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Alex v. Wetzel

United States District Court, M.D. Pennsylvania

February 3, 2015

ANTHONY JOSEPH ALEX, I, Plaintiff,
v.
JOHN E. WETZEL, et al., Defendants.

MEMORANDUM

WILLIAM W. CALDWELL, District Judge.

I. Introduction

The pro se plaintiff, Anthony Joseph Alex, I, an inmate at the State Correctional Institution in Waymart, Pennsylvania, (SCI-Waymart), filed this action on January 29, 2013. On February 24, 2014, the court granted in part, and denied in part, the defendants' motion to dismiss. Alex v. Wetzel, 2014 WL 690610 (M.D. Pa. Feb. 24, 2014). As a result, only one claim against a single defendant remains: Alex's First Amendment claim against Counselor Bognatz that she issued him a false misconduct in retaliation for his "going over her head" to Deputy Superintendent Ellett after Bognatz denied him an incentive-based transfer.

Presently before the court is defendant Bognatz's motion for summary judgment. For the reasons that follow, the motion will be denied.

II. Standard of Review

Summary judgment is proper where "the movant shows 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). The court must determine "whether the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and whether the moving party is therefore entitled to judgment as a matter of law." MacFarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 271 (3d Cir. 2012)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). In reviewing a motion for summary judgment, the court must view all facts "in the light most favorable to the non-moving party" and "all reasonable inferences [should be drawn] in that party's favor." Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006).

"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Id . at 248, 106 S.Ct. at 2510. A material fact is any fact that might affect the outcome of a suit under the governing substantive law. Gonzalez v. Sec'y of Dept. of Homeland Sec., 678 F.3d 254, 261 (3d Cir. 2012).

"In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence is to be believed and all justifiable inferences are to be drawn in his favor.'" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255, 106 S.Ct. at 2510).

III. Statement of Facts

The following facts are undisputed or, where disputed, reflect Alex's version of the facts, pursuant to this court's duty to view all facts and reasonable inferences in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2510.

Alex is a convicted sex offender. His various offenses involved his daughters, A.A. and C.A.. (Doc. 56, ECF p. 7). Alex is prohibited from contacting either of his victims. ( Id., ECF p. 8). On or about December 27, 2008, Alex received a misconduct for contacting A.A.. (Doc. 59, ECF p. 13 and p. 37). Alex was repeatedly told to refrain from contacting his victims. (Docs. 56, ECF pp. 5-8). On January 8, 2009, Alex was found guilty of two Class I violations, refusing to obey an order and unauthorized use of the telephone, as a result of his admitted unauthorized contact with his daughter A.A. (Doc. 59, ECF p. 37).

Heather Bognatz is employed by the Pennsylvania Department of Corrections (DOC) as a Corrections Counselor at SCI-Waymart. (Doc. 57, Statement of Material Facts (SMF) ¶ 9). She has held this position since May 2005. In her role as a Corrections Counselor, she provides assistance to inmates on her caseload, including Alex. ( Id., SMF ¶ 11). Her duties include reviewing inmate requests for incentive-based transfers. ( Id., SMF ¶ 12).

On April 9, 2012, Alex wrote an Inmate Request to Staff Member (request slip) seeking guidance on how to obtain a promotional (incentive-based) transfer to a facility closer to his home. ( Id., SMF ¶ 13; Doc. 56, ECF p. 4). The DOC has specific criteria that an inmate must meet to be considered for an incentive-based transfer. (Doc. 56, ECF p. 5). One of the requirements is that an inmate must "not be scheduled for parole review within the next nine months." ( Id .) Another requirement is that an inmate have "no class I misconducts for two years and no more than one Class II misconduct in the past year". ( Id .) On April 11, 2012, Bognatz advised Alex he was ineligible for such a transfer because he was "to close to parole review. They are scheduled to see you in September 2012 - cannot be 9 months from parole interview. Must also be misconduct free for 2 years." (Doc. 56, ECF p. 4).

On April 11, 2012, Bognatz approved Alex's request to supplement his authorized telephone list. (Doc. 59, ECF p. 24). Alex was granted permission to contact J. Fromville whom he identified as a "friend." ( Id .) Fromville is Alex's son-in-law and married to A.A. When approving Alex's request to contact Fromville, Bognatz specifically ...


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