Opinion
1:18-cv-00353-SPB
03-31-2022
FRED MINOR, Plaintiff v. MICHAEL D. OVERMYER, D. F. OBERLANDER, J. W. SAWTELLE, KERI MOORE, DAVID KRAYNAK, I GUSTAFSON, E. IRELAND, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ECF NO. 51
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE.
I. Recommendation
For the following reasons, it is respectfully recommended that Defendants' Motion for Summary Judgment at ECF No. 51 be GRANTED.
II. Report
A. Procedural Background
Plaintiff Fred Minor (Minor) is an inmate in the custody of the Pennsylvania Department of Corrections (DOC) at its State Correctional Institution at Forest (SCI-Forest). Minor, representing himself, commenced this action against seven employees of the DOC in their individual and official capacities, alleging violations of his rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. ECF No. 3, pp. 2, 4. The pleadings are closed and discovery is complete. Minor has voluntarily dismissed his claims against Defendant David Kraynack pursuant to Fed.R.Civ.P. 41(a)(2). See ECF Nos. 37, 39. The remaining Defendants have moved for summary judgment. ECF No. 51. Their motion has been fully briefed and is ripe for disposition. See ECF Nos. 52-54, 56-59.
B. Material Facts
The following facts are taken from the parties' concise statements of material facts and exhibits thereto. Disputed facts are noted and viewed in the light most favorable to Minor, as the non-moving party. See Clews v. Cty. of Schuylkill, 12 F.4th 353, 358 (3d Cir. 2021) (citation omitted).
On October 5, 2015, while Minor was incarcerated at the State Correctional Institution at Frackville, Pennsylvania (SCI-Frackville), he filed a civil lawsuit in the Schuylkill County Court of Common Pleas against officials at that institution. That state court lawsuit is distinct from this action. Minor appealed an adverse order issued in that case to the Commonwealth Court of Pennsylvania on April 11, 2016.
The Court takes judicial notice of civil case No. S-1795-2015, Minor v. Kraynack, et al, and its appeal at docket No. 948 CD 2016 because these are public court records. See, e.g., Guidotti v. Legal Helpers Debt Resolution, 716 F.3d 764, 722 (3d Cir. 2013); United States v. Hoffert, 2018 WL 4828628, at *1 (W.D. Pa. Oct. 4, 2018) ("[A] court may take judicial notice of relevant prior court orders, including orders in other cases.") (citing Mina v. United States Dist Court for E. Dist. of Penn., 710 Fed.Appx. 515, 517 n.3 (3d Cir. 2017)). These dockets are publicly available at https://www.co.schuyMll.pa.us/info/Civil/Inquiry/Search.csp (last accessed February 10, 2022); https://ujsportal.pacourts.us/CaseInforrnation.aspx (last visited February 10, 2022).
Minor was later charged with and found guilty of assaulting an SCI-Frackville corrections officer. DOC officials then issued a separation order directing that Minor be kept apart from this officer. As a result, the DOC transferred Minor to SCI-Forest. At the time of his transfer, Minor was on administrative custody status, meaning he had fewer privileges than other inmates and was housed under more restrictive conditions.
Minor arrived at SCI-Forest on June 30, 2016. That day, consistent with standard practice, the members of the Program Review Committee (PRC) kept him in administrative custody. ECF No. 53-4, ¶ 4-5. As a result, he was housed in the restricted housing unit (RHU) for a week. On July 7, 2016, the PRC met with Minor to discuss his status. The members of the PRC, including Defendants Oberlander and Sawtelle, decided to place Minor in the Step-Down Unit (SDU). ECF Nos. 53-9, ¶ 5; 53-10, ¶ 5; 53-2. Although Minor alleges that Defendant Ireland was also a member of the PRC at the time, see ECF No. 3, ¶ 30, the record contradicts this assertion. See ECF No. 53-2. The PRC placed Minor on the SDU because when he was transferred to SCI-Forest he had been designated as a Security Level 5 (the highest security level), and he had a history of aggression and had recently assaulted an officer at SCI-Frackville. ECF Nos. 53-9, 19; 53-10, 19. Oberlander and Sawtelle believed Minor would benefit from the SDU. ECF Nos. 53-9, 110; 53-10, 110. Minor objected, asserting that he had already served his disciplinary sanction for the assault at SCI-Frackville and placing him in the SDU at SCI-Forest amounted to cumulative punishment. Minor's affidavit also attests that he informed the PRC at this meeting that he had filed a lawsuit that remained pending against staff at SCI-Frackville. ECF No. 58-29, ¶¶ 18-19. After his meeting with the PRC, he began serving time on the SDU.
The DOC developed the SDU program to reduce violence at certain facilities. See Inmate Discipline, Violence Reduction Strategy, DC-ADM 801 FRS 01. ECF No. 53-6. The SDU program predates Minor's transfer to SCI-Forest. Id. The SDU is designed "to reinforce prosocial and positive behaviors for inmates transitioning from [Disciplinary Custody] status back to general population." ECF No. 53-6, p. 3. The program limits certain privileges of a participant inmate at step one. After the inmate complies with the rules for a period, the inmate "steps down" to step 2 and gains more privileges. The program continues until an inmate is released to general population with the usual privileges.
Minor's complaint alleged that his privileges on the SDU were more limited than those afforded to inmates in general population; he had limited phone calls, recreation time, and outside visitors, became ineligible for prison employment, was not allowed to participate in various vocational and education activities, and was served cold meals. Id., ¶ 16. The Defendants dispute Minor's characterization of the restrictions and specifically disagree that he was served cold meals; they do acknowledge that policies limited his phone calls, recreational activities, and visitors, but add that these privileges increased over time. ECF No. 32, 116. Defendant Gustafson worked as Minor's unit manager at SCI-Forest while he was on the SDU. ECF No. 53-4, ¶ 3. On July 19, 2016, Minor filed grievance No. 635494 complaining about his placement on the SDU. ECF No. 58-11, p. 1. This grievance was denied. Id. On September 20, Gustafson wrote to Minor that if he continued to refuse to participate in the SDU, he would be removed and placed in the RHU. ECF No. 58-12, p. 2. He and Minor also had a conversation during which Minor stated that he was in the process of appealing to final review grievance No. 635494 about his SDU placement. ECF No. 58-12, p. 1. Gustafson explained that Minor would remain in the SDU while he pursued his appeal to final review. Id. Gustafson further advised Minor, however, if his final appeal of grievance No. 635494 was denied, and Minor still refused to follow the SDU's rules, he would place him in the RHU and Minor would have to start the SDU program over again. Id. DOC officials upheld the denial of grievance No. 635494 on October 12, 2016. ECF No. 58-11, p. 2.
On September 24, 2016, Minor filed grievance No. 644894 complaining that unit manager Gustafson insisted that he follow SDU policies and programming, including that he participate in required groups. ECF No. 58-12, p. 1. This grievance was denied and upheld on appeal. Id., pp. 1, 3. On October 30? 2016, Minor filed another grievance, No. 650263, again complaining about SDU conditions. ECF No. 53-13, p. 2. This grievance was also denied. Id., p. 1. This grievance did not name Gustafson, and the record does not support that Gustafson knew of it. Minor filed other grievances, but they do not relate to his retaliation claims.
On November 3, 2016, Gustafson issued Minor an "Other Report" explaining how his refusal to participate in the SDU violated DOC rules and resulted in his placement in the RHU on administrative custody status for thirty days. Id., ¶10; ECF No. 53-7. This placement was consistent with Gustafson's warning to Minor regarding the consequences of failing to comply with the SDU's requirements. Id., ¶11. Minor alleged that this placement was retaliation against him because of his prior lawsuit against staff at his previous DOC facility. ECF No. 3, ¶ 19. Although Gustafson does not recall whether he was aware of Minor's grievances or then-pending lawsuit at the time, he says that he would have issued the Other Report regardless because Minor had broken SDU rules. ECF No. 53-4, ¶ 12.
Minor contends that DOC rules entitled him to a hearing within seven days of Gustafson's Other Report. But he has identified no policy or other authority for this position. According to Gustafson, a hearing is required within thirty days. ECF No. 53-4, ¶13. Gustafson knew "that per policy, an approval by the Superintendent is required if an inmate is on AC custody for longer than 15 days. Due to an inadvertent oversight, the extension was not issued, here." Id. Still, Gustafson states that Minor was seen within the required thirty days.
Minor resided in the RHU from November 3, 2016, until December 2, 2016. ECF No. 53-3, p. 2. Minor's verified complaint states that, while there, he was denied showers "at times," received only one pair of undergarments for fourteen days, and had to wear wet clothes. ECF No. 3, ¶¶ 26-27. But Minor has not identified who allegedly did these things to him. He also alleges that while he was in the RHU, a box of his legal materials and around twenty dollars' worth of commissary items were confiscated and never returned. ECF No. 3, ¶¶ 28, 32. But again, he has not identified who allegedly took these items. Minor complains that he raised these concerns in grievances, but that Superintendent Overmyer and Grievance Officer Keri Moore "acquiesced in plaintiff[']s constitutional violations with deliberate indifference." ECF No. 3, ¶29.
On December 1, 2016, the PRC, including members Oberlander and Ireland, met with Minor to review his administrative custody status and placement in the RHU. ECF Nos. 53-4, ¶¶ 14-15; 53-8. They released him to general population the next day. Id. Minor again complained to the PRC that he had already served his punishment for the assault at SCI-Frackville and that he refused to participate in SDU groups because he viewed the SDU as cumulative punishment. ECF No. 53-8. The PRC explained that the SDU is a violence prevention program, not punishment, and directed him to follow the rules. Id.
Paragraphs 24-26 of Minor's Counter Statement of Facts raises events that occurred after the filing of his complaint. ECF No. 56, ¶¶ 23-26. Plaintiffs Exhibits F-H are from 2018 and later. ECF No. 58-19 - 58-29. During this litigation, Minor has not requested leave to file a supplemental complaint pursuant to Fed.R.Civ.P. 15(d) and the Court has not given him leave to do so. These allegations and factual matters are not encompassed by Minor's complaint or another valid pleading, and they address matters unrelated to his complaint. Therefore, these allegations and exhibits will not be considered on summary judgment.
C. Standard of Review
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. See Anderson, Ml 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. See Anderson, Ml 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. See 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 his or her 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. See 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).
When considering a motion in a, pro se plaintiffs 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 Rule 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 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).
Where appropriate, the Court also may consider evidentiary materials in the record beyond the parties' concise statements and responses. See Scalia v. WPN Corp., 417 F.Supp.3d 658, 661 (W.D. Pa. 2019) ("relypng] on the record as a whole to determine the applicable material facts"). See also King v. Pennsylvania Dep Y of Corr., 2020 WL 2897019, at *1 (W.D. Pa. June 1, 2020). For example, the Court may consider the factual statements in Minor's verified complaint, see ECF No. 3, p. 10, but only to the extent they are based upon 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").
D. Analysis
1. Personal Involvement to Sustain a § 1983 Claim
The Court construes Minor's constitutional claims as claims asserted pursuant to 42 U.S.C. § 1983. The Defendants argue that they are entitlement to summary judgment on these claims because the record does not support their personal involvement in any actionable conduct alleged by Minor. ECF No. 51, 12; ECF No. 52, pp. 3-5. This argument has merit as to Minor's conditions of confinement claim against all Defendants, all claims against Defendants Moore and Overmyer, and all claims against Defendant Ireland except one due process claim.
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."
Defendants have not challenged Minor's claims against Gustafson based on lack of personal involvement.
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)). It is the plaintiffs burden to "show that each and every defendant was 'personally] 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).
Minor seeks to hold Overmyer, as the superintendent, and Moore, as a grievance officer, liable for the actions of other Defendants because they "acquiesced" to violations of his rights. ECF No. 3, Tf 33. But the mere fact that they held supervisory authority, standing alone, cannot support liability under § 1983. 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)). This is because "[liability may not be imposed under § 1983 on the traditional standards of respondeat superior." Id. Thus, Overmyer's and Moore's supervisory status, standing alone, does not support a § 1983 claim against them. See Iqbal, 556 U.S. at 677 ("In a § 1983 suit... [a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.").
"Two theories of supervisory liability" are available under § 1983 upon a proper factual showing. See Ivy v. Wetzal, 2021 WL 4479721, at *5 (W.D. Pa. Sept. 30, 2021) (quoting Santiago v. Warminster Tp., 629 F.3d 121, 129 n.5 (3d Cir. 2010)). First, "supervisors can be liable if they 'established and maintained a policy, practice or custom which directly caused [the] constitutional harm.'" Id. (quoting Santiago, 629 F.3d at 129 n.5). Minor has not attempted to support this theory of supervisory liability. Under the other theory, a supervisor may be held liable when "he or she participated in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in his subordinates' violations." Santiago, 629 F.3d at 129 n.5 (quoting A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)). 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).
Defendants correctly argue that Overmyer and Moore's participation in the grievance process cannot support their personal involvement for purposes of § 1983. See ECF No. 52, pp. 3-5. “[A]n officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement." Mincy v. Chrnielsewski, 508 Fed.Appx. 99, 104 (3d Cir. 2013). Information learned through "the filing of a grievance is not sufficient to show the actual knowledge necessary for a defendant to be found personally involved in the alleged unlawful conduct." Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D. Pa. 2013). See also Stuart v. Lisiak, 645 Fed.Appx. 197, 200 (3d Cir. 2016) (nurse who declined to intervene in inmate's treatment lacked personal involvement when only notice came through receiving the inmate's grievance). Moore upheld a denial of Minor's grievance about placement in the SDU, and Overmyer upheld denial of a grievance about his treatment in the SDU. See ECF Nos. 58-11, p. 2; 58-12, p. 3, 58-29. But courts have routinely dismissed civil rights claims under § 1983 against prison officials whose only knowledge of the alleged violation stemmed from their participation in the grievance process. See, e.g., Hoopsickv. Oberlander, 2020 WL 5798044, at *2 (W.D. Pa. Sept. 29, 2020) (defendant upholding denial of plaintiffs grievance); Beale v. Wetzel, 2015 WL 2449622, at *5 (W.D. Pa. May 21, 2015) (senior prison officials' participation in administrative appeal process). To the extent that Minor argues that Moore and Overmyer have been retaliating against him by denying him the relief he has sought in his grievances due to his protected activity of his previous lawsuit against SCI-Frackville staff and his grievances, see ECF No. 57, p. 2, this claim fails because Minor seeks to tie their actions in the grievance process to the unrelated matter of his previous lawsuit and grievances. See, e.g., Rogers v. United States, 696 F.Supp.2d 472, 488 (W.D. Pa. 2010) (no personal involvement under § 1983 "[i]f a grievance official's only involvement is investigating and/or ruling on an inmate's grievance after the incident giving rise to the grievance has already occurred.").
To the extent Minor contends that Moore and Overmyer have retaliated against him for filing this civil action, see ECF Nos. No. 57, p. 2; 58-29, ¶ 30, those matters are beyond the scope of his complaint and thus outside the purview of this lawsuit. See supra, n.2.
Moreover, after-the-fact notice of some alleged civil rights violation does not support any recipient's personal involvement or supervisory liability in the prior violation. See Enlow v. Beard, 2013 WL 5332139, at *5 (W.D. Pa. Sept. 23, 2013) ("Plaintiff has not shown personal involvement on the part of the Defendants to whom he allegedly sent inmate request slips informing them of the inappropriate bunk transfer."); Hill v. Fisher, 2010 WL 6004059, at *9 (M.D. Pa. Nov. 10, 2010) (dismissing retaliation claim because "submitting a grievance or request slip about a discrete incident that has already happened does not raise a reasonable inference of personal involvement on the part of the defendant to whom the grievance or request slip is submitted."). Thus, Overmyer and Moore are entitled to summary judgment on Minor's claims against them based on their involvement in the grievance process.
Minor has also failed to present evidence to support a genuine issue of material fact that any Defendant was personally involved in conduct upon which he bases his Eighth Amendment unconstitutional conditions of confinement claim. Indeed, he has not identified any individual who personally subjected him to the alleged conditions upon which he bases this claim, including the official or officials who allegedly took his legal papers and other property while he was in the RHU. The only Defendants he specifically claims are responsible for this conduct are Overmyer and Moore. ECF No. 3, 129. But as discussed above, their only involvement was the review or denial of grievances which does not support liability under 42 U.S.C. § 1983. See also Brooks v. Beard, 167 Fed.Appx. 923, 925 (3d Cir. 2006). Thus, all Defendants are entitled to summary judgment on this claim.
Furthermore, Minor's claim regarding confiscation of and failure to return his property in the RHU would fail as a matter of law even if he had shown the personal involvement of a Defendant. This is because the confiscation of a prisoner's property and its subsequent loss do not violate an inmate's right to due process if a meaningful post-deprivation remedy is provided. See Monroe v. Beard, 536 F.3d 198, 210 (3d Cir. 2008). Minor utilized the DOC's administrative grievance process through multiple levels of review and has not supported that the available procedure was constitutionally infirm. Also contrary to Minor's argument, his loss of property does not implicate the Fourth Amendment because inmate's do not have a right to privacy in their possessions stored in their cells. See Hudson v. Palmer, 468 U.S. 517, 525-26 (1984).
Minor has also failed to show that denial of privileges while he was housed in the RHU along with his limited clothing violated his Eighth Amendment right to adequate food, clothing, shelter, medical care, and safety. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Minor's conditions did not mark ""a dramatic departure from accepted standards for conditions of confinement" nor "deprive [Minor] of basic necessities." Overton v. Bazzetta, 539 U.S. 126, 136-37(2003).
Defendants also argue that Oberlander, Sawtelle, and Ireland's participation in the Program Review Committee cannot establish their personal involvement for purposes of § 1983. ECF No. 52, p. 5. It is true that an official's participation in a prison's administrative appeal process does not establish that official's personal involvement in the underlying alleged constitutional violation. See Simonton v. Tennis, 437 Fed.Appx. 60, 62 (3d Cir. 2011); Hennis v. Varner, 2014 WL 1317556, at *9 (W.D. Pa. Mar. 31, 2014) ("participation in a prison's.. .misconduct and prison review committee appeals [ ] is [ ] insufficient [ ] for personal involvement"). Here, however, the record supports that PRC members made decisions that he alleges violated his rights.
First, Oberlander and Sawtelle were on the PRC that placed Minor in the SDU at SCI-Forest on July 7, 2016. See ECF Nos. 53-9, ¶ 5; 53-10, ¶ 5; 53-2. Second, Oberlander, Ireland, and other non-defendant PRC members decided to take Minor out of the RHU and return him to the SDU on December 2, 2016. See ECF No. 53-8. Oberlander's and Sawtelle's "personal direction" to place Minor in the SDU is personal involvement. See Evancho, 423 F.3d at 353. Oberlander and Ireland's personal direction in removing Minor from the RHU and placing him back in the SDU likewise constitutes personal involvement in conduct upon which Minor bases his due process claim. See Thomas v. Tice, 948 F.3d 133, 139 (3d Cir. 2020) ("The PRC had the authority to end [prisoner-plaintiff]'s administrative confinement in the dry cell and return him to the general population, so PRC members were personally involved in determining the duration of [his] confinement in the dry cell.").
Ireland is entitled to summary judgment on Minor's due process claim, however, because his involvement was administrative at most. On November 23, 2016, Ireland reviewed Minor's status and continued him on administrative custody status pending a decision from the PRC on when to return him to the SDU. ECF No. 58-15, p. 1. Gustafson reviewed and approved this decision the same day. Id. There is no evidence that Ireland possessed the authority to remove Minor from the RHU that day. Her after-the-fact administrative review of Minor's housing status does not establish her personal involvement in Minor's placement or custody in the RHU. Baraka, 481 F.3dat210.
2. Oberlander and Sawtelle's Personal Involvement Nevertheless Does Not Support Minor's Due Process Claim Against them.
Minor contends that the Defendants violated his rights under the Due Process Clause of the Fourteenth Amendment. While his complaint and briefs are not entirely clear, in the interest of thoroughness and under the liberal reading of pro se pleadings and other submissions that Haines v. Kerner, 404 U.S. 519, 520-21 (1972) requires, the Court has construed Minor's claims to challenge his initial placement in the SDU, his transfer from the SDU to administrative custody in the RHU, and his placement back in the SDU. Defendants correctly argue that these actions do not support a procedural Due Process claim because none implicated a protected liberty interest.
Minor also invokes the Fifth Amendment, see ECF Nos. 3, pp. 2, 4; 57, p. 1, but the Fifth Amendment's due process clause "only protects against federal government action and does not limit the actions of state officials." Caldwell v. Beard, 324 Fed.Appx. 186, 189 (3d Cir. 2011). The Defendants here are state actors.
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'tof Corr., 186 F.3d407, 412 (3d Cir. 1999). In Sandin, for example, the Court held that because a thirty-day punitive segregation in the prison was not an atypical or significant hardship for an inmate, it implicated no liberty interest, and thus the protections of the Due Process Clause did not apply. Sandin, 487 U.S. at 487.
Here, Minor spent twenty-nine days on administrative custody status in the RHU because Gustafson determined that Minor had violated the SDU's rules. Neither the conditions imposed as a result of this sanction nor their length of time constitutes an "atypical and significant hardship" sufficient to implicate a liberty interest and trigger procedural due process protections under Sandin. See Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (seven months solitary confinement was not an atypical or significant hardship); Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (fifteen months administrative segregation). Minor's loss of privileges while on administrative custody in the RHU does not constitute a departure from the typical and accepted conditions of confinement so as to give rise to a liberty interest. See Overton v. Bazzetta, 539 U.S. 126, 137 (2003); Castillo v. FBOP FCIFort Dix, 221 Fed.Appx. 172, 175 (3d Cir. 2007). And his initial placement in the SDU does not implicate a liberty interest because the SDU's limitations on privileges such as visitation rights and phone usage are less strict conditions than administrative custody in the RHU. See Torres v. Ishee, 2021 WL 5182103, at *3 (W.D. N.C. Nov. 8, 2021) (dismissing procedural due process claim about placement in a similar "step-down program unit that is intended to allow control inmates to transition" general population) (internal quotations omitted). Put simply, "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).
Minor also contends that Defendants violated DOC policies when they failed to hold a hearing within seven days of his placement on administrative custody in the RHU. But the DOC's policies, procedures, and ethical rules 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) ("T]he 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. The United States Constitution provides the floor of constitutional due process protections below which state officials may not go, but states remain free to create procedures not compelled or enforceable by reference to the Constitution. See Shango v. Jurich, 681 F.2d 1091, 1101-02 (7th Cir. 1982) ("[A] state created procedural right is not itself a liberty interest."). All Defendants are entitled to summary judgment on Minor's procedural due process claim.
3. Minor's Retaliation Claims Also Fail.
a. The Record Does Not Support a Prima Facie Case.
Two retaliation claims remain against three Defendants after their winnowing for lack of personal involvement. Minor alleged that Oberlander and Sawtelle, as members of the PRC, placed him in SCI-Forests' SDU as retaliation for his prior lawsuit against officials at his previous institution, SCI-Frackville. He also avers that Gustafson issued his "Other Report" moving him from the SDU to the RHU as retaliation for filing grievances.
The Court agrees with Defendants that Minor has failed to demonstrate a genuine issue of material fact as to his retaliation claim against Oberlander and Sawtelle because the record does not support that they took an adverse action against him or acted with a retaliatory motive. The record also does not support a prima facie case against Gustafson because Minor has failed to demonstrate retaliatory motive. And even if Minor had presented prima facie evidence against any of these three Defendants, they have demonstrated that they would have taken the same actions absent any alleged retaliatory motive.
To support a retaliation claim, a prisoner must produce evidence that (1) he engaged in protected conduct; (2) prison officials took an adverse action against the plaintiff that was "sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights"; and (3) the existence of "a causal link between the exercise of his constitutional rights and the adverse action taken against him." See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (alteration in original)); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). Minor engaged in protected activity when he filed grievances, filed his prior lawsuit against officials at SCI-Frackville on October 5, 2015, and appealed an adverse order in that case on April 11, 2016. See Mitchell, 318F.3dat530 (protected activity includes filing grievances); Inmates of the Pa. Dep 't of Corr. v. Corbett, 484 F.Supp.2d 359, 373 (E.D. Pa. Apr. 25, 2007) (prisoner filing a lawsuit).
Next, Minor must show that the Defendants took an adverse action against him. An "adverse action" is one that would "deter a person of ordinary firmness" from exercising his First Amendment rights. Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)). This is an objective inquiry. See Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012). "Government actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right." Allah, 229 F.3d at 224-25 (citations omitted). This requirement is not especially demanding. "[U]nless the claimed retaliatory action is truly 'inconsequential, '" the jury should decide whether the conduct constitutes an adverse action. Id. (citing Bell v. Johnson, 308 F.3d 594, 603 (6th Cir. 2002)). The record evidence only supports that Oberlander, Sawtelle, and Gustafson have personal involvement in the actions which Minor has alleged were adverse actions, so the Court will separately analyze this element as to each of these Defendants. See Saisi v. Murray, 822 Fed.Appx. 47, 48 (3d Cir. 2020) (defendant in a § 1983 action "must have personal involvement").
Minor contends that Oberlander and Sawtelle took an adverse action against him when they placed him in the SDU with limited privileges, including reduced visitation, commissary access, and phone use. A transfer from a less restrictive confinement status, such as general population, to one with greater restrictions may constitute an adverse action. See Hill v. Barnacle, 509 F.Supp.3d 380, 392 (W.D. Pa. Dec. 21, 2020) ("suspension of [prisoner-plaintiff] 5s visitation privileges constitutes an adverse action"). But see Bullock v. Buck, 2014 WL 4925275, at *6 (W.D. Pa. Sept. 305 2014) ("sixty days without the ability to make phone calls or buy things from the commissary" was not an adverse action). But this was not the situation here. Following Minor's fight at his previous institution, he was placed in administrative custody by non-defendants and transferred to SCI-Forest in administrative custody. Seven days after his transfer, when the PRC (including Oberlander and Sawtelle) placed Minor in the SDU, they took him from the more restrictive administrative custody to the less restrictive general population in the SDU. Under these circumstances, where an inmate has gained more (albeit limited) privileges, the transfer does not constitute an adverse action. His retaliation claim against Oberlander and Sawtelle fails.
As for Gustafson, he had Minor placed on administrative custody in the RHU for violating the SDU's rules. Placement on administrative custody in the RHU supports the adverse action element. See Fantone, 780 F.3d at 192-94; Davis v. Pennsylvania State, 244 Fed.Appx. 445, 447 (3d Cir. 2007).
Next, the Court must determine whether the record includes evidence sufficient to allow a reasonable jury to find that a Defendant took an adverse action in retaliation for protected activity. The causation element of the retaliation claim is established only if the protected activity was a substantial motivating factor in the state actor's decision to take the adverse action. See Ml Healthy City Bd of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Anderson v. Davila, 125 F.3d 148, 163 (3d Cir. 1997). To support this last element, "a plaintiff must come forward with more than 'general attacks' upon the defendant's motivations...." Miskovitch v. Hostoffer, 721 F.Supp.2d 389, 396 (W.D. Pa. 2010) (citing Crawford-El v. Britton, 523 U.S. 574, 600 (1998)). Retaliatory motive can be inferred from either: (1) an unusually suggestive temporal proximity between the protected activity and the alleged retaliatory action; or (2) a pattern of antagonism coupled with timing that suggests a causal link. Id. (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)). That said, "[t]hese are not the exclusive ways to show causation, as the proffered evidence, looked at as a whole, may suffice to raise the inference.'" Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) (quoting Kachmar v. Sun Gard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997)).
Minor contends that Oberlander and Sawtelle placed him in the SDU as retaliation for his previous lawsuit against SCI-Frackville officials. See ECF No. 57, p. 3. Oberlander and Sawtelle both "do not recall whether [they] knew about grievances he filed or another lawsuit" that Minor had pending. ECF No. 53-9, 110; 53-10, 110 (affidavits). They were not defendants to that lawsuit and did not work at that prison. But Minor has said that he told them and other PRC members of his then-pending lawsuit during the July 7, 2016 meeting when they placed him on the SDU. ECF No. 58-29, ¶¶ 18-19 (affidavit). While the Court views this dispute in the light most favorable to Minor, the record is insufficient to support an inference of retaliatory motive on the part of any Defendant. The record supports no unusually suggestive timeline or other evidence of retaliatory motive. Minor filed his previous lawsuit on October 5, 2015 and appealed an adverse ruling to the Commonwealth Court on April 11, 2016. Oberlander and Sawtelle placed him on the SDU on July 7, 2016. The time between filing his lawsuit and his placement on the SDU is far too great to infer retaliatory motive, as is the three-month period between his appeal and his placement on the SDU. See Lauren W., 480 F.3d at 267. Minor has failed to support the causation element against Oberlander and Sawtelle.
Next, the Court considers whether Gustafson acted with a retaliatory motive when he placed Minor in administrative custody in the RHU. No direct evidence supports such an inference. Minor argues, however, that the timing of this placement supports causation because Gustafson knew of his grievances challenging his SDU placement and Gustafson's treatment when he took this action. Gustafson does not recall whether he knew of Minor's grievances or previous lawsuit when he placed him in administrative custody in the RHU on November 3, 2016. ECF No. 53-4, ¶12. But the record does support that Gustafson knew of grievance No. 635494, filed on July 19 and resolved on final appeal on October 12, 2016. ECF Nos. 58-11, 58-12, pp. 1-2. Gustafson explained that Minor would remain on the SDU while he pursued his appeal to final review. ECF No. 58-12, p. 1. But, if his final appeal of grievance No. 635494 was denied, and Minor still refused to follow the SDU's rules, then he would place him in the RHU, and Minor would have to start the SDU program over again. Id. Gustafson had Minor placed on the RHU on November 3, following the denial of Minor's final appeal of the denial of the grievance. "[T]he mere fact that an adverse action occurs after a grievance is filed is relevant, but not dispositive, for the purpose of establishing a causal link between the two events." Vines v. Columbus House, 2017 WL 2539409, at *8 (D.N.J. June 12, 2017) (citing Lape v. Pennsylvania, 157 Fed.Appx. 491, 498 (3d Cir. 2005)). The timeline must be "unusually suggestive" to draw an inference based on that alone. See Lauren W., 480 F.3d at 267. Months passed between the filing of grievance No. 635494 and the asserted adverse action. This is too long to infer motive. Even counting from when the grievance denial was upheld on final review on October 12, another twenty-two days passed before Gustafson placed him in the RHU on November 3. This length of time remains too long to infer retaliatory motive. Minor filed other grievances about his SDU placement, but no evidence supports that Gustafson knew about them. A court may not infer retaliatory motive "absent evidence sufficient to show that the defendant knew of the plaintiffs protected activity." Griffin-El v. Beard, 2013 WL 228098, at *5 (E.D. Pa. Jan. 22, 2013) (citing Laskaris v. Thornburgh, 733 F.2d 260, 265 (3d Cir. 1984)). In sum, Minor has failed to show that Gustafson acted with retaliatory motive.
b. The Record Supports the Defendants' Same Decision Defense.
Oberlander, Sawtelle, and Gustafson have also established their entitlement to judgment as a matter of law by demonstrating that they would have made the same decision based on legitimate penological reasons and absent any retaliatory motive. "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. Gorman, 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). Gustafson stated that even if he did know of Minor's grievances and prior lawsuit, he would have issued his Other Report placing Minor in the RHU. ECF No. 53-4, ¶12. It is undisputed that Minor was violating some of the SDU's rules. Gustafson explained to Minor that if he did not follow the rules, he would be placed in the RHU. ECF No. 53-4, ¶¶ 10-11. When Minor's noncompliance persisted, Gustafson issued the Other Report. ECF No. 53-7. Gustafson acted consistent with the legitimate penological interest of requiring rule compliance. And these particular SDU rules served the DOC's overall objective of reducing violence at SCI-Forest.
This, however, does not conclusively establish the same decision defense for Gustafson. Upon such a showing, the burden shifts back to the plaintiff to (1) produce "other evidence" of the defendant's retaliatory motive, and (2) demonstrate that the prisoner's violation of prison policy was "not so 'clear and overt'" that the court can conclude that the defendant would have taken the same action despite this evidence. Watson, 834 F.3d at 426. If the plaintiff can do this, the burden of proof would revert to the defendant, and the entry of summary judgment for the defendant would be inappropriate. See also Carter v. Slater, 2021 WL 5605289, at *7 (W.D. Pa. Nov. 30, 2021). Here, Minor has presented no other evidence of Gustafson's retaliatory motive, and it is undisputed that he violated prison policies. Thus, he has failed to show that the relevant DOC policies were pretext for retaliation. The same decision defense entitles Gustafson to summary judgment on Minor's retaliation claims.
As for Oberlander and Sawtelle, even if the record had supported a prima facie case of retaliation, they also have demonstrated that they would have initially placed Minor in the SDU for legitimate penological reasons and absent any retaliatory motive. They have both attested that they would have taken this action regardless of any knowledge of Minor's grievances and prior lawsuit. ECF No. 53-9, ¶ 10. ECF No. 53-10, 110. The record supports that DOC officials transferred Minor to SCI-Forest because he assaulted an officer at his previous institution. Officials designed the SDU to reduce violence, and Oberlander and Sawtelle had a legitimate penological purpose in putting an inmate with a past incident of violence there. Finally, Minor has presented no "other evidence" of retaliatory motive to demonstrate that this rationale served as pretext for invidious retaliation. Watson, 834 F.3d at 426. Thus, the same decision defense also entitles Oberlander and Sawtelle to summary judgment on Minor's retaliation claim.
E. Conclusion
For the foregoing reasons, it is respectfully recommended that the Court GRANT the Defendants' Motion for Summary Judgment at ECF No. 51.
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.