Opinion
Civil Action 19-1040
10-19-2021
KEITH ROSARIO, Plaintiff, v. EDWARD STRAWN, DONALD E. WAUGH, and CHRISTOPHER M. CAIN, Defendants.
MAUREEN P. KELLY, MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
RE: ECF NO. 126
ROBERT J. COLVILLE, DISTRICT JUDGE
I. RECOMMENDATION
This is a pro se civil rights action filed by Plaintiff Keith Rosario (“Plaintiff'), who is presently incarcerated at the State Correctional Institution at Albion (“SCI-Albion”). Plaintiffs only remaining claim arises out of allegations that Defendants Warden Edward Strawn (“Strawn”), Deputy Warden Donald E. Waugh (“Waugh”), and Deputy Warden Christopher M. Cain (“Cain”) (collectively, “Defendants”), prison officials at the Washington County Correctional Facility (“WCCF”), retaliated against Plaintiff in violation of his First Amendment rights by transferring him to other prison facilities.
Presently before the Court is Defendants' Motion for Summary Judgment. ECF No. 129. For the following reasons, it is respectfully recommended that the Motion for Summary Judgment be granted.
II. REPORT
A. FACTUAL AND PROCEDURAL HISTORY
1. Factual Background
a. Plaintiffs initial incarceration at WCCF
Plaintiff was incarcerated at WCCF on September 6, 2017, after being arrested on charges of attempted homicide, aggravated assault, kidnapping and criminal conspiracy. ECF No. 127 ¶¶ 1-2.
Plaintiff did not file a response to Defendants' Concise Statement of Material Facts, ECF No. 127, pursuant to Local Civil Rule 56(C). Accordingly, the facts set forth in Defendants' Concise Statement of Material Facts are deemed admitted. See, e.g., Gulley v. Haymaker, No. 06-131J, 2009 WL 763549, at *2 (W.D. Pa. March 23, 2009).
Upon his arrival, Plaintiffs alleged co-conspirator, Richard Lacks Jr. (“Lacks”), was already detained at WCCF. Id. ¶¶ 4, 7. Lacks was housed in the general population area of the prison. Id. ¶ 7.
As a security measure, WCCF policy prohibits criminal co-defendants and co-conspirators from being housed together in general population. Id. ¶ 9. Asa result, Plaintiff was placed in the Special Housing Unit (“SHU”), a block used to provide segregated housing. Id. ¶¶ 8-12; ECF No. 128-5 ¶ 9. Inmates in the SHU are subject to various restrictions that are not imposed on inmates in the general population, including restrictions on commissary, visits, phone calls, recreation, and access to personal items. ECF No. 127 ¶ 13; ECF No. 128-9 at 43-44.
In his Brief in Opposition and Concise Statement of Material Facts, Plaintiff argues that no such policy exists because Defendants did not produce any formal written policy that requires these individuals to be housed separately. ECF No. 137 at 4-5; ECF No. 138 ¶ 6. However, Defendants do not claim this is a written policy, and Plaintiff proffers no evidence to suggest it is not, in fact, the policy or practice at WCCF to separately house criminal co-defendants and co-conspirators for security reasons.
b. Requests to be moved out of SHU
Plaintiff requested to be moved to general population. ECF No. 127 ¶ 17. On October 3, 2017, Plaintiff filed a request slip asking to be moved from the SHU. Id. ¶ 21. Plaintiff asserted that his placement in the SHU violated his Fourteenth Amendment rights, and he should be placed in general population instead. ECF No. 128-10 at 2. Plaintiffs request was denied, “due to [his] current charges.” Id.; ECF No. 127 ¶ 21.
Plaintiffs criminal defense attorney, Herbert A. Terrell (“Terrell”), also wrote a letter to Strawn on October 3, 2017, requesting that Plaintiffs placement in the SHU be reviewed. ECF No. 127 ¶ 20. Terrell stated that Plaintiff did not commit any infraction requiring his solitary confinement, and that “prolonged segregation can or will impose a hardship upon any detainee.” ECF No. 128-6. Based on this, Terrell asked that Plaintiff “be removed from administrative segregation.” Id.
c. Notice of Plaintiffs intent to file a lawsuit
While housed in the SHU, Plaintiff claims he told every guard he saw that he planned to file a lawsuit regarding his placement. ECF No. 127 ¶ 15. Plaintiff never spoke to Strawn, Cain or Waugh, however, and he did not tell them that he planned to sue. Id. ¶¶ 18-19.
Plaintiff did file various grievances, and he claims in his Second Amended Complaint that he submitted a grievance to Strawn about his placement in the SHU. ECF No. 51 ¶ 28. However, there is no record of a grievance in which Plaintiff reported his intent to file a lawsuit.
Around October 6, 2017, Plaintiff alleges that he received a blank complaint form from the United States District Court of the Western District of Pennsylvania in the mail. ECF No. 138 ¶ 15; ECF No. 51 ¶ 30. Although legal mail is to be opened in the inmate's presence, Plaintiff claims that the envelope was already opened when he received it. ECF No. 138 ¶ 16. There is no evidence of who, if anyone, reviewed the contents of Plaintiff s letter from the Court.
According to a mail log produced by Defendants, however, Plaintiff received mail from this Court on October 6, 2017. ECF No. 128-7 at 2. Based on this, it appears that Plaintiff received this mail on or about October 6, 2017. Although Plaintiff states this occurred on October 6, 2017 in his Concise Statement of Material Facts, he cites his Second Amended Complaint in support, which identifies the date as October 10, 2017. ECF No. 51 ¶ 30.
d. Transfer to ACJ on October 25, 2017
On October 25, 2017, Strawn transferred Plaintiff to the Allegheny County Jail (“ACJ”), where he was housed in general population. ECF No. 127 ¶ 28. Strawn claims he arranged for Plaintiffs transfer so that he could be moved out of the SHU, given that Plaintiff could not be housed with Lacks in general population at WCCF. ECF No. 128-5 ¶ 11. Strawn denies knowing that Plaintiff had threatened to sue. Id. ¶ 12.
Because he was placed in general population at ACJ, Plaintiff was subject to fewer restrictions than he was in the SHU at WCCF. For example, Plaintiff was permitted to keep reading and writing materials in his cell, was allowed out of his cell during the day, and had increased phone access. Id. ¶ 31. Plaintiff also continued to have access to his criminal defense attorney at ACJ, where he was able to receive visits from and speak with Terrell on the phone. Id. ¶32.
e. Subsequent transfers to WCCF and other facilities
While Plaintiff's criminal charges were pending, he was temporarily transferred back to WCCF or to other facilities on several occasions. On April 20, 2018, he returned to WCCF for a parole hearing at the Washington County Courthouse. Id. ¶ 33. He was again housed in the SHU. Iff ¶ 34.
After Plaintiff's parole hearing was delayed until May 7, 2018, he filed a request on April 24, 2018 asking to be transferred back to ACJ pending his rescheduled hearing. Iff ¶ 36. This request was denied, citing the lack of a transfer order from the court and the court's instruction via telephone that Plaintiff was to remain at WCCF. Iff ¶ 37; ECF No. 128-12 at 2. Plaintiff returned to ACJ on May 9, 2018, after his hearing. Iff ¶ 39.
Plaintiff refers the Court to an order from Judge John F. DiSalle of the Court of Common Pleas of Washington County, directing that Plaintiff be returned to ACJ pending his hearing. Although the order is dated April 28, 2018, however, it is not date stamped as having been filed until May 7, 2018. ECF No. 139-10. There is no evidence that WCCF officials received notice of this order at any time before Plaintiffs May 7, 2018 parole hearing. See also ECF No. 143 ¶ 20.
On November 14, 2018, Plaintiff was transferred from ACJ to the Westmoreland County Prison (“WCP”), where he was placed in general population. Id. ¶ 40. ACJ staff facilitated Plaintiff s transfer. Id. ¶ 41.
On January 31, 2019, Plaintiff was transferred back to WCCF for his criminal trial at the Washington County Court of Common Pleas. Id. ¶ 42. Lacks pleaded guilty and testified against Plaintiff at his trial. Id. ¶ 44. Because Lacks was still incarcerated at WCCF, Plaintiff was placed in the SHU during the trial. Id. ¶ 43.
After a jury found Plaintiff guilty of crimes on February 7, 2019, he was transferred from WCCF to WCP for a brief period of time. Id. ¶¶ 45-46. Plaintiff originally was housed in general population in WCP, but he was moved to the SHU on February 8, 2019 following an altercation with a correctional officer. Id. ¶ 47.
In a separate lawsuit filed in this Court, Plaintiff claims that he was assaulted by WCP jail officials on February 9, 2019 while he was housed in the SHU. See Rosario v. Westmoreland County, et al, at Case No. 21-208; see also ECF No. 128-1 at 17.
Shortly after this altercation, Plaintiff was transferred back to W CCF on F ebruary 12, 2019, where he remained in the SHU after processing. Id. ¶¶ 47-48. On February 21, 2019, Plaintiff was sentenced on a parole violation at the Washington County Court of Common Pleas. Id. ¶ 49. He was sentenced to five to ten years of incarceration. Id.
Plaintiff was then transferred to the State Correctional Institution at Greene (“SCI-Greene”), followed by SCI-Albion after his sentencing. Id. ¶ 50.
Plaintiff returned to WCCF for brief periods from May 2, 2019 to May 14, 2019; May 31, 2019 to June 4, 2019; and August 13, 2019 to September 6, 2019 to attend several criminal proceedings in Washington County. Id. ¶¶ 51 -5 6. On these occasions, Plaintiff was housed in the SHU at WCCF, except for the period beginning August 13, 2019. Id.
f. Grievances
WCCF has a grievance policy. Id. ¶ 58. Under this policy, inmates first must attempt to solve a problem informally by speaking with a correctional officer. Id. ¶ 59. If the issue cannot be resolved informally, inmates must file a formal grievance to the deputy warden. Id. Inmates can then appeal the deputy warden's decision to the warden within two working days. Id.
Plaintiff filed various grievances while he was incarcerated at WCCF. Id. ¶¶ 61-66. There is no record of Plaintiff filing any grievance regarding his transfer to other facilities or alleged retaliation. Id. ¶¶ 61-67.
2. Procedural History
a. Original Complaint
Plaintiff initiated this lawsuit on August 19, 2019 by filing a civil complaint without a filing fee or Motion for Leave to Proceed in forma pauperis (“IFP Motion”). ECF No. 1. The Court entered a Deficiency Order, notifying Plaintiff of multiple deficiencies with his filing. ECF No. 2.
Plaintiff cured those deficiencies, including by filing an IFP Motion. ECF Nos. 3 and 4. The Court then granted Plaintiffs IFP Motion on September 26, 2019, and his original Complaint was filed on the same date. ECF Nos. 5 and 6.
After Defendant Devyn Breese (“Breese”) filed a Motion to Dismiss, ECF No. 15, Plaintiff filed an Amended Complaint on November 20, 2019, ECF No. 22. Breese filed a renewed Motion to Dismiss, and Defendants Captain Restanio (“Restanio”) and Strawn also moved to dismiss Plaintiffs Amended Complaint. ECF Nos. 24 and 29.
b. Second Amended Complaint
Plaintiff filed the operative Second Amended Complaint on January 14, 2020, and the Court denied the Motions to Dismiss as moot. ECF Nos. 51 and 52.
In his Second Amended Complaint, Plaintiff brought claims against seven individuals who worked at the WCCF during his incarceration at this facility: Breese; Strawn; Restanio; Waugh; Cain; Major Coddington (“Coddington”), and Captain Daniel Polpeck (“Polpeck”).
Plaintiff identified this Defendant as “Sargeant Polpeck” in his Complaint. Polpeck noted in his Motion to Dismiss, however, that he is properly identified as Captain Daniel Polpeck. ECF No. 82.
Plaintiff asserted seven claims: Count “A”: failure to protect pursuant to the Eighth Amendment (against Strawn, Cain and Waugh); Count “B”: retaliation pursuant to the First Amendment (against Strawn, Cain and Waugh); Count “C”: bystander liability pursuant to the Fourteenth Amendment (against Coddington, Restanio, Polpeck and Breese); Count “D”: conspiracy (against Strawn, Cain, Waugh, Coddington, Breese, Restanio and Polpeck); Count “E”: denial of the right to hear and to be heard pursuant to the Fifth and Fourteenth Amendments (against Strawn, Cain, Waugh, Coddington, Restanio and Polpeck); Count “F”: denial of access to media and law library pursuant to the Sixth and Fourteenth Amendments (against Strawn, Cain, Waugh, Coddington, Restanio and Polpeck); and Count “G”: a “Monell claim” (against Strawn, Cain, Waugh, Coddington, Breese, Restanio and Polpeck).
c. Motions to Dismiss the Second Amended Complaint
Breese filed a renewed Motion to Dismiss the Second Amended Complaint and Brief in Support on January 20, 2020. ECF Nos. 53 and 54. Defendants Strawn, Cain, Waugh, Coddington, and Restanio also filed a Partial Motion to Dismiss and Brief in Support on February 3, 2020. ECF Nos. 57 and 58. Plaintiff filed Responses in opposition. ECF Nos. 66 and 77.
Polpeck separately moved to dismiss the claims against him on July 13, 2020. ECF No. 82. Plaintiff filed a Response in opposition. ECF No. 90.
On July 29, 2020, the undersigned submitted a Report and Recommendation, ECF No. 88, regarding the Motions to Dismiss filed by Breese, Strawn, Cain, Waugh, Coddington, and Restanio, recommending that all of Plaintiff s claims against Breese be dismissed; Counts A, C, F and G be dismissed to the extent they are asserted against Strawn, Cain, Waugh, Coddington and/or Restanio; and that Count E be dismissed, to the extent it arose under the Fifth Amendment. The undersigned recommended that Counts A, C, F, G and Plaintiff s Fifth Amendment claim in Count E be dismissed with prejudice, because it would be futile to permit Plaintiff to amend his Complaint with respect to those claims.
Plaintiff did not file Objections to the Report and Recommendation. While the Report and Recommendation was pending, however, Plaintiff voluntarily moved to dismiss Counts A, C, D, E, F and G of his Second Amended Complaint without prejudice. ECF No. 97. Plaintiff stated that he only intended to pursue Count B in this action. Id.
In support, Plaintiff stated that his Second Amended Complaint was “unartfully plead, ” and that he believed the claims he sought to withdraw should be brought in a state court proceeding. ECF No. 97 ¶ 3.
Upon review, United States District Judge Robert J. Colville concluded that Plaintiff was permitted to voluntarily withdraw his claims without prejudice under Federal Rule of Civil Procedure 41, but only to the extent he sought to dismiss all claims against a particular defendant. ECF No. 99 at 6. Because Plaintiff did not seek to withdraw all of his claims against Strawn, Cain and Waugh, the Court denied Plaintiffs motion to dismiss without prejudice as to his claims against these Defendants. Id. As to Strawn, Cain and Waugh, the Court adopted the Report and Recommendation, so that Counts A, D, F, G, and the portion of Count E arising under the Fifth Amendment, were dismissed with prejudice. Id. at 8-10, 15-16. Count D and the portion of Count E arising under the Fourteenth Amendment were dismissed without prejudice, with leave to file an amended complaint on or before October 21, 2021. Id.
As to Breese, Polpeck, Coddington and Restanio, the Court granted Plaintiff s request to dismiss his claims against these Defendants without prejudice. Id. at 10-11, 15-16. Because Plaintiff voluntarily dismissed his claims against Polpeck, the Court denied Polpeck's Motion to Dismiss as moot. Id. at 16.
d. Plaintiffs First Amendment Retaliation claim
Plaintiff did not file a Third Amended Complaint. As a result, Plaintiffs sole remaining claim against Strawn, Cain and Waugh is his First Amendment retaliation claim at Count B. In Count B, Plaintiff claims that Strawn, Cain and Waugh retaliated against him by transferring him to other prisons:
68. Defendants Strawn, Cain, and Waugh'[s] refusal to provide protection to plaintiff as a result of plaintiff stating that he was filing a lawsuit against prison staff constituted retaliation for wanting to petition government for redress of grievances and therefore violated the First Amendment.
69. As a result of plaintiffs comment defendants Strawn, Cain, and Waugh sent the plaintiff to two other jails that plaintiff had no open cases, plaintiff lost legal documents and property that was of possessory interest to him.ECF No. 51 ¶¶ 68-69.
Strawn, Cain and Waugh filed an Answer to Plaintiffs Second Amended Complaint on November 11, 2020. ECF No. 101.
e. Motion for Summary Judgment
On May 12, 2021, the remaining Defendants, Strawn, Cain and Waugh, filed the instant Motion for Summary Judgment, Brief in Support, Concise Statement of Material Facts, and Appendix. ECF Nos. 126-129.
On July 26, 2021, Plaintiff filed a Response and Brief in Opposition to Defendants' Motion for Summary Judgment. ECF Nos. 136 and 137. He also filed a Concise Statement of Material Facts and Appendix. ECF Nos. 138 and 139.
At the same time, Plaintiff also filed a document titled “Addendum to Plaintiff's Opposition to Defendant[s] Motion for Summary Judgment, ” in which he incorporated a Cross-Motion for Summary Judgment. ECF No. 140. The undersigned issued a pending Report and Recommendation on August 12, 2021 recommending that the CrossMotion for Summary Judgment be denied. ECF No. 145.
Defendants then filed a Reply in support of the Motion for Summary Judgment. ECF No. 141. Defendants also filed a Response to Plaintiff's Concise Statement of Material Facts and a supporting appendix. ECF Nos. 143 and 144.
Defendants' Motion for Summary Judgment is now ripe for consideration.
B. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue of material fact is in genuine dispute if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (“A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof'). Thus, summary judgment is warranted where, “after adequate time for discovery and upon motion . . . a party . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp, v. Catrett, 477 U.S. 317, 322-23 (1986)).
The moving party bears the initial burden of demonstrating to the court that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 322; Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). “[W]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
In deciding a summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party and must draw all reasonable inferences, and resolve all doubts in favor of the nonmoving party. Matreale v. N.J. Dep't of Military & Veterans Affairs, 487 F.3d 150, 152 (3d Cir. 2007); Woodside v, Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001).
C. DISCUSSION
1. First Amendment Retaliation
Defendants move for summary judgment as to Plaintiff s sole remaining First Amendment retaliation claim. In order to establish a prima facie claim for retaliation under the First Amendment, Plaintiff must show (1) that “the conduct which led to the retaliation was constitutionally protected”; (2) “he suffered some ‘adverse action' at the hands of the prison officials” that “was sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights”; and (3) a “causal link between the exercise of his constitutional rights and the adverse action taken against him.” Rauser v. Hom, 241 F.3d 330, 333 (3d Cir. 2001) (citing Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). If Plaintiff makes this initial showing, “the burden then shifts to the prison official to prove that the same decision would have been made absent the protected conduct for reasons related to a legitimate penological interest.” DeFranco v. Wolfe, 387 Fed.Appx. 147, 154-55 (3d Cir. 2010) (citing Rauser, 241 F.3d at 334).
In this case, Plaintiff claims that Defendants violated his First Amendment rights by transferring him to other prison facilities in retaliation for threatening to file a civil lawsuit. As to the first prong, there is no dispute that Plaintiff engaged in protected activity by threatening to file this lawsuit. For the reasons below, however, Plaintiff cannot satisfy the second or third prongs of his prima facie case. Therefore, summary judgment should be granted as to this claim.
ECF No. 139-22. Because Plaintiffs retaliation claim in Count B does not arise out of these alleged acts, they are not properly asserted here. ECF No. 51 ¶¶ 68-69. The Court also notes there is not sufficient evidence as to any of these events to establish the elements of Plaintiff s First Amendment retaliation claim. Plaintiff also argues in his Brief in Opposition to the Motion for Summary Judgment that he was retaliated against when Defendants “carried out other punitive and wrongful actions, such as placement in segregation and unreasonable cell searches” and by not transferring him back to ACJ pending his rescheduled parole hearing on May 7, 2018. ECF No. 137 at 8. In addition, he includes an affidavit from inmate Walter Maiyland (“Maryland”), in which Maryland claims that administration officials allowed Plaintiff to be assaulted in August 2019 at WCCF.
Although Defendants argue that Plaintiff did not report this intention to them, they do not dispute that the underlying conduct is protected activity. ECF No. 129 at 8.
a. Plaintiffs transfer was not an adverse action
To establish the second prong, Plaintiff must show that he “he suffered some ‘adverse action' at the hands of the prison officials” that “was sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights.” Rauser, 241 F.3d at 333. As to this factor, Defendants argue they did not subject Plaintiff to any adverse action. ECF No. 129 at 8-9. The only relevant transfer, they argue, is Strawn's decision to transfer Plaintiff to ACJ on October 25, 2017. Defendants argue that Waugh and Cain were not involved in any decision to transfer Plaintiff and, except for his October 27, 2017 transfer, Plaintiffs transfers were either the result of court orders for purposes of attending court proceedings, or they were transfers facilitated by other institutions. Id. at 8; ECF No. 141 at 4.
Defendants also argue that Plaintiff's transfers were not adverse actions. He was transferred to facilities just 30 to 45 miles away, they argue, where he had continued access to counsel. Because Plaintiff could not be placed in general population at WCCF while Lacks was already housed there, transferring Plaintiff to other facilities allowed him to be placed in general population, as he requested, with fewer restrictions. ECF No. 129 at 8-9.
In response, Plaintiff argues that Defendants are responsible for all of his transfers because they were carried out with Defendants' “actual or constructive knowledge.” ECF No. 137 at 5. Although Plaintiff did request to be moved out of the SHU, he argues, he never requested to be transferred from WCCF, and he claims there is no policy that co-defendants cannot be housed together. Id. at 5. Plaintiff argues that his transfers were adverse actions because he was subject to different rules and operating procedures at the new facilities, he did not previously know anyone at ACJ or WCP, and he could have been targeted as “weak” for being alone. Id. at 6-7. Plaintiff also argues that he was transferred in effort to deter him from gathering information in support of this lawsuit.
Upon review, Plaintiff cannot establish that he suffered any adverse action. Based on the record, there is no evidence that Waugh or Cain had any role in transferring Plaintiff to other detention facilities. Therefore, Plaintiff cannot establish this factor as to Waugh and Cain.
Regarding Strawn, the record only reflects that he was involved in the decision to transfer Plaintiff to ACJ on October 25, 2017. While simply transferring an inmate to another facility does not violate his constitutional rights, this action could violate the Constitution “if motivated by retaliation, given adequate allegations that the transfer would deter a person of ordinary firmness from exercising his or her First Amendment rights.” Collazo v. Rozum, 646 Fed.Appx. 274, 277 n. 5 (3d Cir. 2016) (citing Meachum v. Fano, 427 U.S. 215, 223-24 (1976); Allah, 229 F.3d at 22425).
In this case, a reasonable jury could not find that Plaintiffs transfer to ACJ would deter a person of ordinary firmness from exercising his constitutional rights. Plaintiff asked to be moved out of the SHU at WCCF, where he was placed in solitary confinement and was subject to significant restrictions. Under WCCF policy, he could not be placed in general population at WCCF because his co-conspirator, Lacks, was already housed there. Plaintiffs transfer to ACJ thus allowed him to be placed in general population with fewer restrictions, as he requested. This was done in Plaintiffs interest, and he preferred his placement at ACJ-later requesting to be transferred back to ACJ from WCCF when his parole hearing in Washington County was rescheduled. While Strawn did not do exactly what Plaintiff says he wanted (to be placed in general population at WCCF, with Lacks), this does not mean his transfer to ACJ was adverse.
Not only did Plaintiffs transfer result in fewer restrictions and accommodate his desire to be housed in general population, it arguably facilitated the exercise of his constitutional rights in this case. Because Plaintiff was confined in the SHU at WCCF, he was not permitted to access writing materials or the law library, and he had limited phone privileges-restrictions that could hinder his ability to litigate this action. Plaintiff was not subject to these same restrictions at ACJ. ACJ is also located less than a mile from this Court, and it is significantly closer in distance than WCCF, which is approximately 29 miles away from the courthouse.
The Court may take judicial notice of this information. See, e.g., Fielder v. Fomelli, No. 09-881, 2011 WL 4527322, at *6 and n. 6 (W.D. Pa. Sept. 6, 2011), report and recommendation adopted, 2011 WL 452734 (W.D. Pa. Sept. 28, 2011). Driving directions may be found on www.google.com.
Relative to his ongoing criminal proceedings, there is no evidence of any potentially adverse impact as a result of Plaintiff s transfer. Plaintiff admits that he had continued access to his counsel, who visited and called him at AC J. Terrell's office in McDonald, Pennsylvania is located approximately the same distance from both ACJ and WCCF. Plaintiff was transferred the relatively short distance of about 30 miles back to WCCF as needed for the purpose of attending any relevant court proceedings in Washington County.
Terrell's office in McDonald, Pennsylvania is approximately 15-20 miles from both ACJ and WCCF.
Although Plaintiff argues he was subject to “different policies/rules” at ACJ, he does not identify any purportedly unwelcome changes. Instead, the record reflects that Plaintiff preferred to be housed in general population at ACJ following his transfer, and this placement allowed him to exercise greater freedoms. There is also no evidence to support Plaintiff's claim that he was at greater risk of harm at ACJ, or that he was, in fact, targeted at this facility. Based on the foregoing, the record does not support a finding that Defendants subjected Plaintiff to any adverse action relative to his transfer to other facilities.
b. There is no causal connection between Plaintiffs transfer and his protected conduct
As to the third prong, Plaintiff must show a “causal link between the exercise of his constitutional rights and the adverse action taken against him.” Rauser, 241 F.3dat333. In support of their Motion for Summary Judgment, Defendants argue that Strawn transferred Plaintiff from WCCF so that he could be placed in general population-not for retaliatory purposes. ECF No. 129 at 7-8. Defendants also argue there is no evidence they knew about Plaintiffs plan to file a lawsuit, so this could not have been their reason for transferring Plaintiff. Id. at 8. Based on this, Defendants argue that Plaintiff cannot prove this element of his claim.
In his Response, Plaintiff acknowledges he did not tell Defendants that he planned to file a lawsuit. ECF No. 135 at 7. However, he argues they either knew or should have known this fact because he told every WCCF staff member or officer that he saw of his plan, and this information should have been shared with Defendants. Id.
Upon review, there is simply no evidence to connect Plaintiffs transfer with his plan to file a lawsuit. Plaintiffs claim is premised on mere allegations that Defendants transferred him for intending to file a lawsuit, but the evidence of record suggests otherwise-that Strawn transferred Plaintiff so that he would not have to remain housed in the SHU. As Defendants point out, there is also no evidence to suggest that Strawn knew about Plaintiff s intent to file a lawsuit, so he cannot show that Strawn retaliated against him on this basis. Because Plaintiff s transfer benefited him by allowing him to be moved out of the SHU, as discussed, it also does not stand to reason that Plaintiffs transfer was retaliatory.
Because Plaintiff cannot satisfy the second or third elements of his prima facie case based on the evidence of record, the Motion for Summary Judgment should be granted as to Plaintiffs sole remaining claim.
2. Failure to Exhaust Administrative Remedies
In the alternative, Defendants also argue that Plaintiff failed to exhaust his administrative remedies as required under the Prison Litigation Reform Act (“PLRA”), and therefore summary judgment is also appropriate on this basis. ECF No. 129 at 2-4. Because Plaintiff cannot establish his First Amendment claim for the reasons discussed, it is not necessary to consider Defendants' affirmative defense under the PLRA.
In particular, Defendants argue that Plaintiff never filed a grievance regarding the subject of this lawsuit, as required under WCCF policy. ECF No. 129 at 2-4. In his response, Plaintiff contends that he did file grievances “related to the retaliation” and that he filed more grievances than the record reflects, but he does not produce any grievances that refer to either any alleged retaliation or his transfer. ECF No. 136 ¶ 4. He also argues that administrative remedies were not available to him because there is no carbon copy system; he did not receive sufficient responses and requests for grievance forms were delayed, deterring him from filing; he could not file grievances because he was frequently transferred to other prisons; and he did not have access to the WCCF grievance process at other facilities. ECF No. 137 at 2-3.
D. CONCLUSION
For the foregoing reasons, the Court should grant Defendants' Motion for Summary Judgment, ECF No. 126.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.