Opinion
1:21-CV-00312-SPB-RAL
08-12-2022
SHERMAN MACK, Plaintiff v. WARDEN SUTTER, DEPUTY BRYANT, DEPUTY HOLMAN, CAPT. CARTER, COUNSELOR CHAFEE, LT. DEFRANKO, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS, OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT ECF NO. 17
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the Court GRANT the Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment.
II. Report
A. Introduction
Plaintiff Sherman Mack (Mack), a prisoner in the custody of the Pennsylvania Department of Corrections (DOC), filed this pro se action against six employees of the Erie County Prison (ECP). ECF No. 5. He asserts that the Defendants violated his rights guaranteed under the First, Eighth, and Fourteenth Amendments to the United States Constitution and seeks redress of those violations pursuant to 42 U.S.C. § 1983.
This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343. This motion is on referral to the undersigned for Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1).
The Defendants have moved to dismiss Mack's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF Nos. 17, 18. In the alternative, they have moved for summary judgment under Rule 56 and attached numerous exhibits to the motion in support of that relief. Id. The Court ordered Mack to respond and notified the parties that the “pending motion may be treated, either in whole or in part, as a motion for summary judgment” in accordance with the Court of Appeals' direction in Renchenski v. Williams, 622 F.3d 315 (3d Cir. 2010). See ECF No. 20. The Court granted Mack extensions of time to respond. ECF Nos. 23, 27, 30. After his latest extended response deadline passed, the Court issued an order directing Mack to show cause for his failure to respond or, alternatively, to file a response by June 29, 2022. ECF No. 33. The Court warned Mack that his “[f]ailure to respond to this Order would result in a recommendation that the Court dismiss Plaintiff's case for failure to prosecute or the Court's consideration of Defendants' motion without Plaintiff's response.” Id. As of today, Mack has not responded. Accordingly, the motion is appropriate for decision.
B. Mack's Claims
Mack asserts the following claims: (1) the Defendants violated his rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution when they placed and held him in the Restricted Housing Unit (RHU) during six temporary transfers to the ECP between October 2019 and October 2021; (2) the Defendants confined him to conditions that violated his Eighth Amendment right to be free from cruel and unusual punishment; (3) Counselor Chaffee and Deputy Warden Holman violated his First Amendment right to access the prison grievance system by refusing his requests for grievance forms; (4) the Defendants denied him his right to access to the courts; and (5) the Defendants continued his confinement in the RHU in retaliation for his requesting grievance forms in further violation of his First Amendment rights.
As relief, Mack seeks compensatory damages, costs, and a declaration that his rights have been violated. ECF No. 5, p. 10.
C. The Summary Judgment Record
The Court has considered Mack's verified complaint as an affidavit for purposes of the summary judgment record. See ECF No. 5.
Mack was transferred from a Pennsylvania Department of Corrections (DOC) correctional institution to the ECP to await charges of conspiracy to introduce drugs into the State Correctional Institution at Albion (SCI-Albion). ECF No. 5, p. 4. Court dockets confirm that a nine-count criminal complaint was filed against Mack in a Pennsylvania state court on June 6, 2019. He was charged with violating a state law that prohibits furnishing any controlled substance to any convict in a prison, conspiracy to commit bribery, and other crimes. After initial proceedings, a magisterial district judge transferred his case to the Erie County Court of Common Pleas. His case is active and scheduled for trial.
Mack's relevant criminal case docket numbers are MJ-06308-CR-0000182-2019 and CP-25-CR-0002118-2019. Unified Judicial System of Pennsylvania Web Portal, available at https://ujsportal.pacourts.us/CaseSearch (last accessed June 27, 2022); ECF No. 17-5. A district court may take judicial notice of state court records, as well as its own. See Minney v. Winstead, 2013 WL 3279793, at *2 (W.D. Pa. June 27, 2013).
DOC officials temporarily transferred Mack to the ECP six times to attend proceedings in his criminal case pending in the Court of Common Pleas:
• October 23, 2019 - November 25, 2019;
• February 28, 2020 - May 13, 2020;
• November 6, 2020 - December 4, 2020;
• April 7, 2021 - April 14, 2021;
• April 29, 2021 - June 9, 2021; and
• September 22, 2021 - October 6, 2021.ECF No. 17-2, pp. 1-2 (Affidavit of Deputy Warden Gary Seymour). Mack spent a total of 227 days during his six temporary detentions at the ECP. The ECP placed him on Administrative Segregation Status in the RHU throughout each detention. Id., p. 3.
This affidavit satisfies the requirements of 28 U.S.C. § 1746 for use in federal court.
Administrative Segregation at the ECP is
[a] designed place used for housing inmates who require a higher degree of protective care and custodial management. It is not necessarily a punitive status, but is designed to provide stringent custodial control and surveillance over those inmates who cannot be housed in general population.Id., ¶ 12. ECP officials placed him on Administrative Segregation Status based on their review of factors affecting his custody evaluation criteria. Id., ¶ 10; 17-7. Upon his temporary transfers, the DOC provided prison records to the ECP relevant to this determination. Id., ¶ 7. Each time, his incoming DOC custody classification was “Level 5” (the most restrictive level) or “Level 4.” Id., ¶ 8. In the DOC, Level 5 inmates are those
who have demonstrated, through a pattern of maladjustive, assaultive behavior, or through a need for protection that they require a high degree of structure. They require continual direct and indirect supervision by staff. These inmates are afforded the opportunity to participate only in selected programs in his/her cell or in small, controlled, highly supervised groups on the housing unit. They are inmates who either would pose a high level of risk to others or may be at risk themselves if permitted access to
general population areas. When out of his/her cell, he/she is always under escort, except as otherwise permitted by the Program Review Committee. They receive visits only in the housing unit, or designated secure areas and the visits are noncontact. Custody level 5 is the most restrictive level and inmates assigned to this level should be housed in units with a security level rating of 5.Id., ¶ 9 (emphasis added); 17-6, p. 3 (DOC policy statement 11.2.1). Mack was assigned to Level 5 because he is serving a life sentence for first-degree murder, faces pending charges for conspiring to introduce drugs into SCI-Albion, has thirty-nine misconducts in DOC facilities, and a history as a management problem. Id., ¶¶ 8, 10; 17-4; 17-7. Mack has not disputed this evidence. DOC officials also provided an order for Mack's separation from particular inmates. ECF No. 17-4, p. 2. Records also support that, at least on a few occasions beginning in 2020, Mack was under a fourteen-day medical quarantine for the novel coronavirus. See, e.g., ECF No. 17-16, p. 1. Each time that Mack was transferred to the ECP, officials there conducted an evaluation to determine his custody classification. ECF Nos. 17-2; 17-7; 17-8; 17-10; 17-12; 1714; 17-16; 17-18.
Level 4 is “assigned to those inmates who require a high degree of supervision. These inmates are individuals who, through a demonstrated pattern of maladjustive behavior, need continuous direct and indirect supervision.. ..[T]hey may be occasionally assaultive within the facility perimeter and are viewed as a definitive risk to the public outside of the perimeter. These inmates are permitted access to selected programs and jobs within the facility perimeter and are under constant observation and/or escort when moving throughout the facility individually or in groups. Newly received inmates who are unclassified are assigned to this level.” ECF No. 17-6, pp. 2-3.
D. Standard of Review
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 (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). The moving party may also rely on the lack of evidence to support an essential element of the opposing party's claim as a basis for the entry of summary judgment because “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. See also Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
Because Mack is proceeding pro se, the court will “apply the applicable law, irrespective of whether [he] 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 ..” 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). For example, the Court may consider the factual statements in Mack's verified complaint, but only when they are based on his personal knowledge. 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 [a pro se prisoner] at the summary judgment phase of the proceedings”); Boomer v. Lewis, 2009 WL 2900778, at *2 n.4 (M.D. Pa. Sept. 9, 2009) (“A verified complaint may be treated as an affidavit in support of or in opposition to a motion for summary judgment if the allegations are specific and based on personal knowledge.”).
E. Discussion
1. Due Process
The record evidence does not support a due process claim. To trigger protections under the Due Process Clause of the Fourteenth Amendment, a state actor must deprive the plaintiff of either a property right or liberty interest. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972). Depriving already-incarcerated persons of liberty 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, 484 (1995). Any lesser restraints on a prisoner's freedom fall “within the expected perimeters of the sentence imposed by a court of law” and will not constitute a protected liberty interest. Id. The determination of what is “atypical and significant” depends on the range of conditions an inmate would reasonably expect to encounter while incarcerated. See Asquith v. Dep't of Corr., 186 F.3d 407, 412 (3d Cir. 1999). Indeed, “an inmate does not have a right to be confined in any particular housing unit in a prison.” Fantone v. Latini, 780 F.3d 184, 186 (3d Cir. 2015).
“In determining whether a protected liberty interest exists, the court must consider: (1) the duration of the disciplinary confinement; and (2) whether the conditions of confinement were significantly more restrictive than those imposed upon other inmates in solitary confinement.” Huertas v. Sec'y Pa. Dep't of Corr., 533 Fed.Appx. 64, 66 (3d Cir. 2013) (citing Sandin, 515 at 468; Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000)). In Sandin, for example, the Court held that a thirty-day punitive segregation in the prison was not an atypical or significant hardship for an inmate and therefore did not implicate any liberty interest of the plaintiff; thus, the Due Process Clause's protections did not apply. Sandin, 487 U.S. at 487. See also Torres v. Fauver, 292 F.3d 141, 151-52 (3d Cir. 2002) (disciplinary detention for fifteen days and administrative segregation for 120 days did not implicate a liberty interest); Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (seven months in disciplinary confinement did not implicate a liberty interest); Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (fifteen months administrative segregation).
The record does not support a finding that Mack has experienced an atypical or significant hardship while temporarily on administrative segregation at the ECP. He has spent about seven and a half months in total in ECP's RHU-half the time the court in Griffin held insufficient. See Griffin, 112 F.3d at 708. Mack's longest stay at one time was 76 days. Griffin noted, “stays of many months [in administrative custody] are not uncommon,” so that could not be an atypical or significant hardship implicating a liberty interest. Id. What's more, Mack has introduced no evidence regarding the conditions of his administrative segregation at the ECP. Thus, he has failed to support a genuine dispute that he experienced an atypical or significant hardship as a prisoner. Cf. Falciglia v. Erie Cty. Prison, 279 Fed.Appx. 138, 141 (3d Cir. 2008) (per curiam) (no liberty interest implicated when an ECP inmate “was confined to his cell 24 hours a day for the first seven days; over the next 30 days, he was ‘lock[ed] down' for 18 hours a day.”). The Defendants are entitled to judgment as a matter of law on Mack's due process claims.
To the extent the complaint can be construed as asserting a due process claim because Mack did not meet the criteria for administrative segregation or that the Defendants violated internal ECP rules or policies by failing to meet with him, see ECF No. 5, p. 8, such claims will be dismissed with prejudice. The ECP's policies and procedures do not create a liberty interest protected by the Due Process Clause. See Lee v. Schrader, 2014 WL 2112833, at *4 (W.D. Pa. May 20, 2014) (“The simple fact that state law prescribes certain procedures does not mean that the procedures thereby acquire a federal constitutional dimension”) (citing United States v. Jiles, 658 F.2d 194, 200 (3d Cir. 1981) (other citations omitted); Sandin, 515 U.S. 472.
2. Equal Protection
Mack's Fourteenth Amendment equal protection claim fails as a matter of law because the record does not support that Mack was treated differently from other inmates transferred to the ECP. The Equal Protection Clause of the Fourteenth Amendment commands that similarly situated persons be treated alike. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). An equal protection claim can be brought by a “class of one,” that is, a plaintiff alleging that he has been “intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006) (citing Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Mack has presented no evidence to support that he is a member of a suspect class, so any distinction in treatment will be upheld if it is rationally related to a legitimate state interest. See Tillman v. Lebanon Cty. Corr. Facility, 221 F.3d 410, 423 (3d Cir. 2000).
The record is devoid of facts to support that Mack has been subjected to disparate treatment. It is true “that the Olech decision does not establish a requirement that a plaintiff identify in the complaint specific instances where others have been treated differently for the purposes of equal protection.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). Mack's verified complaint contains a single statement that ECP officials treated him differently than other (unidentified) inmates who were transferred in from a DOC facility. ECF No. 5, p. 7. But at summary judgment, Mack has a burden to produce factual evidence to support his claim. See Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (noting the “vastly different” standards applicable to motions to dismiss and motions for summary judgment). This single statement in his verified complaint is, at best, a “conclusory, self-serving affidavit[ ]” that is “insufficient to withstand a motion for summary judgment.” Paladino v. Newsome, 885 F.3d 203, 208 (3d Cir. 2018). Mack has not identified any evidence to support his equal protection claim. Therefore, the Defendants are entitled to judgment as a matter of law on Mack's Equal Protection claim.
3. Eighth Amendment Conditions of Confinement
The record also establishes the Defendants' entitlement to summary judgment on Mack's Eighth Amendment “conditions of his confinement” claim. The Eighth Amendment protects against infliction of “cruel and unusual punishment.” But “not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny.” Whitley v. Albers, 475 U.S. 312, 319 (1986). “After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Id. (citation and internal quotations omitted). Under 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 (1981); Tillman v. Lebanon Cty. Corr. Facility, 221 F.3d 410, 418 (3d Cir. 2000). To state a claim for violating the Eighth Amendment, “a plaintiff must show a sufficiently serious objective deprivation, and that a prison official subjectively acted with a sufficiently culpable state of mind, i.e., deliberate indifference.” Tillman, 221 F.3d at 418 (citations omitted); Wilson v. Seiter, 501 U.S. 294 (1991). Thus, “extreme deprivations are required to make out a conditions-of-confinement claim,” see Hudson, 503 U.S. at 9, although, “[s]ome conditions of confinement” insufficient on their own to establish a claim may violate the Constitution “when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.” Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 372 (3d Cir. 2019) (quoting Wilson, 501 U.S. at 304 and Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
No record evidence supports that Mack was deprived of life's minimum necessities while at the ECP. Several courts have held that mere placement in administrative custody does not violate the Eighth Amendment. See, e.g., Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997). And, as noted, Mack has produced no evidence concerning any cruel or unusual conditions of confinement in response to the Defendants' motion. Where conditions are not “cruel and unusual” but merely “restrictive and even harsh,” they are considered “part of the penalty that criminal offenders pay for their offenses against society.” Rhodes, 452 U.S. at 347. Even where a prisoner is held in “solitary confinement,” a far longer period of solitary confinement than Mack alleges here is necessary to support a conditions of confinement claim. See Porter v. Pa. Dep't of Corr., 974 F.3d 431 (3d Cir. 2020) (a reasonable jury could conclude that thirty-three years in solitary confinement posed a substantial risk of harm to inmate); Noble v. Wetzel, 2021 WL 6071490, at *3 (W.D. Pa. Dec. 23, 2021) (nearly twenty years of solitary confinement satisfied the objective Eighth Amendment standard). The Defendants are entitled to judgment as a matter of law on Mack's Eighth Amendment claims.
4. First Amendment Claims
i. Interference with the Grievance Process
Mack alleges that he tried many times to get a grievance form from Counselor Chaffee and Deputy Warden Holman, but they refused to provide him a form to grieve his placement on administrative segregation. ECF No. 5 (passim). Mack claimed that this violated his First Amendment rights. Id., p. 11. But “a prisoner has no constitutional right to a grievance procedure.” Rivera v. Pa. Dep't of Corr., 346 Fed.Appx. 749, 751 (3d Cir. 2009) (per curiam) (citation omitted); see also Jackson v. Gordon, 145 Fed.Appx. 774, 777 (3d Cir. 2005) (per curiam) (citation omitted). Further, “the state creation of [a grievance] procedure does not create any federal constitutional rights.” Wilson v. Horn, 971 F.Supp. 943, 947 (E.D. Pa. 1997), aff'd, 142 F.3d 430 (3d Cir. 1998) (alteration added). While prison officials' failure to provide an inmate with a grievance form may excuse his or her failure to exhaust administrative remedies, it does not support a First Amendment claim. See Reavis v. Poska, 2010 WL 2511379, at *4 (W.D. Pa. May 7, 2010) (citing Rivera, supra). The Defendants are entitled to judgment as a matter of law on Mack's First Amendment claim based on denial of a grievance form.
ii. Retaliation
Even assuming Mack has stated a prima facie case of retaliation, the Defendants correctly argue that they are entitled summary judgment because they would have made the same decision regardless of Plaintiff's allegedly protected activity. ECF No. 18, p. 16. “If a prisoner establishes a prima facie case of retaliation, the burden shifts to prison officials to show, by a preponderance of the evidence, that ‘they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest.'” See Cooper v. Garman, 2021 WL 4033113, at *8 (M.D. Pa. Sept. 3, 2021) (quoting Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001)). Put differently, “[a] defendant may defeat the claim of retaliation by showing that [he] would have taken the same action even if the plaintiff had not engaged in the protected activity.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). Here, the record supports that ECP officials placed Mack on Administrative Segregation status based on their review of his custody evaluation criteria.
This, however, does not conclusively establish the same decision defense. Upon such a showing that the defendants would have taken the same action, the burden shifts back to the plaintiff to produce “other evidence” of the defendant's retaliatory motive. Watson, 834 F.3d at 426; Carter v. McGrady, 292 F.3d 152, 159 (3d Cir. 2002). If the plaintiff can do this, the burden of proof would revert to the defendant, and the entry of judgment for the defendant would be inappropriate. See Carter v. Slater, 2021 WL 5605289, at *7 (W.D. Pa. Nov. 30, 2021).
The Defendants have sustained their burden on the same decision defense. Deputy Warden Seymour affirmed that ECP officials placed Mack on Administrative Segregation Status based on their review of his custody evaluation criteria. ECF No. 17-2, ¶ 10; 17-7. Upon each of his temporary transfers, the DOC provided prison records to the ECP concerning this determination. Id., ¶ 7. ECP officials reviewed documents which showed that DOC officials had assigned Mack their highest or second-highest custody classification (Level 5 or 4) upon each of his transfers. Id., ¶ 8. ECP officials then undertook their own custody classification and noted that Mack was currently serving a life sentence for first-degree murder, he faced pending charges for conspiring to introduce drugs into SCI-Albion, had accrued thirty-nine misconducts in DOC facilities, and had a noted history as a management problem. Id., ¶¶ 8, 10; 17-4; 17-7. Mack also needed to be separated from particular inmates per an order from the DOC. ECF No. 17-4, p. 2. Further, Mack's fourteen-day medical quarantines upon transfers beginning in 2020 were reasonable responses to the novel coronavirus pandemic. ECF No. 17-16, p. 1. Cf. Cameron v. Bouchard, 815 Fed.Appx. 978, 985 (6th Cir. 2020) (jail officials took reasonable steps to prevent the spread of COVID-19 by, among other things, quarantining new arrestees for fourteen days).
Mack has not identified any other competent evidence to support a genuine issue of material fact as to retaliatory motive. See Celotex, 477 U.S. at 324. He has not challenged the Defendants' evidence that, upon each transfer, ECP officials newly evaluated his custody classification. ECF Nos. 17-2; 17-7; 17-8; 17-10; 17-12; 17-14; 17-16; 17-18. Thus, Mack has failed to support a finding that the ECP's procedures for placing transferred inmates on administrative segregation were pretexts for retaliation. See Watson, 834 F.3d at 426. The same decision defense entitles the Defendants to summary judgment on Mack's retaliation claims.
iii. Access to Courts
Mack has failed to support his access to courts claim because there are no facts describing a nonfrivolous or arguable legal claim the Defendants caused him to lose. Prisoners retain a right of access to the courts. Rivera v. Monko, --- F.4th ---, 2022 WL 2145179 (3d Cir. June 15, 2022) (citing Lewis v. Casey, 518 U.S. 343, 346 (1996)). To support a claim that a defendant has inhibited a prisoner's opportunity to present a past legal claim, the prisoner must have (1) suffered an ‘actual injury' in that [he] lost a chance to pursue a ‘nonfrivolous' or ‘arguable' underlying claim”; and (2) he has “no other ‘remedy that may be awarded as recompense' for the lost claim other than in the present denial of access suit.” Monroe v. Beard, 536 F.3d 198, 205-06 (3d Cir. 2008) (quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002)). “[T]he predicate claim [must] be described well enough to apply the ‘nonfrivolous' test and to show that the ‘arguable' nature of the underlying claim is more than hope.” Christopher, 536 U.S. at 416. An “actual injury” may “include a court dismissal of a complaint,” the “inability to even file a complaint,” Booth v. King, 346 F.Supp.2d 751, 758 (W.D. Pa. 2004) (citing Lewis, 518 U.S. at 351), “missed court dates, missed filing deadlines, a denial of legal assistance to which he was entitled, or the loss of a case which he should have won.” Fortes v. Harding, 19 F.Supp.2d 323, 327 (M.D. Pa. 1998).
Mack alleged that at the time of his first transfer to the ECP, officials housed him in the RHU without access to “stationery products,” the law library, or help from law clerks. ECF No. 5, pp. 4, 11. But this claim fails because prisoners have no “abstract, freestanding right to a law library or legal assistance.” Lewis, 518 U.S. at 353 (1996). Mack made no effort to describe a lost legal claim, a court hearing he wanted to prepare for, or a consequential, missed filing deadline. Thus, the Defendants are entitled to judgment as a matter of law on his access to courts claim.
F. Conclusion
No genuine issue of material fact remains for trial, and the Defendants are entitled to judgment as a matter of law on each of Mack's claims.
III. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, any party may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).