. 101), Defendants' Appendix of Exhibits thereto (ECF No. 102), Mack's Response
to Defendants' Concise Statement of Undisputed Material Facts (ECF No. 108), and Mack's Appendix of
Exhibits thereto (ECF No. 107).
7

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Supervisor in the commissary, where his duties included supervising the inmate workers and
selling commissary items to inmates. (ECF No. 1011{ 6; ECF No. 1081{ 6.)
Venslosky fired Mack from his commissary job with the explanation that Mack was
caught bringing in another inmate's commissary slip-an action for which an inmate commissary
worker may be fired, at the discretion of prison staff. (ECF No. 1011{1{ 7-9; ECF No. 1081{1{ 7-9.)
Mack denies that he brought in another inmate's commissary slip and argues that this explanation
for his firing is mere pretext for the discriminatory motivation for his firing. (See ECF No. 1081{1{
7-9 and New Matter.) Stephens, Roberts, and Venslosky all admit that Mack was a good and

obedient commissary worker; they had no concerns about his work performance. (ECF No. 108
at 5. )9
At his deposition, Mack testified that Roberts and Venslosky "would permit [him] to
attend Jumu[']ah (Friday) services, after [he] would inform them of such time for service," that
he "made up" for missed prayers after work, and that he did not stop practicing his religion.
(ECF No. 1011{1{ 10-16; ECF No. 108 1I1I 10-16.) Mack further stated that Venslosky gave him
what Defense Counsel refers to as "the look," which Mack interpreted as discriminatory to his
religion and critical of his desire to pray during work hours. (ECF No. 1011{1{ 11-14; ECF No. 108

1I1I 11-14.)

9

See infra note 10.

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Beyond these aforementioned deposition excerpts identified by Defendants' filings, it is
undisputed 10 that Mack testified as follows: 11
(1) Prior to Mack's firing in October 2009, Roberts told Mack, "I don't like Muslims" on
multiple occasions.
(2) Approximately two weeks before Mack's firing in October 2009, Roberts told Mack,
verbatim, "There is no good Muslim except a dead Muslim."
(3) At the end of October 2009, Roberts slapped a sticker on Mack's back which read, "I
love pork bacon." When Mack confronted Roberts about the sticker, Roberts replied,
"Why? You didn't like it."
(4) Mack raised concerns about his treatment by Roberts and Venslosky to Stephenstheir supervisor. Stephens promised that he would "look into it."
(5) Mack complained about the aforementioned treatment to Roberts directly, while
Venslosky was within earshot. Roberts responded by stating, "You are not going to
be here long." Mack was fired less than two weeks later.
(6) Venslosky sarcastically asked Mack whether Muslim was a religion.

While Defendants repeatedly deny that the events discussed in Mack's "New Matter" actually occurred,
they admit that Mack testified regarding such conduct in his deposition. (See ECF No. 112 at 1-3.) The
Court further notes that in spite of Defendants' assertions that the allegations in Mack's "New Matter" are
"wholly unsupported," (id. 'l['l[ 9-10), Mack's counsel diligently and precisely cited to specific portions of
the record, namely Mack's deposition, to support the content of the "New Matter." (See ECF No. 108 at 4-

10

5.)

The content of the following eight numbered paragraphs is derived from the "New Matter" contained in
Mack's Response to Defendants' Concise Statement of Undisputed Material Facts. (See ECF No. 108 at 45.) As discussed supra, Defendants admit that Mack testified regarding the conduct discussed in his "New
Matter" in his deposition. See supra note 10.
11

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(7) Venslosky witnessed Roberts' behavior toward Mack and failed to intervene.
Venslosky would "egg [Roberts] on" and "always sit[] there grinning." 12
(8) When Mack was in the back comer of the commissary praying, Roberts and Venslosky
would go to the same area for no apparent reason, kick over boxes, and speak/joke
loudly. Mack interpreted this behavior as a purposeful attempt to disrupt his prayers.
Mack also testified that his religious practices were curtailed because he "couldn't pray at
the exact scheduled time" as would be appropriate for his religious beliefs when he was working
at the commissary because if he did, "a whole lot of foolishness would come into the scenario of
trying to do that." (ECF No. 107-1 at 8.)
V.

Legal Standard
"Summary judgment is appropriate only where ... there is no genuine issue as to any

material fact ... and the moving party is entitled to judgment as a matter of law." Melrose, Inc. v.

Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010) (quoting Ruehl v. Viacom, Inc., 500 F.3d 375, 380 n.6 (3d
Cir. 2007)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(a). Issues of
fact are genuine "if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also McGreevy v.

Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Material facts are those that will affect the outcome of the
trial under governing law. Anderson, 477 U.S. at 248. The Court's role is "not to weigh the
evidence or to determine the truth of the matter, but only to determine whether the evidence of
record is such that a reasonable jury could return a verdict for the nonmoving party." Am. Eagle

12

See ECF No. 107-1 at 26-27.
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Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009). "In making this determination, 'a
court must view the facts in the light most favorable to the nonmoving party and draw all
inferences in that party's favor."' Farrell v. Planters Lifesavers Co., 206 F.3d 271,278 (3d Cir. 2000)
(quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)).
The moving party bears the initial responsibility of stating the basis for its motion and
identifying those portions of the record that demonstrate the absence of a genuine issue of
material fact. Celotex, 477 U.S. at 323. If the moving party meets this burden, the party opposing
summary judgment "may not rest upon the mere allegations or denials" of the pleading, but
"must set forth specific facts showing that there is a genuine issue for trial." Saldana v. Kmart

Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 n.11 (1986) ). "For an issue to be genuine, the nonmovant needs to supply more than
a scintilla of evidence in support of its position-there must be sufficient evidence (not mere
allegations) for a reasonable jury to find for the nonmovant." Coolspring Stone Supply v. Am. States

Life Ins. Co., 10 F.3d 144, 148 (3d Cir. 1993); see also Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594
(3d Cir. 2005) (noting that a party opposing summary judgment "must present more than just
bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue")
(internal quotation marks omitted).

VI.

Discussion
Defendants argue that they are entitled to summary judgment based on four theories: (1)

Mack's RFRA claim fails because he has failed to establish that his exercise of religion was
substantially burdened; (2) Mack's retaliation claim fails because First Amendment claims are not
cognizable under Bivens; (3) Roberts and Venslosky are entitled to qualified immunity; and (4)

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Mack failed to exhaust his administrative remedies as required by the Prison Litigation Reform
Act ("PLRA"). (See generally ECF No. 100.) The Court will address each of these arguments in
turn below.
In summary, the Court finds Defendants' arguments unavailing, primarily because
nothing presented to this Court for the purposes of summary judgment changes the
determinations made by the Third Circuit in its most recent opinion in this case. See Mack, 839
F.3d at 306.

A. Mack's RFRA Claim May Proceed to Trial
1. Introduction
First, this Court addresses Mack's claims that Roberts and Venslosky, in their individual
capacities, violated RFRA through their purported anti-Muslim harassment and hostility toward
Mack.
Just as the Third Circuit held that the allegations of Mack's Amended Complaint were
sufficient when the Circuit denied Defendants' request to dismiss Mack's RFRA claim, see Mack,
893 F.3d at 301, this Court now holds that the summary judgment record is sufficient for a
reasonable jury to conclude that Roberts and Venslosky violated RFRA.

2. The Remedial Scope of RFRA
As the Third Circuit articulated in this case, Congress enacted RFRA "in order to provide
very broad protection for religious liberty." Id. (quoting Burwell v. Hobby Lobby Stores, Inc., 134 S.
Ct. 2751, 2760 (2014)). RFRA prohibits the "Government" from "substantially burden[ing] a
person's exercise of religion even if the burden results from a rule of general applicability," unless
the "Government" can "demonstrate[] that application of the burden to the person-(1) is in

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furtherance of a compelling governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest." Id. (quoting 42 U.S.C. § 2000bb-l(a)-(b)).
RFRA expressly provides a private cause of action against the "government" for "appropriate
relief." Id. (quoting 42 U.S.C. § 2000bb-l(c)). "Government" is defined as "includ[ing] a branch,
department, agency, instrumentality, and official (or other person acting under color of law) of
the United States." Id. (quoting 42 U.S.C. § 2000bb-2(1)).
Most relevant to the instant case, the Third Circuit specifically held that RFRA permits
suits seeking money damages against individual officers for their ultra vires acts, irrespective of
the existence or nonexistence of a law, regulation, or policy. See id. at 301-02. Thus, as the Third
Circuit has already held, Mack's RFRA claim falls within the scope of the statute because he seeks
money damages against the individual officers Roberts and Venslosky for ultra vires acts. See id.
3.

A Reasonable Jury Could Conclude that Mack's Exercise of Religion was
"Substantially Burdened"

Looking to the merits of Mack's claims, to establish a prima facie case under RFRA, Mack
must demonstrate that the government (1) substantially burdened (2) a sincere (3) religious
exercise. See id. at 302 (citing Gonzales v. 0 Centro Espirita Beneficente Uniao do Vegetal, 546 U.S.
418, 428 (2006)). As has been the case throughout this matter, Defendants do not dispute the
sincerity of Mack's exercise of his religious beliefs; thus, the only issue is whether Mack has
produced sufficient evidence that his exercise of religion was substantially burdened. See id.
Although RFRA does not define "substantial burden," the Third Circuit has explained
that a substantial burden exists where (1) "a follower is forced to choose between following the
precepts of his religion and forfeiting benefits otherwise generally available to other inmates

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versus abandoning one of the precepts of his religion in order to receive a benefit" or (2) "the
government puts substantial pressure on an adherent to substantially modify his behavior and to
violate his beliefs." Id. (quoting Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007)).
Here, the allegations of the Amended Complaint upon which the Third Circuit relied in
its earlier decision in this case and the evidence that Mack produced in opposition to Defendants'
Motion for Summary Judgment are not meaningfully different. And, in regard to those similar
allegations in Mack's Amended Complaint, the Third Circuit wrote:
Mack argues that the combination of Officer Roberts' anti-Muslim harassment and
Officer Venslosky's tacit approval created a hostile work environment that caused
him to stop praying at work. We can reasonably infer from these allegations that
Mack previously was in the practice of praying at work before the harassment took
place. Although Mack concedes that the officers did not directly command him to
cease praying, a burden can be "substantial" even if it involves indirect coercion
to betray one's religious beliefs. Because we think the indirect pressure the officers
placed on Mack may very well have substantially burdened his religious exercise,
we conclude that his allegations are sufficient to survive a motion to dismiss.

Id. (footnotes omitted). The same conclusion is warranted now.
The content of the record, see supra Part IV, is sufficient for a reasonable jury to
conclude that Roberts and Venslosky's anti-Muslim comments, conduct, and tacit
approval created a hostile and harassing environment "substantial" enough to dissuade
Mack from practicing his religion by praying at work as he had prior to the harassment.
While a reasonable jury need not reach such a conclusion, the evidence is sufficient for a
reasonable jury to conclude that the indirect coercion of Roberts and Venslosky
"substantially burdened" Mack's religious exercise by pressuring him into altering his
prayer rituals-a fundamental tenant of his faith. See supra Part V.

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A reasonable jury could certainly disbelieve all or some of Mack's testimony or
could conclude that any interference with Mack's religious practices was trivial and
insubstantial.

But, a jury, as reasonable factfinder, must decide what exact actions

Defendants took and whether those actions constituted a substantial burden on Mack's
exercise of his religion.
All precedential opinions of the Third Circuit are, of course, binding precedents
on this Court, and, moreover, the Third Circuit's most relevant precedent for the instant
Motion comes from this exact case. This Court cannot and will not contravene the explicit
guidance of the Third Circuit by coming to any other conclusion given the similitude of
the allegations of the Amended Complaint and the summary judgment record. See Mack,
839 F.3d at 301-02. Therefore, Mack's RFRA claim may proceed to trial. 13

B. Mack's Constitutional Retaliation Claim Under Bivens May Proceed to Trial
1. Introduction
Second, the Court addresses Mack's First Amendment Retaliation claim. Specifically,
Mack claims that he was terminated from his paid work assignment at the FCI-Loretto
commissary in retaliation for orally complaining to Stephens about Roberts and Venslosky's
conduct.
Defendants argue that this Court should not "extend" Bivens to Mack's First Amendment
retaliation claim and that the Supreme Court's recent opinion in Ziglar v. Abassi, 137 S. Ct. 1853

The Court notes that Defendants never argue they had a compelling interest justifying their actions or
that this interest was furthered by the least restrictive means possible. See Garraway v. Lappin, 490 F. App'x
440, 444 (3d Cir. 2012) (citing Small v. Lehman, 98 F.3d 762, 767 (3d Cir. 1996)). Thus, the Court does not
provide analysis on these points.
13

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(2017), necessitates such a holding. (See ECF No. 100 at 3-20.) As with Defendants' argument
regarding Mack's RFRA claim, the Third Circuit has already ruled on the availability of Bivens
for Mack's claims in this exact case. See Mack, 839 F.3d at 296-97. This Court is bound to hold
likewise.

This Court also holds that neither Ziglar, nor any other intervening precedent

supersedes the Third Circuit's prior holdings in this case.

2. Legal Standard for Bivens Claims
In order to determine whether an implied cause of action arises under Bivens v. Six

Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), courts must first assess whether
the claim presents a "new context," i.e., whether the claim is "different in any meaningful way
from previous Bivens cases decided by [the Supreme] Court." Abbasi, 137 S. Ct. at 1859.

If the claim does not present a new context, no further analysis is needed. Id. If the claim
is a "new context," the Court must assess (1) whether any adequate alternative remedy amounts
to a convincing reason for precluding a Bivens claim and (2) whether there are any special factors
that counsel hesitation in permitting plaintiff's claim to proceed. See Abbasi, 137 S. Ct. at 1858-59;

Wilkie v. Robbins, 551 U.S. 437, 500 (2007).
3. Mack Presents a Viable Bivens Claim for First Amendment Retaliation
Based upon the same facts underlying the instant Motion for Summary Judgment, the
Third Circuit has already concluded Mack asserted a viable claim under Bivens with his First
Amendment retaliation claim. See Mack, 839 F.3d at 297. Now, just as they did unsuccessfully
before the Third Circuit, Defendants argue that Mack's claims constitute a "new context" and that

Bivens should not be expanded to include this "new context." See id. However, the Third Circuit

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conclusively rejected Defendants' arguments on the same underlying facts, and this Court must
do the same. See id.
The Third Circuit wrote:
Although the Supreme Court has never formally extended Bivens to First
Amendment claims, it seems to have occasionally assumed that First Amendment
retaliation claims can proceed under Bivens. Our Court, however, has explicitly
recognized a Bivens action when a prisoner has been retaliated against for
exercising his or her First Amendment right to petition.
In Paton v. La Prade, we held that a Bivens action may be implied directly from the
First Amendment. Relying on this general principle, we held in Milhouse v. Carlson
that a Bivens action was available to an inmate who was harassed and transferred
to a less desirable prison cell location in retaliation for filing a lawsuit against
prison officials. Interpreting the prose complaint as alleging a violation of the First
Amendment rig~t of access to the courts, we explained that "[p]ersons in prison,
like other individuals, have the right to petition the Government for redress of
grievances." This right "must be freely exercisable without hindrance or fear of
retaliation." Similarly, in Mitchell v. Horn, we held that a Bivens action was
available to an inmate who was falsely charged with misconduct in retaliation for
exercising his First Amendment petition rights. In light of these cases, we reject
the Government's plea to not "extend" Bivens to Mack's First Amendment
retaliation claim. Our precedents make clear that, in this context, a Bivens action
is already available.
Id. at 296-97 (footnotes omitted).
In short, this Court is constrained to follow the guidance of the Third Circuit, especially
given that the Third Circuit's determinations were made in this case on the same underlying facts.
Because, as the Third Circuit has held, Mack's claims do not present a "new context," this Court
need not analyze the adequacy of alternative remedies or whether "special factors counsel
hesitation." 14

However, the Court notes that, even if Mack's claims presented a new context, it finds Mack's arguments
regarding the lack of alternative remedies and the lack of "special factors counseling hesitation" to be
persuasive. (See ECF No. 106 at 16-19.)
14

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4. Mack has Produced Sufficient Evidence From Which A Reasonable Jury

Could Find in His Favor
In a prior decision in this case, the Third Circuit held that "Mack's oral grievance to
Stephens regarding the anti-Muslim harassment he endured at work constitutes protected
activity under the First Amendment. See id. at 298-99. Mack has produced evidence-in the form
of his own deposition testimony-that he orally complained to Stephens about his perceived
mistreatment by Roberts and Venslosky and that he orally complained directly to Roberts in
Venslosky's presence. See supra Part IV. According to Mack's testimony, Stephens stated that he
would "look into it" and Roberts responded by stating that "[y]ou are not going to be here long."

See id. Mack was fired less than two weeks later. Id.
This testimony, when taken in conjunction with the purportedly pervasive harassment
and attitudes of Defendants toward Mack's religion and religious practices, would allow a
reasonable jury to find that Defendants responded to Mack's oral grievances by terminating his
position at the commissary. A reasonable jury certainly need not come to such a conclusion.
However, the evidence presented to this Court for the purposes of the present Motion for
Summary Judgment is sufficient for a reasonable jury to find in Mack's favor. See supra Part V.
5. The Supreme Court's Recent Decision in Ziglar v. Abassi Does Not Preclude
Relief or Affect the Third Circuit's Prior Ruling in This Case
In an effort to distinguish their summary judgment arguments from those that were
unsuccessful before the Third Circuit in relation to their Motion to Dismiss, Defendants argue
that the Supreme Court's decision in Ziglar-decided approximately eight months after the Third
Circuit's most recent decision in the present case-strongly cautions against "expanding" Bivens
actions and requires that this Court not recognize Mack's First Amendment retaliation action

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under Bivens here. (See ECF No. 100 at 3-7.) Defendants further argue that, subsequent to the
Supreme Court's decision in Ziglar, the Third Circuit has rejected First Amendment retaliation
claims in other contexts, including in a case involving a Transportation Security Administration
("TSA") agent. See Vanderklok v. United States, 868 F.3d 189 (3d Cir. 2017); see also Watlington v.

Reigel, No. 16-32222, 2018 WL 501365, at *3 n.3 (3d Cir. Jan. 22, 2018).
However, neither Ziglar nor Vanderklok alter the longstanding framework on which the
Third Circuit's prior decision in this case relies, see Mack, 839 F.2d at 296-97, and both cases
involve factually dissimilar contexts involving "sensitive issues of national security." See Ziglar,
137 S. Ct. at 1852-54 (involving detainees held on immigration violations in the wake of the
September 11, 2001 terrorist attacks); Vanderklok, 868 F.3d at 194-95 (involving a man who a TSA
agent reported had threatened to bring a bomb to the Philadelphia International Airport).
This Court will not disregard a binding precedent issued by its appellate court, especially
a precedent issued in the same case. Stated simply, neither the underlying law, nor the underlying
facts have meaningfully changed since the Third Circuit's most recent decision in this case. Thus,
in accordance with the still applicable principles of that appellate decision, see Mack, 839 F.3d at
297, Mack's retaliation claim may proceed to trial.
C. Defendants Are Not Entitled to Qualified Immunity

Defendants-again reiterating arguments already rejected by the Third Circuit-next
assert that Defendants are entitled to qualified immunity. (ECF No. 100 at 20-22.) And, once
again, this Court will follow the Third Circuit's guidance and reject Defendants' qualified
immunity argument. See Mack, 839 F.3d at 299-301.
The Third Circuit explained:

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We have long recognized that prisoners have a right to be free from retaliation for
exercising their First Amendment right to petition. Indeed, "[ r ]etaliating against
a prisoner for the exercise of [any of] his constitutional rights is unconstitutional."
Retaliatory termination is clearly unlawful, both inside and outside the prison
context. The fact that the officers retaliated against Mack before he reduced his
grievance to writing is inconsequential. While we have never held before today
that a prisoner's oral grievance, in particular, is constitutionally protected, we have
certainly never suggested that such a grievance is entitled to lower protection than
one reduced to writing. And there are myriad cases outside the prison context
that make no distinction between oral and written grievances. Thus we have little
doubt concluding that prisoners' oral grievances are indeed entitled to
constitutional protection. A reasonable official in the prison officers' position
should therefore have known that retaliating against Mack for exercising his right
to petition, whether in the form of an oral or written grievance, was unlawful. This
is especially so if the prison actually encourages its inmates to communicate their
concerns orally.
Because we conclude that Mack has sufficiently stated a First Amendment
retaliation claim, and that the remaining defendants are not entitled to qualified
immunity, we will vacate the District Court's dismissal of this claim and remand
to the District Court for further proceedings.
Id. at 300-01 (footnotes omitted). Defendants have not offered any new arguments now and do
not provide any new facts or law to distinguish the summary judgment stage from the motion to
dismiss stage of this litigation. Therefore, this Court must follow the Third Circuit's guidance.
Under the Supreme Court and the Third Circuit's longstanding qualified immunity
standard, "government officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known." Id. at 300 (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To be clearly established, "[t]he contours of the
right must be sufficiently clear that a reasonable official would understand that what he is doing
violates that right." Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). "The dispositive

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question is whether the violative nature of particular conduct is clearly established." Id. (quoting

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)).
In the present case, the Third Circuit unequivocally concluded that Mack sufficiently
pleaded the violation of a clearly established constitutional right because a reasonable prison
official in Defendants' position would have known that firing Mack from his commissary position
for orally complaining about religious discrimination was unlawful. Id. at 300. Because the facts
before this Court on summary judgment are not materially distinguishable from those before the
Third Circuit at the motion to dismiss stage and the law remains unchanged, this Court, likewise,
holds that Defendants are not entitled to qualified immunity.

D. Mack Exhausted His Administrative Remedies
Lastly, Defendants ineffectually argue that Mack's claims are barred because he failed to
exhaust his administrative remedies as required by PLRA. (See ECF No. 100 at 26-28.) This
argument has been rejected by not only the Third Circuit two years ago, but was also rejected by
this very Court five years ago. See Mack, 839 F.3d at 296 (holding that Mack had exhausted his
administrative remedies); Mack v. Yost, 979 F. Supp. 2d 639, 650 (W.D. Pa. 2013) (Gibson, J.)
(holding that Mack had exhausted his administrative remedies). Nonetheless, for the sake of
thoroughness, this Court will briefly address Defendants' argument, despite its redundancy.
Defendants suggest that Mack's grievances were insufficiently specific to exhaust his
administrative remedies. (ECF No. 100 at 26-28.) Yet, at the time of Mack's grievance, the Bureau
of Prison's procedures were "silent or vague" regarding the level of detail required in a grievance.

Mack, 839 F.3d at 295 (quoting Strong v. David, 297 F.3d 646,650 (7th Cir. 2002)). And, absent such

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guidelines, "an inmate's grievance must at least 'alert[] the prison to the nature of the wrong for
which redress is sought."' Id. (quoting Strong, 297 F.3d at 650).
On this exact issue in this exact case, the Third Circuit has already concluded:
Mack clearly alerted prison officials to his principal allegation-i.e., that he was
removed from his commissary position for a pretextual reason. Even if Mack did
not detail his allegedly protected speech, his grievance nonetheless notified
officials that he believed he was unlawfully terminated from his work assignment
as retaliation for exercising his First Amendment rights. Exhaustion merely
requires "inmates [to] provide enough information about the conduct of which
they complain to allow prison officials to take appropriate responsive measures."
Given this fairly lenient standard, and with no specific guidance from BOP
grievance procedures, we conclude that Mack exhausted his administrative
remedies before bringing his First Amendment retaliation claim.
Id. (footnotes omitted). This Court agrees with the Third Circuit and its own prior holdings in

this case and, once again, holds that Mack exhausted his administrative remedies. 15

VII.

Conclusion
For the foregoing reasons, Mack's Motion for Summary Judgment (ECF No. 99) is

DENIED.

In summary, the record before this Court for the purposes of summary judgment does not
materially differ from those allegations upon which the Third Circuit based its prior opinion in
this case-nor has there been an intervening change in law to justify a departure from a
precedential opinion issued by the appropriate appellate court in the exact same case in which
the appellate court already ruled. The Third Circuit's determinations in its prior opinion in this

The Court observes that, in a footnote on page two of their brief, Defendants briefly ask that this Court
dismiss Mack's request for punitive damages. This Court denies this request. The record is sufficient for
a reasonable jury to conclude that Defendants' purported pattern of harassment was "motivated by evil
motive or intent" or demonstrated a "reckless or callous indifference" to Mack's federally protected rights.
Smith v. Wade, 461 U.S. 30 (1983); Carlson v. Green, 446 U.S. 14 (1980).
15

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case are binding on this Court. And, as explained supra, Defendants' Motion for Summary
Judgment must be denied.
The relevant law has not changed, the relevant facts have not changed, and the Third
Circuit's decision was made in this very case. Therefore, this Court follows the Third Circuit's
guidance and permits this case to proceed to trial.
A corresponding order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHARLES MACK,

Case No. 3:10-cv-264

Plaintiff,

JUDGE KIM R. GIBSON

v.

JEFF STEVENS, trust officer;
D. VESLOSKY, correctional officer; and
DOUG ROBERTS, correctional officer,
Defendants.
ORDER
NOW, this

J -t~day
3

of September 2018, upon consideration of the Motion for

Summary Judgment (ECF No. 99) filed by the remaining Defendants, it is HEREBY ORDERED
that Defendants' Motion for Summary Judgment (ECF No. 99) is DENIED.

BY THE COURT:

KIM R. GIBSON
UNITED STATES DISTRICT JUDGE