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Winkelman v. Hose

United States District Court, W.D. Pennsylvania

July 13, 2017

JOHN F. WINKELMAN, JR., Plaintiff,
v.
JOSEPH HOSE, Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION.

          Barbara Jacobs Rothstein U.S. District Court Judge

         I. INTRODUCTION

         Before the Court is the Report and Recommendation (R&R) of Magistrate Judge Susan Paradise Baxter (ECF No. 89), which recommends that Defendants' motion for summary judgment (ECF No. 76) as to Plaintiffs sole remaining claim be granted and that this case be closed. After reviewing the Report and Recommendation, Plaintiffs Objections, and the record, the Court ADOPTS Magistrate Judge Baxter's R&R.

         II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Plaintiff John F. Winkleman, Jr., an inmate incarcerated at the Federal Correctional Institution, McKean (FCI McKean) during the relevant events, filed a pro se civil rights action on October 20, 2014. (ECF No. 5). Plaintiff named Defendants Joseph Hose, Jeffrey Huyck, William McKinney, and Michael Murphy, all employees of FCI McKean, alleging violations of his First, Eighth, and Fourteenth Amendment rights pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). (ECF No. 5 (Compl. at 1 ¶ 1)).

         Plaintiff was an inmate employee at the FCI McKean law library during and prior to the events giving rise to this action. (ECF No. 79 at 2 ¶ 4). Plaintiff alleges that in February 2012 the inmate employee in charge of creating the monthly law library work schedule cut Plaintiff s work hours from 160 hours to 116 hours and revoked Plaintiffs "early chow pass." (ECF No. 5 (Compl. at2¶ 1)). After taking the issue to his then-supervisor, Mr. Smith, Plaintiff maintains that he continued to work and get paid for 160 hours, [1] though his schedule was never adjusted to reflect this. (ECF No. 5 (Compl. at 3 ¶ 3)).

         In November 2013, Defendant Hose became the Education Department Supervisor, and in February 2014, Defendant Huyck became the direct supervisor of the law library and its employees. (ECF No. 79 at 2 ¶¶ 5-10). Plaintiff brought the issue of his uncorrected schedule and loss of his early chow pass to both Huyck and Hose (on February 22, 2014 and February 24, 2014, respectively), but neither Defendant adjusted Plaintiffs hours or reissued his chow pass. Once the March 2014 schedule was posted, Plaintiff was again assigned 116 hours, while other, less senior inmate employees "of another race" were each given extra hours in excess of the BOP limit of 160. (ECF No. 5 (Compl. at 3 ¶ 4)).

         On March 4, 2014, following the posting of the March schedule, Plaintiff filed a BP-8 grievance regarding Defendants' failure to increase his hours for the month of March and requesting that the schedule be adjusted and that he be reissued his early chow pass. (ECF No. 5, Ex. 2 at 12 ("I am the orderly with the most seniority... and my hours were cut from 160 to 116 for the month of March")). Following his filing of the BP-8, Plaintiff alleges that (1) Defendant Huyck told Plaintiff that because Plaintiff had filed a grievance upon the Education Department, that he would make sure Plaintiff only got paid for 116 hours without any bonus pay; and (2) both Hose and Huyck threatened to inform the other inmate employees that Plaintiff was complaining about them. (ECF No. 5 (Compl. at 5 ¶¶ 10-11)).

         On March 7, 2014, Plaintiff discovered that he did not receive his bonus pay for February 2014, which reduced his monthly pay from $40.80 to $20.40. (ECF No. 5 (Compl. at 5 ¶ 12)); (ECF No. 31, Ex. 2 at 22).The entry of February's pay occurred on March 6, 2014. (ECF No. 31, Ex. 2 at 22 (showing an "entered date" of 3/6/2014 at 10:11:31 AM for the pay period of February 2014)).

         On March 21, 2014, Plaintiff alleges that a "secret meeting" took place between Defendants and the inmate in charge of creating the law library work schedule, and that later that day Defendants called a second meeting between themselves and all of the law library employees. (ECF No. 5 (Compl. at 6-7 ¶¶ 20-21)). Defendants maintain that they called the meeting with all law library employees (1) to explain Huyck's duties regarding the law library to the inmates; and (2) to allow the inmates to talk through and diffuse grievances amongst themselves and with the BOP staff with regards to the schedule. (ECF No. 79 at 3 ¶ 20). Plaintiff maintains that the purpose of the meeting could not have been to sort out the work schedule, because all of the other inmates' hours had already been corrected. (ECF No. 5 (Compl. at 7 ¶ 22)). Thus, Plaintiff inferred that the meeting was called in order for Defendants to pit the black inmate employees against him by exposing Plaintiffs complaints about his schedule compared to theirs. (ECF No. 5, Ex. 2 at 7); (ECF No. 90 (Plaintiffs Objections at 2 ¶ 5) ("Why was I their [sic]... my schedule was the only one that was not fixed.")).

         On or around March 25, 2014, Plaintiff maintains that Defendants attempted to get Plaintiff to end his administrative remedy process by asking him to "sign off' on his BP-9 grievance, but that Plaintiff refused to do so. (ECF No. 5 (Compl. at 8 ¶ 25, Ex. 2 at 8)). After the March 25 meeting, Plaintiff claims that he was approached by a group of black inmates, including the inmate who cut his hours and took his chow pass, and that the other inmates threatened Plaintiff with bodily harm should he continue complaining about him and "others of [their] race." (ECF No. 5 (Compl. at 8 ¶26). Following the March 25 encounter, Plaintiff requested to be transferred to another facility. (ECF No. 5 (Compl. at 8 ¶ 27)). The request was granted, and Plaintiff was transferred to FCC Hazelton. (ECF No. 79 at 7 ¶ 35). Plaintiff was later transferred again for unrelated reasons in March 2015 to FCI McDowell, where he is currently housed. (ECF No. 79 at 7 ¶¶ 36- 37).

         Plaintiffs Complaint alleges that Defendants violated his First Amendment rights by, in retaliation for Plaintiff s filing a prison grievance, cutting his bonus pay and threatening to inform other inmates of his complaints; violated his Eighth Amendment rights by failing to protect him from other inmates' threats of bodily harm; and violated his Fourteenth Amendment rights by failing to protect him from racial discrimination. (ECF No. 5 (Compl. at 9)).

         On February 29, 2016, the Court adopted Magistrate Judge Baxter's R&R granting partial summary judgment to Defendants Hose and Huyck, dismissing Defendants Murphy and McKinney, and dismissing Plaintiffs Eighth Amendment failure to protect claim and Fourteenth Amendment equal protection claim. See (ECF No. 49 (dismissing with prejudice Plaintiffs retaliation claim regarding his [February 2014] bonus[2]; Plaintiffs failure to protect claim against Defendants Murphy and McKinney; and all claims for monetary relief brought against Defendants in their official capacity)). Thus, Plaintiffs only claim remaining in this action is his First Amendment retaliation claim for nominal damages against Defendants Hose and Huyck. Specifically, Plaintiffs remaining claim is based on the allegation that, following Plaintiffs filing of prison grievances, Hose and Huyck threatened to inform other inmates of Plaintiffs complaints and thereafter did tell other inmates that Plaintiff complained about them. (ECF No. 5 (Compl. at9 ¶ b)).

         Both Plaintiff and Defendants filed motions for summary judgment as to the remaining retaliation claim. Plaintiffs motion was denied on January 18, 2017. (ECF No. 87 (adopting R&R recommending the denial of Plaintiff s Motion for Summary Judgment because Plaintiff did not identify any evidence to support his claim)). On February 14, 2017, Magistrate Judge Baxter issued the instant R&R recommending that this Court grant Defendants' motion for summary judgment and that this case be closed. (ECF No. 89). Plaintiff filed timely objections (ECF No. 90).

         III. ...


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