Opinion
1:16-cv-00177 (Erie)
08-12-2021
CURTIS BRANDON, Plaintiff v. RAYMOND BURKHART LIEUTENANT, DANIEL PACK GUARD, JOHN E. WETZEL, MICHAEL D. OVERMYER, DEREK F. OBERLANDER, JEFFREY A. HORTON, ERIN WALLACE-IRELAND, PAUL A. ENNIS, DONALD E. CONRAD, GREGORY CHILES, MATHEW J. BLICHA, MICHELLE CROWTHER, LAURA BLAKE, S. ELLENBERGER, JOSEPH H. DUPONT, WILLIAM D. COLE, BRENDA HAUPT, GINA MARTINI, S. W. STODDARD, E. JACKSON, SCHLEICHER, JACOB R. BEACH, JANNETTE M. TOWNER, SHARON PRICE, SARAH SIEGEL, A. KOT, ROBIN M. LEWIS, and KERI MOORE, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
ECF NO. 137
Richard A. Lanzillo, United States Magistrate Judge
I. Recommendation
It is respectfully recommended that the Defendants' Motion for Summary Judgment, docketed at ECF No. 137, be GRANTED for the reasons outlined in the following Report.
II. Report
A. Procedural History
Plaintiff Curtis Brandon (Brandon) commenced this action pursuant to 42 U.S.C. § 1983 to recover damages and other relief based on alleged violations of his constitutional rights. The procedural history of this case is lengthy, owing in large part to Brandon's repeated requests for extensions of time, objections and appeals of routine scheduling orders, and the stay of these proceedings during the initial phase of the global coronavirus pandemic. The following is summary.
Brandon filed his pro se Complaint initiating this action in August of 2016. See ECF No. 5. He named only Raymond Burkhart and Daniel Pack as Defendants in his original Complaint. Id. But subsequent Amended Complaints added other Defendants, with Brandon ultimately bringing claims against thirty individuals in his Second Amended Complaint. See, e.g., ECF No. 20 (Amended Complaint), ECF No. 44 (Second Amended Complaint). Brandon's first Amended Complaint named the following as defendants:
| ● Laura Blake | |
| ● Matthew J. Blicha, | ● Jeffrey A. Horton, |
| ● Raymond Burkhart, | ● Derek F. Oberlander, |
| ● Gregory Chiles, | ● Michael D. Overmyer, |
| ● Donald E. Conrad, | ● Daniel Pack, |
| ● Michelle Crowther, | ● Jennifer “Jen” Reed, |
| ● Joseph H. Dupont, | ● Dorina Varner, |
| ● S. Ellenberger, | ● Erin Wallace-Ireland, and |
| ● Paul A. Ennis, | ● John E. Wetzel. |
| ● William D. Cole, | ● Jannette M. Towner, |
| ● Brenda Haupt, | ● Sharon Price, |
| ● Gina Martini, | ● Sarah Siegel, |
| ● S. W. Stoddard, | ● Kot, |
| ● E. Jackson, | ● Robin M. Lewis, and |
| ● Schleicher, | ● Keri Moore. |
| ● Jacob R. Beach, |
The Court granted the motion to dismiss, in part. Defendants Wetzel, Overmyer, Blicha, Ennis, Crowther, Oberlander, Wallace-Ireland, Conrad, Dupont, Ellenberger, Reed and Varner were dismissed because Brandon failed to allege facts sufficient to support their personal involvement in any actionable conduct. See ECF No. 79; ECF No. 86. The defamation claim against Defendant Horton was also dismissed. Id. Brandon's retaliation claim against Burkhart and Chiles based on the confiscation of six boxes of legal materials was dismissed as was the retaliation claim against Defendant Varner based on her denial of Brandon's grievances. Id. Brandon's retaliation claim against Defendant Blake based on the confiscation of a legal document from the Pennsylvania Institutional Law Project was also dismissed. Id. Finally, the Court dismissed the retaliation claim against Defendant Pack based on the confiscation of Brandon's cable television converter box. Id. However, the Court declined to dismiss several other claims. Brandon's retaliation claims against Defendants Burkhart, Blake, Stoddard, and Chiles were not dismissed. ECF No. 79, pp. 11-14. The access to courts claim brought against Defendant Burkhart also survived dismissal as did his due process claims against Defendants Schleicher, Price, and Beach. Id., pp. 14-16. The Defendants who Brandon added to the Second Amended Complaint belatedly filed an Answer. ECF No. 83. This case next entered into a period of discovery, which Brandon again repeatedly sought to delay and extend. See, e.g., ECF No. 90, ECF No. 92, ECF No. 101, ECF No. 110, ECF No. 112. While discovery was pending, the Court, pursuant to 28 U.S.C. § 1915A(b)(2), dismissed claims against Defendants Cole, Kot, Moore, Haupt, Martini, Jackson, and Towner as frivolous. ECF No. 173.
The remaining Defendants then moved for summary judgment. See ECF No. 137. Instead of responding to the motion for summary judgment, Brandon moved to stay the case due to law library restrictions imposed at SCI-Forest as a result of the coronavirus pandemic. ECF No. 147. The Court granted Brandon's motion. ECF No. 149. This matter remained stayed for one hundred and twelve days, until August 7, 2020. See ECF No. 160. The Defendants' Motion for Summary judgment was reactivated by the Court and Brandon was given until October 6, 2020, to file his Response in Opposition. ECF No. 161. Brandon objected to the lifting of the stay and to the ordering of a Response, appealing the matter to the Honorable Susan Paradise Baxter, United States District Judge. See ECF No. 162, ECF No. 165, ECF No. 170. His appeal was denied. See ECF No. 169, ECF No. 175. Brandon again requested a sixty-day extension of time to file his Response in Opposition. ECF No. 172. The Court denied that motion, but given that the deadline for filing his Response had now passed, afforded Brandon until October 19, 2020, to file his Response. Brandon filed a Response in Opposition on October 26, 2020.
B. The Motion for Summary Judgment
The remaining Defendants in this action, Burkhart, Blake, Stoddard, Chiles, Schleicher, Price, and Beach (collectively, “Defendants”), have moved for summary judgment. ECF No. 137. The following claims remain in this action:
Defendant Lewis is deceased. His estate has not been substituted as a Defendant.
1. A conspiracy claim against Defendant Siegel. ECF No. 44, ¶ 61.
2. A claim of retaliation against Defendant Burkhart based on Burkhart's purported destruction of Brandon's legal property. ECF No, 44, ¶ 16;
3. A retaliation claim against Defendant Blake stemming from Blake's alleged issuance of a false misconduct charge after Brandon submitted a grievance about the confiscation of his legal property. Id. ¶ 23;
4. An access to courts claim against Defendant Burkhart based on Burkhart's alleged confiscation and destruction of Brandon's legal property. See ECF No. 79, pp. 14-15;
5. A retaliation claim brought against Defendants Stoddard and Chiles. ECF No. 44, ¶ 34;
6. A due process claim against Defendant Schleicher concerning the confiscation of Brandon's television. Id. ¶ 41; and
7. A due process claim against Defendants Price and Beach regarding the alleged destruction of Brandon's 1099 dividend forms. Id., ¶ 31.
Before turning to an analysis of these claims, it is important to summarize the factual background to this dispute and then discuss the applicable legal standards which guide the Court's decision.
III. Factual Background
Brandon admits to possessing twenty-six years-worth of legal materials stemming from “state and federal litigation.” Id., ¶ 17. He claims that prison officials unlawfully confiscated and destroyed these materials but what exactly was confiscated and destroyed remains somewhat unclear. Id., ¶ 12. The origins of this dispute can be traced back to July of 2014, when Defendant Pack, a corrections officer at SCI-Forest, confiscated Brandon's cable television converter box and cable cord. Id., ¶ 6. In September of 2014, Brandon states that Defendant Burkhart confiscated “extra legal boxes of my core legal materials.” Id. ¶ 11. According to Brandon, this was done in retaliation “to prevent me from filing my civil actions in the courts.” Id.
This Court previously pointed out that that “Plaintiff alleges that Defendant Burkhart confiscated six (6) boxes of legal materials on September 24, 2014 (ECF No. 44, ¶ 11) and that Burkhart destroyed nine (9) boxes of legal materials on February 9, 2016 (id. at ¶ 16). In their motion to dismiss, Defendants take these as two separate events. However, in his Opposition brief, Plaintiff makes clear that he was deprived of some of his legal materials from September 24, 2014 through their destruction in February 2016. See ECF No. 75, page 25.” ECF No. 79, p. 14 (emphasis in the original).
Specifically, Brandon claims this confiscation prevented him from filing a lawsuit about actions at SCI-Mahoney. Id. He also claims to have been unable to file a lawsuit against two investment companies as well as an action in state court pertaining to the estate of his late mother. Id. Finally, Brandon's inability to access these materials prevented him from prosecuting an appeal to the Court of Appeals for the Third Circuit in another case and from filing an appeal from the denial of a petition for habeas corpus. Id.
In February of 2016, Brandon allegedly showed Defendant Burkhart a letter from an attorney which indicated that the lawyer 'would prepare a lawsuit relative to my confiscated legal materials and CTCV/wCC held in Burkhart's property room.” Id. Brandon's verified Second Amended Complaint states that
On February 9, 2016, subsequent to me showing SCIF's [SCI-Forest's] Burkhart my lawyer's letter stating he would prepare a lawsuit relative to my confiscated legal materials and CTVCB/wCC held in Burkhart's Property Room, Burkhart stated by state procedure he can destroy it after eight months, as Burkhart in retaliation unlawfully destroyed all nine (9) of my extra legal boxes of my core legal materials and CTVCB/wCC on February 9, 2016 comitting spoliation of evidence, that entitles me to immediate release from prison.ECF No. 44, ¶ 16. The purported destruction of his property forms the basis of Brandon's retaliation claim (Count IV) against Defendant Burkhart. Id., see also ECF No. 79, n. 8. Defendants contend that Brandon was in possession of prohibited excess property and that he was given instructions on how to handle this excess. They state, and Brandon does not dispute, that he was given several opportunities to ship out his excess property as well as additional time to do so. ECF No. 140, ¶ 2-4.
IV. Standards of Decision
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) requires a court to render summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A disputed fact is “material” if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Id. at 248, 106 S.Ct. 2505; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257, 106 S.Ct. 2505; Brenner v, Focal 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).
In determining whether a genuine issue of material fact remains for trial, a court must consider the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the nonmoving party. Moore v. Tartier, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988).
To defeat a properly supported motion for summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings but must identify evidence that demonstrates a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party opposing the motion “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party may also rely on the lack of evidence to support an essential element of the opposing party's claim as a basis for the entry of summary judgment 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, 106 S.Ct. 2548. See also Harter v. GA.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
B. Summary Judgment and Pro Se Filings
Brandon is proceeding pro se. A filing from a pro se litigant is to be “liberally construed” and a “pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89. 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 206 (1976)). Additionally, when considering a motion in a pro se plaintiff s case, a court must “apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.” Holley v. Dep't of Veteran's Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999). On a motion for summary judgment, however, “a pro se plaintiff is not relieved of his obligation under [Federal Rule of Civil Procedure] 56 to point to competent evidence in the record that is capable of refuting a defendant's motion for summary judgment.” Dawson v. Cook, 238 F.Supp.3d 712, 717 (E.D. Pa. 2017) (citation omitted). Put another way, just because a non-moving party is proceeding pro se, they are not relieved of their “obligation under Rule 56(c) to produce evidence that raises a genuine issue of material fact.” Id. (quoting Boykins v. Vucent Techs., Inc., 78 F.Supp.2d 402, 408 (E.D. Pa. 2000)); see also Winfield v. Mazurkiewicz, 2012 WL 4343176, *1 (W.D. Pa. Sept. 21, 2012).
To this end, our Local Rules require that “[a]lleged material facts set forth in the moving party's Concise Statement of Material Facts ... will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party.” LCvR 56(E). The Court also may consider evidentiary materials in the record beyond the parties' concise statements and responses to it. See Scalia v. WPN Corp., 417 F.Supp.3d 658, 661 (W.D. Pa. 2019) (noting deficiencies under the Local Rules but declining to resolve the parties' disputes as to same and instead “rely[ing] on the record as a whole to determine the applicable material facts”). See also King v. Pennsylvania Dep't of Corr., 2020 WL 2897019, at *1 (W.D. Pa. June 1, 2020).
Brandon has filed a memorandum in opposition to summary judgment. ECF No. 180. Attached to that memorandum were a number of exhibits: an affidavit of Anthony Harrell (ECF No. 180-1); letters, a citation and order from the Court of Common Pleas of Allegheny County relating to the estate of Louvina A. Morris Kent (ECF No. 180-2); a memorandum and order from the Pennsylvania Commonwealth Court dismissing as moot Brandon's claim against a deceased judge (ECF No. 180-3); answers to interrogatories from Defendant Siegel (ECF No. 180-4); answers to interrogatories from Defendant Burkhart (ECF No. 180-5); answers to interrogatories from Defendant Price (ECF No. 180-6); an affidavit from Cerrone Furman (ECF No. 180-7); answers to interrogatories from Defendant Beach (ECF No. 180-8); a copy of the outside of an envelope from Franklin Templeton Investments, a mail room confiscation slip, and a copy of Brandon's appeal of Grievance Number 552116 and the response to that appeal, (ECF No. 180-9); answer to interrogatories from Defendant Chiles (ECF No. 180-10); answers to interrogatories from Defendant Beach (ECF No. 180-11); answers to interrogatories from Defendant Blake (ECF No. 12); copies of “cash slips” showing that Brandon mailed his Response on October 19, 2020 (ECF No. 13); and Brandon's own affidavit (ECF No, 180-14). Brandon did not file a response to the Defendants Concise Statement. Thus, inasmuch as Brandon has failed to respond to any properly supported statement of material fact in Defendants' Concise Statement, it is deemed admitted. LCvR 56.E; see also Coleman v. Tice, 2018 WL 5724125, it *2 n. 3 (W.D. Pa. Oct. 10, 2018), report and recommendation adopted by 2018 WL 5722316 (W.D. Pa. Nov. 1, 2018). However, because Brandon is proceeding pro se, the Court will consider any facts properly asserted in any of Brandon's other submissions which specifically contradict Defendants' statement of facts, so long as they are supported by the record. Boyd v. Citizens Bank of Pa., Inc., 2014 WL 2154902, at *3 (W.D. Pa. May 22, 2014) (stating that “[t]o the extent Plaintiffs statement of Tact' specifically controverts Defendant's, the Court will consider these facts in determining whether summary judgment should be granted”). See Jackson v. O Brien, 2020 WL 5702418, at *1 (W.D. Pa. Sept. 24, 2020).
Additionally, Brandon's Second Amended Complaint was verified. See ECF No. 44, ¶¶ 82-83. Thus, the Court must consider Brandon's pleading as an affidavit, to the extent that its statements are based upon personal knowledge and sets out facts that would be admissible in evidence. Williams v. Lee, 2020 WL 5704272, at *5 (W.D. Pa. Sept. 24, 2020) (citing Revock v. Cowpet Bay W. Condo. Ass'n, 853 F.3d 96, 100 n. 1 (3d Cir. 2017) (citing Fed.R.Civ.P. 56(c)(4) and Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985)).
With these standards in mind, the Court now turns to the remaining claims.
V. Discussion and Analysis
A. Defendants' Motion for Summary Judgment Should Be Granted on the Conspiracy Claims Brought Against Defendant Siegel.
Brandon's Second Amended Complaint identified Defendant Siegal as a “SCIF/SOIGA staff member, Hearing Examiner, and Chief Hearing Examiners (sic) on the dates giving rise to this lawsuit.” ECF No, 44, ¶ 5, The Second Amended Complaint states that on March 2, 2016, Defendant Siegel “noted my nine extra legal boxes and two bags of property were to be ‘held' in SCIF's property room until a court made a decision on it pursuant to DC-ADM 804 Section 2(A)(2)(g).” Id. at ¶ 18. Count IX of the Second Amended Complaint charges that on August 13, 2015, Siegel “conspired with Price and Beach to cover-up their unlawful action by arbitrarily refusing to process my SCIF Grievance.” Id. at ¶ 31. Under the heading “Claims, ” Brandon states that Siegel conspired to “cover-up Price and Beach's unlawful state procedures (sic) acts destroying my property rights in the Grievance procedures in Count IX, they all violated the First, Fifth, and Fourteenth Amendments of the United States Constitution.” Id. at ¶ 61.
To maintain an action for civil conspiracy under § 1983, Brandon must show “both the deprivation of a constitutional right and the existence of a conspiracy to violate that right.” Wodarski v. Erie Office of Children & Youth Servs., 2012 WL 602933, at *4 (W.D. Pa. Feb. 23, 2012). Defendant Siegel is entitled to summary judgment on Brandon's claim because there is no evidence in the record that Plaintiff s constitutional rights were violated. To maintain a civil conspiracy claim, “[b]are conclusory allegations of ‘conspiracy' or ‘concerted action' will not suffice to allege a conspiracy. The plaintiff must expressly allege an agreement or make averments of communication, consultation, cooperation, or command from which such an agreement can be inferred.” Elanagan v. Shively, 783 F.Supp. 922, 928 (M.D. Pa. 1992). The plaintiff s allegations “must be supported by facts bearing out the existence of the conspiracy and indicating its broad objectives and the role each Defendant allegedly played in carrying out those objectives.” Id. A plaintiff cannot rely on subjective suspicions and unsupported speculation. Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991). Moreover, “to successfully counter a motion for summary judgment, a plaintiff must provide specific evidence establishing that defendants agreed among themselves to act against him either unlawfully or for an unlawful purpose.” Payne v. Gordon, 3:17-cv-1230, 2018 WL 3649026, at *11 (M.D. Pa. Aug. 1, 2018).
Here, Brandon has failed to identify any record evidence of an agreement or plan formulated and executed by Siegel, Price, and Beach to support his conspiracy claim. Brandon has filed a personal affidavit in which he avers two things about Defendant Siegel. ECF No. 180-14, ¶¶ 5, 7. First, he states that he informed Siegel that his property boxes should be “held in the property room” since he would be litigating the confiscation of his materials “in court by filing court action.” Id., ¶ 5; see also ECF No. 75-8, p. 1. Siegel wrote “so noted” on his submission. ECF No. 75-8, p. 1. Second, Brandon avers that “Defendant Siegel conspired with both Defendants Beach and Price to destroy Plaintiffs “1099-Div” document prior to completion of Grievance 552116, by Defendant Siegel's refusal.” ECF No. 180-14, p. 2.
These assertions, however, fail to reasonably suggest the existence of an agreement or any concerted activity among Defendants Siegel, Beach and Price. Without more, Brandon's conspiracy claim against Siegel amounts to nothing mote than mere conjecture and bare speculation, which is not sufficient to demonstrate a genuine issue of fact as to the existence of an agreement designed to deny his constitutional rights. See Young, 926 F.2d at 1405 n.16. See also Jackson v. Schouppe, 2018 WL 3361270, at *2 (W.D. Pa. July 10, 2018) (dismissing § 1983 conspiracy claim where plaintiff “ha[d] not alleged any facts showing communication, cooperation, or command among any Defendants from which an agreement could be inferred, ” and finding that plaintiff s “vague and conclusory allegations of a conspiracy fail to satisfy the pleadings requirements of Twombly and Iqbal”); Chinniah v. E. Pennsboro Twp., 2016 WL 5799048, at *12 (M.D. Pa. Aug. 10, 2016), report and recommendation adopted, 2016 WL 5719830 (M.D. Pa. Sept. 30, 2016) (“A plaintiff must make specific factual allegations of combination or understanding among all, or any, of the defendants to plot, plan or conspire to carry out the alleged chain of events. Only allegations of conspiracy which are particularized, such as those addressing the period of the conspiracy, the object of the conspiracy, and certain other actions of the alleged conspirators taken to achieve that purpose will be deemed sufficient.”) (citation omitted). See Brandon v. Burkhart, 2020 WL 5992281, at *1 (W.D. Pa. Oct. 9, 2020). Accordingly, the Court should grant summary judgment to Defendant Siegel as to Brandon's conspiracy claim.
Defendant Siegel appears to interpret Brandon's claim somewhat differently, as based solely on her position as the Grievance Coordinator at SCI-Forest. See ECF No. 138, p. 4. So construed, Brandon's claims are meritless. It is “well established that the filing of a grievance is not sufficient to show the actual knowledge necessary for a defendant to be found personally involved in the alleged unlawful conduct.” Nichols v. Smock, 2020 WL 5215424, at *4 (W.D. Pa. Aug. 5, 2020), report and recommendation adopted, 2020 WL 5203621 (W.D. Pa. Sept. 1, 2020) (quoting Mearin v. Swartz 951 F.Supp.2d 776, 782 (W.D. Pa. 2013). See also Mincy v. Chmielsewski, 508 Fed.Appx. 99, 104 (3d Cir. 2013) (“[A]n officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement.”). Courts have routinely relied on this principle to dismiss civil rights allegations against prison officials, including health care administrators, whose only knowledge of the alleged violation stemmed from their participation in the grievance process. See, e.g. Brown v, Nicholson, 2020 WL 610523, at *6 (E.D. Pa. Feb. 7, 2020) (dismissing claim against prison CHCA who “denied [plaintiffs] grievance ... stating that he had received appropriate medical attention for his reported complaint”); Beale v. Wettel, 2015 WL 2449622, at *5 (W.D. Pa. May 21, 2015) (dismissing claims against senior prison officials because the only allegations against them arose in the context of their participation in an administrative appeal process); Mearin, 951 F.Supp.2d at 782 (same). The Court should reach the same conclusion here if it agrees with Siegel's interpretation of this claim.
B. Summary Judgment Should Be Granted on Brandon's Access to Courts and Destruction of Legal Property Claim Against Defendant Burkhart
There are two facets to Brandon's claim that Defendant Burkhart unlawfully denied him access to the courts as a result of the destruction of his legal materials. ECF No. 44, ¶ 16. He alleges both an access to courts claim and a retaliation claim based on the same facts.
1. The Access to Courts Claims
“Under the First and Fourteenth Amendments, prisoners retain a right of access to the courts.” Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). “Where prisoners assert that defendants' actions have inhibited their opportunity to present a past legal claim, they must show (1) that they suffered an ‘actual injury'-that they lost a chance to pursue a ‘nonfrivolous' or ‘arguable' underlying claim; and (2) that they have no other ‘remedy that may be awarded as recompense' for the lost claim other than in the present denial of access suit.” Id. (quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002)). The first element of a successful access-to-courts claim must show an “actual injury, ” which may “include a court dismissal of a complaint [or] an inability to even file a complaint.” Stevens v. Dickey, 2020 WL 5653498, at *4 (W.D. Pa. Sept. 23, 2020) (citing Booth v. King, 346 F.Supp.2d 751, 758 (W.D. Pa. 2004)). Other examples of actual injury include “missed court dates, missed filing deadlines, a denial of legal assistance to which he was entitled, or the loss of a case which he should have won.” See Fortes v. Harding, 19 F.Supp.2d 323, 327 (M.D. Pa. 1998). The sine qua non of a “viable claim of interference with access to the courts is a showing by the inmate of direct injury to [his] access to the courts.” Stevens, 2020 WL 5653498, at *4 (citing Reynolds v. Wagner, 128 F.3d 166, 183 (3d Cir. 1997) (internal citations and quotations omitted)).
It is important to keep in mind, however, that this “injury requirement is not satisfied by just any type of frustrated legal claim.” Lewis v. Casey, 518 U.S. 343, 354 (1996). The United States Supreme Court has explained that the right of access to the nation's courts does not “guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. Id. (citing Bounds v. Smith, 430 U.S. 817, 828 (1977)). Further clarifying, the Court explained that
[t]he tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any
other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.Id., at 355. The Court of Appeals for the Third Circuit confirmed this limitation, holding that in access to courts claims, the underlying “claim must relate to either a direct or collateral challenge to the prisoner's sentence or conditions of confinement.” Blowers v. Phelps, 514 Fed.Appx. 100, 103 (3dCir. 2013) (citing Lewis, 518 U.S. at 355, 116 S.Ct. at 2174).
Brandon points to five different lawsuits he claims to have been unconstitutionally prevented from filing because of the confiscation and destruction of his legal property. Each will be discussed in turn.
Brandon contends Defendant Burkhart confiscated six extra legal boxes “of my core legal materials to prevent me from filing my civil actions in the courts.” ECF No. 44, ¶ 11. Brandon insists that Burkhart's actions prevented him from suing staff at SCI-Mahanoy for stopping him from opening a bank account; for injuries he acquired when he fell; from filing an claim under the Americans with Disabilities Act (ADA) in 2013; from filing a lawsuit against two investment firms; and from suing the executor of his late mother's estate in state court. Id. Brandon also asserts that he could not appeal the denial of his petition for habeas corpus because his legal materials were confiscated and destroyed. Id. Brandon asserts that his purported claims against these officials “occurred in 2013” but he does not provide a specific date. ECF No. 180, p. 8. He submits that his inability to access this information deprived him of his “grievances and prisoner's affidavits to state facts to [his] claims on the dates the events transpired on and not having the [SCI-Mahanoy] staff members (sic) names.” ECF No. 44, ¶ 11. Unpacking these various contentions leads to the conclusion that Brandon has not established that Burkhart's actions caused any actual injuries.
First, several of Brandon's purported lawsuits attack neither his conviction, nor his sentence, nor the conditions of his confinement. See Lewis v. Casey, 518 U.S at 355. For example, Brandon claims that Burkhart's confiscation and destruction of his legal materials hindered him from opening a bank savings account in 2013. Not only is this not the type of claim that is associated with access to court concerns, it is also frivolous. That is so because Brandon does not have a constitutional right to open or access funds in a private bank account. See, e.g, Foster v. Hughes, 979 F.2d 130, 132- 33 (8th Cir. 1992) (holding that prisoners have no right to place their money in interest bearing accounts); Requena v. Sheridan, 2016 WL 9443727, at *4 (D. Kan. Sept. 13, 2016), aff'd, 691 Fed.Appx. 523 (10th Cir. 2017) (“On the facts alleged, the Court cannot find that the failure to allow plaintiff to access his funds in a savings account violated his constitutional rights under the standards announced in Bounds, Lewis, and Christopher.”). Thus, this claim is legally frivolous because it is not cognizable under 42 U.S.C. § 1983. See Pettis v. Everhart, 2020 WL 6343139, at *2 (M.D. Pa. Oct. 29, 2020) (citing Abdul-Akbar v. Dep't of Corr, 910 F.Supp. 986, 1008 (D. Del. 1995)). Similarly, any lawsuit relating to his deceased mother's estate does not implicate access to courts concerns. Brandon apparently wished to sue the executor of his mother's estate in state court. But again, such a claim has nothing to do with the legality of his conviction or the conditions of his confinement. Lewis, 518 U.S at 355. Instead, Brandon's inability to pursue such a claim is “simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.” Id.
And, even if Brandon did possess this type of right, a prisoner's constitutional rights are subject to regulations that bear a reasonable relationship to the legitimate penological needs of the prison. Bell v. Wolfish, 441 U.S. 520, 546, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Burner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). A prisoner's management of a trust account, for example, can be limited by numerous reasonable restrictions. See, e.g, Foster v. Hughes, 979 F.2d 1380, 132-33 (8th Cir. 1992) (holding that prisoners have no right to place their money in interest bearing accounts).
In an attempt to support this claims, Brandon has filed the following: a letter dated January 25, 2011, from Mr. Paul W. Stefano, Administrator of the Allegheny County Court of Common Pleas, Orphan's Court Division, a copy of a Show Cause order entered by the Allegheny County Court of Common Pleas, Orphan's Court Division against John H. Morris, the Executor of his mother's estate, a January 15, 2004 letter from Jeanmarie Lynch, indicating that a complaint has not been received. See ECF No 180-2. Defendants have submitted a copy of the Orphan's Court docket which indicates that Plaintiffs mother died in 1998. See ECF No. 138-3.
The same holds true for Brandon's claim that he was denied access to the courts in order to pursue claims against two investment firms. See ECF No. 44, ¶ IL Here, Brandon sought to file lawsuits against Fidelity Investments and Franklin Templeton Investments but was precluded from doing so because his property was confiscated. Id., see also ECF No. 180, ¶ 15. Brandon's claims against these financial institutions included breach of contract, breach of fiduciary duties, misrepresentation, and fraud. Id. Because a prisoner's right to access the courts extends to direct appeals, habeas corpus applications, and civil rights claims only, he has shown no violation of that right. See also Deisure v. Wolf, 2019 WL 2521633, at *2 (E.D. Pa. June 19, 2019). Since these claims do not challenge Brandon's sentence or the conditions of his confinement, he was not denied access to courts. See, e.g, Monroe v. Beard, 536 F.3d 198, 205-06 (3d Cir. 2008) (citing Lewis, 518 U.S. at 354-55) (“prisoners may only proceed on access-to-courts claims in two types of cases, challenges (direct or collateral) to their sentences and conditions of confinement”). See also Snider v. Alvarez et al., 2020 WL 6395499, at *13 (M.D. Pa. Nov. 2, 2020).
Brandon was also not denied access to the courts in connection with his purported claim for injuries he received from a fall, and for his claim under the ADA. As to the injuries he sustained from a fall at SCI-Mahanoy, this type of claim is not an access to court's claim. Lewis specifically says so. 518 U.S at 355 (noting specifically that access to courts does not implicate slip-and fall claims) (emphasis added). Certainly the ADA has been used by disabled individuals to gain access to courts and public buildings, and even by disabled prisoners to gain access to programs offered by state prisons. See, e.g, Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2001); Pennsylvania Dept of Corr. v. Yeskey, 524 U.S. 206, 211, 118 S.Ct. 1952, 1955, 141 L.Ed.2d 215 (1998). Brandon offers no specifics as to the factual underpinnings of his ADA claims. But such claims typically focus on “physical” access to court facilities; not some hindrance to filing a lawsuit. Id. See also Monroe v. Beard, 536 F.3d 198, 205-06 (3d Cir. 2008) (citing Lewis, 518 U.S. at 354-55) (“prisoners may only proceed on access-to-courts claims in two types of cases, challenges (direct or collateral) to their sentences and conditions of confinement”). And an ADA claim certainly would fit within the “other” types of litigation that may be constitutionally impaired as an incidental consequence of conviction and incarceration. See Lewis, 518 U.S. 355. The Court of Appeals has clarified that “[i]n other words, a prisoner has no constitutional right of access to the courts to litigate an unrelated civil claim.” Ball v. Hartman, 396 Fed.Appx. 823, 825 (3d Cir.2010) (quoting Simmons v. Sacramento Cnty. Super. Ct., 318 F.3d 1156, 1160 (9th Cir.2003)). Thus, the Court should conclude that as a prisoner, Brandon's right of access to the courts does not extend to these unrelated civil cases. See, e.g, Prater v. Wettel, 2015 WL 3421544, at *5 (E.D. Pa. May 27, 2015), affd, 2015 WL 8020801 (3d Cir. Dec. 7, 2015).
Brandon additionally claims that Burkhart's actions prohibited him from pursuing two appeals to the Third Circuit: an appeal in a civil rights matter and an appeal from the denial of a petition for habeas corpus. ECF. No. 44, ¶ 11. The civil rights case Brandon cites is Brandon v. Sgt. Nazarovich, No. 15-1811. There, Brandon raised retaliation claims, free speech claims relating to discussions of the Wimbledon championships, 4th, 5th, and 9th Amendment claims, procedural due process claims relating to the prison's alleged failure to investigate grievances, due process challenges to prison disciplinary proceedings, and claims of false misconducts being filed against him. See Case No. 2:02-cv-00343, ECF No. 150, p. 3. He did not challenge his sentence or the condition of his confinement in this lawsuit. Thus, because Brandon's right of access to the courts does not extend to the appeal of these unrelated civil rights, he cannot show an actual injury. See Prater, 2015 WL 3421544, at *5.
Furthermore, Brandon has failed to show any actual harm associated with his inability to appeal this case. First, he did appeal the matter. Brandon's failure to prosecute this appeal is his own doing. The public docket for that case number indicates that Brandon filed a Notice of Appeal on April 3, 2015, which was subsequently dismissed on June 11, 2015, for Brandon's failure to pay the fee associated with the filing of his notice of appeal. Taking judicial notice of the Court of Appeals' docket, Brandon's appeal was dismissed because he failed to pay the filing fee; not because of any actions of the Defendants. See Nin v. Luzerne Cy., 2020 WL 6143561, at *5 (M.D. Pa. Oct. 19, 2020) (citing Orabi v. Atty Gen., 738 F.3d 534, 537 (3d Cir. 2014) (holding that a court may take judicial notice include “the contents of another Court's docket).
As to the appeal from the denial of his habeas petition, this is the type of claim recognized as appropriate under Bounds and Lewis, supra. But here, Brandon fails to produce any evidence showing actual harm. The Second Amended Complaint identifies Brandon v. Johnson, Case No. 2:00-cv-1656 as the relevant habeas litigation and points to Brandon's inability to appeal in that case. ECF No 102. See ECF No. 44, ¶ 11. Brandon filed a petition for a writ of habeas corpus on August 21, 2000. The Court denied his petition and decline to give him a certificate of appealability on August 6, 2003. See Case No. 2:00-cv-1656, ECF No. 38. Brandon then filed a Notice of Appeal on August 13, 2003. See Case No. 2:00-cv-1656, ECF No. 55. The Court of Appeals denied Brandon a certificate of appealability on March 8, 2004, concluding for a second time that Brandon had not made a substantial showing of the denial of a constitutional right. See Case No. 2:00-cv-1656, ECF No. 58. Thus, any claim by Brandon that Burkhart' actions prevented him from appealing the denial of his habeas petition is frivolous.
The document that Brandon identifies as being unable to appeal is the Court's order denying Brandon's motion to alter or amend judgment under Fed.R.Civ.P. 59(e), entered on October 5, 2015. ECF No. 102. In his motion, Brandon asked the Court to alter its order denying him relief under Fed. R. Civ P. 60 (b). The Court construed that motion as one collaterally attacking Brandon's conviction. Thus, the Court treated that motion as a successive petition for habeas relief and denied it. See Case No. 2:00-cv-1656, ECF No. 58. Brandon did not appeal this order. Because Brandon did, in fact, appeal the denial of his habeas petition, any claim that Burkhart's actions denied him an opportunity to do so is frivolous. Further, given this, he has not shown any actual injury. Thus, the Court should grant summary judgment to Burkhart on Brandon's access to court claims.
2. The Retaliation Claim Against Defendant Burkart
Brandon also claims that on February 9, 2016, Burkhart destroyed nine boxes of legal materials in retaliation for Brandon showing him a letter from a lawyer threatening litigation to recover Brandon's television equipment. ECF No. 44, ¶ 16. To prevail on his retaliation claim, Brandon must demonstrate that: (1) he engaged in constitutionally protected conduct; (2) he suffered an 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 the adverse action. Williams v. Lee, 2020 WL 5704272, at *5 (W.D. Pa. Sept. 24, 2020) (citing Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (citing Rauser v. Hom, 241 F.3d 330, 333-34 (3d Cir. 2001)). Retaliatory motive can be inferred from either: (1) an unusually suggestive temporal proximity between the protected activity and the alleged retaliatory action; or (2) a pattern of antagonism coupled with timing that suggests a causal link. Id. (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).
Here, Brandon has failed to show any temporal proximity between his showing Burkhart the letter and Burkhart's destruction of the property. The letter is not part of the record and Burkart has not stated when it was written or received. Thus, he has failed to establish the requisite temporal connection or other evidence of causation and summary judgment should be granted to Defendant Burkhart on this claim.
C. Summary Judgment Should Be Granted to Defendant Blake on Brandon's Retaliation Claims.
Brandon brings a retaliation claim against Defendant Blake. He alleges that Defendant Blake filed a false misconduct against him as retaliation for Brandon filing a grievance against her. See ECF No. 44, ¶ 23. Here, Brandon claims that Blake retaliated against him
For filing my grievance about the free speech violation in Count V, by issuing me a false misconduct report alleging I refused an order of loaning or borrowing property, by me having two (2) SCIF prisoners proof read my Affidavit to my pro se PCRA petition and falsely stated I called her a racist in the library on January 14, 2016.Id. By referencing Count V, Brandon acknowledges that his retaliation claim is premised on grievances he apparently filed prior to November 30, 2015, in connection with the confiscation of a document authored by the Pennsylvania Institutional Law Project. See ECF No. 44, ¶ 12. Thus, he contends that Blake's retaliatory actions on January 14, 2016, were based on grievances he filed against her sometime in November of 2015.
The Court has already dismissed Brandon's retaliation claim against Defendant Blake based on the confiscation of that document. See ECF No. 78, p. 1.
Brandon appears to tie Blake's alleged retaliation to his filing of Grievances Nos. 576923 and 59954. See ECF No. 7512, p. 3. But those grievances are not part of the record and the exact date of their filing cannot be determined.
In support, Brandon has filed an affidavit from Anthony Harrell, in which Harrell attests in that he and another inmate were proofreading Brandon's affidavit when Defendant Blake “began hollering at Mr. Brandon stating, 'Mr. Brandon you cannot give Mr. Harrell the affidavit.” ECF No. 180-1. Harrell also attests to Defendant Blake attempting to confiscate the affidavit from another inmate (Riveria). Id. Brandon has also placed Blake's answers to various interrogatories on the record. ECF No. 180-12. Those consist of Blake's objections to questions concerning her background, training, education, as well as her commission as a Notary Public. Id., pp. 1-2. Finally, Brandon's own affidavit in which he contends that Blake's commission as a Notary Public prohibited her from practicing law and thus, had “no right” to stop the other inmates from proofreading his affidavit. ECF No. 180-14, ¶ 25.
To state a First Amendment retaliation claim, Brandon must allege “(1) constitutionally protected conduct, (2) an adverse action by prison officials sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the exercise of his constitutional rights and the adverse action taken against him.” Snider v. Alvarez, et al., 2020 WL 6395499, at *16 (M.D. Pa. Nov. 2, 2020) (citation omitted). Assuming for purposes of this motion the satisfaction of the first two prongs, Brandon has failed to satisfy the third.
“To establish the requisite causal connection, a plaintiff usually must prove either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.” Alex v. Wettel, 2014 WL 690610, at *4 (M.D. Pa. Feb. 24, 2014) (citing Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)). “Courts in civil rights cases have frequently rebuffed speculative efforts to infer causation from temporal proximity when a span of weeks, months or years separated the plaintiffs constitutionally protected conduct from the defendants' alleged acts of retaliation.” Lawson v. Crowther, 2018 WL 6524380, at *4 (W.D. Pa. Oct. 30, 2018), report and recommendation adopted, 2018 WL 6523185 (W.D. Pa. Dec. 12, 2018) (citations omitted). See also Fischer v. Transue, 2008 WL 3981521, *10 (M.D. Pa. Aug. 22, 2008) (temporal proximity of three weeks insufficient to establish causation); Marv. City of McKeesport, 2007 WL 2769718, at *4 (W.D. Pa. Sept. 20, 2007) (three months); Killen v. N.W. Human Servs., Inc., 2007 WL 2684541, at *8 (E.D. Pa. Sept. 7, 2007) (seventeen days). Brandon claims that Blake issued a false misconduct against him on January 14, 2016-months after the filing of grievances against her in November of 2015. ECF No. 44, ¶¶ 21, 23. Thus, the temporal distance does not suggest a causal link.
Furthermore, Brandon was found guilty of the January 14, 2016 misconduct, which also negates his retaliation claim against Blake. Brandon's misconduct history is part of the record and it reveals that Brandon was found guilty of this misconduct and that determination was upheld on appeal. See ECF No. 139-5, p. 5. As the United States Court of Appeals for the Third Circuit has observed: “[an inmate's] retaliatory discipline claim fails [when] there is 'some evidence' supporting the guilty findings.” Nifas v. Beard, 374 Fed.Appx. 241, 244 (3d Cir. 2010) (citing Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994) (stating that a finding of 'some evidence' to support a prison disciplinary determination 'checkmates' the prisoner's retaliation claim).” Here, the record includes evidence to support the misconduct, including admissions by Brandon. See, e.g, ECF No. 75-12, p. 2; ECF No. 180, ¶ 8; ECF No. 180-1. Because a finding of some evidence to support a misconduct citation checkmates a retaliation claim involving prison discipline, Brandon's admissions that he committed the acts of misconduct bars him from citing the discipline as some form of retaliation. See, e.g., Rosa-Diaz v. Rivello, 2020 WL 6481539, at *11 (M.D. Pa. July 10, 2020), report and recommendation adopted Rosa-Diaz v. Rivello, 2020 WL 6449331 (M.D. Pa. Nov. 3, 2020).
Brandon also appears to argue that Blake's actions on January 14, 2016, violated the First Amendment as well as his access to courts. To the extent he raises such claims, they are meritless. There is no constitutional right to have someone proofread a document. And to the extent Blake's actions denied him access to the courts, that claim is meritless as well. There is no evidence that Blake actually confiscated Brandon's PCRA Affidavit. Her misconduct report states only that she stopped Brandon from sharing the affidavit with two other inmates, that he refused her order, and that a corrections officer briefly showed her the document, which she recognized as Brandon's affidavit. Tee ECF No. 75-12, p. 1. Nothing on the record indicates that Brandon suffered an actual injury from Blake's actions. He points to nothing showing that was prevented from filing his affidavit to his PCRA petition or that he missed a deadline for doing so. See, e.g., Stevens v. Dickey, 2020 WL 5653498, at *3 (W.D. Pa. Sept. 23, 2020). His laments only that the other inmates were not able to proofread his document. Thus, there is no viable access to courts claim.
D. Defendants Chiles and Stoddard's Motion for Summary Judgment Should be Granted.
At Count XII of the Amended Complaint, Brandon appears to allege a separate retaliation claim under the First Amendment. He claims that Defendants Chiles and Stoddard “were retaliating against [him] for filing prior grievances” by not assigning someone to assist him with his wheelchair. ECF No. 44, ¶ 34. Brandon does not state when or against whom he filed these grievances and they are not part of the record. Instead, Brandon avers in his affidavit that Defendants Chiles and Stoddard caused him to miss “numerous lunch and dinner meals” because they did not assign a wheelchair pusher in retaliation for him filing grievances. ECF No. 180-14, ¶ 21.
Summary judgment should be granted to the Defendants on this claim. To prevail, Brandon must demonstrate that: (1) he engaged in constitutionally protected conduct; (2) he suffered an 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 the adverse action. Williams v. Lee, 2020 WL 5704272, at *5 (W.D. Pa. Sept. 24, 2020) (citing Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016; Reuser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001)). An “adverse action” is one that would “deter a person of ordinary firmness” from exercising his First Amendment rights. Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)).
The filing of a grievance is a constitutionally protected activity, Barnes v. Erie Cty. Prison Admin., 2020 WL 4450297, at *6 (W.D. Pa. Aug. 3, 2020) and the deprivation of a wheelchair assistant is assumed to be an adverse action. Brandon fails, however, to connect the two and thus, summary judgment must be granted on this claim. See, e.g., Armstrong v. Furman, 2020 WL 5545270, at *3 (W.D. Pa. Sept. 16, 2020); Williams v. Clark, 2020 WL 85545 (W.D. Pa. Jan. 7, 2020). That is, Brandon has not demonstrated a causal connection. To establish a causal link, Brandon must show either: “(1) an unusually suggestive time proximity between the protected activity and the allegedly retaliatory action; or (2) a pattern of antagonism coupled with timing to establish a causal link.” Snider v. Alvarez et al., 2020 WL 6395499, at *18 (M.D. Pa. Nov. 2, 2020). By failing to provide the specific dates of the grievances he filed, who he filed them against, and what the resolution of those grievances was, Brandon has failed to point to any evidence showing that the denial of a wheelchair assistant was temporally connected in any way to the filing of grievances. Thus, Brandon has presented no evidence that would permit a finding that Defendants Chiles and Stoddard deprived him of wheelchair assistance in retaliation for his act of filing grievances. See, e.g., Price v. Williams, 2020 WL 3172757, at *8 (M.D. Pa. June 15, 2020).
To the extent Brandon is arguing that the meals he missed were the adverse action, such a claim would likely fail. Missing meals is not so serious as to give rise to a constitutional violation. Button v. Hakinberry, 2016 WL 4503336, at *4 (W.D. Pa. Aug. 29, 2016) (citing Brown v. Beard, 2011 WL 1085890, at *14 (W.D. Pa. Mar. 21, 2011); Ford v. Bd. of Managers of N.J. State Prison, 407 F.2d 937, 939-940 (3d Cir. 1969) (“[i]nasmuch as Plaintiff does not presently contend that he was denied consecutive meals, nor that he suffered any ill effects from these supposed occasional denials, Defendants are entitled to summary judgment as to this claim”); Fraser v. Daniels, 2010 WL 2040763, at *11 (E.D. Pa. May 20, 2010) (conduct such as denial of dinner on occasion or verbal antagonizing of plaintiff did not constitute adverse action); Burgos v. Canino, 641 F.Supp.2d 443, 460 (E.D. Pa.), affd, 358 Fed.Appx. 302 (3d Cir. Dec. 23, 2009) (“[occasional denial of an exercise period does not rise to the level of an Eighth Amendment violation”)).
E. Summary Judgment Should be Granted to Defendants Schleicher, Price, and Beach on Brandon's Due Process Claims
Count IX of the Second Amended Complaint raises a due process claim against Defendant Schleicher relating to the confiscation of Brandon's television and claims connected to the alleged destruction of a 1099 dividend form by Defendants Price and Beach. Summary judgment should be granted to the Defendants on these claims.
It is well established that the confiscation of a prisoner's property does not violate due process where the institution provides as “meaningful post-deprivation” remedy. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L. Ed2d 393 (1984). The Third Circuit has previously held that an inmate grievance procedure provides an adequate post-deprivation remedy, thereby satisfying due process, even if the inmate is dissatisfied with the result. See Tillman v. Lebanon Cty. Corr. Facility, 221 F.3d 410, 422 (3d Cir. 2000) (an internal grievance program that allows prisoners “to complain about 'any' matter that is 'unjust,' ” and provides for “direct appeal to the warden” has been found to constitute an adequate post-deprivation remedy); Brown v. Varner, Civil Action, 2013 4591817, at *9 (M.D. Pa. Aug. 28, 2013) (Pennsylvania inmate had access to meaningful post-deprivation remedies for claims that property was wrongfully confiscated, and inmate had used them by filing grievances); Rambert v. Beard, 2012 WL 760619, at *15 (M.D. Pa. Mar. 7, 2012) (“[T]he existence of this postdeprivation remedy forecloses any due process claim, even if an inmate is dissatisfied with the result of the process.” (citations omitted)).
Here, Brandon had a meaningful post-deprivation remedy for the destruction or loss of his personal property-the inmate grievance system set forth in DC-ADM 804-and he availed himself of it, albeit without success. See ECF No. 180-9 (Grievance No. 552116). The existence of this post-deprivation remedy forecloses his due process claim, even if he is dissatisfied with the result. Accordingly, the Defendants' motion for summary judgment should be granted on Brandon's due process claims.
One allegation of Brandon's merits further discussion. In his affidavit, Brandon states that Defendant Beach “admits he destroyed Plaintiff s 1099-Div document prior to completion of GRIEVANCE FRS-552116 proceedings.” ECF No. 180-14, ¶ 10. In support of this contention, he cites to his Exhibit No. 8 (ECF No. 180-8). There, in his answers to Brandon's interrogatories, Defendant Beach states:
When an item is confiscated by the mailroom, a confiscation sheet is completed with the date the item is confiscated and the reasons for confiscation. The confiscation sheet states that items will be destroyed after 15 days, unless the inmate files a grievance. A copy of this confiscation sheet is given to the inmate. After 15 days, the item is destroyed, and the confiscation sheet is stamped with the date.ECF No. 180-9, p. 3. The confiscation sheet is part of the record and indicates that the form was confiscated on February 20, 2015, because it was a “tax form.” ECF No. 180-9. Beach then states that he “authorized the destruction of this document, after several months had past (sic).” Id. Brandon apparently filed a Grievance about the confiscation of this document. While the original grievance is not part of the record, the institution's response is. ECF No. 180-9, p. 3. There, Defendant Beach states that Brandon's prior grievances on this matter were answered on February 17, 2015 and February 20, 2015. Id. Beach explained the institution's policy that “federal, state, and local income tax filing documents shall not be delivered to an inmate as these may be used to file fraudulent tax returns. If an inmate has a legitimate need to file a tax return, he may request forms from the unit team.” Id. Beach instructed Brandon to have his “counselor pick this form up to ensure it was not used fraudulently.” Id. Brandon's appeal of Beach's initial response recounts that Beach told him that the 1099-Div form “would be destroyed on March 5, 2015 if Grievant did not provide her with a person's name and address where to mail it to (even subsequent to Grievant advising her that it is part of this GRIEVANCE and staff can not (sic) destroy it.” Id. p. 4. Missing from the record is any evidence as to when the document was actually destroyed.
Brandon has submitted an affidavit from inmate Cerrone Furman in which Furman avers that he heard Defendant Price tell Brandon on March 5, 2015, “Unit Manager Mr. Chiles said he will not provide you with any tax forms to help you file your taxes, central office said you can not have your 10990-Div document, that you must give me a person's name and address in society where you want me to mail your 1099-Div document to or I will have it destroyed today.” ECF No. 180-7, ¶ 3. He also was present when Brandon told Price that his “1099-Div document is part of SCIF official inmate grievance 552116 still pending in SCIF to which he can not give her any person's name and address in society to mail his 1099-Div document to and that [Price] or any staff member can not destroy his 1099-Div document because it is not per say (sic) an (sic) tax form.” Id. In her answers to interrogatories, Price recalls giving Brandon instructions about mailing the form to someone else, but does not recall telling him they “would or could destroy his tax form ” ECF No. 180-6, p. 2.
To the extent Brandon argues that Beach's premature destruction of his 1099 form violated his procedural due process rights, that argument lacks merit. In addition to the availability of grievance procedures there is no basis for a procedural due process claim because Pennsylvania law provides Brandon with an adequate state remedy. See Spencer v. Bush, 543 Fed.Appx. 209, 213 (3d Cir. 2013) (“‘[A]n unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post deprivation remedy for the loss is available.'” See, e.g, Brookins v. Wetzel, 2020 WL 5951553, at *3 (E.D. Pa. Oct. 8, 2020) (quoting Hudson v. Palmer, 468 U.S. 517, 533 (1984); Shakur v. Coelho, 421 Fed.Appx. 132, 135 (3d Cir. 2011) (per curiam) (explaining that the Pennsylvania Tort Claims Act provides an adequate remedy for a willful deprivation of property)). Accordingly, Brandon has not stated a basis for a due process claim because state law provides him a remedy for his destroyed property. See McNeil v. Grim, 736 Fed.Appx. 33, 35 (3d Cir. 2018) (per curiam) (“[E]ven if McNeil claimed that the prison grievance procedures were constitutionally inadequate, Pennsylvania's state tort law would provide an additional adequate remedy.”). Accordingly, the Fourteenth Amendment due process claim is not plausible and summary judgment should be granted to these Defendants.
V. Conclusion
It is recommended that the Defendants' Motion for Summary Judgment be GRANTED.
VI. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the District Court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed. R. Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).