The opinion of the court was delivered by: Sean J. McLAUGHLIN United States District Judge
Plaintiff's civil rights complaint was received by the Clerk of Court on September 10, 2009 and was referred to United States Magistrate Judge Susan Paradise Baxter for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates. Plaintiff's second amended complaint , which is the operative pleading in this case, includes claims that the Defendants violated Plaintiff's rights under the First and Fourteenth Amendments to the U.S. Constitution as well as Plaintiff's rights under Article 1, §§ 20 and 26 of the Pennsylvania Constitution. In relevant part, Plaintiff claims that Defendant McConnell retaliated against him for the exercise of his First Amendment rights by (i) forcing Plaintiff to recant, as a quid pro quo for being released from SCI-Albion's Restricted Housing Unit ("RHU"), allegations made in connection with civil action pending against other DOC employees at SCI-Mahanoy, (ii) forcing Plaintiff to serve an additional week in the RHU, and (iii) issuing a false misconduct against Plaintiff.
On December 19, 2011, this Court entered a Memorandum Order  adopting the Magistrate Judge's report and recommendation  that the Defendants' motion to dismiss  be granted in part and denied in part and that the Plaintiff's motion for summary judgment  be denied without prejudice. In particular, the Defendants' motion was granted insofar as it pertained to: (i) Plaintiff's Fourteenth Amendment due process and equal protection claims, (ii) Plaintiff's First Amendment retaliation claim premised upon the issuance of an allegedly false misconduct against Plaintiff, and (iii) Plaintiff's claim for compensatory damages. Defendants' motion to dismiss was denied insofar as it pertained to Plaintiff's retaliation claims premised upon the alleged forced recantation and the imposition of one week's extra time in the RHU.
On February 9, 2012, Plaintiff filed a motion for an extension of time in which to file an "appeal" of the Magistrate Judge's Report and Recommendation , which this Court essentially construed as a motion for leave to file objections to the R&R and receive de novo review of the same, nunc pro tunc. On March 26, 2012, this motion was granted (see text order of 3/26/12), and Plaintiff's objection to the R&R  were filed on April 6, 2012. In the meantime, this case was referred back to the undersigned in anticipation of trial on Plaintiff's remaining claims. (See text order of 3/19/12.)
In his objections, Plaintiff essentially raises two arguments. First, Plaintiff objects to the dismissal of his First Amendment retaliation claim premised upon Defendant McConnell's issuance of an allegedly false misconduct. Second, he asserts that summary judgment should have been entered in his favor on each of his First Amendment retaliation claims.*fn1
We consider first the dismissal of Plaintiff's retaliation claim premised upon the issuance of an allegedly false misconduct, specifically, Misconduct Report # 839577. (See Ex. 13A to Second Amended Complaint (Doc. # 72-1 at p. 42.) Under the law of this circuit, [a] prisoner alleging that prison officials have retaliated against him for exercising his constitutional rights must prove that: 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 decision to discipline him. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001) (adopting Mount Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 50 L.Ed.2d 471 (1977)). Once a prisoner has made his prima facie case, the burden shifts to the defendant to prove by a preponderance of the evidence that it "would have made the same decision absent the protected conduct for reasons reasonably related to penological interest." Id. at 334 (incorporating Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987)).
In her Report and Recommendation which this Court adopted, the Magistrate Judge opined that Plaintiff had alleged sufficient facts to establish a prima facie retaliation claim. Nevertheless, she agreed with the Defendants that "the fact that Plaintiff was found guilty of the challenged misconduct 'essentially precludes any finding that the misconduct was issued by McConnell out of some retaliatory animus.'" (Report and Recommendation  at p. 15.) In support of this proposition, the Magistrate Judge cited to Carter, supra, Williams v. Sebek, 2008 WL 859006 at *8 (W.D. Pa. Mar. 31, 2008), and King v. Barone, 2011 WL 3809940 at *7 (W.D. Pa. Aug. 4, 2011).
Plaintiff takes issue with this point; he disputes the idea that a finding of guilt on a prison misconduct charge automatically "checkmates" a prisoner's retaliation claim. We conclude that his objection on this limited point is well-taken. Plaintiff fairly observes that, in Carter, the controlling precedential case in this circuit, the Court of Appeals granted summary judgment for the defense based on the "quantum of evidence" in the record concerning the plaintiff's misconduct, not the mere fact that the prisoner had been found guilty of the misconduct. See 292 F.3d at 152. In particular, the court found that, "[e]ven if prison officials were motivated by animus to jailhouse lawyers [such as Carter], Carter's offenses . were so clear and overt that we cannot say that the disciplinary action taken against Carter was retaliatory." Id. Thus, we agree with Plaintiff that Carter should not be read as establishing a per se bar against retaliation claims in every instance where a prisoner is found guilty of an allegedly false misconduct charge.
On the other hand, Carter reminds us that "decisions of prison administrators are entitled to great deference," 292 F.3d at 158, and these officials "should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Id. (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)). This concern is reflected in the Carter court's ruling that prison officials may prevail against a prima facie retaliation claim "by proving that they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest." Id. at 159 (quoting Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001) (emphasis in the original).
In Henderson v. Baird, 29 F.3d 464, the Eighth Circuit Court of Appeals articulated a somewhat more nuanced approach, suggesting that a First Amendment claim premised upon allegedly false and retaliatory misconduct charges is conclusively barred as long as there is some evidence to support the prison administration's determination of guilt. See id. at 469 ("The prison disciplinary committee found that Henderson committed an actual violation of prison rules based on Officer Baird's description of the event. Because the finding was based on some evidence of the violation, the finding essentially checkmates his retaliation claim.").*fn2
Henderson's approach has occasionally been adopted in unreported decisions within this circuit. See, e.g., Nifas v. Beard, 374 Fed. Appx. 241, 244 (3d Cir. 2010) ("Nifas's retaliatory discipline claim fails because there is 'some evidence' supporting the guilty findings for the three disciplinary charges brought against Nifas after he filed his grievance in October 2006.") (citing Henderson, supra); Williams v. Sebek, Civil Action No. 05-1203, 2008 WL 859006 (W.D. Pa. Mar. 31, 2008) (stating that "the finding of guilt of the underlying misconduct charge satisfies a defendant's burden of showing that he would have brought the misconduct charge even if plaintiff had not filed a grievance" but citing to Henderson and Carter, supra, among other authorities); King v. Barone, Civil Action No. 09-175, 2011 WL 3809940 at *7 (W.D. Pa. Aug. 4, 2011) (same).
To the extent the Magistrate Judge's R&R in this case can be read as establishing a per se bar to Plaintiff's retaliation claim based on the guilty finding alone, we agree with Plaintiff that Carter, supra, cannot be read as supporting such a result. Moreover, after consideration of Plaintiff's objections to the R&R, we agree that it was premature to dispose of Plaintiff's retaliation claim premised upon Misconduct # 839577, given the present state of the record. This claim was dismissed pursuant to Rule 12(b)(6) upon consideration of the misconduct report and plaintiff's appeal after a finding of guilty, both of which were appended to Plaintiff's second amended complaint as Ex. 13A and B. (See Dock. # 72-1 at pp. 42-44.) No further information was supplied by the Defendants concerning the nature of proof offered at the hearing or the institution's legitimate penological needs. Although we might be able to surmise that Officer McConnell offered testimony consistent with the charge he filed, there is nothing of record from the defense to evidence this point and it is not this Court's function, at the Rule 12(b)(6) stage, to supply inferences favorable to the defense. ...