Opinion
1:19-cv-00282-SPB-RAL
07-30-2021
ANTHONY RAY THOMPSON, Plaintiff v. LISA SLATZER & REX HILDEBRAND, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ECF No. 74
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the Defendants' Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 at ECF No. 74 be GRANTED.
II. Report
A. Procedural History
Plaintiff Anthony Ray Thompson filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against two officials from the Pennsylvania Department of Corrections (DOC): Lisa Slatzer-a counselor at State Correctional Institution at Forest (SCI-Forest), and Rex Hildebrand- formerly an Inmate Classification System Analyst for the DOC's Bureau of Treatment Services. ECF No. 1-2. He commenced this action in the Court of Common Pleas of Forest County, Pennsylvania. ECF No. 1. The Defendants removed the case to this court pursuant to 28 U.S.C. §§ 1441 and 1446 based on federal question jurisdiction under 28 U.S.C. § 1331. Id. Thompson alleges that the Defendants acted contrary to DOC procedures when they miscalculated his Inmate Custody Classification, causing the loss of his prison job and his “incentive transfer” to another Pennsylvania prison, in violation of his Eighth and Fourteenth Amendment rights. See ECF No. 1-2, pp. 4, 6, 8. The undersigned issued a report and recommendation at ECF No. 81 denying Thompson's motion for summary judgment. The Court adopted this recommendation on February 16, 2021. ECF No. 83.
Slatzer and Hildebrand filed their Motion for Summary Judgment along with a brief in support and concise statement of material facts on December 7, 2020. ECF Nos. 74-76. Thompson filed a “Contestation to Discovery and Defendants's (sic) Motion for Summary Judgment Supporting Plaintiff's Brief Supporting Motion for Summary Judgment.” ECF No. 79. This was not a responsive Concise Statement of Material Facts as required by this Court's Local Rule 56(C)(1). The Court ordered Thompson to file one and gave specific instructions, including “the guidance provided in the Court's Report and Recommendation at ECF No. 81 on pages 5 through 7, ” which warned of the consequences for noncompliance. ECF No. 85. The Court gave him a deadline of March 26, 2021 and cautioned that no extensions to this deadline would be granted “absent good cause.” Id. Thompson has ignored this Order, failing to file a responsive Concise Statement of Material Facts.
B. Local Rule 56.1 Violation
Before reciting the facts material to the pending motion, the Court will first address Thompson's failure to respond to the Defendants' Concise Statement of Material Facts (ECF No. 35) as required by Local Rule 56(C)(1). This rule requires a party opposing a motion for summary judgment to file a responsive concise statement admitting or denying the facts of each numbered paragraph of the movant's concise statement and setting forth in separately numbered paragraphs any additional material facts upon which the non-movant relies in opposition to the motion-all with appropriate citations to the record. See LCvR 56(C)(1). See also Thomas v. Bronco Oilfield Servs., 2020 WL 7021474, at *1 n. 2 (W.D. Pa. Nov. 30, 2020); Fed.R.Civ.P. 56(c)(1) (a party asserting that a fact is genuinely disputed must support the assertion by citing to evidence in the record). Courts in the Western District of Pennsylvania require strict compliance with the provisions of Local Rule 56. See, e.g., Coleman v. Tice, 2018 WL 5724125, at *2 n. 3 (W.D. Pa. Oct. 10, 2018), report and recommendation adopted by, 2018 WL 5722316 (W.D. Pa. Nov. 1, 2018); First Guard Ins. Co. v. Bloom Services, Inc., 2018 WL 949224, at *2-3 (W.D. Pa. Feb. 16, 2018); Hughes v. Allegheny Cty. Airport Auth., 2017 WL 2880875, at *1 (W.D. Pa. July 6, 2017).
A non-moving party “faces severe consequences for not properly responding to a moving party's concise statement.” Hughes, 2017 WL 2880875, at *1. Any alleged material facts “set forth in the moving party's Concise Statement of Material Facts…which are claimed to be undisputed, 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). See also Keith v. Charter Commc'ns, Inc., 2020 WL 2394997, at *2 (W.D. Pa. May 12, 2020). While courts provide some leniency to pro se litigants when applying procedural rules, the Court “‘is under no duty to provide personal instruction on courtroom procedure or to perform any legal chores for the [pro se litigant] that counsel would normally carry out.'” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013) (quoting Pliler v. Ford, 542 U.S. 225, 231 (2004)). Nor may pro se litigants ignore procedural rules that apply to parties assisted by counsel. McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (explaining that “we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel”).
Because Thompson has failed to file a responsive concise statement, all properly supported material facts stated in the Defendants' concise statement are deemed admitted. LCvR 56(E). However, the Court will consider facts asserted in Thompson's pro se responses to the Motion that specifically contradict the Defendants' statement of facts but only to the extent 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 Plaintiff's statement of ‘fact' specifically controverts Defendant's, the Court will consider these facts in determining whether summary judgment should be granted”).
C. Undisputed Facts
On April 12, 2019, while Thompson was incarcerated at SCI-Forest, prison officials charged him with a Class Level I Misconduct, B849343, comprised of two violations: (1) Refusing to Obey an Order, and (2) Failure to Stand Count or Interference with Count. ECF No. 75, ¶ 5; ECF No. 75-4, p. 1. Thompson pled guilty to both violations at a misconduct hearing on April 18, 2019. ECF No. 75-4, p. 1. The Hearing Examiner reduced both violations to Class Level II misconducts. Id., ¶ 9. Thompson has not disputed that he committed the misconducts.
The DOC assigns every inmate a Security Custody Level, according to Defendant Hildebrand. ECF No. 75-2, ¶ 4 (Affidavit of Hildebrand). DOC Policy 11.2.1, Section 3, Pennsylvania Additive Classification prescribes the factors for setting an inmate's Custody Level. Id., ¶ 8. The DOC has determined that this policy is confidential because of “the sensitive, security nature of the material and the potential for an inmate to manipulate the scoring of a custody level.” Id. “Both the severity of a misconduct and how recently it occurred are considered in assessing how a misconduct will impact an inmate's Security Custody Level.” Id., ¶ 10.
At an earlier stage of the litigation, the Court ruled in response to Thompson's motion for reconsideration of his motion to compel discovery that the Defendants had a legitimate penological reason for withholding DOC Policy 11.2.1, Section 3 and that the document is privileged from disclosure. ECF No. 80, pp. 5-6.
Thompson's misconducts, even as lowered to Class Level II misconducts, caused his Custody Level to increase from a Level 2 to a Level 3. Id., ¶¶ 6, 11, 12. One reason Thompson's Custody Level increased is because the misconducts were so recent. Id., ¶ 12; ECF No. 75-2, ¶ 8 (Affidavit of Hildebrand). Thompson's “annual review paperwork was correctly submitted and the change in his custody level was correctly calculated.” Id., ¶ 9. Thompson became ineligible for an Incentive Transfer and for his job at SCI-Forest because his Security Custody Level was a 3. Id., ¶¶ 6-7; ECF No. 75-2, ¶ 10 (Affidavit of Hildebrand).
Hildebrand's position was an Inmate Classification Systems Analyst. ECF No. 75-3, pp. 1-2. (Hildebrand's Response to Interrogatories). This position has no supervisory function, Hildebrand did not supervise Slatzer, and he had no authority to direct her activities including her Annual Review or Incentive Based Transfer. Id. ECF No. 75, ¶ 4.
D. Thompson's Allegations
Thompson's Complaint presents his claims as Claim One and Claim Two, but he comingles and repeats alleged violations in each claim. ECF No. 1-2, pp. 7-8. The claims are better categorized as follows: (1) wrongful denial of his incentive transfer and loss of his job in violation of the Due Process Clause of the Fourteenth Amendment, (2) a violation of internal prison policies, which Thompson called, “Institutional Policy violations and Job Subscription Code of Conduct and Ethics being ignored, ” ECF No. 1-2, pp. 7-8, and (3) a violation of the Eighth Amendment's prohibition on cruel and unusual punishment. Although the Complaint is far from clear, Thompson also may have intended to allege a claim that Defendants miscalculated his custody score following his misconduct guilty pleas in retaliation for a previous lawsuit he filed against the DOC-Thompson v. Pa. Dep't of Corrs., case no. 1:19-cv-00274-SPB-RAL-based upon its adoption of a ban on smoking within its institutions.
Although Thompson's Complaint and other filings omitted any specific reference to his lawsuit, a court may take judicial notice pursuant to Fed.R.Evid. 201 of the existence of other court proceedings and documents filed therein because they are matters of public record. Liberty Int'l Underwriters Can. v. Scottsdale Ins. Co., 955 F.Supp.2d 317, 325 (D.N.J. 2013).
E. Standard of Review
1. Summary Judgment
Federal Rule of Civil Procedure 56(a) requires the 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 of the case 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 (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).
Further, under Rule 56, a defendant may seek summary judgment by pointing to the absence of a genuine fact issue on one or more essential claim elements. The Rule mandates summary judgment if the plaintiff then fails to make a sufficient showing on each of those elements. When Rule 56 shifts the burden of production to the nonmoving party, “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. See also Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
2. Pro Se Litigants
Thompson 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)); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). 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, he is not relieved of their “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, *1 (W.D. Pa. Sept. 21, 2012).
F. Analysis
1. Personal Involvement Requirement for a 42 U.S.C. § 1983 Claim
The Defendants argue that Hildebrand is entitled to summary judgment on Thompson's § 1983 claims against him because Thompson has failed to demonstrate Hildebrand's personal involvement in any alleged constitutional violation. ECF No. 76, pp. 5-6. 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 which he or she neither participated in nor approved.” Saisi v. Murray, 822 Fed.Appx. 47, 48 (3d Cir. 2020) (quoting Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (citations removed)). It is the plaintiff's burden to “show that each and every defendant was ‘personal[ly] involve[d]' in depriving him of his rights.” Kirk v. Roan, 2006 WL 2645154, at *3 (M.D. Pa. Sept. 14, 2006) (quoting Evancho v. Fischer, 423 F.3d 347, 353 (3d Cir. 2006)). Allegations that broadly implicate multiple defendants without delineating individual conduct are legally insufficient. See Van Tassel v. Piccione, 608 Fed.Appx. 66, 69-70 (3d Cir. 2015).
42 U.S.C. § 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
Thompson argues in response to the Motion for Summary Judgment that Hildebrand was responsible for investigating his claim that Slatzer made “computational error, ” and this was an error he should have discovered and then corrected. ECF No. 79, p. 2. But Thompson has not submitted evidence supporting this argument. No evidence in the record supports that Hildebrand helped calculate either Thompson's misconduct level or Custody Level. The Court has also determined from the Defendants' Concise Statement of Material Facts-which the Court must take as true because of Thompson's Local Rule 56(C)(1) violation-that Hildebrand did not supervise Slatzer, and he had no authority to direct her activities including her Annual Review or Incentive Based Transfer. ECF No. 75-3, pp. 1-2; ECF No. 75, ¶ 4. There is evidence in the record that Hildebrand responded to two of Thompson's letters on May 21, 2019, in which he said, “[t]he referenced misconduct was correctly scored as a Class 2, but the recency of the misconduct contributed to other factors that resulted in custody level 3.” ECF No. 39-1. But responding to an inmate's letter that another official correctly calculated their Custody Level does not establish personal involvement. See Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986) (“to be legally responsible, supervising officials must have played an affirmative role in the deprivation of the plaintiffs' rights, noting that the officials' misconduct cannot be merely a failure to act.”) (citation omitted) (emphasis added).
Even if there were a genuine dispute of material fact that Hildebrand was Slatzer's supervisor, this § 1983 action would not support Hildebrand's liability for any constitutional violations committed by subordinates because “[l]iability may not be imposed under § 1983 on the traditional standards of respondeat superior.” Hepler v. Wetzel, 2019 WL 1923004, at *5 (W.D. Pa. Apr. 30, 2019) (citing Capone v. Marinelli, 868 F.2d 102, 106 n. 7 (3d Cir. 1989)). Rather, a supervisor may be held liable only when “he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in his subordinates' violations.” Santiago v. Warminster Tp., 629 F.3d 121, 129 (3d Cir. 2010). Furthermore, although a supervisor cannot encourage constitutional violations, “a supervising public official has [no] affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986); Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990). The evidence that Hildebrand's “job responsibilities included assessing inmate's annual review paperwork” is so indirect that it cannot support his personal involvement. ECF No. 75, ¶ 3. And even if Hildebrand played any role in the grievance process-which there is no evidence of-this also would not establish his personal involvement for a § 1983 claim. See 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.”). Hildebrand is entitled to summary judgment on Thompson's § 1983 claims because there is no evidence in the record to support his personal involvement in any actionable conduct.
2. Due Process Under the Fourteenth Amendment
Turning to the substantive merits of Thompson's claims, the Defendants argue, “Plaintiff does not have a claim under either the Eighth or Fourteenth Amendment regarding the change in his custody level and subsequent loss of the privileges of a transfer and a job.” ECF No. 76, p. 4. The Court agrees that the Defendants are entitled to summary judgment. To implicate protections under the Due Process Clause of the Fourteenth Amendment, a state actor must deprive the plaintiff of either a property interest or a liberty interest. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The Defendants are entitled to summary judgment on Thompson's Due Process claim because neither the loss of his prison job nor the loss of his incentive transfer implicate a liberty or property interest protected under the Fourteenth Amendment.
The deprivation of liberty for the incarcerated requires due process protections only if the deprivation imposes an “atypical and significant hardship…in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The determination of what is “atypical and significant” depends on the range of conditions an inmate would reasonably expect to encounter. See Asquith v. Dep't of Corrs, 186 F.3d 407, 412 (3d Cir. 1999). Property interests are created and defined from a source independent of the Constitution, “such as state law.” Roth, 408 U.S. at 577, 92 S.Ct. 2701.
Here, Thompson pled guilty to a two-count misconduct of (1) Refusing to Obey an Order and (2) Failure to Stand Count or Interference with Count. ECF No. 75, ¶ 5; ECF No. 75-4, p. 1. This caused his Security Custody Level to increase from a Level II to a Level III. “It is well established that the United States Constitution does not confer any right upon an inmate to any particular custody or security classification.” Henderson v. Thomas, 2012 WL 4434750, at *1 (M.D. Pa. Aug. 30, 2012) (citing Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976) (“Congress has given federal prison officials full discretion to control” various “conditions of confinement, including “prisoner classification” and “the discretionary transfer of state prisoners”); Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 49 L.Ed.2d 466, (1976)). “Thus, inmates do not have a liberty interest” under the Due Process Clause “in retaining or receiving any particular security or custody status as long as the [challenged] conditions or degree of confinement is within the sentence imposed…and is not otherwise violative of the Constitution.” Id. (quotations omitted). Thompson's Custody Classification made him ineligible under DOC policies for an Incentive Transfer. Losing out on a hoped-for transfer also does not implicate a liberty interest protected by the Due Process Clause because “an inmate has no justifiable expectation that he will be incarcerated in any particular prison within a State.” Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). See also Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Montayne v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976). It follows that Thompson has no liberty interest or right to a transfer to any prison under the Due Process Clause. See Jones v. Sorbu, 2021 WL 398494, at *5 (E.D. Pa. Feb. 4, 2021).
Thompson also has no constitutionally protected liberty or property interest in a particular prison job, so this cannot establish a Fourteenth Amendment Due Process claim. See James v. Quinlan, 866 F.2d 627, 629-30 (3d Cir. 1989) (holding that inmates have no liberty or property right to a prison job under the Fourteenth Amendment); Bryan v. Werner, 516 F.2d 233, 240 (3d Cir. 1975) (“We do not believe that an inmate's expectation of keeping a particular prison job amounts either to a ‘property' or ‘liberty' interest entitled to protection under the due process clause.”). See also Fidtler v. Pa. Dept. of Corr., 55 Fed.Appx. 33, 35 (3d Cir. 2002) (“[W]e have held that a state inmate does not have a liberty or property interest in prison employment”).
It is a separate due process question whether Thompson has a constitutional right that officials follow internal prison policies. Thompson argues that the Defendants miscalculated his Security Custody Level in violation of prison policy, which then improperly caused the loss of his job and incentive transfer. ECF No. 1-2, pp. 7-8. The relevant policy is DOC Policy 11.2.1, Section 3, Pennsylvania Additive Classification. ECF No. 75-2, ¶ 8. Thompson also argues that the Defendants violated their “Job Subscription” and “Code of Conduct and Ethics.” ECF No. 1-2, pp. 7-8. The Defendants argue that they did not violate any DOC policies, and even so, that violating an internal DOC policy does not amount to a constitutional violation on its own. ECF No. 76, pp. 3-4.
Whether the Defendants violated those policies is irrelevant because “[t]he simple fact that state law prescribes certain procedures does not mean that the procedures thereby acquire a federal constitutional dimension.” Lee v. Schrader, 2014 WL 2112833, at *4 (W.D. Pa. May 20, 2014) (citing United States v. Jiles, 658 F.2d 194, 200 (3d Cir. 1981) (other citations omitted). Put differently, “[t]he adoption and application of state law procedures, policies and regulations does not ordain those procedures, policies and regulations with federal constitutional protection.” Maddox v. Gilmore, 2020 WL 1026799, at *4 (W.D. Pa. Mar. 3, 2020). And, as already noted, inmates have no constitutional right to a particular custody level classification. See Moody, 429 U.S. at 88 n. 9, 97 S.Ct. 274; Henderson, 2012 WL 4434750, at *1. Consequently, Thompson has no liberty interest created by the DOC policy setting his custody classification. See also Shango v. Jurich, 681 F.2d 1091, 1101-02 (7th Cir. 1982) (“[A] state created procedural right is not itself a liberty interest….States may decide to engage in such proceedings, but the due process clause does not compel them to do so because no constitutionally cognizable substantive interest of the prisoner is at stake.”). Thompson's allegation that the Defendants violated their job description or the DOC's Code of Ethics is similarly unavailing. See Tillman v. Pa. Bd. Probation and Parole, 2013 WL 3946301, at *4 (Pa. Commw. Ct. Feb. 22, 2013) (DOC Code of Ethics does not create any rights enforceable by inmates). The Defendants are entitled to summary judgment on all of Thompson's Fourteenth Amendment Due Process Claims.
3. Cruel and Unusual Punishment Under the Eighth Amendment
Thompson's lack of a Fourteenth Amendment liberty interest in a transfer to another prison or to a prison job informs the Court that these conditions similarly are not cruel and unusual punishment prohibited by the Eight Amendment. Pursuant to the Eighth Amendment, prison officials must provide humane conditions of confinement by ensuring that inmates receive adequate food, clothing, shelter and medical care, and “take reasonable measure to guarantee the safety of the inmates.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981); Tillman v. Lebanon Cty. Corr. Facility, 221 F.3d 410, 418 (3d Cir. 2000). To state a claim for violating the Eighth Amendment, the inmate must allege that he had suffered an objectively sufficiently serious injury and prison officials were deliberately indifferent in inflicting this injury. Tillman, 221 F.3d at 418. “[E]xtreme deprivations are required to make out a conditions-of-confinement claim. Because routine discomfort is part of the penalty that criminal offenders pay for their offenses against society, …only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation.” Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992).
Prison officials refusing to transfer an inmate is not cruel and unusual punishment. See Allah v. Beasely, 2019 WL 4511693, at *3 (M.D. Pa. Sept. 19, 2019) (citations omitted) (“It is well-settled that a prisoner has no right or legally enforceable expectation to be assigned to, or to remain at, any prison.”). Cf. Government of Virgin Islands v. Gereau, 592 F.2d 192, 196 (3d Cir. 1979) (inmate's “transfer alone did not amount to the imposition of cruel and unusual punishment proscribed by the Eighth Amendment”). Thompson also has no constitutional right to his prison job under the Eighth Amendment “[b]ecause a prison job is not one of life's necessities.” Marsh v. Link, 330 F.Supp.3d 1045, 1049 (E.D. Pa. Sept. 17, 2018) (quoting Watson v. Sec'y Pa. Dep't of Corr., 567 Fed.Appx. 75, 78 (3d Cir. 2014) (per curiam). Cf. Presbury v. Wenerowicz, 472 Fed.Appx. 100, 101 (3d Cir. 2012) (per curiam) (no liberty interest under the Due Process Clause in prison job). Thus, Slatzer did not violate the Eighth Amendment when she increased Thompson's Custody Level, which subsequently denied him privileges, based on his pleas of guilty to two misconduct charges.
4. Retaliation
Thompson's Complaint included factually unsupported allegations to the effect that Slatzer filed paperwork causing the increase in his Custody Level as retaliation against him because he had filed a previous lawsuit challenging the DOC's prohibition of tobacco use within its prisons. ECF No. 1-2, pp. 7-8. The Defendants' Motion for Summary Judgment and brief in support did not address these allegations. Normally, the Court would decline to reach the merits of a claim that the Defendants did not specifically challenge in their brief. See Dinkins v. Potope, 2020 WL 4504428, at *9 (M.D. Pa. Aug. 5, 2020) (denying summary judgment when defendant failed to both address plaintiff's claim and provide evidence). Here, however, Defendants' omission appears to be attributable to Thompson's failure to plead these allegations as a separate claim or count, the conclusory nature of the allegations, and their comingling among his other claims. Indeed, only the most generous reading of the Complaint allows the Court to divine a retaliation claim from its allegations. Still, the confusing or futile nature of a claim does not mean that parties may leave it unaddressed.
The Court will dismiss this potential retaliation claim as frivolous. Because Thompson is a prisoner seeking redress “from a governmental entity or officer or employee of a governmental entity, ” his pleadings are subject to the screening provisions in 28 U.S.C. § 1915A. In pertinent part, § 1915A provides that a court “shall…dismiss the complaint, or any portion of the complaint, if the complaint…is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(2). This screening obligation “is not excused even after defendants have filed a motion to dismiss” or motion for summary judgment. Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 587-89 (W.D. Pa. 2008); Burton v. Verano, 2016 WL 4697361, at *2 (M.D. Pa. July 14, 2016) (invoking § 1915A at the summary judgment stage). In performing this mandatory screening function, a district court applies the same standard applied to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Banks, 568 F.Supp.2d at 588.
The PLRA's screening provisions apply not only to suits begun in federal court but also to lawsuits prisoners begin in state court that are subsequently removed to federal court. Richardson v. Diehl, 2009 WL 285661, at *4 n. 5. (W.D. Pa. Sept. 2, 2009) (citing Duff v. Yount, 51 Fed.Appx. 520 (6th Cir. 2002) (other citations omitted)).
To state a retaliation claim, a plaintiff 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. Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (citing Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001). If a plaintiff satisfies this burden, the defendants may still prevail if they prove by a preponderance of the evidence that they would have taken the same action absent the protected conduct. Rauser v. Horn, 241 F.3d at 333-34. See also Corliss v. Varner, 247 Fed.Appx. 353, 355 (3d Cir. 2007).
There is no causal relationship between the Defendants' actions and Thompson's lawsuit challenging the DOC's systemwide tobacco ban. Slatzer and Hildebrand were not defendants named in the previous lawsuit, and there is no allegation or evidence that they knew about it. There is no evidence or allegation they had anything to do with the adoption or implementation of the smoking ban. Most importantly, the timeline refutes this claim. Thompson pled guilty to the misconduct charges on April 18, 2019. Per his Complaint, Slatzer submitted his annual review paperwork modifying his Custody Level on May 5, 2019. ECF No. 1-2, p. 4. Thompson did not file his smoking ban lawsuit in state court until August 19, 2019. Slatzer and Hildebrand cannot have retaliated against Thompson because the lawsuit about the DOC smoking ban began months after their alleged retaliatory conduct. Moreover, prison officials increased his Custody Level and consequently denied him certain privileges “for reasons reasonably related to legitimate penological interests” after he pled guilty to the misconduct charges. Carter v. McGrady, 292 F.3d 152, 154 (3d Cir. 2002) (citations omitted).
G. Conclusion
The Court respectfully recommends that the Defendants' Motion for Summary Judgment at ECF No. 74 be granted. Hildebrand is entitled to summary judgment on all claims because the record contains no evidence to establish his personal involvement as required for liability in a § 1983 claim. Slatzer is entitled to judgment as a matter of law on Thompson's Eighth Amendment and Fourteenth Amendment Claims. Additionally, the Court should exercise its screening function under 28 U.S.C. § 1915A and dismiss Thompson's retaliation claim for failure to state a claim.
III. Notice
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72.D.2 of the Local Rules of Court, the parties shall have fourteen (14) days from the date of the service of this Report and Recommendation to file written objections thereto. Plaintiffs failure to file timely objections will constitute a waiver of his appellate rights.