Opinion
Civil Action 2:22-cv-42
06-27-2024
KAI D. INGRAM, Plaintiff, v. S. DAVIS, SCI Corrections Officer, et al. Defendants.
Marilyn J. Horan, Judge.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, United States Magistrate Judge
I. Recommendation
It is respectfully recommended that the Motion for Summary Judgment filed by Defendants S. Davis, Allen Lynch, and Milliken (“Defendants”) (ECF No. 78) be granted.
II. Report
A. Relevant Procedural History
Plaintiff Kai D. Ingram, a prisoner in the custody of the Pennsylvania Department of Corrections (“DOC”), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against multiple defendants.
After service of the Complaint, Defendants moved to dismiss the claims against them. (ECF No. 16.) After the issuance of a Report and Recommendation by the undersigned, Judge Horan granted in part and denied in part Defendants' motion. (ECF No. 45.) Specifically, the Court denied Defendants' motion with respect to Ingram's retaliation claim against Defendant Lynch. It granted the motion as to all remaining claims and defendants as follows:
• All claims asserted against all Defendants in their official capacity were dismissed with prejudice.
• Plaintiff's claims of First Amendment retaliation and Fourth Amendment, Eighth Amendment, and Fourteenth Amendment due process claims, based upon the alleged issuance of a false misconduct, an unfair disciplinary proceeding, and the rescission of Mr. Ingram's automatic reparole, were dismissed with prejudice.
• Plaintiff's First Amendment access-to-court claim asserted against Lynch was dismissed with prejudice.
• Defendants Davis and Milliken were dismissed without prejudice.
Thus, all Defendants other than Lynch were dismissed. Leave to amend the Complaint was granted, but only as to claims Ingram might successfully plead against Defendants Davis or Milliken.
Ingram subsequently filed an Amended Complaint against Davis, Milliken, and Lynch. (ECF No. 50.) In addition to Ingram's retaliation claim against Lynch, the Amended Complaint asserts a retaliation claim against Davis and Milliken that relates to the issuance of an allegedly false misconduct. (Id.) Defendants filed an Answer (ECF No. 53) and the parties subsequently engaged in discovery.
Ingram also attempted to reinstate claims concerning his disciplinary hearing which were previously dismissed with prejudice. (ECF No. 50 ¶¶ 9-11.) As these claims are no longer part of this action, they will not be discussed further.
Defendants have now filed a Motion for Summary Judgment, supported by a Brief, a Concise Statement of Material Facts Not in Dispute, and an Appendix of exhibits. (ECF Nos. 78, 79, 80, and 81, respectively.) Ingram filed a Response to the Motion, a Declaration in Opposition, a Statement of Disputed Factual Issues, and a Brief in support of his response. (ECF Nos. 89, 90, 91, and 92, respectively.) Thus, Defendants' motion is ripe for review.
These facts are derived from Defendants' Concise Statement of Material Facts Not in Dispute (ECF No. 80), Ingram's responsive Statement of Disputed Factual Issues (ECF No. 91), and as relevant, Ingram's verified Declaration (ECF No. 90.)
1. Facts relating to claim against Lynch
In April 2021, Ingram was incarcerated at the Progress Community Corrections Center (“Progress CCC”). (ECF No. 80 ¶ 2; ECF No. 91 ¶ 2.) Defendant Lynch, a Security Lieutenant at Progress CCC, was in charge of daily security operations and inmate accountability, among other things. (ECF No. 80 ¶ 4.)
On April 16, 2021, Ingram was transferred from Progress CCC to the State Correctional Institute at Greene (“SCI Greene.”) (ECF No. 80 ¶ 5; ECF No. 91 ¶ 5.) According to Ingram, he advised Lynch that he needed a box with his legal materials to be transferred with him to SCI Greene, but Lynch refused to allow this. (ECF No. 90 ¶¶ 7, 8.) Ingram asserts that Lynch retaliated against him for bringing a separate civil rights lawsuit against other DOC and parole board employees by “stealing” the box that contained his legal materials and grievances. (Id. ¶¶ 5, 7.) In fact, pursuant to the policy at Progress CCC, Ingram was not permitted to take his property from Progress CCC when he was transferred and was required to designate an individual to pick up his property after his transfer. (ECF No. 80 ¶ 7.) His designee has not done so and his property remains on site at Progress CCC for his designee to retrieve. (Id. at ¶ 8.)
After his transfer to SCI Greene, Ingram filed three grievances concerning the legal materials that did not accompany him to SCI-Greene upon his transfer. (ECF No. 80 ¶¶ 9, 12, 15; ECF No. 91 ¶¶ 9, 12, 15; ECF Nos. 81-2, 81-5, and 81-8.)
Grievance No. 925009
In his first grievance, which is dated April 24, 2021 (ECF No. 81-2), Ingram states that when he left Progress CCC, he informed Lynch that he needed his legal work, but it did not accompany him to SCI Greene. (Id.) On April 26, 2021, the Facility Grievance Coordinator at SCI-Greene issued a rejection of the grievance because it involved matters that occurred at another facility. (ECF No. 81-3.) Ingram admits that he did not appeal this rejection. (ECF No. 80 ¶ 11; ECF No. 91 ¶ 11.)
Grievance No. 2021-326-023
This grievance, dated May 4, 2021 (ECF No. 81-5), was submitted to Progress CCC. Ingram states that Lynch denied him his legal materials. (Id.) On May 11, 2021, the grievance was denied by a Progress CCC staff member because Ingram sought no relief in his grievance. (ECF No. 81-6.) In the Initial Review Response of Grievance No. 2021-326-023, Ingram was advised that upon his reception to Progress CCC, he completed paperwork designating an individual who could take custody of his property should he be discharged from Progress CCC. (ECF No. 80 ¶ 13.) Ingram listed Amy Ingram as his designee and provided her address. (Id.) Progress CCC mailed a discharge letter to Plaintiff's designee to retrieve Plaintiff's property. (Id.) Progress CCC states that the facility does not have any record of an appeal to initial review pertaining to this grievance. (ECF No. 81-7 ¶ 14.)
In his brief, Ingram asserts that he filed an appeal from the denial of this grievance but did not receive a response (ECF No. 92 at 8). The sole evidence he submitted in support of this assertion is a copy of the purported appeal (ECF No. 92-1 at 1), and a copy of a later grievance, Grievance No. 2021-326-024, in which he states that he submitted the appeal (ECF No. 81-8).
While Ingram states in his unverified statement of disputed facts (ECF No. 91) that he did appeal, his verified declaration includes no such statement.
Grievance No. 2021-326-024
In a grievance dated June 5, 2021 (ECF No. 81-8), Ingram again complains that he does not have his legal materials, but he does not assign blame to Lynch. (Id.) Rather, he states that he submitted a request for his materials in accordance with one of the procedures outlined in the response to Grievance No. 2021-326-023 but has not received the materials. (Id.) In response, the assigned Progress CCC staff member states that the facility has not received either a request for legal material or an appeal from the prior grievance. (ECF No. 81-9.)
The facility does not have any record of an appeal to initial review pertaining to this grievance. (ECF No. 81-7 ¶ 15.) Ingram asserts that he filed an appeal from the denial of this grievance but did not receive a response to this appeal. (ECF No. 92 at 8.) The sole evidence he submits in support of this assertion is a copy of the purported appeal. (ECF No. 92-1 at 2). As with the previous grievance, Ingram's declaration does not include a statement that he appealed the denial of this grievance.
2. Facts relating to claims against Davis and Milliken
On May 14, 2021, Ingram received a misconduct for refusing to obey an order and using abusive, obscene, or inappropriate language to an employee. (ECF No. 80 ¶ 18; ECF No. 81-10.) The misconduct, issued by Davis, listed Milliken as a witness. (Id.) In his verified declaration, Ingram states that “Davis and Milliken never appeared at his cell door and gave him any order on the date and time affixed to the fraudulent/retaliatory misconduct because it never happened.” (ECF No. 90 ¶ 18.)
On May 18, 2021, Ingram was found guilty of the misconduct and sentenced to 30 days of disciplinary custody. (ECF No. 80 ¶ 19; ECF No. 91 ¶ 19.) On May 18, 2023, Plaintiff appealed the finding at the misconduct hearing. (ECF No. 80 ¶ 20.) On May 19, 2023, the Hearing Examiner's decision was upheld by the Program Review Committee (“PRC”) (ECF No. 80 ¶¶ 2021; ECF No. 91 ¶¶ 20-21.)
C. Legal Standard
Rule 56 of the Federal Rules of Civil Procedure provides that: “The court shall grant 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). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of showing the absence of a genuine, material dispute and an entitlement to judgment. Id. at 323. This showing does not necessarily require the moving party to disprove the opponent's claims. Instead, this burden may often be discharged simply by pointing out for the court an absence of evidence in support of the non-moving party's claims. Id.
Once the moving party has met their initial burden, then the burden shifts to the nonmoving party to demonstrate, by affidavit or other evidence, “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A non-moving party must “go beyond the pleadings” and show probative evidence creating a triable controversy. Celotex, 477 U.S. at 324. An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In following this directive, a court must take the facts in the light most favorable to the non-moving party and must draw all reasonable inferences and resolve all doubts in that party's favor. Hugh v. Butler Cty. Fam. YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
Although courts must hold pro se pleadings to “less stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), at the summary judgment stage a pro se plaintiff is not exempt from his burden of providing some affirmative evidence, not just mere allegations, to show that there is a genuine dispute for trial. See, e.g., Barnett v. N.J. Transit Corp., 573 Fed.Appx. 239, 243 (3d Cir. 2014) (holding that the pro se plaintiff was still “required to designate specific facts by use of affidavits, depositions, admissions, or answers to interrogatories . . . sufficient to convince a reasonable fact finder to find all the elements of her prima facie case”) (citation and quotation omitted); Siluk v. Beard, 395 Fed.Appx. 817, 820 (3d Cir. 2010) (“[T]he right of self-representation does not exempt a party from compliance with relevant rules of procedural law.”); Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (pro se plaintiffs “cannot flout procedural rules-they must abide by the same rules that apply to all other litigants.”)
D. Discussion
Ingram's claims of retaliation against the remaining Defendants assert the violation of his rights under the First Amendment to the United States Constitution.
1. Claim against Lynch
Defendants assert that the retaliation claim against Lynch must be dismissed because Ingram failed to exhaust his administrative remedies.
The Prison Litigation Reform Act (“PLRA”) mandates that an inmate exhaust “such administrative remedies as are available” before bringing a suit challenging prison conditions. 42 U.S.C. § 1997e(a). The exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is a “non-jurisdictional prerequisite to an inmate bringing suit” and when raised by a defendant it constitutes a threshold issue to be addressed by the court. See, e.g., Rinaldi v. United States, 904 F.3d 257, 265 (3d Cir. 2018).
The Supreme Court has repeatedly observed that the PLRA's exhaustion requirement “is ‘mandatory': An inmate ‘shall' bring ‘no action' (or said more conversationally, may not bring any action) absent exhaustion of available administrative remedies.” Ross v. Blake, 136 S.Ct. 1850, 1856 (2016) (citing Woodford v. Ngo, 548 U.S. 81, 85 (2006) and Jones v. Bock, 549 U.S. 199, 211 (2007)). Exhaustion is mandatory under the PLRA regardless of the type of relief sought and the type of relief available through administrative procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). Courts are not given discretion to decide whether exhaustion should be excused, Ross, 136 S.Ct. at 1858, and there is no exception to the exhaustion requirement based on “futility.” Ahmed v. Dragovich, 297 F.3d 201, 206 (3d Cir. 2002) (citations omitted).
The PLRA's mandatory exhaustion requirement means not only that a complaint filed before administrative remedies are exhausted is premature and cannot be entertained, it also means that failure to exhaust administrative remedies in accordance with a prison's grievance procedures constitutes procedural default. Woodford, 548 U.S. at 93-95; see also Spruill v. Gillis, 372 F.3d 218, 227-30 (3d Cir. 2004). That is because “the PLRA's exhaustion requirement requires proper exhaustion.” Woodford, 548 U.S. at 93; Spruill, 372 F.3d. at 227-30.
The prison's grievance policy is what “define[s] the boundaries of proper exhaustion.” Jones, 549 U.S. at 218; Spruill, 372 F.3d at 230-31 (the “prison grievance procedures supply the yardstick for measuring procedural default.”). Therefore, the procedural requirements for exhaustion in a given case “are drawn from the polices of the prison in question rather than from any free-standing federal law.” Shifflett v. Korszniak, 934 F.3d 356, 364 (3d Cir. 2019) (citing Spruill, 372 F.3d at 231).
The DOC's official Inmate Grievance System is set forth in DC-ADM 804. It “is intended to deal with a wide range of issues, procedures, or events that may be of concern to an inmate[,]” including challenges or complaints about prison policies. DC-ADM 804, § 1.A.2; see also id. at p. 13, DC-ADM 804 § 1.A.13 (“[a]n inmate who has been personally affected by a Department and/or facility action or policy will be permitted to submit a grievance.”).
DC-ADM 804 sets forth a three-tier administrative remedy system. A prisoner is required to present his grievance to the Facility Grievance Coordinator for initial review. Id., § 1.A.5. The prisoner is required to appeal an adverse determination by the Facility Grievance Coordinator to the Facility Manager. Id., § 2.A. From there the prisoner must appeal to the DOC's Secretary's Office of Inmate Grievances and Appeals for appeal to final review. Id., § 2.B.
A prisoner's failure to exhaust must be asserted and proven by the defendants. Jones v. Bock, 549 U.S. 199, 217 (2007) (holding that “failure to exhaust is an affirmative defense under the PLRA”); Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). The United States Court of Appeals for the Third Circuit has explained that if the defendant shows that the inmate failed to exhaust his administrative remedies, then “the inmate plaintiff bears the onus of producing evidence that the on-the-books remedies were in fact unavailable to him or her.” West v. Emig, 787 Fed.Appx. 812, 814 (3d Cir. 2019) (citing Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018)). Absent a situation when administrative remedies are not “available,” a court may not excuse an inmate's failure to exhaust “irrespective of any ‘special circumstances.'” Ross v. Blake, 578 U.S. 632, 639 (2016). Whether a prisoner has exhausted administrative remedies is a question of law that is determined by the court, even if that determination requires the resolution of disputed facts. Small v. Camden County, 728 F.3d 265, 269 (3d Cir. 2013).
As reviewed above, Ingram's retaliation claim against Lynch concerns the withholding of his legal records in retaliation for Ingram's lawsuit against other correctional employees. As discussed, Ingram filed three grievances pertaining to Lynch for failing to provide him with his legal documents: one at SCI-Greene (No. 925009) and two at Progress CCC (Nos. 2021-326-023 and 2021-326-024). Defendants contend that Ingram did not appeal the initial review responses with respect to any of these grievances. (ECF No. 70 at 3-4.) Ingram argues that he did all he could do to exhaust Grievances Nos. 2021-326-023 and 2021-326-024. (ECF No. 92 at 7-9.)
Each of these grievances will be discussed in turn.
Grievance No. 925009
This grievance was submitted to SCI Greene after Ingram was transferred there. In it, Ingram states that when he left Progress CCC, he informed Lynch that he needed his legal work, but Lynch refused to transfer the box containing his legal work to SCI Greene.
On April 26, 2021, the Facility Grievance Coordinator at SCI-Greene issued a rejection of the grievance because it involved matters that occurred at another facility. (ECF No. 81-3.) Ingram did not appeal this rejection. (ECF No. 80 ¶ 11; ECF No. 91 ¶ 11.) Thus, he failed to exhaust his administrative remedies regarding this grievance and failed to show that he was prevented in doing so or that the remedy was otherwise unavailable to him.
Grievance No. 2021-326-023
In this grievance submitted to Progress CCC, Ingram states that Lynch denied him his legal materials. (ECF No. 81-5.) On May 11, 2021, the grievance was denied by a Progress CCC staff member, who noted that Ingram had sought no relief in his grievance. (ECF No. 81-6.) The facility does not have any record of an appeal to initial review pertaining to this grievance. (ECF No. 817 ¶ 14.)
Ingram asserts that he filed an appeal from the denial of this grievance but did not receive a response. (ECF No. 92 at 8.) Of note, in his declaration, the only verified document submitted by Ingram, he does not represent that he submitted an appeal. In fact, the sole evidence he submits in support of this assertion is a copy of the purported appeal, (ECF No. 92-1 at 1), and a copy of Grievance No. 2021-326-024, in which he states that he submitted the appeal, (ECF No. 81-8). The former document is, at best, evidence that Ingram prepared an appeal, but is not evidence that he submitted one. The latter document is, at best, evidence that Ingram represented that he had submitted an appeal, but it is not evidence that he did so.
Ingram offers no sworn statements on this issue. The Third Circuit has clearly stated that “while an unsworn statement may be considered on summary judgment, an unsworn statement that has not been made under penalty of perjury cannot” be used to create an issue of fact. United States ex rel. Doe v. Heart Sol., PC, 923 F.3d 308, 315 (3d Cir. 2019). Ingram did not sign his Amended Complaint or his brief in opposition to summary judgment under penalty of perjury. As such, Ingram cannot rely on his unsworn statements related to exhaustion to establish an issue of fact preventing the grant of summary judgment to Defendants. At any rate, whether a prisoner has exhausted administrative remedies is a question of law that is determined by the court, even if that determination requires the resolution of disputed facts.
In summary, Defendants have produced evidence that no appeal was received by the Progress CCC. Ingram has not provided any evidence that he actually submitted an appeal to the facility or that the grievance process was otherwise unavailable to him. Accordingly, on the record before the Court, Ingram has failed to establish a genuine issue of material fact that he properly exhausted this grievance.
Grievance No. 2021-326-024
In this grievance, Ingram again complains that he does not have his legal materials, but he does not assign blame to Lynch. (ECF No. 81-8.) Rather, he states that he submitted a request for his materials in accordance with one of the procedures outlined in the response to Grievance No. 2021-326-023 but did not receive the materials. (Id.) In response, the assigned Progress CCC staff member states that the facility has not received either a request for legal materials or an appeal from the prior grievance. (ECF No. 81-9.) The declaration of Director Lemasters states that the facility does not have any record of an appeal to initial review pertaining to this grievance. (ECF No. 81-7 ¶ 15.)
Because Lynch is not named in this grievance, its relevance to this claim is questionable. See Williams v. Commonwealth, 146 Fed.Appx. 554, 557 (3d Cir. 2005) (explaining that a Pennsylvania inmate's failure to properly identify a defendant in the relevant grievance constitutes a failure to properly exhaust his administrative remedies under the PLRA.) Defendants have not raised this argument in support of their motion, however, and because the grievance was not exhausted, this point need not be further explored.
While Ingram claims that he filed an appeal from the denial of this grievance but did not receive a response, the only evidence he submits in support of this assertion is a copy of the purported appeal. (ECF No. 92-1 at 2). As with the previous grievance, this evidence shows, at best, that Ingram prepared an appeal, but it is not evidence that he submitted one. And again, he has not submitted a verified statement that he submitted an appeal for this grievance.
In summary, Defendants have provided evidence that no appeal was received by the facility that has not been refuted by Ingram. Accordingly, on the record before the Court, Ingram has failed to establish a genuine issue of material fact that he properly exhausted this grievance as well.
Therefore, because Ingram's claim against Lynch is procedurally defaulted for failure to exhaust administrative remedies, Defendants' motion for summary judgment should be granted.
It should also be noted that according to the uncontroverted evidence, the procedures at Progress CCC for custody of inmate property require retrieval by a designee. Thus, it appears that Lynch followed this policy.
2. Claim against Davis and Milliken
Ingram's claim against Davis and Milliken is based on the misconduct issued to him by Davis for refusing to obey an order and for using abusive, obscene, or inappropriate language to an employee. In his Amended Complaint, he alleges that this misconduct was “fraudulent” because Davis and Milliken never approached his cell at any time to issue an order or speak with him for any reason. Ingram claims that the misconduct was “issued in retaliation and that retaliation is established by the fact that he did not commit offenses detailed in the misconduct. Why else would these Defendants blatantly punish the Plaintiff for something that he did not do, when they know that they were manufacturing the charges against Plaintiff[?]” (ECF No. 50 ¶ 8.)
To succeed on a such a claim, a plaintiff must prove that: (1) he engaged in constitutionally protected conduct; (2) he suffered 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. Mitchell v. Horn, 318 F.3d 532, 530 (3d Cir. 2003). “If a prisoner makes out this prima facie case, the burden shifts to the prison officials to show that ‘they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest.' Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001).” Murray v. Smithbower, 2023 WL 5378839, at *2 (3d Cir. Aug. 22, 2023).
Defendants contend that they are entitled to summary judgment on this retaliation claim because the issuance of the misconduct was within the broad discretion of prison officials. (ECF No. 79 at 9.) The Third Circuit has explained that a court must evaluate “‘the quantum of evidence' of the misconduct to determine whether the prison officials' decision to discipline an inmate for his violations of prison policy was within the broad discretion we must afford them.” Watson v. Rozum, 834 F.3d 417, 426 (3d Cir. 2016) (quoting Carter v. McGrady, 292 F.3d 152, 159 (3d Cir. 2002)). Furthermore, the Court of Appeals has noted that “most prisoners' retaliation claims will fail if the misconduct charges are supported by the evidence.” Id. at 425.
Here, Davis issued the misconduct to which Milliken was a witness based on his assertion that Ingram refused to obey a direct order and engaged in abusive language. After a hearing, Ingram was found guilty of the misconduct and sentenced to a period of disciplinary custody. The adjudication by the hearing officer was upheld by the Program Review Committee, which concluded that “the evidence presented supports the finding of the Hearing Examiner.” (ECF No. 79 at 9) (citing ECF No. 81-12.)
Ingram asserts that because he requested “recordings for the date and time of the alleged incident relative to the fraudulent misconduct,” and recordings were unavailable, summary judgment in favor of Davis and Milliken should be denied with respect to this claim. (ECF No. 92 at 15.) Ingram cannot rely on the unavailability of video recordings to counter Defendants' argument, however, because his Motion for Adverse Inference and/or Spoliation (ECF No. 88) regarding these recordings was denied by the Court. (ECF No. 97.)
There is no evidence that the issuance of the misconduct was retaliatory in nature. While it is uncontroverted that Ingram suffered an adverse action as a result of the misconduct determination, the other requisite elements of a retaliation claim are lacking. Ingram's unverified Amended Complaint merely makes a circular allegation that the “misconduct was issued in retaliation and that retaliation is established by the fact that he did not commit offenses detailed in the misconduct.” (ECF No. 50 ¶ 8.) The only evidence that Ingram has offered in support of the alleged retaliation, however, is the statement in his declaration that “Davis and Milliken never appeared at his cell door and gave him any order on the date and time affixed to the fraudulent/retaliatory misconduct because it never happened.” (ECF No. 90 ¶ 18.). Notably, both the hearing officer and the PRC evaluated the evidence in support of the misconduct and found it to be sufficient. (ECF No. 81-10 at 4; ECF No. 81-12.)
More importantly, unlike in Watson, Ingram has not offered any evidence that would support his claim that retaliation was the motive for the issuance of a misconduct by Davis. See Watson, 834 F.3d at 426 (prisoner possessed a radio that had been in the same condition for more than a year and had been confiscated as contraband, but no misconduct was issued for possessing contraband until he asked for a grievance form to report an officer for breaking an antenna.) Indeed, Ingram provides no evidence that he engaged in a constitutionally protected activity, nor does the record support a link between any conceivable constitutional activity and the issuance of the misconduct. Simply put, there are no facts in the record to indicate that prior to the issuance of the misconduct, Davis and/or Milliken possessed certain knowledge about Ingram, engaged in communications with or about Ingram, had knowledge of any occurrences involving Ingram, or had any interactions with Ingram that might form the basis for a claim of retaliation by either or both of them.
Thus, even viewing the facts in the light most favorable to Ingram, there are no genuine issues of material fact that could support Ingram's claim that Davis and/or Milliken acted with retaliatory intent in issuing the misconduct rather than within the broad discretion afforded them to discipline an inmate for his violations of prison policy. Accordingly, their motion for summary judgment should be granted.
E. Conclusion
For these reasons, it is respectfully recommended that Defendants' Motion for Summary Judgment be granted.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties may, within fourteen (14) days, file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).