Opinion
Civil Action No. 18-850
02-25-2020
OMAR JACKSON, Plaintiff, v. ROBERT D. GILMORE, KAREN M. SOKOL, MICHELE BAKER, and BRIDGETTE WRIGHT, Defendants.
District Judge Nora Barry Fischer
Re: ECF No. 54 REPORT AND RECOMMENDATION
I. RECOMMENDATION
Plaintiff Omar Jackson ("Plaintiff"), an inmate incarcerated at the State Correctional Institution Forest ("SCI Forest"), initiated this pro se lawsuit pursuant to 42 U.S.C. § 1983. ECF No. 9. Plaintiff asserts violations of his Fourteenth Amendment rights arising out of alleged disparate treatment on the basis of race with respect to whether inmates are permitted to maintain their employment status following disciplinary sanctions.
Presently before the Court is a Motion for Summary Judgment filed by Defendants Robert Gilmore ("Gilmore"), Karen Sokol ("Sokol"), Michele Baker ("Baker") and Bridgette Wright ("Wright") (collectively, "Defendants"). ECF No. 54. For the reasons set forth below, it is respectfully recommended that Defendants' Motion for Summary Judgment be granted.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
1. Plaintiff Lost His Job Following Disciplinary Custody
Prior to October 2017, Plaintiff was employed as an "E Block Worker" at State Correctional Institution Greene ("SCI Greene"). ECF No. 56 ¶ 6. On June 14, 2017, Plaintiff signed an Inmate Job Orientation Form for this position. Id. Plaintiff acknowledged that "[b]eing away from the job for any reason except medical," including placement in the Restricted Housing Unit ("RHU"), and "[r]efusal to move to a new housing area as directed, a condition of employment" are causes for termination of his employment. Id. ¶¶ 7-10.
On October 11, 2017, Plaintiff received a misconduct for refusing to transfer cells as directed, which stated in relevant part:
On the above date & time this officer told [Inmate] Jackson to move from 62 cell to 20 cell. [Inmate] Jackson stated he is not moving, that he would rather go to the hole than move. This move was supposed to happen due to his H code every 90 days.ECF No. 57-1 at 4.
"H" code status indicates that an inmate is high risk. This status disqualifies the inmate from certain privileges. Walker v. Regan, No. 13-7556, 2019 WL 687884, at *1 (E.D. Pa. Feb. 15, 2019).
At the hearing arising out of this misconduct for refusing to transfer cells, Plaintiff entered a guilty plea. ECF No. 56 ¶ 15. Plaintiff received a sanction of fifteen days in disciplinary custody. Id. ¶ 16.
Inmates in the custody of the Pennsylvania Department of Corrections ("DOC") are eligible for compensation in accordance with DC-ADM 816, which states "[i]t is the policy of the [DOC] to compensate an inmate for participating in work and/or education programs." ECF No. 57-1 at 7. The policy also states that it "does not create rights in any person" and "[a]n inmate in Disciplinary Custody (DC) is generally not eligible for compensation . . . an inmate being released from DC is eligible for [General Labor Pool] or a work assignment immediately upon release from a Security Level 5 Housing Unit." Id. at 8, 12. In affidavits, Baker and Sokol assert that it was "common practice and policy" to remove an inmate from his work assignment after a disciplinary custody sanction. ECF No. 57-1 at 40, 43.
After serving his disciplinary sanction for refusing to transfer cells as directed, Plaintiff was informed of the change in his employment status. ECF No. 9 ¶ 11. On November 4, 2017, Plaintiff submitted a request for clarification to Baker, who was the Corrections Employment and Vocation Assistant at SCI Greene. ECF No. 57-1 at 19, 39. Plaintiff stated in the request for clarification:
I am writing to inform you that on 10-13-17, upon my sanction for my disciplinary charge #35. I was only sanctioned to (15) days. My laundry duty was not removed. So, why am I listed as "GLP" [General Labor Pool] on the call-out?Id. at 19.
In response, Baker informed Plaintiff that he was removed from his job due to his disciplinary custody sanction. Id. Baker informed Plaintiff that his name had been added to the waiting list for a position as of the date of his request, and that he would be informed when his name reached the top of the list. Id. at 40.
2. Alleged Racial Discrimination
In his Complaint, Plaintiff claims that Tyler Foster ("Foster"), a white inmate, was permitted to immediately return to his prison job after being in disciplinary custody in September 2017, and that at least ten other inmates were also permitted to retain their employment status. ECF No. 9 ¶¶ 12-13. Plaintiff claims that he was treated differently on the basis of his race. Id. ¶ 25.
Based on records produced by Defendants, Foster entered DOC custody on October 1, 2013. ECF No. 56 ¶ 51. Foster was assigned to the General Labor Pool status five times, two of which occurred after disciplinary custody status. Id. ¶¶ 52-53. Contrary to Plaintiff's claim, the records suggest that both Plaintiff and Foster were reassigned to the General Labor Pool following their disciplinary custody sanctions in October 2017. Id. ¶ 55; see also ECF No. 57-1 at 40 ¶ 8.
On January 28, 2018, Plaintiff claims that Wright, who served as the Acting Corrections Employment Vocational Coordinator, summoned him to the Academics Building to "arbitrate" the claims alleged in his grievance. ECF No. 74 ¶ 14. According to Plaintiff, Wright told him that "white inmates are generally awarded their previous work assignments back post their (DC) sanctions if the officers decide to employ their discretion for the white inmates," and informed Plaintiff that he had no right to employment or to challenge the decision regarding his employment. Id.
In his Declaration, Plaintiff asserts that inmates with the last names Smith and Cherner both informed him that they received their previous work assignments immediately after being confined to the RHU. Id. ¶ 15. He also claims that inmates with the last names Pearson, Walton, and Lynch told Plaintiff that they witnessed others receiving their previous work assignments upon release from the RHU, and that Lynch told him he witnessed Foster receiving his previous work assignment after his release from the RHU. Id. Plaintiff does not provide sworn statements based on firsthand knowledge from these purported witnesses or other documentary evidence in support of these assertions. Other than Foster, Plaintiff does not identify the race of any of these individuals, when or where these job assignments allegedly occurred, or any other details regarding the circumstances in which the inmates were permitted to retain their jobs.
3. Plaintiff's Grievances
On November 26, 2017, Plaintiff submitted a grievance related to the loss of his job. He asserted that he was removed from his prison employment as a unit worker in retaliation for exercising his free speech and identified Defendant Baker. ECF No. 57-1 at 21. Plaintiff requested the reinstatement of his prior employment with back pay from October 27, 2017, or in the alternative, to be given another unit job. Id. at 22. He requested $50,000 as compensation for the DOC's alleged violation of its policy. Id.
On January 12, 2018, Plaintiff submitted a second grievance arising out of the loss of his job. He claimed that prison officials engaged in racial discrimination by permitting a white inmate, Foster, to maintain his employment status after receiving disciplinary custody, but did not permit Plaintiff, a black inmate, to do so. Id. at 24-25. Plaintiff asserted that Baker and Sokol, as Corrections Classification Program Manager, violated his rights by treating him differently than Foster. Id. at 25; see also ECF No. 57-1 at 42 ¶ 1.
Plaintiff's second grievance was assigned to Wright to investigate and provide a response, and she denied his grievance on February 7, 2018. ECF No. 57-1 at 26. Wright informed Plaintiff that, in accordance with policy, inmates will lose their employment during disciplinary custody status. Id. She denied that any discrimination occurred. Id.
Plaintiff subsequently appealed to the Facility Manager, Gilmore, which he received on February 20, 2018. Id. at 29. In his appeal, Plaintiff reiterated his allegations regarding the alleged racial discrimination and asserted that Wright would become a "future Defendant for her intentional refusal to properly investigate and remedy the clear violation." Id.
Gilmore upheld Wright's denial of Plaintiff's grievance on March 7, 2019. Id. at 30. In his response, Gilmore indicated to Plaintiff that he was removed from his position in accordance with DC-ADM 816 because he was found guilty of a misconduct and received a disciplinary custody sanction. Id. Gilmore further noted that Plaintiff's statement regarding Foster was "inaccurate," and he denied that any racial discrimination had occurred. Id.
In addition to submitting these grievances, Plaintiff claims in his Declaration that he submitted a Form DC-135A, an inmate to staff request, on December 15, 27, 28, and 29, 2017 to Defendants Baker, Sokol, and Gilmore. ECF No. 74 ¶¶ 9-12. Plaintiff asserts that he requested clarification regarding the alleged dissimilarity in treatment between Plaintiff and Foster and, with respect to his December 29, 2017 request, he sought Gilmore's intervention. Id. Plaintiff claims he did not receive a response to these requests. Id.
4. Procedural History
Plaintiff's Complaint was filed on August 16, 2018. ECF No. 9. In his Complaint, Plaintiff claims that Defendants Gilmore, Sokol, Baker and Wright violated the equal protection clause of the Fourteenth Amendment.
Following the close of discovery, Defendants filed a Motion for Summary Judgment and Brief in Support on August 16, 2019. ECF Nos. 54 and 55. In support of their Motion for Summary Judgment, Defendants also submitted a Concise Statement of Undisputed Material Facts and an appendix. ECF Nos. 56 and 57.
On February 6, 2020, Plaintiff filed a Declaration in Opposition to Defendants' Motion for Summary Judgment, ECF No. 74, a response to Defendants' Concise Statement of Undisputed Material Facts, ECF No. 75, and an appendix in support, ECF No. 75-1. On February 10, 2020, Plaintiff submitted a Brief in Opposition to Defendants' Motion for Summary Judgment. ECF No. 76.
The Motion for Summary Judgment is now ripe for consideration.
B. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, "[t]he 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). An issue of material fact is in genuine dispute 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); Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) ("A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof"). Thus, summary judgment is warranted where, "after adequate time for discovery and upon motion . . . a party . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
The moving party bears the initial burden of demonstrating to the court that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 322; Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). "[W]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
In deciding a summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party and must draw all reasonable inferences and resolve all doubts in favor of the nonmoving party. Matreale v. N.J. Dep't of Military & Veterans Affairs, 487 F.3d 150, 152 (3d Cir. 2007); Woodside v. Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001).
C. DISCUSSION
In the instant Motion for Summary Judgment, Defendants argue that summary judgment should be granted because Plaintiff fails to establish a violation of his Fourteenth Amendment rights. In order to state an equal protection claim on a theory of selective enforcement, Plaintiff must demonstrate (1) selective treatment compared to others similarly situated, and (2) that the selective treatment "was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person." Homan v. City of Reading, 963 F. Supp. 485, 490 (E.D. Pa. 1997). "Persons are similarly situated under the Equal Protection Clause when they are alike 'in all relevant aspects.'" Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2018) (quoting Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005)). Under the second prong, plaintiff has the burden of showing intentional or purposeful discrimination. See PG Pub. Co. v. Aichele, 705 F.3d 91, 115 (3d Cir. 2013).
Here, Defendants argue that Plaintiff cannot establish that he was selectively treated compared to others similarly situated. ECF No. 55 at 13. Defendants contend that Plaintiff's placement in the General Labor Pool was consistent with DOC policy, and he offers no factual support for the claim that white inmates were treated differently. Id. With respect to Foster, like Plaintiff, he was also removed from his employment and placed in the General Labor Pool following his disciplinary custody status. Id. at 14. Moreover, Plaintiff does not show he and Foster are similarly situated in all respects, with Defendants noting that Plaintiff has a history of receiving sixteen misconducts from January 2000 through October 2017. Id. at 14-15.
Defendants further argue that Plaintiff cannot establish purposeful discrimination. Id. at 15, Although Plaintiff asserts that the DOC employees acted with racial motivation, he does not offer any proof of discrimination. Id. Defendants point to Baker's Declaration, in which she asserts she did not discriminate against Plaintiff on the basis of race and is not aware of any DOC employee who used race as a basis when making determinations about Plaintiff. Id. (citing ECF No. 57-1 at 39-40).
Finally, Defendants argue that there is a rational basis for Plaintiff's treatment, which defeats Plaintiff's claim. In order to prevail, they argue, Plaintiff must demonstrate that his treatment was not "reasonably related to legitimate penological interests" and "he must overcome the presumption that the prison officials acted within their broad discretion." Id. (citing Shaw v. Murphy, 532 U.S. 223, 224 (2001)). Defendants argue that Plaintiff cannot do so, because efficient administration requires that prison officials be permitted to reassign work status, and inmates do not have a right to a particular work assignment.
In opposing the Motion for Summary Judgment, Plaintiff contends that many white inmates retained their employment upon release from disciplinary custody, which he claims he could show with affidavits. ECF No. 76 at 8. Plaintiff asserts that he received selective treatment because his treatment was not consistent with policy and common practice. Id. at 8. Plaintiff claims that inmates who retained their jobs committed similar or more serious offenses than Plaintiff. Id. Foster was only treated alike "in theory," he argues, because Foster was actually permitted to retain his previous work assignment while simultaneously being reassigned to the General Labor Pool. ECF No. 75 ¶ 56. Although Plaintiff argues there is "ample evidence in the record to show purposeful discrimination," Plaintiff fails to specifically refer the Court to any evidence of discrimination in the record. ECF No. 76 at 8. Finally, Plaintiff contends that he cannot fully respond to Defendants' arguments due to unspecified "intentional obstruction" and because he is not an attorney. ECF No. 76 at 9.
Upon review of the record before this Court, the entry of summary judgment should be granted in favor of Defendants because Plaintiff does not proffer sufficient evidence to establish his Fourteenth Amendment claim. There is no evidence of record that Plaintiff was selectively treated compared to others similarly situated. Plaintiff's job reassignment was consistent with the DOC's policy and the "common practice" of removing an inmate from his work assignment following a disciplinary custody sanction. See ECF No. 57-1 at 40 ¶ 6-7; Id. at 42 ¶ 6-7. Indeed, Plaintiff verified that he understood and agreed that "refusal to move to a new housing area as directed" could, and later did, result in the loss of his job. See ECF No. 57-1 at 2.
After having an opportunity to conduct discovery, Plaintiff does little more than rest on the unproven allegations in his Complaint to oppose summary judgment. Although Plaintiff argues that he could produce affidavits from white inmates to support his claim of dissimilar treatment, he has not done so. With respect to Foster, just like Plaintiff, he was reassigned to the General Labor Pool after being placed in disciplinary custody. While Plaintiff claims that Foster was simultaneously reassigned to his former job and the General Labor Pool, he does not proffer evidence to support this conclusion.
In addition to the allegations in his Complaint, Plaintiff refers the Court to an exhibit showing Foster's Work History, ECF No. 57-1 at 32. See ECF No. 75 ¶ 55. On October 4, 2017, Foster's job detail is listed in this document as "MISCELLANEOUS \ GLP \ Crew" and Defendants have represented that this document indicates Foster was reassigned to the General Labor Pool after his disciplinary custody status on October 4, 2017. This is supported by an affidavit from Baker, who avers that she reviewed the work histories and "Inmate Foster was reassigned to GLP after his [disciplinary custody] sanction, which is the same as Inmate Jackson." ECF No. 57-1 at 40 ¶ 8. Plaintiff further refers the Court to Plaintiff's Exhibit "C," but there is no Exhibit C in his appendix. See ECF No. 75 ¶ 56.
Moreover, Plaintiff fails to offer evidence that the inmates that he claims were permitted to retain their jobs are similarly situated to Plaintiff. Plaintiff contends that the inmates permitted to retain their jobs have similar or worse misconduct histories than he does, but he fails to adduce evidence from which a jury could reach this conclusion.
Not only does Plaintiff fail to show that he was selectively treated, he does not establish that Defendants purposefully discriminated against him on the basis of race. Plaintiff alleged in his Complaint and in his grievance that Baker and Sokol were responsible for removing Plaintiff from his employment. ECF No. 9 ¶ 29; ECF No. 57-1 at 25. With respect to Baker, however, Plaintiff admits that she did not discriminate against him on the basis of race. ECF No. 75 ¶ 58. Sokol avers in a sworn Declaration that she had no direct involvement in Plaintiff's work assignment during the relevant time, and Plaintiff proffers no evidence here to suggest otherwise. See ECF No. 57-1 at 43 ¶ 8.
To the extent Plaintiff refers to Wright's alleged statement that officers could exercise their discretion to allow white inmates to retain their jobs, there is no evidence that any such discretion was not permitted with respect to inmates of other races. There is also no indication in the record that officers exercised this discretion in a racially discriminatory manner, let alone that Defendants did so with respect to Plaintiff. Accordingly, Plaintiff does not present sufficient evidence to establish his Fourteenth Amendment claim. Therefore, the Court should grant Defendants' Motion for Summary Judgment.
Defendants also assert the affirmative defense that Plaintiff failed to properly exhaust his administrative remedies prior to bringing suit and argue that Plaintiff has failed to plead the requisite personal involvement of Defendants to impose liability under 42 U.S.C. § 1983. Because the Court recommends that summary judgment be granted on Plaintiff's substantive claim, it does not separately address these issues. --------
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Defendants' Motion for Summary Judgment, ECF No. 54, be granted.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), 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. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. 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. Dated: February 25, 2020
Respectfully submitted,
/s/_________
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE cc: The Honorable Nora Barry Fischer,
United States District Judge
Omar Jackson
DT-7049
SCI Forest
P.O. Box 307
287 Woodland Drive
Marienville, PA 16239
All counsel of record by Notice of Electronic Filing