United States District Court, M.D. Pennsylvania
AVON C. QUIERO, JR., Plaintiff,
OFFICER MUNIZ, et al., Defendants.
ARBUCKLE, MAGISTRATE JUDGE
Richard Caputo United States District Judge
before me are the Objections (Doc. 62) of Plaintiff Avon C.
Quiero, Jr. (“Plaintiff” or “Quiero”)
to the Report and Recommendation (Doc. 60) issued by
Magistrate Judge William I. Arbuckle recommending that
summary judgment be granted in favor of Defendants Robert
Karnes (“Karnes”) and Michael Ott
(“Ott”) (collectively, where appropriate,
“Defendants”). Because Quiero was not retaliated
against for engaging in protected First Amendment conduct,
did not have his free exercise rights infringed upon, and was
not denied due process, the Report and Recommendation will be
adopted and summary judgment will be granted to Defendants on
forth in the Magistrate Judge's Report and
Recommendation, the causes of action remaining in this case
are Quiero's First Amendment retaliation, Fourteenth
Amendment due process, and First Amendment free exercise
claims against Karnes and Ott. (See Doc. 60,
These claims stem from events that occurred while Quiero was
incarcerated at the Lebanon County Correctional Facility in
the fall of 2013 as a sentenced state inmate on writ.
(See Doc. 57, ¶ 1).
October 22, 2013, Quiero stopped Officer Muniz during a
scheduled block check to inform him that he was missing his
mattress sheet. (See Doc. 58, Ex. “A”).
Muniz returned later with a replacement sheet, but that sheet
was covered with drawings of male genitals. (See
id.). Despite Quiero's complaints, Muniz instructed
him that he could either use that sheet or sleep on the
mattress. (See id.). Quiero stated that he would be
filing a grievance against Muniz for sexual harassment.
next day, Quiero had a meeting with Ott about the allegation
of sexual harassment. (See Doc. 57, ¶ 2; Doc.
62, Ex. “H”, ¶ 2). Ott instructed Quiero to
raise his complaint of sexual harassment in accordance with
prison policies for filing grievances and contacting outside
law enforcement officials. (See Doc. 57, Ex.
“B”, ¶ 5). After this meeting, Quiero
attempted to contact outside agencies and also insisted that
he should be provided a grievance form immediately without
proceeding through the request slip process. (See
Doc. 57, Ex. “B-2”; see also Doc. 62,
Ex. “H”, ¶ 4).
was again summoned to Ott's office for a meeting on
October 28, 2013. (See Doc. 57, ¶ 5; Doc. 62.,
Ex. “H”, ¶ 5). After the meeting concluded
and he was dismissed, Quiero slammed the door to Ott's
office. (See Doc. 57, Ex. “B”,
¶¶ 12-13).Ott determined after the meeting that
Quiero created an improper grievance form by ripping a page
from his inmate handbook. (See id. at Ex.
“B”, ¶ 14).
was subsequently issued a major misconduct and transferred to
the restricted housing unit (“RHU”). (See
id. at Ex. “B”, ¶¶ 15, 19). Ott
informed other prison officials by email at 10:20 a.m. on
October 28, 2013 that he would
be writing a misconduct on this inmate for disrespect and
destruction of county property. Had this inmate in my office
explaining to him the proper procedure on how to file a
complaint to the authorities which of course he could not
understand. Had Officer VanDusen with me again as a witness.
Inmate Quiero then left and threw the office door open and
slammed it against the outside wall. Also his original
complaint was written on an inmate handbook.
(Doc. 57, Ex. “4”). Ott also prepared a
misconduct report, which indicated that the incident occurred
at “Approximately 10:30 a.m. 10-28-13.”
(Id. at Ex. “3”).
hearing was held before the disciplinary board on the major
misconduct charges on November 7, 2013. (See id. at
Ex. “A”, ¶¶ 10-11). Quiero was found
guilty of those misconducts and sentenced to time served in
the RHU. (See id.; see also Doc. 57, Ex.
Quiero was in the RHU, he sent written requests to prison
chaplains asking for them to visit him in the RHU and to help
with his allegation of harassment. (See Doc. 58-1,
Ex. “B”). In an email to Karnes (among others),
the prison Chaplain Manager stated that Quiero “has
been seeking the help of the chaplains with regard to his
recent alleged ‘harassment.' I inadvertently became
involved when Mr. Quiero was attending a Bible Study taught
by Chaplain Mendez and asked to speak to me. Since that time,
he has been writing requests to us, including asking Chaplain
Newman or Chaplain Dobbs to visit him in RHU.”
(Id.). Based on instructions that had been received
in the past, the Chaplain Manager responded to Quiero's
requests by informing him that chaplains “do not have a
role in disciplinary matters and that his only option is the
Prison's grievance process or the Prison Society.”
(Id.). Chaplain services for inmates housed in the
RHU are available after an inmate requests to see the
chaplain and security concerns are reviewed, at which point
visits are permitted with shackled inmates outside of earshot
of correctional officers but within the view of video
surveillance cameras. (See Doc. 57, Ex.
“A-1”, ¶ 7). In order to request a meeting
with a chaplain, an inmate housed in the RHU must submit an
inmate request slip as instructed in the Lebanon County
Correctional Facility inmate handbook. (See Doc. 57,
¶ 16; Doc. 62, Ex. “H”, ¶ 16). While
Quiero wrote to the Chaplain Manager during his time in the
RHU requesting to be visited by Chaplain Newman or Chaplain
Dobbs, (see Doc. 58-1, Ex. “B”), Quiero
never submitted an inmate request slip to request a visit
with a chaplain while he was in the RHU. (See Doc.
57, Ex. “A-1”, ¶ 7). Quiero did not meet
with a chaplain during this time. (See Doc. 57,
¶ 18; Doc. 62. Ex. “H”, ¶ 18).
24, 2017, Defendants filed a motion for summary judgment,
supporting brief, and statement of undisputed facts.
(See Docs. 55-57, generally). Quiero filed
his opposition brief along with a Declaration and exhibits on
June 14, 2017. (See Doc. 58, generally).
Defendants filed a reply brief in further support of their
motion on June 23, 2017. (See Doc. 59,
March 13, 2018, Magistrate Judge Arbuckle issued the instant
Report and Recommendation presently under review.
(See Doc. 60, generally). Therein, the
Magistrate Judge recommends that Defendants' motion for
summary judgment be granted in its entirety and that judgment
be entered in favor of Defendants on all claims remaining in
this action. (See id.). Quiero timely objected to
the Report and Recommendation. (See Doc. 62,
generally). The Report and Recommendation and the
objections thereto are now ripe for review.