United States District Court, W.D. Pennsylvania
PARADISE BAXTER, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT [ECF NO 43]; PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 48]
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
JUDGE'S REPORT AND RECOMMENDATION
respectfully recommended that Defendants' Motion for
Summary Judgment [ECF No. 43] be granted and Plaintiff's
Motion for Summary Judgment [ECF No. 48] be denied.
Tyree Lawson (“Plaintiff”), an inmate in the
custody of the Pennsylvania Department of Corrections
(“DOC”), initiated this pro se civil rights
action pursuant to 42 U.S.C. § 1983 on December 7, 2017.
ECF No. 1. In his Complaint, Lawson asserts a single count of
unlawful retaliation against three defendants - Corrections
Officer J.W. Barger, Corrections Officer Kimmel, and
Superintendent Michael Overmyer - based on conduct which
occurred while Lawson was incarcerated at the State
Correctional Institute at Forest (SCI-Forest).
October 15, 2018, Defendants filed a motion for summary
judgment accompanied by a brief in support and concise
statement of material facts. ECF Nos. 43-45. After requesting
and receiving an extension of time to oppose Defendants'
motion [ECF Nos. 52, 54], Lawson filed a response in
opposition on December 14, 2018. ECF Nos.
meantime, Lawson filed a cross-motion for summary judgment on
October 18, 2018, accompanied by a brief in support. ECF Nos.
48-49. Defendants filed an opposition to Lawson's motion
on November 13, 2018. ECF No. 51. Each of these motions is
ripe for review.
allegations in Lawson's Complaint stem entirely from a
single cell search performed by Barger on February 6, 2017.
ECF No. 5 ¶¶ 5-10. At approximately 11:30 a.m. on
that date, Lawson observed Barger performing security
inspections on his unit. Id. ¶¶ 7, 9.
After searching several other cells, Barger entered
Lawson's cell and stayed inside for four or five minutes.
Id. ¶ 10. Lawson, who was speaking to his wife
on a nearby telephone at the time, terminated his call
because he felt that Barger “[had] been in [his] cell
for way too long.” Id. As Lawson approached
his cell, Barger emerged with a cardboard legal box.
Id. ¶ 11. In response to Lawson's query as
to why Barger was removing property from his cell, Barger
indicated that the box was contraband. Id.
¶¶ 12-13. Lawson then entered his cell and observed
that his bunk had been flipped, his toiletries scattered all
over the floor, and his religious materials removed from
their shelf. Id. ¶ 14.
on this incident, Lawson filed grievance number 664100 on
February 7, 2017, accusing Barger of conducting an
unreasonable and improper security inspection. ECF No. 46-1
at 1. Citing prison policy DOC ADM-203, Lawson
maintained that a corrections officer is not permitted to
move or disturb personal property during a security
inspection unless necessary for the inspection. Id.
Lawson attributed Barger's violation of this policy to
retaliatory animus, noting that he had filed a grievance
against Barger just a few weeks earlier. Id. Lawson
also accused Kimmel of covering up for Barger by offering the
“illogical excuse” that Barger was “allowed
to move certain things to check certain areas” during a
security inspection. Id. By way of remedy, Lawson
sought punitive and monetary damages. Id.
Manager List Best denied grievance number 664100 as frivolous
on March 10, 2017. Id. at 6. Lawson appealed that
denial to Superintendent Overmyer, repeating his prior
allegations and adding that Barger and Kimmel had issued him
a misconduct based on the results of the cell search.
Id. at 7. Although Lawson's appeal was dated
March 28, 2017, Overmyer did not receive it until April 3,
2017, three days beyond the deadline for
appeal.Id. Consequently, Overmyer
rejected the appeal as untimely. Id. at 8. Rather
than appeal that decision to the Secretary's Office of
Inmate Grievances and Appeals (“the Secretary's
Office”), Lawson wrote a letter to Overmyer asking him
to reconsider. ECF No. 5 ¶ 29. On April 7, 2017, Best
approached Lawson in person and informed him that Overmyer