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Cash v. Wetzel

United States District Court, E.D. Pennsylvania

March 29, 2018

OMAR SHERIEFF CASH, Plaintiff,
v.
THOMAS DOHMAN; JEFFREY BENDER; BRIAN MOYER; PATRICK FINA; and ISAIAH HALL, Defendants.

          OPINION, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, ECF NOS. 114, 115 - GRANTED

          JOSEPH F. LEESON, JR. UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Defendants 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.

         II. Background

         The 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.

         III. Standard of Review

         Summary 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).

         Once 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 Cir. 1992).

         IV. Analysis

         The Court considers Cash's retaliation claims against each of the Defendants in turn.

         A. Officer Moyer is entitled to judgment on Cash's retaliation claim.

         The 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.

         To 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.

         Defendants 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 ...


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