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Whitney v. Pennsylvania Department of Corrections

United States District Court, M.D. Pennsylvania

July 10, 2019




         I. BACKGROUND

         Charles 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.[1] (Docs. 93, 94).

         Judge 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, 13).

         Defendants Rogers, Anthony, Robinson, and Narehood (collectively “Remaining Defendants”) have now filed a motion for summary judgment asserting that Whitney's claims are without merit.[2] (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).


         “Summary 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).

         A. Retaliation Claims

         “To 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.

         Remaining 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.

         i. Damage to Whitney's Property

         First, 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[3] and, even if there were, there is no evidence that the damage was done in retaliation for Whitney having filed grievances. (Doc. 104 at 7-9).

         It is 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).

         Whitney presents no evidence to rebut the declarations of Rogers and Anthony. Rather, Whitney relies on the bald assertion[4] that Rogers and Anthony damaged his property as part of a broad conspiracy.[5] (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 ...

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