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Robert R. Verbanik v. Superintendant Michael Harlow

September 25, 2012

ROBERT R. VERBANIK, PLAINTIFF,
v.
SUPERINTENDANT MICHAEL HARLOW, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan

ECF Nos. 93, 95

MEMORANDUM OPINION AND ORDER

This case is before the Court on Plaintiff's Motion in Support of Third Circuit's Remand (ECF No. 93), which this Court has construed as a Motion for Summary Judgment, and Defendants' Motion for Summary Judgment (ECF No. 95). For the following reasons, Plaintiff's Motion will be denied and Defendant's Motion will be granted.

I.PROCEDURAL HISTORY

Plaintiff, Robert R. Verbanik, an inmate presently incarcerated at the State Correctional Institution in Albion, Pennsylvania, commenced this civil action on April 16, 2009 pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983. Plaintiff filed a Second Amended Complaint on January 6, 2010, against various officers and employees of the State Correctional Institution at Mercer ("SCI-Mercer").*fn1 (ECF No. 47.) Defendants filed a Motion to Dismiss (ECF No. 49), which this Court granted on April 29, 2010 (ECF No. 58). Plaintiff appealed and the Third Circuit Court of Appeals remanded for further proceedings. (ECF No. 77.)

Plaintiff subsequently filed a Motion in Support of Third Circuit's Remand (ECF No. 93), which this Court construed as a Motion for Summary Judgment following a status conference held on December 29, 2011 (ECF No. 94). Defendants filed a Brief in Opposition to Plaintiff's Motion (ECF No. 98) along with their own Motion for Summary Judgment (ECF No. 95), Brief in Support thereof (ECF No. 96), and Concise Statement of Undisputed Material Facts (ECF No. 97). Plaintiff filed a Response in Opposition to Defendants' Motion (ECF No. 103), a Brief in Support thereof (ECF No. 104), a Response to Defendants' Concise Statement of Undisputed Material Facts (ECF No. 105), and his own Concise Statement of Undisputed Material Facts (ECF No. 106). The Motions are now ripe for review.

II.SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, the record indicates that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element to that party's case and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence or the lack thereof that demonstrates the absence of a genuine issue of material fact. National State Bank v. Federal Reserve Bank of New York, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial" or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The inquiry, then, involves determining "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990) (quoting Anderson, 477 U.S. at 251-52). If a court, having reviewed the evidence with this standard in mind, concludes that "the evidence is merely colorable . . . or is not significantly probative," then summary judgment may be granted. Anderson, 477 U.S. at 249-50. Finally, while any evidence used to support a motion for summary judgment must be admissible, it is not necessary for it to be in admissible form. See Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324; J.F. Feeser, Inc., v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990).

III.DISCUSSION

The Court construes Plaintiff's Second Amended Complaint to contain the following claims: retaliation, due process violations, verbal harassment, supervisory liability, equal protection violations, conspiracy, and several state law claims. Defendants move for summary judgment on all claims and on the basis that Plaintiff has failed to exhaust his administrative remedies as to all claims whereby exhaustion must be accomplished through the prison grievance process.*fn2

A.Retaliation

Plaintiff alleges numerous instances of retaliation. It is well settled that retaliation for the exercise of a constitutionally protected activity is itself a violation of rights secured by the Constitution, which is actionable under section 1983. Rauser v. Horn, 341 F.3d 330 (3d Cir. 2001); White v. Napoleon, 897 F.2d 103, 112 (3d Cir. 1990). However, merely alleging the fact of retaliation is insufficient; in order to prevail on a retaliation claim, a plaintiff must show three things: (1) that the conduct in which he engaged was constitutionally protected; (2) that he suffered "adverse action"*fn3 at the hands of prison officials; and (3) that his constitutionally protected conduct was a substantial motivating factor in the defendants' conduct. Rauser, 241 F.3d at 333 (adopting Mount Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). The crucial third element, causation, requires a plaintiff to prove 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. See Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007); Krouse v. American Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir. 1997)). Once a plaintiff has made his prima facie case, the burden then shifts to the defendant to prove by a preponderance of the evidence that he or she "would have made the same decision absent the protected conduct for reasons reasonably related to penological interest." Rauser, 241 F.3d at 334 (incorporating Turner v. Safley, 482 U.S. 78, 89 (1987)).

1.Housed in A-block for Four Months

As to Plaintiff's first claim of retaliation, he alleges that he was improperly housed in A-block for four months upon untrue rumors that he was a racist. In this instance, however, Plaintiff fails to satisfy the first element of a retaliation claim, i.e. that he engaged in constitutionally protected conduct for which he suffered an adverse action. Moreover, even had Plaintiff engaged in protected conduct, he has not presented evidence demonstrating that the conditions in A-block were so severe as to constitute an adverse action sufficient enough to deter a person of ordinary firmness from exercising his constitutional rights. See section III(A)(2), infra. As such, Defendants are entitled to summary judgment as to this claim of retaliation.

2.Cell Transfer

As to Plaintiff's second claim of retaliation, he alleges that he received a housing demotion from Defendant Schuller in retaliation for filing a grievance against Defendant Schuller the previous day. Plaintiff contends that when Defendant Schuller transferred Plaintiff from one housing unit to the other, Defendant Schuller stated, "you'll never win."

While Plaintiff has certainly satisfied the first element of a retaliation claim in this instance by engaging in protected activity, the filing of grievances, see Booth v. King, 346 F. Supp. 2d 751, 762 (E.D. Pa. 2004); Allah v. Al-Hafeez, 208 F. Supp. 2d 520, 535 (E.D. Pa. 2002), the Court finds that Plaintiff has not proven that his alleged housing demotion was an adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional rights. Although courts have found that cell transfers to undesirable areas of a prison could have a strong deterrent effect, see Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir. 1999) (placement in area of prison used to house mentally disturbed inmates combined with harassment and physical threats could constitute a sufficient adverse action for retaliation purposes), Allah v. Seiverling, 229 F.3d 220, 225-26 (3d Cir. 2000) (continued placement in administrative confinement which resulted in reduced privileges could deter a person of ordinary firmness from exercising his First Amendment rights), the Third Circuit has stated that whether a prisoner has met this prong of his retaliation claim will depend on the facts of the particular case, Allah, 229 F.3d at 225. Here, Plaintiff has alleged nothing more than he was transferred from the downstairs dorm room to the upstairs dorm room. Although he conclusively claims that this was a "housing demotion," he has not shown through evidence how the new location was any less desirable than his old location, for example, that he was subjected to increased security or loss of privileges. Simply put, he has not demonstrated that a fact finder could conclude that this transfer, what the Court presumes to be inconsequential, was sufficient to deter a person of ordinary ...


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