Opinion
1:20-CV-00368-SPB
11-06-2023
ANTHONY DEFRANCO, Plaintiff v. OFC. ASHLEY MILLER, SGT. MATTHEW PUTMAN, INDIVIDUAL AND OFFICIAL CAPACITY; OFC. BRANDON WISE, BRYAN FLINCHBAUGH, LIEUTENANT JOHN DOE, JANE DOE, Defendants
REPORT AND RECOMMENDATION ON PENDING MOTIONS FOR SUMMARY JUDGMENT
ECF NOS. 87, 112
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
The parties' cross-motions for summary judgment [ECF Nos. 87, 112] are before the undersigned for report and recommendation pursuant to 28 U.S.C. § 636. For the reasons discussed below, it is respectfully recommended that the Defendants' motion [ECF No. 112] be granted in part and denied in part and that the Plaintiffs cross motion [ECF No. 87] be denied.
I. Procedural History
Plaintiff Anthony DeFranco, an inmate in the custody of the Pennsylvania Department of Corrections (DOC), brings this civil rights action pursuant to 42 U.S.C. § 1983 against four corrections staff members at the DOC's State Correctional Institution at Albion, Pennsylvania.DeFranco claims, among other things, that the Defendants retaliated against him for filing grievances and this lawsuit. See ECF No. 5; ECF No. 33. By prior order, the Court dismissed several of DeFranco's claims. See ECF No. 31, p. 4. Remaining are First Amendment claims against each of the four named Defendants, Officer Ashley Miller, Sergeant Matthew Miller, Officer Brandon Wise, and Bryan Flinchbaugh. Id.
In his pleadings and deposition, DeFranco spells Defendant Matthew Putnam's last name as “Putman.” This Report and Recommendation uses the spelling “Putnam” because this is the spelling used by Defendants.
After the close of discovery, Defendants moved for summary judgment. See ECF No. 77. DeFranco then filed a cross-motion for summary judgment (ECF No. 87) and a response in opposition to the Defendants' motion (ECF No. 90). Defendants filed a response in opposition to DeFranco's motion. See ECF No. 95. Because DeFranco raised “unavailability” of administrative remedies in response to Defendant Wise's exhaustion defense, the Court dismissed both motions for summary judgment without prejudice and scheduled a hearing pursuant to Small v. Camden Cnty., 728 F.3d 265 (3d Cir. 2013) to resolve the issue. See ECF No. 97. Following the hearing, the undersigned recommended that the Court reject Defendant Wise's exhaustion defense, and the Court adopted this recommendation. ECF No. 110.
DeFranco styled his filing a “cross motion and brief for summary judgment.” ECF No. 87. He also filed a concise statement of material facts. See ECF No. 89. DeFranco's submissions largely present only arguments in opposition to Defendants' motion and do not state a basis for granting judgment to him as a matter of law. Therefore, DeFranco's cross-motion should be denied and construed as a response in opposition to the Defendants' motion for summary judgment. See, e.g., Tomasello v. Seelbaugh, 2013 WL 4010683, at *1 (W.D. Pa. Aug. 6, 2013).
The Defendants then renewed their motion for summary judgment without raising exhaustion. See ECF Nos. 112, 115. DeFranco opted to stand on his previously filed motion for summary judgment and responses to Defendants'original motion. ECF No. 120, p. 1. Given this, the Court reactivated DeFranco's prior motion (ECF No. 87) on the docket. The Defendants likewise stood on their previous response in opposition to DeFranco's cross motion (ECF No. 97). See ECF No. 122.
II. Standard of Decision
Federal Rule of Civil Procedure 56(a) requires the district court to enter 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). Under this standard “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 (1986). A disputed fact is “material” if proof of its existence or nonexistence would affect the outcome under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact 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; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether a genuine issue of material fact remains for trial, the court must view the record and all reasonable inferences to be drawn therefrom in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682, 685 (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 avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. Instead, once the movant satisfies its burden of identifying evidence that demonstrates the absence of a genuine issue of material fact, the nonmoving party must go beyond his pleadings with affidavits, depositions, answers to interrogatories or other record evidence to demonstrate specific material facts that give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). On a motion for summary judgment, “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 ...” Dawson v. Cook, 238 F.Supp.3d 712, 717 (E.D. Pa. 2017) (citation omitted). Put another way, pro se status does not relieve a non-moving party of his “obligation under Rule 56(c) to produce evidence that raises a genuine issue of material fact.” Id. (quoting Boykins v. Lucent Techs., Inc., 78 F.Supp.2d 402, 408 (E.D. Pa. 2000)); see also Winfield v. Mazurkiewicz, 2012 WL 4343176, at *1 (W.D. Pa. Sept. 21, 2012).
The court applies the foregoing standards no differently when reviewing cross-motions for summary judgment. Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008). ‘“Cross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.'” Id. (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)). If review of cross-motions reveals no genuine issue of material fact, then judgment may be granted in favor of the party entitled to judgment in view of the law and undisputed facts. Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998) (citation omitted).
III. Material Facts
The following facts are derived from the parties' principal and responsive concise statements of material facts (see ECF Nos. 89, 91, 96, and 113), the exhibits thereto, and, where appropriate, from DeFranco's verified Complaint (ECF No. 5) and verified Amended Complaint (ECF No. 33), which the Court treats as affidavits. Disputed material facts are noted.
See Jackson v. Armel, 2020 WL 2104748, at *5 (W.D. Pa. May 1, 2020) (citing Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985) (treating verified complaint as an affidavit on summary judgment motion)). See also Brooks v. Kyler, 204 F.3d 102, 108 n.7 (3d Cir. 2000) (noting that an affidavit is “about the best that can be expected from [apro se prisoner] at the summary judgment phase of the proceedings”).
Where a statement of fact is not disputed in the opposing party's responsive concise statement, this Report cites only to the former.
According to DeFranco's verified Complaint, Defendant Matthew Putnam, a corrections officer at SCI-Albion, “began to verbally assault and bait [DeFranco] into a fight” while he was waiting in medication line to have his vitals taken on August 29, 2020. ECF No. 5, ¶ 3. After returning to his cell, Putnam told DeFranco over the intercom, “I'm going to get you.” Id. ¶ 6. DeFranco then “requested a grievance and stated he was going to sue.” Id. Putnam refused to give “him the grievance and threatened that [DeFranco] would see what happens to inmates who sue.” Id., ¶ 7. According to DeFranco, Defendant Officer Ashley Miller then “chimed in with a threat that [DeFranco] would be suing from D Unit (threatening she would have him moved to another Unit).” Id.
On August 30, 2020, DeFranco obtained and completed a grievance form but, before he could submit the grievance, he was taken to “the hole.” Id., ¶ 8. Thereafter, DeFranco received Misconduct No. D430654, which charged him with a “Class 1 sexual harassment” offense. ECF No. 113, ¶ 1. The Defendants contend that Miller alone issued this misconduct against DeFranco while DeFranco asserts that both Miller and Putnam filed the charge. ECF No. 91, ¶ 1. On September 2, 2020, a hearing officer conducted a hearing on the misconduct report and reviewed video surveillance and other evidence. At the conclusion of the hearing, hearing officer found DeFranco not guilty dismissed the charge with prejudice. ECF No. 113, ¶ 2.
Upon being released from the restricted housing unit and returning to his cell, DeFranco noticed that the contents of his cell had been “packed” and that some of his personal property had been “destroyed, stole[n] or thr[o]w[n] away,” including photographs of DeFranco's deceased mother and son as well as “legal papers, including a grievance.” ECF No. 5, ¶ 11. In his Amended Complaint, DeFranco asserted that, on September 1, 2020, Officer Wise packed his cell materials at the direction of Officer Miller. ECF No. 33, ¶ 17. The Defendants contend that Wise could not have been the one who packed the contents of DeFranco's cell because he was not working at the prison on September 1, 2020. ECF No., 113, ¶ 7. DeFranco now asserts that Wise packed his materials on August 31, 2020. ECF No. 91, ¶ 7.
On September 6, 2020, DeFranco filed Grievance No. 888416 based on the filing of the misconduct charge and the confiscation and/or destruction of items of his personal property. Id., ¶ 4. On September 9, 2020, DeFranco filed another grievance (No. 889023) concerning the misconduct charge. Id., ¶ 5. On September 11,2020, he filed a third grievance (No. 889248) concerning the packing of his personal property by prison personnel. Id., ¶ 6. DeFranco's grievance challenged both the filing of the allegedly false misconduct charge and the loss or destruction of his personal property as acts of retaliation motivated by his filing of grievances and threatening to sue prison officials. Prison officials denied each of DeFranco's grievances.
III. Discussion and Analysis
Inmates retain First Amendment protections to the extent they are “not inconsistent” with prisoner status or the “legitimate penological objectives of the corrections system.” Wisniewski v. Fisher, 857 F.3d 152, 156 (3d Cir. 2017) (quoting Newman v. Beard, 617 F.3d 775, 781 (3d Cir. 2010)). The elements of a First Amendment retaliation claim are: “(1) constitutionally protected conduct, (2) retaliation action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006). The Defendants argue that the record does not support a retaliation claim against any of them. First, they point out the sparsity of allegations against Defendant Flinchbaugh and the absence of any evidence to support the protected conduct or adverse action elements of DeFranco's claim against him. See ECF No. 115, p. 3. They similarly challenge the sufficiency of the evidence to support these two elements of DeFranco's claim against Wise. Id. pp. 4-6. Finally, they argue that the record does not support the adverse action element of DeFranco's claim against Miller and Putnam. Id., p. 6. This Report addresses each argument in turn.
A. Defendant Flinchbaugh
DeFranco's original Complaint did not include Flinchbaugh as a Defendant, see ECF No. 5, and his Amended Complaint mentions him only briefly in Count III. See ECF No. 33. DeFranco contends that, on August 31,2021, a full year after the events upon which he bases his retaliation claim against Putnam, Wise, and Miller, he approached Flinchbaugh “to ask his help” in stopping the alleged retaliation being inflicted on him by “the guards.” Id., ¶ 24. According to DeFranco, Flinchbaugh “directed Defendant Putnam to place Plaintiff in the RHU when he could and that Plaintiff would not get out on half release.” Id., ¶ 25. Further, DeFranco contends that Flinchbaugh “always voted unfavorably for anything that came before him regarding the Plaintiff,” that Flinchbaugh “never cared for Plaintiff,” and that Flinchbaugh “directly told Plaintiff that he directed Defendant Putnam to file the misconduct charges that were found to be lies.” Id., ¶¶ 25-26. When asked at his deposition to elaborate on his legal claims against Flinchbaugh, DeFranco stated,
By Memorandum Order dated December 21, 2021, the Court dismissed with prejudice DeFranco's “official capacity” claims for monetary damages, his § 1983 claims for violation of his Fifth Amendment rights and his rights to procedural and substantive due process, and DeFranco's independent claims, if any, predicated on the Defendants' alleged filing of a false misconduct report, alleged taunts or threats, or confiscation of his personal property. See ECF No. 31, p. 4. The Court also dismissed his § 1983 claims of First Amendment retaliation based on the purported destruction of his personal property, but it granted DeFranco leave to file an amended complaint as to this claim. Id. The Court's order instructed that any amended complaint “include ALL claims that Plaintiff intends to pursue as permitted herein.” ECF No. 31, p. 4 (emphasis in original). On January 19, 2022, DeFranco filed his “Amended/Supplemental Complaint” in which he incorporated his original complaint by reference, added Flinchbaugh, Wise, John Doe, and Jane Doe as defendants, and realleged Counts II and III. See ECF No. 33. Defendants filed an Answer to this pleading. ECF No. 34.
Q: So my first question is, what is your legal claim against Defendant Flinchbaugh?
A: My legal claim is he - I talked to him earlier in August in the walkway. And I - and I was just - all I was trying to do was get these - the guards are - the ones that were doing this are all off the unit now anyways. So I was just trying to get them to leave me alone. So I initiated a conversation with him on the walkway. And he said he didn't like me but he was having me moved. So I got really nowhere. He was busy anyway. It just seemed like he didn't want to talk.
Q: Okay. So this August 31, 2021 interaction, what happened?
A: I - I was out on the - out of my cell maybe for - getting ready for a shower or using the kiosk or something. I can't remember what the reason was. He and another guy came on the unit. The other guy he was with went into the unit manager's office and I -- I asked Deputy Flinchbaugh if I could speak to him away from the bubble. And we -- he basically snapped on me. He was like, "You give the staff - - my officers problems." I never -- he didn' t like me, that he -- I told him about Putman. And he said, "Yeah, I told
Putman to” - Putman had told him - he didn't come out right out and say, like, the dates - the dates and that, but what it came across as is that Putman had talked to - to Flinchbaugh about the August 29th ordeal and then Flinchbaugh told him to put me in the hole the first chance he got.ECF No. 114-1, p. 42. DeFranco then testified that his retaliation claim against Flinchbaugh “was based on what he said to me on August 31, 2021 ... that he more or less okayed or told Putnam to do what he did” and Flinchbaugh's “sticking up for Putnam and Miller... he was sticking up for the - for the false misconduct.” Id., p. 44.
DeFranco's claim against Flinchbaugh fails on multiple grounds. First, DeFranco does not identify any protected conduct that supposedly motivated Flinchbaugh to retaliate against him. The grievances he filed against the other Defendants, and his threats to sue one or more of them occurred more than a year before DeFranco's interaction with Flinchbaugh, and there is nothing in the summary judgment record to support that Flinchbaugh was aware of this conduct. Second, the record does not support that Flinchbaugh took any adverse action against DeFranco. At best, the record supports that, more than a year later, Flinchbaugh verbally expressed support for Putnam and Miller. Nothing in the record indicates that Flinchbaugh caused Putnam or Miller to file the misconduct charge. Although the Amended Complaint includes allegations that Flinchbaugh made statements supporting Putnam and Miller's actions long after the fact and indicating his opposition to more favorable treatment of DeFranco, the record includes no evidence that Flinchbaugh ever acted on these statements. Finally, with more than a year separating any possible protected conduct by DeFranco and his interaction with Flinchbaugh, the record belies any causal connection between that conduct and Flinchbaugh's statements. Accordingly, Flinchbaugh is entitled to judgment as a matter of law on DeFranco's retaliation claim against him.
B. Defendant Wise
DeFranco's retaliation claim against Wise is based on Wise's actions on three separate occasions: his packing of DeFranco's cell contents on August 31 or September 1, 2020 (see ECF No. 33, ¶¶ 17-21); his calling DeFranco a “snitch” on June 17, 2021 (see id., ¶ 22); and his filing of an allegedly false misconduct charge against DeFranco on July 28, 2021 (see id.,¶ 23). Each act is analyzed below.
The packing of DeFranco's cell contents
DeFranco has taken inconsistent positions concerning when Wise allegedly packed his cell contents. His Amended Complaint asserted that Wise did so on August 31, 2020. When Defendants pointed out that Wise was not working that day, DeFranco pivoted to claiming that the packing of his cell occurred on September 1, 2020. DeFranco asserts that Wise packed his cell contents at the behest of Defendant Miller, and that Wise “threw away what [Wise] deemed garbage but claimed nothing was purposeful” and that the discarded items included irreplaceable personal photographs and unspecified legal papers. ECF No. 33, ¶¶ 17-19. DeFranco also faults Wise for not completing an inventory of his personal property. Id., ¶ 20. He appears to argue that Wise's actions were in retaliation for the events relating to Miller and Putnam's filing of the allegedly false misconduct. At his deposition, DeFranco was asked specifically, “What were [Wise's] retaliation actions? Why did he retaliate against you?” DeFranco responded, “[t]o help in a conspiracy with Miller and Putnam, his buddy. It's obvious.” ECF No. 114-1, p. 55. Contrary to DeFranco's assertion of obviousness, the record includes no evidence that Wise intentionally discarded any of his property in retaliation for any protected conduct by him. The notion that the loss or discarding of certain items of DeFranco's property was based on grievances or threats of legal action against other officers is pure speculation. The record does not include evidence that DeFranco had previously filed grievances or threatened a lawsuit against Wise or that Wise had any role or involvement in the filing of the allegedly false misconduct in August 2020. Because Wise's alleged loss or discarding of DeFranco's property is disconnected from any protected conduct by DeFranco, it could not have been motivated or caused by such conduct.
DeFranco's Amended Complaint specifically identifies these allegations as the basis for a retaliation claim rather than as a due process or depravation of property claim. See ECF No. 33, generally. Even if construed as the latter, such a claim would fail. Although the Fifth Amendment prohibits prison officials from depriving an individual of a protected interest in property without due process of law, Parratt v. Taylor, 451 U.S. 527, 537 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986), the United States Supreme Court has held that post-deprivation remedies provide sufficient due process for negligent deprivations of property, id. at 530, and intentional deprivations of property, Hudson v. Palmer, 468 U.S. 517, 533 (1984). Because the DOC grievance procedure provides an adequate post-deprivation remedy, see, e.g., Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 422 (3d Cir. 2000), DeFranco cannot state a due process claim. See Thompson v. Ferguson, 849 Fed.Appx. 33, 35-36 (3d Cir. 2021). And even were DeFranco to argue that the prison's grievance procedure was inadequate to address his claims, state tort law would serve as an adequate post-deprivation remedy. See id., (citing 42 Pa. Cons. Stat. Ann. § 8522(a), (b)(3)).
Calling DeFranco a Snitch in June 2021
DeFranco next contends that Wise retaliated against him by calling him a “snitch” in front of other inmates on June 11, 2021. ECF No. 33, ¶ 22. DeFranco testified at his deposition that Wise told other inmates that he was a snitch in retaliation for DeFranco's filing lawsuits against Putnam and Miller. ECF No. 114-1. p. 62. According to DeFranco, Wise retaliated against him because Wise wanted DeFranco to “end litigation against Putnam and Miller.” Id. DeFranco then testified that Wise labeled him a snitch in retaliation for his having filed a grievance against him in 2020, approximately ten months earlier, based on the packing of his personal property. Id., p. 63. He also testified that Wise used the intercom to “say dumb stuff, ‘just drop the lawsuit. Drop the grievances.'” Id. p. 64.
DeFranco has produced four declarations from inmates attesting that Wise called him a “snitch” and a “rat.” See ECF No. 87-1, pp. 14, 16-18, 21. Nothing in the record supports, however, that Wise ever accused DeFranco of “snitching” on other inmates. To the contrary, the scant statements attributed to Wise evidence only that he complained to inmates about DeFranco snitching on him or possibly other corrections personnel, not on fellow inmates. The distinction is material. “While prisoners may be motivated to harm a fellow inmate who is or could be informing on them, that motivation for preserving inmate anonymity and solidarity does not exist when the inmate is accused of ‘snitching' to prison officials about a corrections officer or other prison official-DOC staff who the inmates so often view as opposed to their interests.” Jackson v. O'Brien, 2021 WL 3174687, at *4 (W.D. Pa. July 27, 2021). Unlike accusing an inmate of “snitching” or “ratting” on other inmates, the statements attributed to Wise are simply too inconsequential to deter a person of ordinary firmness from exercising his constitutional rights. The record is also insufficient to support a permissible inference that Wise's alleged statements were motivated by a grievance that DeFranco had filed against Wise many months earlier. See, e.g, Hill v. Harry, 2023 WL 6522400, at *18 (M.D. Pa. Oct. 5, 2023) (no unusually suggestive temporal proximity where incidents occurred thirteen months apart). Indeed, a space of three months has been deemed insufficiently suggestive. See LeBoon v. Lancaster Jewish Cmty. Ctr. Ass 'n, 503 F.3d 217, 233 (3d Cir., 2007) (stating that “a gap of three months between the protected activity and the adverse action, without more, cannot create an inference of causation and defeat summary judgment.”). The same is true for the filing of this lawsuit. DeFranco filed this action in January of 2021, and he alleged that Wise did not call him a “snitch” until six months later. Here again, this chronology is insufficient to establish an unusually suggestive temporal proximity. Accord Lawson v. Crowther, 2018 WL 6524380, at *4 (W.D. Pa. Oct. 30, 2018) (citing Thomas v. Town of Hamilton, 351 F.3d 108, 114 (3d Cir. 2003) (concluding that a span of six months between protected activity and adverse action is not unduly suggestive and does not sufficiently establish any causal link).
Accordingly, Wise is entitled to judgment on DeFranco's retaliation claim premised on Wise's having called him a “snitch.”
Issuance of a false misconduct on July 28, 2021
Finally, DeFranco asserts that Wise retaliated against him for filing this lawsuit (and related grievance) by issuing a false misconduct report. See ECF No. 33, ¶ 23. Wise charged DeFranco with disobeying “multiple direct orders” to “get out of the shower” during an institutional emergency and of “being dismissive to the rules and regulations of the institution.” ECF No. 79-11, p. 2. Two days later, the hearing examiner dismissed the misconduct report with prejudice, noting that he could not determine whether DeFranco took longer than necessary to comply Wise's instructions because Wise did not state “how long he took in the shower” or “to get to his cell.” Id. The filing of a false misconduct charge may constitute an adverse action. See, e.g., Graziano v. Pa. Dep't Corr., 2023 WL 389756, at *23 (W.D. Pa. Sep. 30, 2023). But here, the charge was dismissed with prejudice and DeFranco did not serve any disciplinary time as a result of the misconduct charge. ECF No. 113, ¶¶ 23-24; ECF No. 114-1, p. 74. DeFranco testified at his deposition:
Q: So for the misconduct that was issued by Wise, did you serve any time in the RHU for it?
A: No.
Q: But yes or no, did you serve -
A: No, I did not serve - I did not serve any disciplinary action for that.Id. pp. 73-74. Absent the imposition of a penalty, the Court of Appeals has explicitly held that a correctional officer's filing of a false misconduct charge that is subsequently dismissed fails to rise to the level of an adverse action. Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011); see also Horan v. Collins, 2015 WL 9598898, *3 (M.D. Pa. Nov. 23, 2015) (citing Brightwell). Furthermore, the filing of this misconduct is far too remote in time from any protected conduct by DeFranco to support causation.
The record does not support the necessary elements of a retaliation claim regarding any of DeFranco's assertions of retaliation against Wise. Wise is therefore entitled to judgment as a matter of law on DeFranco's retaliation claim against him.
C. Defendants Putnam and Miller
DeFranco contends that, on August 29, 2020, he threated to file a grievance against Putnam and to sue him. Id., ¶ 6; ECF No. 114-1, p. 18 (“And then I requested a grievance and I was saying I was going to sue him.”). DeFranco testified at his deposition that Putnam told him, he “would find out what happened to inmates who sue.” ECF No. 114-1, p. 18. Miller, who was also in the “bubble” with Putnam, then allegedly told DeFranco that if he filed a grievance or lawsuit, “he would be suing from D-unit.” Id. DeFranco understood this to mean that Miller would see that he was transferred to another unit. Id. DeFranco again asked Miller and Putnam for a grievance form, which Putnam denied. Id., p. 20.
DeFranco asserts that he obtained and filled out a grievance form the following day, August 30, 2020, but he was taken into disciplinary custody before he could submit it. Id., p. 22. DeFranco was placed in disciplinary custody because Miller filed misconduct report D430654 against DeFranco earlier that day. See ECF No. 79-9, p. 3. This misconduct was based on Miller's accusation that DeFranco had exposed himself to her while he was showering. Id. DeFranco alleges that this misconduct charge was false (see ECF No. 5, ¶ 9) and that it was issued in retaliation for his having threatened to sue Putnam the day before. See ECF No. 5, ¶ 15. A misconduct hearing was conducted on September 2, 2020, and the hearing examiner exonerated DeFranco and dismissed the charge against him with prejudice. Id., ¶ 11; see also ECF No. 79-9, p. 2.
DeFranco contends that Putnam and Miller jointly filed this misconduct report. See ECF No. 91, p. 1. The misconduct report identifies Miller as its author and Putnam as “other staff involved.” ECF No. 79-9, p. 3.
The Constitutionally Protected Conduct
DeFranco's announcement over the intercom of his intention to file a grievance and a lawsuit constituted constitutionally protected conduct. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); see also Angle v. Smith, 2023 WL 2873255 at *10 (W.D. Pa. Feb. 7, 2023). Putnam and Miller's alleged retaliatory act (the filing of the misconduct charge) occurred after DeFranco announced his intention to seek redress against Putnam but before he could file his grievance. The Court of Appeals for the Third Circuit has held that there is no “substantive distinction between retaliation for informing prison officials of an intent to file a grievance or requesting the necessary forms to do so on the one hand, and actually filing such a grievance on the other.” Watson v. Rozum, 834 F.3d 417, 423 (3d Cir. 2016). Thus, DeFranco's announced intention to file a grievance and a lawsuit challenging Putnam's actions was constitutionally protected activity.
The Adverse Action and Personal Involvement
As a result of this protected activity, DeFranco received a misconduct charge and spent four days in disciplinary custody before the charge was dismissed. As discussed, the filing of a misconduct that is dismissed without penalty does not amount to an adverse action for purposes of a retaliation claim. See Williams v. Lee, 2020 WL 5704272, at *7 (W.D. Pa. Sep. 24, 2020) (citing Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011). But here, DeFranco spent four days in disciplinary custody as a consequence of the misconduct charge. ECF No. 114-1, p. 23. A misconduct charge that causes an inmate to be placed in a restricted housing unit or diversionary treatment unit is an adverse action. See, e.g., Golden v. Perrin, 2022 WL 2791186, at *6 (W.D. Pa. July 15, 2022) (citing Allah v. Seiverling, 229 F.3d 220, 225 (3d. Cir. 2000)). Thus, DeFranco suffered an adverse action. See Graziano v. Pa. Dep't Corr., 2023 WL 6389756, at *23 (W.D. Pa. Sep. 30, 2023) (misconduct charge was adverse action because inmate spent time in the RHU before charge was dismissed); see also Goodman v. Miceli, 2021 WL 2117933, at * 13 (W.D. Pa. May 3, 2021), report and recommendation adopted, 2021 WL 2115328 (W.D. Pa. May 25, 2021) (finding that misconduct charges and RHU placement constituted adverse actions for First Amendment retaliation claim).
The next question is whether DeFranco has produced sufficient evidence to support the personal involvement of both Putnam and Miller in this adverse action. See Brant v. Varano, 717 Fed.Appx. 146, 149 (3d Cir. 2017). A defendant in a § 1983 action “must have personal involvement in the alleged wrongs to be liable and cannot be held responsible for a constitutional violation he or she neither participated in nor approved.” Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (citation omitted). It is DeFranco's burden to “show that each and every defendant was personally involved in depriving him of his rights.” Golden v. Perrin, 2022 WL 2791186, at *7 (W.D. Pa. July 15, 2022) (internal quotation marks and citation omitted).
The parties agree that Miller filed the misconduct report against DeFranco, and her name appears as the “reporting staff member” on the misconduct report. ECF No. 79-9, p. 3. Thus, Miller's personal involvement in the adverse action is established. Whether Putnam was personally involved in the misconduct charge is less clear, but the evidence is sufficient to support a genuine issue of material fact on this issue. DeFranco's verified Complaint alleges that he was “delivered a false misconduct fabricated by Putnam.” ECF No. 5, ¶ 9. DeFranco also testified at his deposition that Putnam “help[ed] author a false misconduct.” ECF No. 114-1, p. 39. The misconduct form also indicates that Putnam was to serve as a witness in support of the charge. This evidence is enough to warrant submission of the issue to the jury.
Causation
A causal connection for a First Amendment retaliation claim exists where there is “(1) an unusually suggestive temporal proximity between the protected activity and the alleged retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). Even in the absence of that proof, a plaintiff must show that from the “evidence gleaned from the record as a whole” the trier of fact should infer causation. Sloan v. Chambers, 2016 WL 4245550, at *10 (M.D. Pa. Aug. 11, 2016) (citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000)). However, conclusory allegations of retaliation without any additional evidence are insufficient to demonstrate that a genuine issue of material fact exists. See Fed.R.Civ.P. 56(e)(2).
Here, DeFranco's threat to file a grievance or lawsuit and the filing of the allegedly false misconduct charge are close enough in time to suggest a retaliatory motive. DeFranco was issued the misconduct charge and placed in disciplinary custody the day after he requested a grievance form from Putnam and Miller and threatened to file a lawsuit. See, e.g, Goodman v. Miceli, 2021 WL 2117933, at *13 (W.D. Pa. May 3, 2021) (the casual link established where adverse action took place within three days of filing the grievance). According to the verified Complaint, Putnam told DeFranco he “would see what happens to inmates who sue” and Miller threatened that he “would be suing from D-Unit.” Neither Putnam nor Miller argue a lack of causation and the record is sufficient to support a jury's finding that Miller and Putnam's involvement in the allegedly false misconduct report was motivated by DeFranco's threats to file a grievance and lawsuit. Accordingly, Defendants' motion for summary judgment on the retaliation claim against Putnam and Miller should be denied.
IV. Conclusion
It is respectfully recommended that the Defendants' motion for summary judgment be granted in part and denied in part, as follows:
A. GRANTED as to all remaining claims against Defendants Flinchbaugh and Wise; and
B. DENIED as to the remaining First Amendment retaliation claim against Putnam and Miller.
It is further recommended that DeFranco's cross motion for summary judgment be DENIED.
V. Notice to the Parties Concerning Objections
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72((b)(2), and Local Rule 72(D)(2), the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72(D)(2).
BY THE COURT: