United States District Court, M.D. Pennsylvania
M. MUNLEY UNITED STATES DISTRICT COURT JUDGE.
Whitney, a Pennsylvania state prisoner, filed this amended 42
U.S.C. § 1983 complaint alleging that numerous
defendants violated his rights during his incarceration at
two Pennsylvania prisons. (Doc. 25). In March 2018, District
Judge Richard P. Conaboy granted partial summary judgment in
favor of Defendants after concluding that Whitney failed to
exhaust his administrative remedies as to many of the
claims. (Docs. 93, 94).
Conaboy permitted claims to proceed related to Whitney's
allegations that: (1) Sergeant Rogers and C.O. Anthony
retaliated against Whitney by damaging his radio and
footlocker during a search of Whitney's cell; (2) Anthony
and C.O. Narehood retaliated against Whitney by issuing a
false misconduct report asserting that Whitney disobeyed
orders; (3) Rogers retaliated against Whitney by issuing a
false misconduct report alleging that Whitney used profanity;
and (4) Major Tod Robinson led a conspiracy to interfere with
Whitney's mail. (Doc. 93; see Doc. 25 at 6-8,
Rogers, Anthony, Robinson, and Narehood (collectively
“Remaining Defendants”) have now filed a motion
for summary judgment asserting that Whitney's claims are
without merit. (Docs. 103, 104, 105, 106). First,
Remaining Defendants assert that there is no proof that
Rogers or Anthony damaged Whitney's property, or that any
damage was intentional. (Doc. 104 at 7-9). Second, Remaining
Defendants assert that the misconduct reports issued by
Anthony and Rogers were non-retaliatory and, in any event,
would have been issued regardless of whether Whitney had
engaged in protected activity. (Id. at 11-14).
Lastly, Remaining Defendants assert that there is no evidence
that Robinson interfered with Whitney's outgoing mail,
and Whitney's access to the courts claim therefore fails.
(Id. at 10-11).
judgment is appropriate when, drawing all reasonable
inferences in favor of the nonmoving party, the movant shows
that there is no genuine dispute as to any material fact, and
thus the movant is entitled to judgment as a matter of
law.” Minarsky v. Susquehanna Cty., 895 F.3d
303, 309 (3d Cir. 2018) (internal quotation marks omitted).
“A dispute is genuine if a reasonable trier-of-fact
could find in favor of the non-movant, and material if it
could affect the outcome of the case.” Bradley v.
W. Chester Univ. of Pa. State Sys. of Higher Educ., 880
F.3d 643, 650 (3d Cir.) (internal quotation marks omitted),
cert. denied, 139 S.Ct. 167 (2018).
state a claim for retaliation, a prisoner must allege that:
(1) he was engaged in constitutionally protected conduct, (2)
‘he suffered some adverse action at the hands of prison
officials,' and (3) ‘his constitutionally protected
conduct was a substantial or motivating factor in the
decision' to take that action.” Wisniewski v.
Fisher, 857 F.3d 152, 156 (3d Cir. 2017) (quoting
Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)).
Adverse action is any action “taken by prison officials
sufficient to deter a person of ordinary firmness from
exercising his constitutional rights.” Mack v.
Warden Loretto FCI, 839 F.3d 286, 297 (3d Cir. 2016). If
a prisoner satisfies those three elements, “the prison
officials may still prevail by proving that they would have
made the same decision absent the protected conduct for
reasons reasonably related to a legitimate penological
interest.” Rauser, 241 F.3d at 334.
Defendants concede that, for all retaliation claims, Whitney
has satisfied the first element, as he engaged in protected
speech by filing grievances. (Doc. 103 at 6); see
Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)
(concluding that filing of prison grievance “implicates
conduct protected by the First Amendment”). Thus, the
only question is whether in each case Whitney suffered an
adverse action that was motivated by his protected conduct,
and whether prison officials would have taken the same action
absent Whitney's protected conduct.
Damage to Whitney's Property
Whitney alleges that-in retaliation for filing
grievances-Rogers and Anthony damaged Whitney's radio and
tore open the bottom of his footlocker during a search of
Whitney's cell. (Doc. 25 at 6; Doc 106 at 69-74; Doc. 108
at 6). Remaining Defendants contend that this claim is
meritless, as there is no evidence that Rogers or Anthony
actually damaged Whitney's property and, even if
there were, there is no evidence that the damage was done in
retaliation for Whitney having filed grievances. (Doc. 104 at
undisputed that Rogers and Anthony searched Whitney's
cell- outside of Whitney's presence-on January 9, 2013.
(Doc. 106 at 30, 39). However, Moving Defendants have
presented declarations from both Rogers and Anthony denying
that either defendant damaged Whitney's property during
that search. (Id. at 30-31, 39).
presents no evidence to rebut the declarations of Rogers and
Anthony. Rather, Whitney relies on the bald
assertion that Rogers and Anthony damaged his
property as part of a broad conspiracy. (Doc. 108 at
5-6). This speculative assertion is insufficient to avoid
summary judgment. See McCabe v. Ernst & Young,
LLP., 494 F.3d 418, 436-37 (3d Cir. 2007) (noting that
“to survive summary judgment, a party must present more
than just bare assertions, conclusory allegations or
suspicions to show the existence of a genuine issue”
(brackets and internal quotation marks omitted)); Orsatti
v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995)
(“a plaintiff cannot resist a properly supported motion