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Baker v. Williamson

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


May 5, 2010

DARRYL ORRIN BAKER, PLAINTIFF
v.
TROY WILLIAMSON, ET AL., DEFENDANTS

The opinion of the court was delivered by: Judge Caldwell

MEMORANDUM

I. Introduction

On April 14, 2008, pro se plaintiff, Darryl Orrin Baker, an inmate formerly housed at the Satellite Prison Camp in Lewisburg, Pennsylvania, (SPC-Lewisburg) filed an Amended Complaint*fn1 in this Bivens action*fn2 against the following Bureau of Prison (BOP) defendants: (1) Troy Williamson, the retired warden; (2) C. Angelini, a unit manager; (3) J. Tokar, a retired counselor; (4) P. Forbes, a counselor; (5) Dr. A. Bussanich, clinical director; (6) S. Gosa, a physician's assistant; (7) B. Chambers, a disciplinary hearing officer; (8) R. Kerstetter, correctional programs specialist; (9) J. Geradi, a physician's assistant; (10) Bill True, case manager; (11) B. Ross, a correctional officer; and (12) Ross Boyd, a correctional officer. (See Doc. 25-3, Am. Compl.) Plaintiff asserted the following constitutional violations: (1) an Eighth Amendment medical claim; (2) a First Amendment access-to-the-courts claim; (3) a retaliation claim; and (4) an equal-protection and racial-discrimination claim. Id.

On March 13, 2009, in response to defendants' motion to dismiss, or in the alternative, motion for summary judgment, the Court dismissed all claims against the defendants in their official capacities and the Eighth Amendment medical claim based on the care he received at SPC-Lewisburg for an eye injury that occurred at a different facility. See Doc. 54. Defendants then filed an Answer to the Amended Complaint. See Doc. 59.

Presently before the Court is defendants' motion for summary judgment. Doc. 78. For the reasons set forth below, the motion will be granted.

II. Background

The amended complaint and the summary judgment record reveal the following background to Plaintiff's claims.*fn3

A. Baker's Access-to-the-Courts Claim

Baker had filed a lawsuit in the United States District Court for the Western District of Pennsylvania, Baker v. United States, 1:05-CV-0146 (W.D. Pa.).*fn4 In his Amended Complaint, Baker alleges that defendants Chambers and Kerstetter interfered with his access to the courts when they refused and returned a July 11, 2006, order dismissing the action.*fn5 As a result, he was unable to appeal that final order. See Doc. 25-3 at CM/ECF pp. 13-16.*fn6

Baker was housed at FCI-Elkton, in Lisbon, Ohio when he filed that action. (Doc. 80, Defendants' Statement of Material Facts (DSMF) at ¶¶ 4-5). Baker was transferred to SPC-Lewisburg on August 26, 2005. Id. at ¶ 6.

A July 24, 2006, docket entry in that case reflects that the July 11, 2006, order sent to Baker was returned as undeliverable with the envelope bearing the notation: "Not at this address; Return to Sender." Id. at ¶ 10. The January 22, 2007, docket in that case still listed FCI-Elkton, and not SPC-Lewisburg, as Baker's address. Id. at ¶ 11. On February 9, 2007, Baker filed a notice of change of address with the Western District. Id. at ¶ 12. Baker then appealed the dismissal order. His appeal is still pending in the Third Circuit. Id. at ¶ 14.

Baker concedes that the Clerk of Court for the Western District mailed the July 11, 2006, order to FCI-Elkton. DSMF at ¶ 15.*fn7 Baker is suing Kerstetter and Chambers on the theory that they are in charge of the mail room at SPC-Lewisburg. DSMF at ¶¶ 21-22. Chambers is a Disciplinary Hearing Officer (DHO) and does not oversee the mail room. Id. at ¶ 23.

B. Baker's Retaliation Claim

Baker claims that defendants retaliated against him for filing a grievance against Chambers and Kerstetter and for filing federal lawsuits. See Doc. 25-3 at pp. 16-17. The retaliation came in a variety of forms: (1) removal from his UNICOR job for a period of six months; (2) placement in Administrative Custody (AC); (3) transfer to a higher custody prison; (4) issuance of a false incident report stating he had a gambling ticket in his possession; and (5) issuance of a false incident report by Officer Ross Boyd for being in the law library. Id.

Baker arrived at SPC-Lewisburg on August 26, 2005. DSMF at ¶ 6. On February 20, 2007, he filed a grievance against Kerstetter and Chambers for supposedly returning the July 11, 2006, dismissal order to the Western District. Id. at ¶ 25.

While at SPC-Lewisburg, Baker received several disciplinary incident reports. Id. at ¶ 26. He received two incident reports on October 20, 2006. The first incident report, no. 1525638, was written at 6:00 a.m. and charged Baker with an unexcused absence from work. Id. at ¶¶ 27-28. Baker failed to appear for a scheduled lab test which was medically necessary for an upcoming appointment he had with an outside physician. Id. at ¶ 29. His failure to appear for this scheduled lab work "severely impact[ed] upon the timely completion of his medical care by the outside physician." Id. at ¶¶ 29-30. The incident report was handled at the Unit Discipline Committee (UDC) level and was not referred to the Disciplinary Hearing Officer (DHO). The UDC found Baker had committed the prohibited act as charged and sanctioned him 90-days loss of phone privileges. Id. at ¶ 32.

The second incident report, no. 1525640, charged Baker with refusing to obey an order and for being in an unauthorized area. It was written at 6:50 a.m. when he appeared at the Health Services area nearly an hour late for his scheduled lab work and demanded to be seen by lab personnel. Id. at ¶ 34. When told he had missed his appointment and ordered to leave the area, Baker became argumentative and refused to leave. Finally, when directed by an officer to leave, he did. Id. at ¶ 35. On October 23, 2006, the UDC found Baker had committed the prohibited acts as charged and sanctioned him 90-days loss of visiting privileges and the loss of his job. Id. at ¶ 38.

Baker was assigned to UNICOR (prison industries) from October 17, 2005 through October 27, 2006, when he was removed as a result of his sanction for incident report no. 1525640. Id. at ¶¶ 39-40.

On February 24, 2007, Officer Boyd Ross issued Baker an incident report for being in an unauthorized area and interfering with the taking of count after he allegedly malingered in the law library after Officer Ross had told all inmates to return to their cubes for count. See Doc. 82 at p. 44. Two days later, on February 26, 2007, Baker was reassigned to UNICOR. DSMF at ¶ 41. He continued to work at UNICOR until March 1, 2007. Id. Baker received another incident report on March 1, 2007, no. 1572742, for possessing gambling paraphernalia. Id. at ¶ 42. Baker was placed in AC pending investigation of his involvement in the gambling incident. Id. at ¶ 46. Baker concedes that he was placed in AC because of an incident report he received.*fn8 Id. at ¶ 47. The UDC referred this matter to the DHO. Id. at ¶ 43.

At Baker's March 26, 2007, DHO hearing, Baker admitted his guilt to the charged offense. Id. at ¶ 44. The DHO sanctioned him to six-days loss of good conduct time, 60-days loss of commissary privileges, and 15 days of disciplinary segregation, which were suspended pending 180 days' clear conduct. Id. at ¶ 45. Baker was released from AC on March 12, 2007. Id. at ¶ 48. Baker was housed only once in AC while at SPCLewisburg, from March 1 until March 12, 2007. Id. at ¶ 49.

As a consequence of Baker's receipt of the gambling-paraphernalia incident report, his custody classification was changed from "out" custody to "in" custody. Id. at ¶ 50. "In" custody inmates may not be housed at a camp facility, such as SPC-Lewisburg. Id. at ¶ 51. Due to his increase in custody level, Baker was housed in a dorm-style holdover unit with other inmates with similar custody levels awaiting transfers. Id. at ¶ 52. On March 27, 2007, Baker was transferred to FCI-Sandstone via a greater security transfer. Id. at ¶ 53.

A review of the docket sheet in Baker's Western District case, 1:CV-05-0146, reveals that he did not file any documents in that case between July 5, 2006, and February 9, 2007. Id. at ¶ 54.

C. Baker's Conspiracy, Equal Protection and Racial Discrimination Claims

Baker, an African-American, asserts that the defendants conspired against him by treating him differently than other similarly situated inmates and subjected him to racial discrimination. Doc. 25-3 at pp. 19 and 23.

When asked at his deposition what defendants conspired to do, Baker responded that "they all conspired... to deny [him] access to the courts, [and]... deny [him] medical treatment". Doc. 80-4 at pp. 28. However, Baker also admitted at his deposition that he didn't "know what the agreement was" between the defendants. Id. and DSMF at ¶ 57. Likewise, when asked to define how he was treated differently than other inmates, he admitted that he was not aware of any other inmates receiving different treatment than he received at SPC-Lewisburg.*fn9 Id. at ¶ 58.

However, Baker now contends that "officer Bold" singled him out to issue an incident report on February 24, 2007, because he is an African-American.*fn10 Doc. 82 at p. 9; see also p. 44. The incident report reveals that after directing all inmates to report back to their cubes for the 4:15 p.m. count, Officer Ross noted that "all other inmates at this time were already in their units for count" but that Baker was still in the law library. Id. at p. 44. This was not the first time Officer Ross had to wait for inmate Baker to report to his cube for count. Id.

D. Baker's Claims against Defendant Williamson

Baker admits that he sued Troy Williamson "because he is the warden at the facility and he is in charge of the entire facility there at Lewisburg." Doc. 80-4 at p. 25. He does not accuse Williamson of specifically doing anything to violate his constitutional rights. Id. at p. 26. Warden Williamson is named because "he's just the chain of command." Id.

III. Standard of Review

Summary judgment should be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to nonmoving party. Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).

"The non-moving party cannot rest on mere pleadings or allegations," El v. Southeastern Pennsylvania Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007), but "must set forth specific facts showing that there is a genuine issue for trial." Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). Allegations made without evidentiary support may be disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000). "Conclusory, self-serving affidavits are insufficient to withstand a motion for summary judgment." Blair v. Scott Specialty Gases, 283 F.3d 595, 608 (3d Cir. 2002).

In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510).

Hearsay testimony contained in affidavits or statements that would be inadmissible at trial may not be included in an affidavit to oppose summary judgment. Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Comp., 998 F.2d 1224, 1234 n.9 (3d Cir. 1993). The non-moving party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).

IV. Discussion

A. Denial of Access to the Courts

Baker claims that Officers Kerstetter and Chambers, whom he identifies as SPC-Lewisburg's mailroom supervisors, denied him access to the courts by returning the Western District's July 11, 2006, dismissal order to that court. (Doc. 25-3, Am. Compl. ¶¶ 13-16). Consequently, he lost his right to appeal the order.

Prisoners have a right of access to the courts under the First and Fourteenth Amendments. Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). To establish that a defendant's conduct caused a denial of access to the courts for a past legal claim (like the one Baker had), a plaintiff must show that he: (1) "suffered an actual injury" by "los[ing] a chance to pursue a non-frivolous or arguable underlying claim"; and (2) he has "no other remedy that may be awarded as recompense for the lost claim other than in the present denial of access suit." Id. (internal quotation marks and quoted case omitted).

We will assume that Baker suffered an actual injury. We conclude, however, that the defendants' conduct caused the injury. As defendants point out, and as Baker concedes in his deposition and in his opposition materials, the Clerk for the Western District sent the order to FCI-McKean, not SPC-Lewisburg. The reason behind the Western District Clerk's action is immaterial.*fn11 What is relevant is that the parties agree that the July 11, 2006, order was returned to the Western District by the mail room at FCI-McKean, and there is no evidence from which it can be inferred that the order ever reached SPCLewisburg. As Baker admits, he only named Kerstetter and Chambers as defendants because he was told they were in charge of the mailroom at SPC-Lewisburg. See Doc. 80-4 at p. 23. Baker himself does not have any reason to believe these defendants were ever personally involved in the handling of the Western District order. Id. Based on the undisputed record, Baker has failed to establish an access-to-courts claim against defendants Kerstetter or Chambers. Accordingly, defendants' motion for summary judgment on this claim will be granted.

B. Retaliation

In his Amended Complaint, Baker alleges that he was retaliated against for exercising his constitutionally protected right to submit grievances and file lawsuits. The Third Circuit has determined that such activities are constitutionally protected. See Kelly v. York County Prison, 340 F. App'x 59, 61 (3d Cir. 2009)(per curiam)(nonprecedential). Further, government actions that are not in themselves unconstitutional can violate the Constitution if they are substantially intended to punish an individual for exercising a constitutional right. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Allah v. Seiverling, 229 F.3d 220, 224 (3d Cir. 2000). Proof of a prima facie retaliation claim requires the plaintiff to demonstrate: (1) he was engaged in a constitutionally protected activity; (2) he suffered an adverse action at the hands of a state actor; and (3) the protected activity was a substantial or motivating factor in the prison official's decision to take adverse action against him. Brown v. Pennsylvania Dept. of Corr., 271 F. App'x 280, 282 (3d Cir. 2008)(per curiam)(nonprecedential)(citing Mitchell, supra, 318 F.3d at 530).

Once Plaintiff has made a prima facie case that his exercise of a constitutionally protected right was a substantial or motivating factor in the challenged action, the burden shifts to the defendant to prove by a preponderance of the evidence that they "would have made the same absent the protected conduct for reasons reasonably related to penological interest." Carter v. McGrady, 292 F.3d 152, 158 (3d Cir. 2002)(quoting Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001)); see also Holbrook v. Walters, 296 F. App'x 230, 233 (3d Cir. 2008)(per curiam)(nonprecedential). When analyzing a retaliation claim, it must be recognized that the task of prison administrators and staff is difficult, and the decisions of prison officials require deference, particularly where prison security is concerned. Rauser, 241 F.3d at 334.

Defendants do not dispute that Baker was engaged in protected conduct, the filing of administrative grievances and multiple federal lawsuits while housed at SPCLewisburg. See Doc. 81 at R. 18. However, this finding alone does not support a finding that any adverse action Baker experienced while housed at SPC-Lewisburg was founded on acts of retaliation. To defeat summary judgment, Baker bears the burden of identifying evidence from the record from which a reasonable jury could conclude that he lost his UNICOR job, received incident reports, was placed in AC and transferred for his grievance and/or litigation activities. The Court will examine each claim of retaliation below.

1. Loss of UNICOR Job for Six Months

Baker contends defendants removed him from his UNICOR job on October 23, 2006, in retaliation for his grievances and his lawsuits. Although an inmate does not have a constitutionally protected interest in a prison job, James v. Quinlan, 866 F.2d 627, 629-30 (3d Cir. 1989), if he is removed from a prison job for a retaliatory reason, he has a valid constitutional claim. See Mitchell, 318 F.3d at 530. At the summary judgment phase, defendants have cited a legitimate penological reason for removing Baker from his UNICOR job. Baker has not met his burden to demonstrate defendants' reasons are merely pretextual for their alleged retaliatory motives.

The evidence before the Court does not support Baker's retaliation claim. Baker did not file his grievance against Kerstetter and Chambers for returning the July 11 2006, order until February 20, 2007, four months after he lost his UNICOR job. Thus, it could not have served as the impetus for his job loss. In his opposition materials, Baker contends that he was engaged in filing lawsuits and grievances prior to his grievance against Kerstetter and Chambers, and that these activities caused defendants to retaliate against him. See Doc. 82 at p. 7. In support of this assertion he provides copies of administrative remedies, and BOP responses to them, that he filed in May 2006, and June 2006. Id. at pp. 26-37. However, Baker remained employed by UNICOR throughout the filing and exhaustion of these administrative remedies. It is mere speculation on Baker's part that these grievances or lawsuits, filed while housed at another facility, and that do not involve staff from SPC-Lewisburg, served as the basis for his job loss. Baker fails to demonstrate any causal connection between these events and the loss of his UNICOR job. The mere fact that an adverse action occurs after a complaint or grievance is filed is relevant, but not dispositive, for the purpose of establishing a causal link between the two events. See Lape v. Pennsylvania, 157 F. App'x 491, 498 (3d Cir. 2005)(nonprecedential) (citing Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997)). Further, defendants have offered uncontradicted evidence that Baker lost his UNICOR job as a disciplinary sanction after being found guilty of refusing to obey an order and being in an unauthorized area on October 20, 2006.

If Baker is claiming he lost his UNICOR job the second time in retaliation for his First Amendment protected activities, this claim is also unsound. According to the evidence, Baker was rehired by UNICOR on February 26, 2007, six days after he filed his grievance against Kerstetter and Chambers.*fn12 Baker's assertion that he was promised his punishment would not be severe or that he would be placed on the compound in exchange for his cessation of filing grievances (doc. 82 at p. 8) is not sufficiently probative for a reasonable jury to find in his favor.

There is no evidence from which a reasonable jury could conclude that Baker's first or second removal from his UNICOR job was based on his filing of prison grievances or his pursuit of litigation. Defendants are entitled to summary judgment on this claim.

2. Placement in Administrative Custody

In the Amended Complaint, Baker claims he was placed in AC in retaliation for his various grievances and lawsuits. See Doc. 25-3 at R. 16. He also claims that he was placed in "lock down for 23 hours a day of the 35 day stay on lock down for using the grievance system." Id. at p. 17. Baker fails to provide any evidence to suggest he was placed in either AC or disciplinary custody for 35 days while at SPC-Lewisburg, let alone such placement was retaliatory in nature. The undisputed record before the Court demonstrates that Baker was housed in AC for a period of twelve days after his receipt of an incident report for gambling during the prison's investigation of the gambling incident. His AC confinement began on March 1, 2007, and ceased on March 12, 2007, prior to his March 26, 2007, admission of guilt to the charge.

Baker contests defendants' assertion that he was only housed in AC for twelve days. He also asserts that "three hundred series incident reports under BOP Policy will [be purged from] the inmate record after 60 days of clean conduct." Doc. 82 at p. 8. Neither of these assertions assists Plaintiff on this claim of retaliation because neither shows that his AC confinement was retaliatory, the crucial issue, as Baker concedes it is not improper for prison officials to place an inmate in administrative custody when an incident report is issued. See Doc. 80-4 at p. 27.

To the extent that Baker asserts that he was placed in administrative detention prior to March 1, 2007, due to a February 24, 2007, incident report issued by Officer Ross Boyd, the record does not support such a finding. See Doc. 82 at pp. 8 and 44. Although it is true that he received the incident report just four days after filing his grievance against Kerstetter and Chambers, the Court cannot conclude that this incident led to his placement in AC as Baker suggests. The simple reason for this is that Baker was rehired by UNICOR one day after his receipt of the incident report and that Baker remained employed by UNICOR from February 26, 2007, until March 1, 2007. Clearly, Baker could not be working in UNICOR if housed in AC under "lock down for 23 hours a day" at the same time.

We will therefore grant the defendants summary judgment on Baker's retaliation claim concerning his administrative custody placement.

3. Transfer to Higher Custody Facility

Baker contends defendant Angilini transferred him to another facility in retaliation for his litigation activities. See Doc. 25-3 at p. 17. Baker's claim of retaliatory transfer is conclusory in nature and unsupported by the evidence in the record.

Defendants have demonstrated that after Baker's receipt of three incident reports, his custody classification increased from "out" custody to "in" custody and that inmates with "in" custody may not be housed at a camp facility such as SPC-Lewisburg. DSMF at ¶¶ 50-51. Baker does not dispute or even address defendants' facts or documentation in support of this position. See Doc. 82. A change in custody status, brought about by Baker's own misconduct, is a legitimate penological reason for transferring him from a low custody classification facility to another facility with a higher security classification. As such, in viewing all evidence in the light most favorable to Baker, the Court concludes with respect to his claim of retaliatory transfer, no genuine issues of material fact exist prohibiting the grant of summary judgment to defendants.

4. Receipt of False Incident Reports

Plaintiff contends he was issued two false incident report in retaliation for his filing of grievances and lawsuits. See Doc. 25-3 at p. 16-17. Baker suggests one incident report was issued by Officer Boyd while the other incident report dealt with gambling. Id.

Baker's claim that the received a false incident report for gambling is quickly disposed of as Baker admitted his guilt to this misconduct. See Doc. 80-4 at p. 37. Baker does not dispute this fact. As there existed a legitimate penological interest for issuing him the incident report for gambling, defendants are entitled to summary judgment on Baker's claim that this report was issued for retaliatory purposes.

Addressing the second incident report is more problematic as there appears to be some confusion as who issued it and what became of it.*fn13 In his Amended Complaint, Baker asserts that Officer Ross Boyd issued him a false incident report. Doc. 25-3 at p. 16 and p. 84. Officer Ross Boyd, Jr., is a named defendant. However, a review of the incident report itself raises many questions. First, it appears that the incident report may have been issued by Boyd E. Ross, Jr.*fn14 and Baker simply misidentified the proper defendant. Id. However, in his opposition materials, Baker refers to the issuing office as Officer Bold, which the Court believes is a typographical error. See Doc. 82 at p. 9. Inexplicably, defendants in moving for summary judgment did not address this claim of retaliation perhaps because they did not believe it was lodged against a named defendant. See Doc. 83, Defs.' Reply Br. at pp. 8-9 ("Officer Bold is not a defendant in this lawsuit."). For this reason, this claim of retaliation survives defendants' present motion for summary judgment.

However, given the apparent confusion as to who authored the incident report, defendants will be given the opportunity to file a second motion for summary judgment on this claim.

C. Baker's Conspiracy and Equal Protections Claims

Baker contends the defendants collectively conspired against him for exercising his First Amendment right to grieve his medical issues. See Doc. 25-3 at pp. 19-20. He claims defendants "treated the Plaintiff differently [from] other similarly situated and that there is no rational basis for the difference in treatment." Id. at p. 19. He believes defendants "conspired with a conspiratorial agreement to discriminate against the Plaintiff... [because he] is African-American." Id. at p. 23.

"In order to demonstrate the existence of a conspiracy under section 1983, 'a plaintiff must show that two or more conspirators reached an agreement to deprive him or her of a constitutional right under color of law.'" Royster v. Beard, 308 F. App'x 576, 579 (3d Cir. 2009)(per curiam)(nonprecedential) (quoting Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 700 (3d Cir. 1993)). To move past summary judgment on such a claim Baker must set forth specific facts demonstrating concerted action among the alleged conspirators. See Adams v. Teamsters Local 115, 214 F. App'x 167, 172 (3d Cir. 2007)(nonprecedential).

Here Baker has failed to provide any facts that indicate that the defendants entered into any agreement or plan to deprive him of his constitutional rights. In his opposition materials he simply restates the conclusory allegations of his Amended Complaint. In light of the record before the Court, including portions of Baker's deposition, "[w]ithout more, [Baker's] bare allegation of an agreement is insufficient for a reasonable juror to conclude that the Defendants engaged in a conspiracy to violate his constitutional rights." Hodge v. U.S. Dept. of Justice, No. 09-3723, 2010 WL 1141387, at *3 (3d Cir. Mar. 25, 2010)(citing Abbott v. Latshaw, 164 F.3d 141, 148 (3d Cir. 1998)).

Nor has Plaintiff shown a substantive violation of his equal protection rights. The Equal Protection Clause of the Fourteenth Amendment requires all persons "similarly situated" to be treated alike by state actors. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). For the type of equal protection claim Plaintiff has made, the plaintiff must allege that: (1) he is a member of a protected class; (2) he was treated differently from similarly situated persons outside of his protected class; and (3) the resultant discrimination was purposeful or intentional rather than incidental. Tillman v. Lebanon Co. Corr. Facility, 221 F.3d 410, 423-24 (3d Cir. 2000). Mere harassment based on protected-class status without identification of similarly situation individuals outside of the class will not support an equal protection claim. See Hodge, 2010 WL 1141387, at *3 (upholding dismissal of equal protection claim for failure to allege differential treatment of others similarly situated)(citing Chambers ex rel. Chambers v. Sch. Dist. of Philadelphia Bd. of Educ., 587 F.3d 176, 196 (3d Cir. 2009)(same)).

In the instant action, Baker without any supporting evidence, claims that Officer "Bold" treated him differently than other inmates when he ordered him out of the law library due to the afternoon count. As defendants point out, this assertion is insufficient to raise an equal protection claim, because Baker admits in his deposition that he does not know how other inmates are treated, and that he was only concerned with how he was being treated. See Doc. 80-4 at R. 29.*fn15 Clearly, although Baker alleges his class-based status as an African-American, he fails to present any evidence that similarly situated individuals outside of his protected class were treated differently. Baker merely offers an unsupported assertion that Officer Bold (or Boyd or Ross, whatever the case may be), issued him an incident report for interfering with count because of his race, and no evidence whatsoever that individuals outside the class were treated differently. Therefore, defendants are entitled to summary judgment on this claim.

D. Respondeat Superior Cannot Form the Basis of A § 1983 Claim Against Defendants Kerstetter, Chambers and Williamson

Defendants seek dismissal of the Amended Complaint against Williamson based on their lack of personal involvement in the conduct alleged to be a constitutional violation. "A defendant in a civil rights action must have personal involvement in the alleged wrongs" to be liable. Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003)(quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988)). It is well established that liability in a civil rights action cannot be predicated solely on the doctrine of respondeat superior. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005)(claims brought under 42 U.S.C. § 1983 cannot be premised on a theory of respondeat superior)(citing Rode, 845 F.2d at 1207). Thus, individual liability can be imposed under Section 1983 only if the state actor played an "affirmative part" in the alleged misconduct. Rode, supra.

At his deposition, Baker admitted that he is suing Troy Williamson, "because he is the warden at the facility and he is in charge of the entire facility there at Lewisburg." Id. at p. 25. "I really didn't allege anything specific against him directly." Id. at p. 26. Clearly, the warden was sued because of his supervisory status and not for any personal action against Baker.

We will issue an appropriate order.

ORDER

AND NOW, this 5th day of May, 2010, for the reasons set forth in the accompanying memorandum, it is ordered that:

1. Defendants' Motion for Summary Judgment (doc. 78) is granted in part and denied in part as follows.

2. The Clerk of Court shall enter judgment in favor of defendants and against Plaintiff on the following claims: (a) the access-to-the courts claim against defendants Kerstetter and Chambers; (b) the claim that Plaintiff was removed from his UNICOR job in retaliation for exercising his First Amendment rights; (c) the claim that Plaintiff was placed in Administrative Custody in retaliation for exercising his First Amendment rights; (d) the claim that Plaintiff was transferred to a higher custody facility in retaliation for exercising his First Amendment rights; (e) the claim that Plaintiff was issued a false misconduct for gambling in retaliation for exercising his First Amendment rights; (f) the equal protection and conspiracy claims: (g) claims against defendant Williamson.

3. Based on the apparent confusion as to who issued Baker an incident report on February 24, 2007, and the final resolution of that incident report, within twenty-one (21) days of the date of this Order, defendants are directed to file a supplementary motion for summary judgment addressing this remaining claim of retaliation.

4. Baker shall have twenty-one (21) days from his receipt of defendants' filing to file an opposition to defendants' submission.

William W. Caldwell United States District Judge


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