The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly
Plaintiff Corey Bracey ("Plaintiff" or "Bracey"), an inmate presently incarcerated at the State Correctional Institution at Smithfield, commenced this civil action pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, against various officers and employees at the State Corrections Institutions at Greene and Fayette ("SCI -- Greene" and "SCI -- Fayette") for the alleged violation of his rights under the United States Constitution and the laws of the Commonwealth of Pennsylvania. Defendants have filed a Motion for Summary Judgment [ECF No. 82] as to those claims remaining after this Court's disposition of Defendants' Partial Motion to Dismiss [ECF Nos. 39, 50]. Defendants and Plaintiff have filed memoranda of law, concise statements of undisputed facts, and exhibits in support and in opposition to the pending motion, which is ripe for review. For the following reasons, the Motion for Summary Judgment [ECF No. 82] is granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is proceeding pro se and in forma pauperis. He filed a Complaint [ECF No. 3], an Amended Complaint [ECF No. 9], and a Supplemental/Amended Complaint [ECF No. 35], which is the operative Complaint. Defendants filed a partial Motion to Dismiss [ECF No. 39], resulting in the dismissal of several Defendants and claims that were barred by the applicable statute of limitations or that failed to state a cause of action for which relief could be granted. [ECF No. 50].
Plaintiff alleges in the operative Amended Complaint that in the course of his incarceration at two separate facilities, Defendants retaliated against him for filing a grievance in December 2007 against Corrections Officer Sergeant Anderson ("Sergeant Anderson"). The grievance, which is no longer at issue in this action, alleges that Sergeant Anderson sexually harassed Plaintiff by asking him to bend over twice in the course of a strip search so his buttocks and anus could be checked for contraband. The grievance also alleged that Sergeant Anderson made inappropriate remarks to Plaintiff in the course of the search.
The investigation of the grievance was conducted by Defendant Lieutenant Price ("Price"), who concluded that the repeated request to bend over was necessitated by Plaintiff's failure to cooperate as required for Plaintiff's trip to the prison library. [ECF No. 89-1, p. 2]. In addition, Price's investigation revealed that Plaintiff made vulgar remarks and sexual comments and gestures implying Sergeant Anderson's affinity for strip searches. During the course of Price's investigation, Plaintiff admitted he was "having a bad day" and further admitted he was in the wrong. Id.
Plaintiff alleges that shortly after filing the grievance, Defendant Price, in conjunction with all named Defendants, directed a campaign of concerted retaliation that included the filing of false misconduct charges and placement in dirty and/or cold cells. Plaintiff alleges the retaliation continued through his transfer from SCI -- Greene to SCI -- Fayette on December 4, 2008. Plaintiff theorizes that a "Code of Silence" exists throughout the DOC system whereby the filing of a grievance against one officer at one facility will result in retaliatory conduct by each officer or administrator who is charged with his care. [ECF No. 85-1, p. 43].
Plaintiff's claims as to each of the remaining Defendants include:
a) Defendant Price: First Amendment retaliation claim and Eighth Amendment "conditions of confinement" claim;
b) Defendant Workman: First Amendment retaliation claim and Eighth Amendment "conditions of confinement" claim;
c) Defendant Davis: First Amendment retaliation;
d) Defendant Eagle: First Amendment retaliation claim;
e) Defendant Leggett: First Amendment retaliation claim, Fourth Amendment invasion of bodily integrity claim;
f) Defendant Lesure: First Amendment retaliation claim, Fourth Amendment invasion of bodily integrity claim;
g) Defendant Bittner: First Amendment retaliation claim;
h) Defendant Cross: First Amendment retaliation claim;
i) State law conversion claim against Defendants Cross, Bittner, Gates, McIntyre, Varner, Coleman, and the DOC.
Discovery conducted to date, including Plaintiff's deposition,*fn1 interrogatories and requests for production of documents, fails to substantiate any of Plaintiff's claims and, instead, establishes the absence of any genuine issue of material fact which would preclude the entry of judgment in favor of each of the remaining Defendants.
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).
Plaintiff alleges numerous instances of retaliation against Defendants Price, Workman, Davis, Eagle, Leggett, Lesure, Bittner and Cross. It is well settled that retaliation for the exercise of a constitutionally protected activity is itself a violation of rights secured by the United States 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, the mere allegation of retaliation is insufficient to establish such a claim. 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"*fn2 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)); Verbanik v. Harlow, CIV.A. 09-448, 2012 WL 4378198 (W.D. Pa. Sept. 25, 2012).
With particular relevance to Plaintiff's claims for retaliation, a necessary predicate to liability is evidence of personal involvement in the alleged wrongs. Personal involvement may be shown through contemporaneous personal direction, actual knowledge and acquiescence." Rode v. Dellarciprete, 845 F.2d 1195, 1207--08 (3d Cir. 1988); see also, Rizzo v. Goode, 423 U.S. 362 (1976); Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir.1976). Mincy v. Klem, No. 07-CA-0790, 2012 WL 727591 (M.D. Pa. Mar. 6, 2012).
Finally, unsupported allegations are insufficient to establish personal involvement. A party opposing summary judgment must come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas, 331 F. Supp.2d at 315; Fed. R. Civ. P. 56(e). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250--57(1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587--89 (1986); see also Fed. R. Civ. P. 56(c), (e).
In this case, Bracey fails to meet his burden with respect to each of the remaining Defendants and, as such, summary judgment in favor of each Defendant is appropriate. Mincy v. Klem, 1:07-CV-0790, 2012 WL 727591 (M.D. Pa. Mar. 6, 2012).
Plaintiff alleges a First Amendment retaliation claim against Defendant Price arising out of Defendant Price's purported involvement in the issuance of a false misconduct report and a change in Plaintiff's restricted housing placement. Plaintiff alleges that the false misconduct report, cell change and thirty day loss of privileges occurred at Defendant Price's direction as retaliation for Plaintiff's grievance against Sergeant Anderson. In addition, Plaintiff contends that the timing of the misconduct and resulting punishment support a prima facie claim of retaliation, sufficient to require a jury trial. [ECF No. 89, pp. 4-7].
Defendants seek the entry of judgment in their favor as a matter of law, based on the lack of evidence, beyond pure speculation, connecting Defendant Price to any alleged acts of retaliation.
In support of his claim, Plaintiff alleges he filed his grievance against Sergeant Anderson on December 13, 2007, and that during the following week, Defendant Price "demanded" that Plaintiff drop the grievance. [ECF No. 85-1]. In making the demand, Plaintiff alleges Defendant Price threatened that if Plaintiff refused, "I'll make your life a living hell down there. Then he told me that we don't like grievances or complaints filed. That's pretty much want he said." [ECF No. 85-1, pp. 16-18, 26].
On January 3, 2008, Plaintiff received a misconduct report for submitting an obscene Inmate Request Form to a female nurse on the medical staff. [ECF No. 89-4, p. 2]. The obscene note [ECF No. 85-1, p. 139], bearing Plaintiff's name, was received on December 30, 2007. Pursuant to DOC policy, an investigation was commenced and Plaintiff was moved from his administrative custody cell to disciplinary custody housing. [ECF No. 89-1, p. 3; ECF No. 85-2, pp. 2, 7]. Plaintiff alleges that as a result of his relocation, he lost television, radio, and commissary privileges for thirty days. [ECF No. 89-1, p. 3]. Plaintiff alleges that his new cell had feces in the toilet and that the in-cell water was shut off for three days. Plaintiff also complains that during his three day pre-hearing confinement, he was deprived of cleaning supplies and bedding.
The record shows that the hearing related to the obscene note was held on January 7, 2008, and resulted in the dismissal of the charges with a finding of "not guilty." [ECF No. 89-4, p.3]. When questioned about the inference that he was left naked and without any hydration, Plaintiff admits that he did have sufficient clothing and that he was served liquids three times a day, with each meal. [ECF No. 85-1, pp. 41, 54, 55].
Plaintiff acknowledges that Defendant Price did not issue the false misconduct, nor was he responsible for the investigation that followed. However, in support of his retaliation claim, Plaintiff speculates that Defendant Price "contrived" with either an inmate or another guard to create the obscene note, and, as a lieutenant, played a part in changing his cell location and restricted housing status. [ECF No. 85-1, pp. 33-34]. Plaintiff's lack of evidentiary support for his claim does not dissuade him, as he points to the timing of the misconduct report and its issuance as sufficient to present a jury question:
Q: How do you know this happened?
Q: I'm going to make your life a ...