Opinion
1:16-cv-130
02-01-2022
STRATTON PEAY, Plaintiff v. CO SAGER, et al, Defendants
SUSAN PARADISE BAXTER UNITED STATED DISTRICT JUDGE
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [ECF NO. 208] MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the motion for summary judgment filed by Defendants Berry, Bertolini, Cowan, Ennis, Gustafson, Horton, Kunig, Miller, Oberlander, Michael Overmyer, Rittenhouse, Sager, Sheasly, Simon, Smail, and Kim Smith [ECF No. 208] be granted.
II. Report
A. Procedural Background
Although this case has an extensive procedural history, it need not be recounted here. For present purposes, Plaintiff Stratton Peay filed his Third Amended Complaint - the currently operative pleading - on April 24, 2018. ECF No. 83. In his pleading, Peay, an inmate in the custody of the Pennsylvania Department of Corrections (DOC), contends that prison officials at his previous place of confinement, SCI-Forest, violated his civil rights by engaging in a 1 conspiracy to unlawfully confine and harass him and by subjecting him to unlawful retaliation for filing a previous lawsuit. Id. Peay also claims that prison officials displayed deliberate indifference to a serious injury to his "left mastoid bone." Id. Peay has named a host of individuals as Defendants in this action, each of whom is a correctional officer, unit manager, psychologist, corrections counselor, or other correctional personnel affiliated with SCI-Forest.ECF No. 3 ¶¶ 4-16. Peay primarily seeks monetary relief pursuant to 42 U.S.C. § 1983.
The claims against another Defendant, nurse practitioner Heather McKeel, were dismissed by separate Order dated December 10, 2020. ECF No. 168.
Presently pending before the Court is Defendants' Motion for Summary Judgment [ECF No. 208]. In support of their Motion, Defendants have filed a brief [ECF Nos. 209], a Concise Statement of Material Facts [ECF No. 210], and an Appendix of Exhibits [ECF No. 211]. Peay filed a Response to Defendants' Motion [ECF No. 213], accompanied by several exhibits and a sworn declaration [ECF No. 214], but he did not file a Responsive Concise Statement. This matter is ripe for disposition.
The Court has jurisdiction over Plaintiffs claims pursuant to 28 U.S.C. §1331. This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
B. Factual Background
1. Local Rule 56.1 Violation
Before addressing the factual background underlying this action, the Court notes that Plaintiff has failed to properly respond to Defendants' Concise Statement of Material Facts [ECF No. 210], as required by Local Rule 56.C.1. This rule requires non-moving parties to a motion for summary judgment to file a responsive concise statement in which they must: respond to each numbered paragraph in the movant's concise statement; admit or deny the facts contained in the movant's concise statement; set forth the basis for denial if any fact within the movant's 2 concise statement is not entirely admitted by the non-moving party, with appropriate citation to the record; and set forth, in separately numbered paragraphs, any other material facts at issue. See LCvR 56.C.1. Courts located in the Western District of Pennsylvania require strict compliance with the provisions of Local Rule 56. See, e.g., Coleman v. Tice, 2018 WL 5724125, at *2 n. 3 (W.D. Pa. Oct. 10, 2018), adopted by 2018 WL 5722316 (W.D. Pa. Nov. 1, 2018); First Guard Ins. Co. v. Bloom Services, Inc., 2018 WL 949224, at *2-3 (W.D. Pa. Feb. 16, 2018); Hughes v. Allegheny County Airport Authority, 2017 WL 2880875, at *1 (W.D. Pa. July 6, 2017).
A non-moving party "faces severe consequences for not properly responding to a moving party's concise statement." Hughes, 2017 WL 2880875, at *1. Any alleged material facts "set forth in the moving party's Concise Statement of Material Facts . . . which are claimed to be undisputed, will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party." LCvR 56.E. While courts provide some leniency to pro se litigants when applying procedural rules, the Court '"is under no duty to provide personal instruction on courtroom procedure or to perform any legal chores for the [pro se litigant] that counsel would normally carry out.'" Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013) (quoting Pliler v. Ford, 542 U.S. 225, 231 (2004)). Nor may pro se litigants ignore procedural rules that apply to parties assisted by counsel. McNeil v. United States, 508 U.S. 106, 113 (1993) (explaining that "we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel").
Accordingly, to the extent that Plaintiff has failed to respond to any statement of material fact in Defendants' Concise Statement, it will be deemed admitted. LCvR 56.E. However, the 3 Court will consider any facts properly alleged in Plaintiffs pro se responses that specifically contradict Defendants' statement of facts, to the extent that they are supported by the record. Boyd v. Citizens Bank of Pa, Inc., 2014 WL 2154902, at *3 (W.D. Pa. May 22, 2014) (stating that "[t]o the extent Plaintiffs statement of 'fact' specifically controverts Defendant's, the Court will consider these facts in determining whether summary judgment should be granted").
2. Factual allegations
In his Third Amended Complaint, Peay alleges that an individual known as Detective Leon Lubiejewski framed him for murder over twenty years ago, resulting in his current incarceration. ECF No. 83 at 2-3. Although Lubiejewski is not a defendant in this action, most of Peay's claims stem from his belief that Defendants engaged in a widespread conspiracy to cover up Lubiejewski's misconduct and keep Peay wrongfully imprisoned for the murder of Tiene Williams.
To that end, Peay first alleges that Defendants Sager, Berry, Smail, Rittenhouse, Overmeyer, Horton, Oberlander, Kunig, Miller, and Ennis directed two other inmates to assault him on February 23, 2015, causing him to sustain a broken rib and injuries to the left mastoid bone in his skull. Id. at 4-5. Peay contends that this attack was "designed by these Defendants to have [Peay] illegally 'emergency transferred'" into protective custody so that "investigators (Innocence Projects, etc) couldn't discover that [Peay]" was innocent of Williams' murder. Id. Peay remained in protective custody from February 23, 2015, to August 12, 2015. Id.
Peay next alleges that Defendants Horton, Overlander, Ennis, and Overmeyer conspired to "illegally deny [him] a job and [General Labor Pool] pay" as part of a scheme to "overwhelm [him] into ceasing to make complaints regarding Det. Lubiejewski's malfeasance." Id. at 5. 4 They also allegedly directed other inmates to spit on Peay and throw urine on him while he was in protective custody, presumably for the same reason. Id.
Peay further alleges that, at some unidentified time, Defendants Bertolini, Gustafson, Kunig, and Miller "illegally housed Plaintiff 'alone' [z-code status]" because they wanted "easy access to 'poison' Plaintiff, 'torture' Plaintiff, cause Plaintiff'depression,' [and] 'force' Plaintiff into altercations . . . with staff and inmates, etc." Id. at 6. Defendants Simon, Cowan, and Sheasley allegedly conspired to illegally misdiagnose Peay as schizophrenic to cover up the malfeasance of their co-Defendants. Id. at 6-7.
Peay also asserts a medical indifference claim, suggesting that Defendants Smith, Overmeyer, and Oberlander intentionally overlooked the injury to his left mastoid bone and improperly denied him "an MRI or CT-Scan for his mastoid bone injury." Id. at 8. Peay suggests that this is part of a "scam to use 'force (physical, etc.) to make themselves appear correct." Id.
Finally, Peay suggests that each of the instances of misconduct described above amounted to unlawful retaliation in response to his prior civil rights litigation and his attempts to expose Defendants' "case fixing scam" and "Det. Lubiejewski's malfeasance." Id. at 9.
C. Standards 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 5 disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether a genuine issue of material fact remains for trial, the court must view the record and all reasonable inferences to be drawn therefrom in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric 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 to go beyond his pleadings with affidavits, depositions, answers to interrogatories or other record evidence to demonstrate specific material facts that give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Further, under Rule 56, a defendant may seek summary judgment by pointing to the absence of a genuine fact issue on one or more essential claim elements. The Rule mandates summary judgment if the plaintiff then fails to make a sufficient showing on each of those elements. When Rule 56 shifts the burden of production to the nonmoving party, "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. See Barter v. GA.F. Corp., 967 F.2d846, 851 (3d Cir. 1992). 6
D. Analysis
Although Peay's claims are not delineated into separate counts, he appears to assert the following: 1) a conspiracy claim against Sager, Berry, Smail, Rittenhouse, Overmeyer, Horton, Oberlander, Kunig, Miller, and Ennis based on the February 23, 2015 incident; 2) a conspiracy claim against Horton, Overlander, Ennis, and Overmeyer based on the loss of his job and GLP pay and alleged mistreatment by other inmates; 3) a conspiracy claim against Simon, Cowan, and Sheasley based on a false diagnosis of schizophrenia; 4) a conditions of confinement claim against Bertolini, Gustafson, Kunig, and Miller based on his classification as a z-code inmate; 5) a medical indifference claim against Smith, Overmeyer, and Oberlander based on his left mastoid bone injury; 6) a failure to protect claim against Sager, Berry, and Rittenhouse; and 7) a retaliation claim against all Defendants. Each claim will be addressed in turn.
1. Conspiracy claims
As noted above, Peay's Third Amended Complaint alleges that various Defendants conspired with (or on behalf of) Lubiejewski to keep Peay falsely imprisoned and to silence his attempts to prove his innocence. To survive summary judgment on a conspiracy claim, a § 1983 plaintiff must adduce evidence suggesting that two or more persons acting under color of state law "reached an understanding to deprive him of his constitutional rights." Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 293-94 (3d Cir. 2018) (internal quotation omitted). The plaintiff "must provide some factual basis to support the existence of the elements of a conspiracy: agreement and concerted action." Capogrosso v. The Supreme Court of the State of New Jersey, 588 F.3d 180, 184-85 (3d Cir. 2009). At the summary judgment stage, this requires the plaintiff to "establish that there is a genuine issue of material fact regarding the question of whether the defendants entered into an illegal conspiracy which caused the plaintiff to suffer a cognizable 7 injury." Mass. School of Law at Andover v. American Bar Association, 107 F.3d 1026, 1039 (3d Cir. 1997). See also Misovitch v. Hostoffer, 721 F.Supp.2d 389, 394 (W.D. Pa. 2010) ("[T]o successfully counter Defendants' motions for summary judgment, Plaintiff must provide specific evidence establishing that the Defendants agreed among themselves to act against him either unlawfully or for an unlawful purpose.").
Peay has adduced no evidence whatsoever in support of his conspiracy claims. Although he repeatedly accuses Defendants of operating a "case fixing scam" to cover up that Lubiejewsky "framed" him for murder over twenty years ago, see ECF No. 213 at 3, 9, there is nothing in the record from which a reasonable factfinder might infer that Defendants formulated and executed an agreement to violate his constitutional rights. Carey v. Johnson, 2008 WL 724101, at *10 (W.D. Pa. Mar. 17, 2008). The law is clear: "bare allegations of wrongdoing by a Defendant, without any substantiating proof of an unlawful agreement, are insufficient to state a conspiracy claim." Id. (emphasis added). See also Tindell v. Beard, 351 Fed.Appx. 591, 594 (3d Cir. 2009). Such is the case here.
2. Conditions of confinement
Peay next alleges that Defendants Bertolini, Gustafson, Kunig, and Miller subjected him to cruel and unusual conditions of confinement by assigning him to a single cell, depriving him of the company of a cellmate. Peay maintains that Defendants wanted him to be celled alone so that they could "poison" and "torture" him and force him into altercations with staff and inmates. 8
In his Brief in Response, Peay appears to claim that Defendants used "some sort of technology" to surreptitiously place an "electrode plant" into his hip or scrotum so that they could "secretly torture" him by sending electric shocks through his body from a remote transmitter. ECF No. 213 at 13. He explains that this was done to "silence him" concerning Lubiejewski's "crimes." Id., There is no evidence in the record that this occurred.
The Eighth Amendment's prohibition against cruel and unusual punishment requires that inmates be provided humane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994). To establish a claim based on unconstitutional prison conditions, an inmate "must meet two requirements: (1) that 'the deprivation must be objectively, sufficiently serious;' and (2) the 'prison official must have a sufficiently culpable state of mind.'" Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d. Cir.2001) (quoting Farmer, 511 U.S. at 834). "A claim of inhumane prison conditions may rise to the level of an Eighth Amendment violation where the prison official 'deprived the prisoner of the minimal civilized measure of life's necessities' and 'acted with deliberate indifference in doing so, thereby exposing the inmate to a substantial risk of serious damage to [his] future health.'" Palakovic v. Wetzel, 854 F.3d 209, 225 (3d Cir. 2017) (quoting Parkell v. Danberg, 833 F.3d 313, 335 (3d Cir. 2016)). Only "extreme deprivations" will satisfy this standard. Hudson v. McMillan, 503 U.S. 1, 8-9 (1992).
Peay's conditions of confinement claim fails for several reasons. Initially, Peay cannot establish that he was deprived of one of the "minimal civilized measure[s] of life's necessities" by being assigned to a single cell. Indeed, while the Court is aware of dozens of cases challenging - typically unsuccessfully - the denial of a z-code as an unlawful condition of confinement, the Court cannot locate any caselaw suggesting that the assignment of a z-code violates the Constitution. See, e.g., Myer v. Giroux, 2018 WL 6831147 (W.D. Pa. Dec. 28, 2018) (rejecting claim that rescinding plaintiffs z-code and forcing him to take a cellmate amounted to cruel and unusual punishment); Mattis v. Department of Corrections, 2017 WL 6406884 (W.D. Pa. Dec. 15, 2017) (rejecting challenge to removal of z-code because "the denial of z-code status, by itself, is not cruel and unusual punishment"); See also Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996) 9 (finding that "double celling can amount to an Eighth Amendment violation if combined with other adverse conditions" such as a likelihood of assault from a cellmate).
In any event, it is well established "that the United States Constitution does not confer any right upon an inmate to any particular custody or security classification." Henderson v. Thomas, 2012 WL 4434750, at *1 (M.D. Pa. Aug. 30, 2012) (citing Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976) ("Congress has given federal prison officials full discretion to control" various "conditions of confinement, including "prisoner classification" and "the discretionary transfer of state prisoners"); Montanye v. Haymes, 427 U.S. 236, 242 (1976)). Rather, a prison "has a penological interest in the housing placement of its inmates" and, accordingly, "the decision where to house inmates is at the core of prison administrators' expertise." Thomaston v. Meyer, 519 Fed.Appx. 118, 119 (3d Cir. 2013) (internal quotation omitted). Thus, although Peay may have preferred to be housed with a bunkmate, he had no constitutional right to that status. See, e.g., Podhorn v. Grondolsky, 350 Fed.Appx. 618, 620 (3d Cir. 2009) ("[Prisoners have no constitutional right to be assigned to a particular institution, facility or rehabilitative program."); Keeling v. Barrager, 2014 WL 1338077, at *6 (M.D. Pa. Apr. 3, 2014) ("[T]he United States Constitution does not confer any right upon an inmate to any particular custody or security classification.").
Finally, Peay has failed to establish that any prison official had a "sufficiently culpable state of mind" with respect to his single cell assignment. Beers-Capitol, 256 F.3d at 125. To the contrary, the record supports the existence of a penological justification for Peay's z-code: as of February 19, 2021, Peay had received a total of 89 upheld misconducts, 25 of which were for assaults. See ECF No. 211-10. Peay's averment to the contrary - he insists that he "had only 3 [misconducts] involving inmates in over 17 years," see ECF No. 83 at 6 - is squarely belied by 10 the record. Given his extensive altercation history, Defendants' decision to cell Peay by himself reflects an exercise in penological judgment rather than deliberate indifference.
For the foregoing reasons, Peay has failed to establish a triable issue of material fact as to any element of his conditions of confinement claim. Summary judgment is warranted.
It is unclear whether Peay intended to assert a similar conditions of confinement claim related to his placement in protective custody following the February 23 assault. Even if he did, the record indicates that such placement was justified for Peay's own protection and to separate him from the inmates who assaulted him. See ECF No. 211-2. Peay's contention that this placement stemmed from a conspiracy has already been rejected.
3. Deliberate indifference to serious medical need
Peay next contends that Smith, Overmeyer, and Oberlander violated the Eighth Amendment's prohibition against cruel and unusual punishment by failing to authorize treatment for a "fractured" left mastoid bone that Peay allegedly sustained during the altercation on February 23, 2015. See Estelle v. Gamble, 429 U.S. 97 (1976) (stating that "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment") (internal quotation omitted). Peay insists that his skull is fractured based on his own physical examination of the back of his head and his observation that it feels fractured. In addition, Peay has proffered the declarations of two fellow inmates who have palpated a lump on Paey's mastoid bone and who attest that it feels like a fracture. Peay alleges that Defendants intentionally overlooked this injury by improperly denying him necessary medical testing in the form of an MRI or CT-Scan.
As this Court has already observed, neither inmate has the medical expertise to offer a medical opinion regarding the underlying source of the lump. See Report and Recommendation, ECF No. 164, at 3 (citing Montgomery v. Pinchak, 294 F.3d 492, 504 (3d Cir. 2002) (noting the necessity of expert medical testimony for injuries that are not clearly ascertainable by lay persons)).
To establish a violation of his constitutional right to adequate medical care, a plaintiff is required to allege facts that demonstrate: (1) a serious medical need, and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). 11 Such indifference is manifested by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll 991 F.2d 64, 68 (3d Cir. 1993), or "persistent conduct in the face of resultant pain and risk of permanent injury." White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
At the outset, there is no question that Peay received constitutionally adequate medical evaluation and treatment for his head injury. The Court previously summarized the medical evidence of record in the context of recommending that Peay's request for preliminary injunctive relief be denied:
Defendants have proffered Peay's medical records dating from after the alleged assault through the present. These records document that Peay's alleged head injury has been regularly evaluated by DOC medical professionals and that three separate x-ray examinations have been conducted on his mastoid bone. They also document that medical professionals at multiple correctional institutions have determined that the bony lump that Peay feels on the back of his head is benign. See Hearing Exhibit A. For example, according to Peay's medical records, a non-party physician, Barry I. Eisenberg, D.O., examined Peay and evaluated the lump on May 13, 2016. Dr. Eisenberg diagnosed the lump as a "calcified L[eft] posterior] auricular node." Exhibit A, p. 27. He also noted that Peay was "alert + oriented. The mastoids appear normal." Id
More recently, medical personnel conducted x-ray studies of Peay's facial bones, multiple views, on or about October 30, 2018, December 15, 2018, and July 22, 2020. The results of the first two studies recorded "No radiographic evidence of acute fracture." See Hearing Exhibits B and C. The results of the July 22, 2020 study similarly recorded "no evidence of an acute osseous fracture." See Hearing Exhibit D. This latest x-ray study was ordered specifically because Peay was "convinced he has a fracture in the left mastoid area from a remote injury" and "for confirmation of lack of bony pathology." See Hearing Exhibit A, pp. 1-3.
On August 22, 2019, August 29, 2019, October 11, 2019 and November 29, 2019, Peay consulted with medical providers at the State Correctional Institution at Rockview regarding his concerns about his12
mastoid bone. Id., pp. 6-12. In each instance, medical personnel determined that Peay had no signs or symptoms of a fracture. Id. At the November 29, 2019 visit, Peay explained that an x-ray of his mastoid bone had been taken and that he "was told no fracture seen however he is still concerned." Id., p.6. Medical personnel "[r]eassured patient that the mastoid is a very sturdy bone and no[t] easily fractured." Id. The observations and findings from these examinations are consistent with those reported by medical personnel at the State Correctional Institution at Phoenix earlier in 2018-19, see id, pp. 15-19, and by medical personnel at SCI-Greene in 2018. Id., pp. 20-21.Report and Recommendation, ECF No. 164, at 4-5. Stacked against the weight of this evidence, Peay's attempt to self-diagnose his left mastoid bone as fractured based on how it "feels" is insufficient to create a triable issue of material fact as to the adequacy of his medical care. See, e.g., Tillery v. Noel, 2018 WL 3521212, at *5 (M.D. Pa. June 28, 2018) ("[A]n inmate's dissatisfaction with a course of medical treatment, standing alone, does not give rise to a viable Eighth Amendment claim.") (collecting cases); Gause v. Diguglielmo, 339 Fed.Appx. 132 (3d Cir. 2009) (characterizing a dispute over treatment options as the type of "disagreement over the exact contours of [plaintiffs] medical treatment" that does not violate the constitution)).
The Court also notes that Smith, Overmeyer and Oberlander are not medical professionals. Smith is a Corrections Health Care Administrator and Overmeyer and Oberlander each served as Superintendent of the institution. The Court of Appeals for the Third Circuit has held that prison officials who are not physicians cannot be considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who is already in the care of the prison's physicians. Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993). This is because, "[a]bsent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official will not be chargeable with the Eighth Amendment scienter requirement or deliberate indifference." Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). Because there is no dispute that Peay 13 received treatment from the prison's medical staff, he cannot sustain a deliberate indifference claim against non-medical personnel such as Smith, Overmeyer, and Oberlander. See, e.g., In re Wetzel 2016 WL 4945315, at *3 (W.D. Pa. Sep. 16, 2016) (rejecting a claim of deliberate indifference against a non-medical defendant because the plaintiff acknowledged that he had received treatment from prison physicians).
4. Failure to protect
In his pleading, Peay asserts that Defendants Sager, Berry, and Rittenhouse were "responsible for the [February 23] attack" since they failed to secure his attackers within their cells by 8:45 p.m., as apparently required by prison policy. ECF No. 83 at 9. Although it is unclear, this allegation could be construed as an attempt to raise a failure to protect claim.
The Eighth Amendment of the United States Constitution imposes a duty on prison officials to "take reasonable measures to guarantee the safety of inmates." Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). This includes the general duty to "protect prisoners from violence at the hands of other prisoners." Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997) (quoting Farmer, 511 U.S. at 833). To state a viable failure-to-protect claim, the plaintiff must establish that: (1) he was incarcerated under conditions posing a substantial risk of serious harm; (2) the defendant was deliberately indifferent to that substantial risk; and (3) the defendant's deliberate indifference caused the plaintiff to suffer harm. Bistrian, 696 F.3d at 367. The standard for deliberate indifference is subjective; thus, the prison official "must actually have known or been aware of the excessive risk to inmate safety." Beers-Capitol, 256 F.3d at 125.
Here, Peay has again failed to develop any evidentiary support for the subjective element of his claim. He does not claim that he advised prison officials of any risk of attack, and his unsupported speculation that the attack could have been prevented had Defendants placed his 14 attackers in their cells at the appropriate time fails to address whether those Defendants knew or were aware of any risk to his safety by failing to do so. Courts in this Circuit have consistently rejected such generalized allegations as too speculative to support a failure to protect claim. Bistrian, 696 F.3d at 369-71 (rejecting an inference of deliberate indifference based solely on a prison official's generalized awareness of a particular inmate's propensity for violence); Williams v. Pennsylvania Dept of Corr., 2020 WL 5237606, at *7 (W.D. Pa. Aug. 14, 2020) (rejecting failure to protect claim because plaintiff failed to adduce evidence demonstrating that he had informed prison officials of "any particularized threat from a specific inmate or group of inmates" prior to attack); Williams v. Delaware County Board of Prison Inspectors, 2019 WL 2745759, at *9 (E.D. Pa. June 28, 2019) (general allegation that prison housed plaintiff with "violent prone inmates" insufficient to establish an Eighth Amendment claim); Joyner v. District of Columbia, 2009 WL 2224757, at *4 (M.D. Pa. July 23, 2009) (rejecting failure to protect claim based on "assumptions, accusations, and suppositions for which Plaintiff has developed no proof whatsoever."). The Court reaches the same conclusion here.
5. Retaliation
Finally, Peay attributes nearly all of the misconduct alleged above to unlawful retaliation, suggesting that Defendants wanted to punish him for exposing their "case fixing scam" and Lubiejewski's malfeasance. ECF No. 83 at 9. Peay also claims that Defendants orchestrated the February 23 assault in retaliation for a lawsuit that he filed a few weeks earlier against officials at another correctional institution. Id. at 4.
To establish illegal retaliation for engaging in protected conduct, a plaintiff must allege that: (1) his conduct was constitutionally protected; (2) he suffered an adverse action at the hands of prison officials; and (3) his constitutionally protected conduct was a substantial or motivating 15 factor in the decision to take the adverse action. Watson v. Rozurn, 834 F.3d 417, 422 (3d Cir. 2016) (citing Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001)). 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)). To be actionable, the adverse action "need not be great" but "must be more than de minimis." McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006). This is an objective inquiry. See Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012).
Peay's "case fixing" claim can be quickly dismissed. It is unclear what protected activity Peay engaged in with respect to this claim, but even assuming such activity took place, Peay has failed to adduce evidence of a causal connection between that activity and any allegedly adverse action. Indeed, rather than addressing the specific elements of a retaliation claim, Peay devotes the bulk of his legal argument to his insistence that Lubiejewski framed him for murder in the 1990's and that he is actually innocent of the crime for which he is imprisoned. As noted above, there is simply no evidence in the record to connect his conviction - which occurred over twenty years ago and involved a non-Defendant - to any of the Defendants in this action. This deficiency is fatal to his claim.
The same is true of his averment that the February 23 assault was "directed" by Defendants in retaliation for his prior lawsuit. While a physical attack is undoubtedly an adverse action, the Court has already determined that there is no evidence in the record from which a reasonable trier of fact might conclude that Defendants ordered that attack. This conclusion negates the "adverse action" element of his retaliation claim. Moreover, Peay's prior lawsuit concerned activity that took place in 2014 while Peay was incarcerated at another institution, 16 SCI-Smithfield. Peay v. Fisher, 2017 WL 1128451, at *2-3 (M.D. Pa. Mar. 24, 2017). There are no common defendants between the two actions. Id. As this Court has observed:
Peay raised similar claims in that action, alleging that officials at SCI-Smithfield orchestrated an inmate attack against him in 2014 to silence his claims of innocence and kept him in a single cell so that they could torture him and poison him with herpes. Peay, 2017 WL 1128451, at *2. The court granted summary judgment in favor of the defendants after concluding that Peay had failed to adduce evidence to support any of his claims.
Courts have consistently rejected retaliation claims "against one defendant based on [protected activity] against another [individual]" for lack of retaliatory motive. Victor v. Lawler, 2010 WL 5014555, at *5 (M.D. Pa. Dec. 3, 2010), aff'd, 565 Fed.Appx. 126 (3d Cir. 2014). As explained by one court, "there is no apparent reason why [the moving defendants] would want to retaliate against Plaintiff for filing a lawsuit against others." Evans v. Rozurn, 2009 WL 5064490, at *22 (W.D. Pa. Dec. 17, 2009). See also Royster v. Beard, 308 Fed.Appx. 576, 579 (3d Cir. 2009) (affirming summary judgment in favor of defendant on plaintiffs claim that he was retaliated against by a defendant who was not the target of his protected activity); Horan v. Collins, 2016 WL 5030468, at *6 (M.D. Pa. Aug. 8, 2016) (drawing no inference of causation where plaintiffs protected activity was not directed at any defendant).Williams v. Pennsylvania Dept of Corr., 2020 WL 5237606, at *13 (W.D. Pa. Aug. 14, 2020). This principle applies with equal measure here.
In short, Peay has failed to adduce any evidence establishing "a causal link between the exercise of his constitutional rights and [any] adverse action taken against him." Allah, 229 F.3d at 225. Summary judgment on each of his retaliation claims is warranted.
III. Conclusion
For the reasons stated herein, it is respectfully recommended that Defendants' motion for summary judgment be granted. Judgement should be entered in favor of all Defendants on all claims. 17
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties 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). 18