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Michael Evan Keeling v. Pete Damiter

May 20, 2011

MICHAEL EVAN KEELING, PLAINTIFF,
v.
PETE DAMITER, ET AL.,
DEFENDANTS



The opinion of the court was delivered by: (Chief Judge Kane)

(Magistrate Judge Carlson)

MEMORANDUM ORDER

Defendants filed for summary judgment in this civil rights action. (Doc. No. 93.) On February 16, 2011, Magistrate Judge Carlson issued a Report and Recommendation that summary judgment be granted in favor of Defendants Damore, Varano, Lopuhovsky, and Keller. (Doc. No. 132.) On March 8, 2011, this Court adopted the Report and Recommendation in full and granted the motion to dismiss as to those Defendants. (Doc. No. 139.) Currently pending before the Court is Magistrate Judge Carlson's Report and Recommendation that Defendants' motion for summary judgment be granted as to all remaining Defendants. (Doc. No. 136.) Following voluminous briefing by the parties, the Report and Recommendation is now ripe for review.

Plaintiff raises six objections to the Report and Recommendation:

1. Defendants' justification for removing Plaintiff's Z-Code housing status*fn1 was pre-textual (Doc. No. 148 at 2-9);

2. Dr. Kevin Miskell lacks credibility (Id. at 10);

3. The Court should not consider Exhibit 2-P31, attached to Defendants' statement of material facts (Doc. No. 95), because Defendants do not "defend" it in their statement of material facts (Doc. No. 148 at 10-11);

4. Defendants did not comply with their procedures in revoking Plaintiff's Z-Code status (Id. at 12-7);

5. Non-Z-Code prisoners were placed in single cells, showing that Plaintiff is entitled to a single cell; and

6. Z-Code inmates were accepted at SCI-Coal, therefore there is no reason justifying not transferring Plaintiff to that prison.

For the reasons stated herein, none of these objections will be availing, and the Court will adopt the Report and Recommendation in full and grant Defendants' motion for summary judgment.

The gravamen of Plaintiff's claim is that he was denied a prison transfer in 2007 and lost his Z-Code housing status in December 2008 in retaliation for having filed lawsuits in 2000 and 2002.*fn2 (Doc. No. 1 ¶ 21; Doc. No. 33 ¶ 115.) A prisoner attempting to establish a retaliation claim must show: (1) the conduct in question was constitutionally protected; (2) he suffered an adverse action by prison officials sufficient to deter a person of ordinary firmness from exercising his constitutional rights as a result of that conduct; and (3) a causal link exists between the exercise of constitutional rights and the adverse action. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). In evaluating the third prong of this test, the courts apply a burden-shifting analysis. First, the prisoner must prove that his protected conduct in exercising a constitutional right was a substantial or motivating factor in the challenged decision. Rauser, 241 F.3d at 334. To establish this connection, a plaintiff will generally be required to establish 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 to establish a causal link." Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). If neither of these showings is made, then the plaintiff will be required to demonstrate that, from the evidence in the record as a whole, the trier of fact should infer causation. Id. The Third Circuit further advises that the courts are to be diligent in enforcing the causation requirements so as to shield public employees from frivolous litigation. Id. at 267-68.

In the Report and Recommendation, Magistrate Judge Carlson dutifully applied these standards and concluded that the temporal proximity between Plaintiff's protected activity and the alleged retaliation was far too tenuous to support a finding of causation. (Doc. No. 136 at 19-28.) The Court agrees completely with the Report and Recommendation in this regard, and the objections raised by Plaintiff do nothing to undermine this conclusion. As noted in the Report and Recommendation, the Third Circuit has held that a two month gap in time is insufficient to support a finding of causation in a retaliation claim. See DeFranco v. Wolfe, 387 F. App'x. 147, 155 (3d Cir. 2010). Here, Plaintiff's final lawsuit was dismissed in 2003, and the alleged retaliatory activity took place in 2007 and 2008. Accordingly, the temporal gulf at issue here will not satisfy Plaintiff's burden of establishing causation.

Further, Plaintiff's objections fail to address the myriad other reasons highlighted by Magistrate Judge Carlson that Plaintiffs' attempt to establish causation ...


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