# FLOWERS v. WHEELER

> District Court, D. New Jersey · July 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10277239

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** July 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10277239

## How later opinions describe it (automated extraction)

- finding that defendant did “unspecified things to his food, delivered his mail a few hours late, and smiled at him vindictively” was insufficient to show an adverse action”
- noting that isolated verbal threats do not constitute retaliation

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
MALIK FLOWERS, :
:
Plaintiff, : Civ. No. 18-8315 (PGS)(DEA)
:
v. :
:
SCO B. WHEELER, et al., : OPINION
:
Defendants. :
___________________________________ :

PETER G. SHERIDAN, U.S.D.J.
I. INTRODUCTION
Plaintiff, Malik Flowers (“Plaintiff”), is proceeding with an amended civil
rights complaint (“Amended Complaint”) pursuant to 42 U.S.C. § 1983 against
Defendants Brian Wheeler, Daniel Lett-Brown, and Kevin Brady (hereinafter
“Defendants”). (ECF No. 24.) Presently pending before this Court is Defendants’
motion for summary judgment (ECF No. 78), Plaintiff’s response (ECF No. 83), and
Defendants’ reply (ECF No. 86). For the following reasons, the motion for summary
judgment is granted.
II. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is currently confined in Northern State Prison, Newark, New Jersey.
At the time of the events relevant here, Plaintiff was confined at New Jersey State
Prison (“NJSP”), Trenton, New Jersey. (See ECF No. 24, ¶ 7.) Plaintiff filed his
initial complaint in Mercer County Superior Court, which Defendants removed to
this Court on April 25, 2018. (ECF No. 1.) Plaintiff alleged Defendants engaged in

“deceptive practices” while he was confined at NJSP. (Id. ¶ 1.)
On September 27, 2018, the Court granted Defendants’ first motion to dismiss
and dismissed the complaint without prejudice. (ECF No. 17.) On April 29, 2019,

the Court accepted Petitioner’s Amended Complaint (ECF No. 24) for filing and
dismissed Plaintiff’s allegations that Defendants interfered with his access to the
courts by seizing and destroying his legal material. (ECF No. 23.) The Court
proceeded the remainder of the Amended Complaint. (Id.) Plaintiff filed a motion

for a temporary restraining order and a preliminary injunction on June 5, 2019. (ECF
No. 29.) Defendants subsequently filed a second motion to dismiss and an opposition
to Plaintiff’s motion for a temporary restraining order. (ECF No. 30.) Following oral

argument, the Court dismissed Plaintiff’s claims against Defendants in their official
capacity and for injunctive relief. (See ECF Nos. 36, 37.) The Court also found
Plaintiff failed to raise a claim against the State of New Jersey and the New Jersey
Department of Corrections. (ECF No. 36 and 7-8.) The Court proceeded only

Plaintiff’s retaliation claims against Defendants. (See ECF Nos. 36, 37.)
On January 11, 2021, Defendants filed their third motion to dismiss. (ECF No.
56.) The Court found that Plaintiff failed to comply with certain discovery demands

and limited Plaintiff’s case “solely to whether there is proof regarding three incidents
of retaliation, alleged to have occurred during the 60-day time period of August 1,
2017 through September 30, 2017 identified by Plaintiff.” (ECF No. 64 at 2.)

Plaintiff’s Amended Complaint raises a First Amendment retaliation claims
against Defendants. (ECF No. 24.) Specifically, Plaintiff claims that Defendants 1)
interfered with his use of the telephones, 2) interfered with his legal mail, and 3)

threatened him as retaliation for filing inmate grievances and this civil rights suit.
(See generally id.)
Plaintiff testified at his deposition that in August 2017, he submitted an inmate
grievance regarding Defendants reducing inmates shower and telephone time. (ECF

No. 78-3, Pl. Depo. at 26:14 to 30:3.) Plaintiff claims following the filing of that
grievance, Defendant Wheeler delivered Plaintiff’s legal mail to the wrong inmates
on two occasions. (ECF No. 78-2, Def. Stat. of Mat. Facts (“DSOMF”) ¶ 15.)

Plaintiff testified that the inmates returned the legal mail to Plaintiff on both
occasions. (Id.) Plaintiff also testified that during the time period when his two
pieces of legal mail were misdelivered, Plaintiff also received numerous pieces of
properly delivered legal mail. (Id. ¶ 16.) Plaintiff filed a grievance regarding his

misdelivered mail. (Id. ¶ 17.)
Plaintiff also claims that following the filing of his misdelivered mail
grievance, “Defendants Wheeler and Lett-Brown changed the telephone policy on

the housing unit adversely affecting all of the inmates on the unit, which created an
extremely hostile environment.” (Pl. Depo. at 33:3 to 34:12.) Plaintiff claims that
Defendant Lett-Brown pulled the phone cord out of the wall while Plaintiff was

speaking with a family member. (DSOMF ¶ 18.) Plaintiff testified at his deposition
that Defendant Wheeler told him he would not be allowed to use the telephone and
told another inmate not to provide Plaintiff with the phone. (Id. ¶ 19.) Plaintiff

alleges that Defendants Wheeler and Lett-Brown cut off Plaintiff’s use of the
telephone early. (Id. ¶ 20.) Plaintiff filed a grievance regarding the incident where
the phone cord was pulled out of the wall. (Id. ¶ 21.)
Finally, Plaintiff claims that after filing his initial complaint in this matter,

Plaintiff was at a kiosk when Defendant Wheeler approached him in a threatening
manner. (Pl. Depo. at 67:8-13.) Plaintiff testified at his deposition Defendant
Wheeler stated “so, you filed a lawsuit against me, huh?” and then stated “well, you

know I don’t have no 20 or $25,000 to get you. Where the f*ck you think I’m going
to get that from?” (Id. at 68-3-7.) Plaintiff claims that this interaction took place at a
prison kiosk and Defendant Wheeler said “you can write it on the kiosk if you want
to. I don’t give a f*ck about that.” (Id. at 68:19-20.) Plaintiff alleges that Defendant

Wheelers’ conduct and tone were threatening, although Defendant Wheeler did not
threaten physical harm. (DSOMF ¶24.)
Defendants filed the instant motion for summary judgment arguing for

dismissal of Plaintiff’s Amended Complaint. (ECF No. 78.) Plaintiff filed his
opposition to Defendants’ motion for summary judgment (ECF No. 83) and
Defendants filed a reply (ECF No. 86.) On December 5, 2022, the Court issued a

notice pursuant to Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018) and provided
the parties with an opportunity to submit supplemental briefing on the issue of
exhaustion. (ECF No. 88.) Defendants filed a supplemental brief regarding

exhaustion (ECF No. 89) and Plaintiff filed a response (ECF No. 90).
III. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where “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). A fact is material if it “might affect the outcome
of the suit under the governing law” and a dispute about a material fact is genuine
“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).
Disputes over irrelevant or unnecessary facts will not preclude the Court from
granting a motion for summary judgment. See id.
A party moving for summary judgment has the initial burden of showing the

basis for its motion and must demonstrate that there is an absence of a genuine issue
of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “A party
asserting that a fact [is not] genuinely disputed must support the assertion by . . .

citing to particular parts of materials in the record, including depositions, documents
. . ., affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.

56(c)(1)(A). After the moving party adequately supports its motion, the burden shifts
to the nonmoving party to “go beyond the pleadings and by her own affidavits, or
by the depositions, answers to interrogatories, and admissions on file, designate

specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at
324 (internal quotation marks omitted). To withstand a properly supported motion
for summary judgment, the nonmoving party must identify specific facts and
affirmative evidence that contradict the moving party. See Anderson, 477 U.S. at

250. “[I]f the non-movant’s evidence is merely ‘colorable’ or is ‘not significantly
probative,’ the court may grant summary judgment.” Messa v. Omaha Prop. & Cas.
Ins. Co., 122 F. Supp. 2d 523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at

249-50)). “If reasonable minds could differ as to the import of the evidence,”
however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-51.
“In considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the

nonmoving party’s evidence ‘is to be believed and all justifiable inferences are to be
drawn in his favor.” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)
(quoting Anderson, 477 U.S. at 255). The Court’s role in deciding a motion for

summary judgment is simply “to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249. Ultimately, there is “no genuine issue as to any
material fact” if a party “fails to make a showing sufficient to establish the existence

of an element essential to that party’s case.” Celotex, 477 U.S. at 322.
IV. DISCUSSION
Defendants argue they are entitled to summary judgment as to Plaintiff’s

retaliation claims because Defendants did not subject Plaintiff to any adverse
actions. (ECF No. 78-1 at 25-37.)
Prison officials may not interfere with a prisoner’s exercise of First
Amendment rights unless interference is reasonably related to a legitimate

penological interest, nor may prison officials retaliate against a prisoner for
exercising his First Amendment rights. See Turner v. Safley, 482 U.S. 78, 90 (1987).
An incarcerated plaintiff pleads a claim for retaliation by alleging that “(1) he

engaged in constitutionally protected conduct[,] (2) he suffered an adverse action[,]
and (3) the constitutionally protected conduct was a substantial or motivating factor
for the adverse action.” Brant v. Varano, 717 F. App’x 146, 149 (3d Cir. 2017); see
also Rauser v. Horn, 241 F.3d 330, 333–34 (3d Cir. 2001). An “adverse action” is

one that is “. . . sufficient ‘to deter a person of ordinary firmness’ from exercising
his constitutional rights.” Brant, 717 F. App’x at 149 (quoting Allah v. Seiverling,
229 F.3d 220, 225 (3d Cir. 2000)).
A prisoner’s ability to file grievances and lawsuits against prison officials is
a constitutionally protected activity for purposes of a retaliation claim. See Milhouse

v. Carlson, 652 F.2d 371, 373–74 (3d Cir. 1981); Mitchell v. Horn, 318 F.3d 523,
530 (3d Cir. 2003); Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016).
Defendants do not dispute that Plaintiff was engaged in the constitutionally

protected First Amendment activity of filing grievances. Nor do they dispute that
Plaintiff’s constitutionally protected conduct was a substantial or motivating factor
for the adverse action. Defendants only challenge whether Plaintiff was subjected to
adverse action, and the Court limits its analysis accordingly.

A prisoner must demonstrate that he “suffered some ‘adverse action’ at the
hands of prison officials.” Rauser, 241 F.3d at 333 (quoting Allah v. Seiverling, 229
F.3d 220, 225 (3d Cir. 2000)). This requirement is satisfied by showing adverse

action “sufficient ‘to deter a person of ordinary firmness’ from exercising his
[constitutional] rights.” Id. (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir.
2000). The retaliatory act may be actionable even though the act, standing alone,
does not transgress the constitution. Allah, 229 F.3d at 224. Moreover, the test for

adverse action is objective, not subjective, and whether the plaintiff was actually
deterred by the defendant’s retaliatory acts is not dispositive. See Citizens for a
Better Lawnside, Inc. v. Bryant, Civ. No. 05-4286(RBK), 2007 WL 1557479, at *5–

6 (D.N.J. May 24, 2007). Stated differently, the defendant does not escape liability
simply because his retaliatory acts failed to deter the plaintiff from exercising
constitutional rights. The proper focus is whether a person of “ordinary firmness”

would have been deterred. See Brooks v. Smith, Civ. No. 3:04-CV-2680, 2007 WL
3275266, at *9 (M.D. Pa. Nov. 6, 2007) (discussing prisoner’s claim for retaliatory
placement in SHU).

1. Interference with Legal Mail
With respect to Plaintiff claims that Defendant Wheeler retaliated against him
by interfering with his legal mail, Defendants argue that two pieces of legal mail
being misdelivered among numerous other pieces of legal mail that were properly

delivered is not conduct that would deter a person of reasonable firmness from
engaging in constitutional protected activities. (ECF No. 78-1 at 28.)
Plaintiff alleges on two occasions Defendant Wheeler delivered a piece of

Plaintiff’s legal mail to another inmate. (DSOMF ¶ 15.) Plaintiff claimed that both
times this happened, the other inmates brought the piece of mail to Plaintiff. (Id.)
Plaintiff acknowledged that around the same time that these pieces of legal mail were
misdelivered, Plaintiff received numerous pieces of properly delivered legal mail.

(Id. ¶ 16.)
Plaintiff has not provided evidence to show that the two occasions Defendant
Wheeler delivered Plaintiff’s legal mail to the wrong inmate was sufficient to show

an adverse action necessary to meet the second prong (adverse action) above.
Determination of this second factor is a fact-sensitive analysis. Allah, 229 F.3d at
225. The Third Circuit has held that the following actions were sufficient to establish

adversity: several months in disciplinary confinement; denial of parole, financial
penalties, and transfer to an institution whose distance made regular family visits
impossible; and placement in administrative segregation that severely limited access

to the commissary, library, recreation, and rehabilitative programs. Mitchell, 318
F.3d at 530; Rauser, 241 F.3d at 333; Allah, 229 F.3d at 225–26.
Plaintiff testified at his deposition that two pieces of mail were misdelivered
approximately one month apart to the wrong inmate and that during the same time

Plaintiff received numerous properly delivered pieces of legal mail. (Pl. Depo. at
17:8 to 23:25.) Plaintiff has not presented evidence to show that the inmates read his
legal mail or that there was any legal consequence from the delivery of his mail to

the wrong inmate. Plaintiff does not provide evidence in the record that these inmates
delayed delivery of Plaintiff’s mail to him once they improperly received it. Plaintiff
has not presented any evidence that would cause these two incidents of his legal mail
being delivered incorrectly, which Plaintiff admits took place a month apart, to rise

to the level of an adverse action. See Hardwick v. Packer, 546 F. App’x 73, 77 (3d
Cir. 2013) (finding that defendant did “unspecified things to his food, delivered his
mail a few hours late, and smiled at him vindictively” was insufficient to show an

adverse action”); Burgos v. Canino, 358 F. App’x 302, 307 (3d Cir.2009) (urinalysis,
harassment, threats, temporary inconveniences, single incident of food tampering,
and denial of recreation did not rise to level of adverse action against prisoner); see

also Toolasprashad v. Williams, 2009 WL 5103185, at *3 (D.N.J. Dec. 17, 2009)
(holding that 63-day delay in receipt of legal mail not sufficient to establish adverse
action absent injury); Jordan v. Wetzel, 2019 WL 1382512, at *5 (W.D.Pa. March

27, 2019) (“mere delay of less than two months [of legal mail] is not sufficient to
establish an adverse action for purposes of stating a retaliation claim.”)
Based on the foregoing, Plaintiff has failed to adequately present evidence to
show his legal mail allegations rise to the level of an adverse action required to show

a claim of retaliation. Therefore, Defendants’ motion for summary judgment is
granted regarding this issue and this claim is dismissed.
2. Verbal Threat

Regarding Plaintiff’s claim that Defendant Wheeler verbally threaten him,
Defendants argue that Defendant Wheeler’s alleged verbal threat would not deter a
person of ordinary firmness from exercising their constitutional right. (ECF No. 78-
1 at 36.) Defendant argues that threats alone do not constitute retaliation. (Id.)

Plaintiff alleges that Defendant Wheeler approached him after Plaintiff filed
his complaint in this matter, and stated “Well, you know I don’t have no 20 or
$25,000 to get you. Where the f*ck you think I’m going to get that from?” (DSOMF

¶ 22, citing Pl. Depo. at 68:5-7.) While Defendant Wheeler was speaking to Plaintiff
about his complaint, Plaintiff was at the kiosk filing a grievance. (Id. ¶23.) Defendant
Wheeler stated to Plaintiff, “You can write on the kiosk if you want to. I don’t give

a fuck about that.” (Id., citing Pl. Dep. 68:9-20.) Plaintiff admitted at his deposition
that Defendant Wheeler did not say he was physically going to hurt Plaintiff. (Pl.
Depo. at 71:11-22.) However, Plaintiff testified at his deposition that Defendant

Wheeler’s actions and his voice were in a “threatening tone.” (Id. at 71:24-25.)
Plaintiff’s retaliation claim fails to the extent that it is based on verbal
harassment, as the harassment alleged is not a sufficiently adverse action to support
a retaliation claim. Verbal harassment may be sufficiently adverse to support a

retaliation claim if the plaintiff has been subjected to “an entire campaign of
harassment which though trivial in detail may have been substantial in gross.”
Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000). But isolated incidents of

verbal retaliation were a non-recurring incident and are not sufficiently adverse
actions to support a retaliation claim. See Burgos v. Canino, 358 F. App’x 302, 306
(3d Cir. 2009) (noting that isolated verbal threats do not constitute retaliation); see
Green v. Wetzel, 2019 WL 1426955, at *8 (W.D. Pa. Mar. 29, 2019) (“Because

verbal threats and comments are not adverse actions, Santos’ sarcastic comments
during Plaintiff’s meeting are not actionable”) (citing Chruby v. Kowaleski, 534 Fed.
App’x. 156, 161 (3d Cir. 2013)). Plaintiff’s allegations that Defendant Wheeler used

a threatening tone when telling Plaintiff that he did not have $25,000 to resolve the
litigation is insufficient to show an adverse action as required to state a retaliation
claim. As such, a reasonable finder of fact could not conclude that Plaintiff suffered

an adverse action when measured against the applicable legal standard. Therefore,
Defendants’ motion to dismiss will be granted as to this issue.
3. Telephone Access

Regarding Plaintiff’s allegations that Defendants Wheeler and Lett-Brown
stopped him from using the telephone in retaliation for filing grievances, Defendants
argue Plaintiff cannot show these actions raise to the level of an adverse action. (ECF
No. 78-1 at 30-32.)

Plaintiff alleges that on several occasions, Defendants Wheeler and Lett-
Brown prevented Plaintiff from using the telephone in retaliation for filing
grievances. (DSOMF ¶ 18-20.) Plaintiff testified at his deposition that on one

occasion, Defendant Wheeler told him he would not be allowed to use the telephone
and told another inmate not to provide Plaintiff with the phone. (DSOMF ¶ 19, citing
Pl. Depo. at 37:24 to 38 4.) Plaintiff also alleged that on other occasions, Defendants
Wheeler and Lett-Brown cut off Plaintiff’s phone time at 8:00 instead of 8:30.

(DSOMF ¶ 20, citing Pl. Depo. 33:23 to 34:1.) Plaintiff testified that on another
occasion Defendant Lett-Brown pulled the phone cord out of the wall while the
Plaintiff was speaking to his aunt. (DSOMF ¶ 18, citing Pl. Depo. at 12:25 to 13:2,

38:24 to 39:5.)
Actions deemed sufficiently adverse to sustain a retaliation claim in the prison
context are those such as being placed in disciplinary confinement or administrative

segregation; denied parole; transferred to an institution whose distance made regular
family visits impossible; suffering some sort of financial penalty; or being severely
limited access to the commissary, library, recreation, and rehabilitative programs.

See Dunbar v. Barone, 487 F. App’x 721, 723 (3d Cir.2012), citing Mitchell, 318
F.3d at 530; Rauser, 241 F.3d at 333. In Allah, the Third Circuit found adverse action
when the prisoner had been placed in administrative segregation, which resulted in
“reduced access to phone calls, reduced access to the commissary, reduced access to

recreation, confinement in his cell for all but five hours per week, denial of access
to rehabilitative programs and, significantly, inadequate access to legal research
materials and assistance.” 229 F.3d at 225. The Third Circuit has also found where

a plaintiff was denied opportunity to telephone family for a full year was enough to
show an adverse action. Montgomery v. Ray, 145 F. App’x 738, 741 (3d Cir. 2005)
Plaintiff does not allege that he was cut off from all contact with the outside
nor does Plaintiff allege that he was completely denied use of the telephone. Rather,

Plaintiff alleges that Defendants created their own policy reducing the amount of
telephone time available to Plaintiff and on one occasion they abruptly ended
Plaintiff’s telephone call. This action does not resemble to cases in which the Third

Circuit found adverse action. Unlike the plaintiff in Allah whose reduced telephone
access was coupled with administrative segregation that resulted in reduced access
to the commissary, reduced access to recreation, confinement in his cell for all but

five hours per week, denial of access to rehabilitative programs and, significantly,
inadequate access to legal research materials and assistance, Plaintiff’s claim here
involved a temporary reduction in telephone time.

Plaintiff testified at his deposition that “when you start creating your own
policies, that’s when you start cr[e]ating a hostile environment[] within the tier or
wherever . . . because now you get rebellion[n] from the inmates . . . everybody
wants to know why you do this . . . if there is a certain person that you targeting . . .

so you cause a hostile environment to that person.” (Pl. Depo. at 34:3-12.) Plaintiff’s
reply brief argues that Defendants attempted to put other inmates against Plaintiff
with the altered telephone policy, creating a hostile environment. While Plaintiff

alleges Defendants attempted to create a hostile environment, he fails to provide
evidence regarding if any inmates actually acted hostile towards Plaintiff. Plaintiff
does not allege any specific facts regarding any inmates or their treatment towards
Plaintiff. More importantly, Plaintiff fails to provide evidence of record to show a

hostile environment amongst his fellow inmates. At summary judgment, the
allegations in a plaintiff’s brief do not create a dispute as to material issues of fact.
Orsatti v. N. J. State Police, 71 F.3d 480, 484 (3d Cir. 1995) (“[A] plaintiff cannot

resist a properly supported motion for summary judgment merely by restating the
allegations of his complaint, but must point to concrete evidence in the record that
supports each and every essential element of his case.”). Plaintiff has failed to point

to evidence of record that would cause his brief reduction in telephone time to rise
to the level of an adverse action to support a retaliation claims. Therefore,
Defendants are also entitled to summary judgment on this portion of Plaintiff’s

retaliation claim.
V. CONCLUSION
For the reasons expressed above, the Court will grant Defendants’ motion for
summary judgment (ECF No. 78) and will dismiss Plaintiff’s sole remaining claims

of retaliation. An appropriate order follows.

s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10277239. Public record. Not legal advice.