I. Legal Standard
In deciding a motion for summary judgment under Fed.R.Civ.P.
56(c), a court must determine "whether there is a genuine issue
of material fact and, if not, whether the moving party is
entitled to judgment as a matter of law." Medical Protective
Co. v. Watkins, 198 F.3d 100, 103 (3d Cir. 1999) (internal
citations omitted). When making this determination, courts
should view the facts, and reasonable inferences drawn
therefrom, in the light most favorable to the non-moving party.
See, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). For
its part, the non-moving party must, through affidavits,
admissions, depositions, or other evidence, demonstrate that a
genuine issue exists for trial. See Celotex Corp. v. Catrett,
477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In
making its showing, the non-moving party "must do more than
simply show that there is some metaphysical doubt as to the
material facts," id. at 586, 106 S.Ct. 1348, and must produce
more than a "mere scintilla of evidence in its favor" to
withstand summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the
nonmoving party fails to create "sufficient disagreement to
require submission [of the evidence] to a jury," the moving
party is entitled to judgment as a matter of law. Liberty
Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505.
II. Retaliation Claim
Plaintiff argues that each Defendant violated his
constitutional rights in retaliation for Plaintiffs prior
complaints about the excessive force and physical abuse of
prisoners. Thus, although not stated as such, Plaintiff is
attempting to press a 42 U.S.C. § 1983 retaliation claim.
To prevail on a retaliation claim under 42 U.S.C. § 1983,
plaintiff must demonstrate (1) that he was engaged in protected
activity; (2) that the Government responded in retaliation; and
(3) that the protected activity was the cause of the
Government's retaliation. See Anderson v. Davila,
125 F.3d 148, 161 (3d Cir. 1997); McGrath v. Johnson, 67 F. Supp.2d 499,
512 (E.D.Pa. 1999). In evaluating the causation element, courts
employ a burden shifting framework. Rauser v. Horn,
241 F.3d 330, 333 (3d Cir. 2001). Under this framework, the plaintiff
bears the initial burden of "proving that his constitutionally
protected conduct was `a substantial or motivating factor' in
the decision to discipline him." Id. (quoting Mount Healthy
Bd. of Ed. v. Doyle, 429 U.S. 274, 278, 97 S.Ct. 568, 50
L.Ed.2d 471 (1977)). If a plaintiff meets this burden, the
burden shifts to the defendant to "prove by a preponderance of
the evidence that it would have taken the same disciplinary
action even in the absence of the protected activity." Id.
Plaintiff argues that each action outlined above was taken in
retaliation for his reporting physical abuse of other inmates.
However, Defendants argue that Plaintiff has not presented
sufficient evidence to meet the causation burden.*fn3 We
agree. Below is a discussion of the alleged retaliatory acts.
A. Termination from Legal Clinic Position
Plaintiff alleges that he was terminated from his position at
the legal clinic in retaliation for his prior reports of
excessive force and physical abuse. However, the uncontradicted
facts demonstrate that Plaintiff was fired from his job because,
despite repeated warnings, he misused his position in violation
of HOC policies. See Aff. of Joseph Bamberski at ¶¶ 5 and 6;
Aff. of Deborah Sharpe at ¶¶ 3-6.
Plaintiff has not presented any evidence to suggest that he
was terminated for any other reason. In fact, Plaintiff admits
in deposition testimony that he was warned that his continued
misuse of his legal clinic position would lead to his
termination and that he chose to continue to violate the HOC
policy despite this warning. See Wicks Dep. Tr. at pp. 37-43.
Plaintiff has not presented any evidence to demonstrate that he
was fired in retaliation for reporting excessive force and
physical abuse of prisoners.
B. Removal From the "Chow Hall"
Plaintiff also claims that he was ordered to leave the chow
hall before finishing his meals in retaliation for his reports
of prisoner abuse. However, the facts demonstrate that the chow
hall policies were applied equally to all prisoners. In order
for all of the prisoners to be able to eat their evening meal,
the institution employed a rotation schedule where, after a
certain period of time, prisoners were asked to leave the chow
hall row by row in order for the next group of prisoners to
enter. See Aff. of Gertrude Hutson at ¶¶ 2-3 (describing the
evening meal time schedule); see also Wicks Dep. Tr. at pp.
59-64 (same). In fact, Plaintiff admits in his deposition
testimony that this policy was not directed solely to him, but
rather that all of the prisoners were asked to leave the chow
hall after a certain amount of time. See Wicks Dep. Tr. at pp.
59-64. There are absolutely no facts to suggest that retaliation
was the reason Plaintiff was not allowed to finish his meals.
C. Not Allowing Plaintiff in Legal Clinic from 3:00 p.m to
11:00 p.m Shift
Plaintiff alleges that following his termination from the
legal clinic and in retaliation for his reports of abuse, he was
not allowed in the legal clinic during the 3:00 p.m. to 11:00
p.m. shift. However, the facts, including Plaintiffs admissions,
demonstrate that after his termination Plaintiff was allowed
access to the legal clinic on the days that his block was
assigned time to use the clinic. See Bamberski Aff. at ¶ 7;
Wicks Dep. Tr. at pp. 51-53. Plaintiff further admitted that he
was never prevented from signing up for a time slot to visit the
legal clinic on his block's designated day. See Wicks Dep. Tr.
at p. 53. Thus, Plaintiff cannot claim that he was denied access
to the legal clinic. See generally Carter v. Dragovich, No.
CIV.A. 966496, 1999 WL 549030, *1 (E.D.Pa. July 27, 1999)
(inmate has no independent right to law libraries and legal
D. Restricted Mail
Plaintiff complains that he was only allowed to send mail on
behalf of other inmates to Jules Epstein, the Prison Master, and
the Pennsylvania Prison Society for retaliatory purposes. The
facts demonstrate that Plaintiff was only allowed to send mail
on behalf of other prisoners free of charge to these two
sources. See Wicks Dep. Tr. at pp. 30-41. However, Plaintiff
admits that, if he paid for the postage himself, he could send
mail on behalf of himself or any other inmates to any entity.
Id. There are no facts to demonstrate
that any restrictions placed on Plaintiffs "free postage" mail
were undertaken for any retaliatory purpose.
E. Verbal Harassment and Failure to Respond to Grievances
Plaintiff further complains that he experienced verbal abuse
and harassment and that the grievances he filed were not
responded to in retaliation for his reports of prisoner abuse.
As with Plaintiffs other complaints, he has not produced any
evidence to suggest that retaliation motivated this alleged
verbal harassment or the alleged failure to respond to his
grievances.*fn4 Thus, summary judgment will be granted for
these claims as well. See generally Rivera v. Chesney, No.
CIV.A. 97-7547, 1998 WL 639255, at *4-*5 (E.D.Pa. Sept. 17,
1998) (finding that "[v]erbal harassment or threats by a prison
officer to an inmate, without a reinforcing act, will not state
a § 1983 claim" and prisoners are "not entitled to a grievance
procedure and the state creation of such a procedure does not
create any federal constitutional rights") (internal citations
omitted); Allah v. Stachelek, No. CIV.A. 95-7593, 1998 WL
281930, at *14 (E.D.Pa. May 29, 1998); Wilson v. Horn,
971 F. Supp. 943, 947-48 (E.D.Pa. 1997), aff'd, 142 F.3d 430 (3d
Plaintiff has not presented any facts to support his
allegations that retaliatory actions were taken against him in
response to his reports of prisoner abuse. Therefore, the Court
will grant the Defendants' Motion for Summary Judgment.