The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter
Magistrate Judge Susan Paradise Baxter A. Relevant Procedural History
On March 18, 2008, Plaintiff, a prisoner incarcerated at SCI-Albion in Albion, Pennsylvania, filed the instant action claiming that he had been the victim of myriad acts of retaliation by several named Department of Corrections‟ Defendants. Following dispositive motions, the only remaining Defendant to this action is Correctional Officer Dale Hunt and the only retaliation claims remaining against him are:
a. October 16, 2007 -- at 10:30 am while Plaintiff was on cell restriction, he pushed the call button to shower, but Defendant shut off the call button and refused to let Plaintiff shower. Ten minutes later, Sergeant Zintz instructed Defendant to let Plaintiff shower.
b. October 16, 2007 -- at 12:13 pm, Defendant conducted a general cell check. Defendant tells Plaintiff "I‟m going to continue doing what I‟m doing until you‟re locked up." Defendant closed Plaintiff‟s cell door with "extreme force," and "then looked through the cell door window and smiled."
c. October 25, 2007 -- Defendant entered Plaintiff‟s cell and ordered him to withdraw the two grievances. Defendant warned that if Plaintiff refused, he would have Plaintiff locked up for threatening an officer.
d. October 26, 2007 -- Defendant issued Plaintiff a fabricated misconduct which the hearing examiner ultimately dismissed.
e. October 27, 2007 -- Defendant entered Plaintiff‟s cell while Plaintiff was on the toilet, and stated "once you are locked up I will enjoy myself while archery hunting in Crawford County." Then, Defendant took Plaintiff‟s toilet paper roll stating "Let‟s see you do without this."
f. On November 9, 2007, Defendant kicked Plaintiff‟s cell door while Plaintiff was sleeping in order to wake him up. Then Defendant looked through the door, staring and smiling.
g. November 10, 2007 -- Defendant intentionally spilled coffee on the floor of Plaintiff‟s cell, saying "Oh, well, file another grievance."
A jury trial in this case is scheduled to begin March 8, 2011. Pretrial narrative statements have been filed, and writs and subpoenas have been issued. The Commonwealth has filed an eleventh-hour "Motion for Judgment as a Matter of Law Prior to Selection of a Jury in Favor of Defendant." ECF No. 78. Plaintiff has filed an Opposition Brief [ECF No. 81] and this Court held oral argument on the motion on February 25, 2011. Thereafter, Defendant filed a Supplement to his Motion. ECF No. 82.
"Retaliation for the exercise of constitutionally protected rights is itself a violation of rights secured by the Constitution actionable under section 1983." See White v. Napoleon, 897 F.2d 103, 111-12 (3d Cir.1990). In order to state a prima facie case of retaliation, a prisoner plaintiff must demonstrate: 1) the conduct in which he was engaged was constitutionally protected; 2) he suffered "adverse action" at the hands of prison officials; and 3) his constitutionally protected conduct was a substantial or motivating factor in the decisions to discipline him. Carter v. McGrady, 292 F.3d 152, 157-58 (3d Cir. 2002), quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).*fn2 I have previously held that Plaintiff has stated a prima facie case as to all seven of the remaining claims.
Recently, the Third Circuit held that a false misconduct is not sufficient to meet the adverse action requirement of a retaliation case. Brightwell v. Lehman, ___ F.3d ___, ___, 2011 WL 635274, at * 5 (3d Cir. Feb.9, 2011) ("[F]iling a false report that was dismissed [.] does not rise to the level of "adverse action‟ because it would not be "sufficient to deter a person of ordinary firmness from exercising his First Amendment ...