United States District Court, E.D. Pennsylvania
OPINION, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT,
ECF NOS. 114, 115 - GRANTED
F. LEESON, JR. UNITED STATES DISTRICT JUDGE.
Major Thomas Dohman, Lieutenant Jeffrey Bender, Officer Brian
Moyer, Officer Patrick Fina, and Officer Isaiah Hall move for
summary judgment on Plaintiff Omar Sherieff Cash's
retaliation claims against them. For the reasons set forth
below, Defendants' motion is granted.
procedural background of this case is summarized in the
Court's Opinion issued March 14, 2016. ECF No. 79. As a
result of the Court's Order and Opinion issued on that
date, all of Cash's claims were dismissed except for his
retaliation claims against Defendants Moyer, Dohman, Hall,
Fina, and Bender. Defendants now move for summary judgment on
those claims, ECF Nos. 114-15, and Cash has filed a response
in opposition to Defendants' motion, ECF No. 122.
Standard of Review
judgment “should be rendered if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(c); Turner v.
Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990).
A disputed fact is “material” if proof of its
existence or nonexistence would affect the outcome of the
case under applicable substantive law, and a dispute is
“genuine” if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 257 (1986). The party moving for summary judgment
bears the burden of showing the absence of a genuine issue as
to any material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
such a showing has been made, the non-moving party must go
beyond the pleadings with affidavits, depositions, answers to
interrogatories or the like in order to demonstrate specific
material facts which give rise to a genuine issue.
Fed.R.Civ.P. 56; Celotex, 477 U.S. at 324;
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986) (stating that the non-moving party
“must do more than simply show that there is some
metaphysical doubt as to the material facts”). The
party opposing the motion must produce evidence to show the
existence of every element essential to its case, which it
bears the burden of proving at trial, because “a
complete failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial.” Celotex, 477 U.S. at 323;
see also Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir.
1992). “Inferences should be drawn in the light most
favorable to the non-moving party, and where the non-moving
party's evidence contradicts the movant's, then the
non-movant's must be taken as true.” Big Apple
BMW, Inc. v. BMW of N. Am. Inc., 974 F.2d 1358, 1363 (3d
Court considers Cash's retaliation claims against each of
the Defendants in turn.
Officer Moyer is entitled to judgment on Cash's
undisputed facts concerning Moyer are as follows. On January
15, 2013, Cash was temporarily transferred from SCI-Albion to
SCI-Graterford. Defs.' Statement of Facts (hereinafter
“Defs.' Facts”) ¶ 6, ECF No. 115-1. Upon
arrival at SCI-Graterford, Cash was taken to the search area.
Id. ¶ 7. After Cash was searched, Officer Moyer
and another corrections officer escorted Cash from the search
area to Cash's cell. Id. ¶ 8. When Cash
arrived at his cell, his property box was waiting for him
there; he does not know who brought the property box into his
cell. Id. ¶ 9. Cash searched his property box
while Officer Moyer and the other officers were still present
outside of his cell. Id. ¶ 10. Upon inspecting
his property box, Cash found his legal papers, soap, and
deodorant in the box, but alleges that one of his books and
some cosmetic items were missing. Id. He alleges
that he asked Officer Moyer about his missing property and
Moyer responded “you pissed off the higher ups, so we
basically can do whatever we want to do to you.”
Id. ¶ 11.
prevail on a retaliation claim, a plaintiff must demonstrate
three things. First, he must show that his conduct leading to
the retaliation was constitutionally protected. See
Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).
Second, he must show that he suffered an adverse action by a
prison official or other state actor. Id. Adverse
action can be shown if the retaliatory conduct would deter a
person of ordinary firmness from exercising the
constitutional right at issue. Id. Third, he must
show that his protected activity was a “substantial or
motivating factor” in the state actor's decision to
take the adverse action. Id. at 333-34.
contend that Officer Moyer is entitled to judgment on
Cash's retaliation claim against him because Cash has
failed to show a genuine dispute of material fact with
respect to the second element of a retaliation claim, the
existence of an adverse action. They contend that Officer
Moyer's alleged statement to Cash that “you pissed
off the higher ups, so we basically can do whatever we want
to do to you” was, at most, a threat, which under the
law is insufficient to show an adverse action. Defendants
further point out that Cash has not alleged that Officer
Moyer destroyed, confiscated, or even handled his property,
nor has Cash alleged that Officer Moyer ...