# SIMMS v. FERGUSON

> District Court, E.D. Pennsylvania · July 29, 2021

URL: https://www.frixlaw.com/law-library/cases/10401434

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** July 29, 2021
- **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/10401434

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANDREW SIMMS, :
: CIVIL ACTION
Plaintiff :
:
vs. : NO. 20-CV-1410
:
TAMMY FERGUSON, et. al., :
:
Defendants :

MEMORANDUM AND ORDER

JOYNER, J. July 28 , 2021

This civil rights action is presently before this Court on
Motion of Defendants for Summary Judgment and/or Partial Summary
Judgment.1 As explained in the pages which follow, the Motion
shall be granted in part.
History of the Case
Plaintiff Andrew Simms is a Pennsylvania state prisoner who
is incarcerated at the State Correctional Institution ("SCI")
Phoenix in Collegeville, Montgomery County, Pennsylvania where
he is serving a sentence for attempted murder. Plaintiff's
complaint alleges that on May 25, 2019, after being escorted

1 In their motion, Defendants acknowledge that Plaintiff’s excessive force
claims against Defendants Hunter and McLean present genuine issues of
material fact and thus at least as to these defendants, the motion seeks only
partial summary judgment.
back to his cell on the Restricted Housing Unit following a
haircut, he was informed that his cell was to be subjected to a
search. The cell was then searched by three of the Defendants -

Corrections Sergeant Hunter, and Corrections Officers Martinez
and McLean, during the course of which items were found which
the officers believed to be contraband. Plaintiff, who had
remained handcuffed and had been standing outside the cell door,
was directed to come inside to identify the items found.
Plaintiff responded that the items were not contraband but were
just trash and he proceeded to put the items in the toilet.
(Compl., ¶s 27-28). Plaintiff alleges that Defendant Hunter
then punched him in the face, climbed on him, "choked him using
a martial arts style neck lock," and told him "that he would
kill him and make it look like a suicide," while Defendants
McClean and Martinez first "body slammed" him and then

"proceeded to punch and kick him repeatedly in the back."
(Compl., ¶s 29-31). “Plaintiff was then escorted to the medical
unit where he was treated for injuries to his back, neck, mouth
as well as cuts to his wrist” which plaintiff contends “resulted
in permanent scars.” (Compl., ¶ 34).
According to the complaint, upon his return to his
cellblock, Plaintiff reported the abuse which he had suffered to
Lieutenant Estrada and requested that he be provided with
grievance forms. In response, Defendant Hunter is alleged to
have informed Plaintiff that “he knew how to fix a snitch,” and
had Plaintiff moved to a sensory deprivation cell2, where he
ultimately remained until September 26, 2019. (Compl., ¶s 18,
35-36). Some three days later, on May 28th, Plaintiff reported

the abuse and Hunter’s retaliation to the Unit Manager,
Defendant Andretta Golden but she refused to move him to a
different cell. (Compl., ¶ 37).
Plaintiff alleges still other incidents of retaliation
against him by Defendants, purportedly for his pursuit of
grievances against them. These include: (1) being denied access
to shower facilities from May 27 – July 5, 2019; (2) being
denied access to and the opportunity to sign up for
yard/exercise time from May 31 – July 9, 2019; (3) having been
charged with a misconduct as the result of a June 7, 2019 search
of his property by Defendants Kayden, Mejias, Webster and Lahr

which allegedly turned up MDMA; and (4) the destruction of his
property, including legal documents and research, family
photographs and address book by Defendant Hunter on July 19,
2019. (Compl., ¶s 38-40, 43, 45). Plaintiff had a disciplinary
hearing before Hearing Examiner Defendant Joseph Yodis relative
to his misconduct charge for the contraband found in his

2 Plaintiff appears to define a sensory deprivation cell to mean a cell
which is “atypical of the average conditions in the RHU” since his “cell door
did not afford him a view of the clock or television and there was no natural
lighting, because the only outside window had been completely tinted in order
to prevent individuals from seeing in or out.” (Compl., ¶ 37).
property on June 10, 2019, at the conclusion of which Plaintiff
was found guilty and sentenced to 30 more days of disciplinary
confinement. (Compl., ¶ 44).

Plaintiff initiated this action in the Court of Common
Pleas of Montgomery County Pennsylvania on February 6, 2020
alleging that, in taking the foregoing actions against him,
Defendants violated his constitutional rights under the 1st, 8th
and 14th Amendments to the U.S. Constitution and seeking redress
pursuant to 42 U.S.C. § 1983. Defendants removed the case to
this Court on March 12, 2020. Discovery has now concluded and
Defendants move for the entry of judgment in their favor as a
matter of law in accordance with Fed. R. Civ. P. 56.
Standards for Ruling Upon Summary Judgment Motions
The relevant principles to be applied in adjudicating
motions for summary judgment are articulated in Fed. R. Civ. P.

56(a), which reads:
(a) Motion for Summary Judgment or Partial Summary
Judgment. A party may move for summary judgment,
identifying each claim or defense – or the part of each
claim or defense – on which summary judgment is sought.
The 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.
The court should state on the record the reasons for
granting or denying the motion.

The standard for application of these principles is well
and firmly established. “Under that standard, summary judgment
is appropriate only if, construed in the light most favorable to
the non-moving party, the record shows that there is no genuine
dispute of material fact and that the moving party is entitled
to judgment as a matter of law.” Ali v. Woodbridge Township

School District, 957 F.3d 174, 179 (3d Cir. 2020). “`All
justifiable inferences are to be drawn in the nonmovant’s favor’
but the ‘mere existence of some evidence in support of the
nonmovant is insufficient to deny a motion for summary judgment;
enough evidence must exist to enable a jury to reasonably find
for the nonmovant on the issue.’” Wharton v. Danberg, 854 F.3d
234, 241 (3d Cir. 2017)(quoting Giles v. Kearney, 571 F.3d 318,
322 (3d Cir. 2009)). “A fact is only material if it might
affect the outcome of the suit under the governing law.” Ali,
957 F.3d at 180(citing Scheidemantle v. Slippery Rock Univ.
State Sys. Of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006)).
Discussion

As outlined above, this is an action under 42 U.S.C. § 19833
for the alleged violation of a number of Plaintiff’s civil

3 Section 1983 provides as follows in relevant part:

Every person who, under color of any statute, ordinance, regulation,
custom or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States
or any person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress, except that in any
action brought against a judicial officer for an act or omission taken
in such officer’s judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was violated or declaratory relief
was unavailable. …
rights by the named defendants. “To state a claim under § 1983,
a plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States and must show that

the alleged deprivation was committed by a person acting under
color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S. Ct.
2250, 101 L. Ed.2d 40 (1988). Although “Section 1983, of
course, is a statute, … it only provides a remedy and does not
itself create any substantive rights.” Wilson v. Garcia, 471
U.S. 261, 278, 105 S. Ct. 1938, 1948, 85 L. Ed.2d 254 (1985).
Its essence is to “create[] a cause of action where there has
been injury, under color of state law, to the person or to the
constitutional or federal statutory rights which emanate from or
are guaranteed to the person.” Id.

At the outset, we shall grant the motion with regard to
Corrections Officer Miguel Martinez as, by Plaintiff’s own
acknowledgement during his deposition, he named the wrong
Martinez as a defendant.4 Accordingly, summary judgment is
hereby entered in favor of Miguel Martinez as a matter of law
and he is dismissed from the case.

4 Indeed, Plaintiff stated at his April 13, 2021 deposition: “…I don’t think
it’s the Martinez that’s down there, I think I got the wrong name. I think
his name is actually Alex, I have to switch that.” (Pl’s 4/13/21 Dep., at p.
9, lines 8-11, a copy of which is attached to Defendants’ Motion for Summary
Judgment as Exhibit “A”). See also, Pl’s Dep., at pp. 28, 36. Plaintiff
never did move or otherwise make any effort to amend or correct this mistake
and given that the statute of limitations has now run, we conclude that
dismissal of this defendant is appropriate.
A. Plaintiffs’ Official Capacity Claims

Defendants first seek judgment on all of Plaintiff’s claims
against each of them in their official capacity for the reason
that such claims are barred by operation of the Eleventh
Amendment. We agree.
“The Eleventh Amendment prohibits the commencement or
prosecution of any suit against one of the United States by
citizens of another State or citizens or subjects of any foreign
State.” Ex parte Young, 209 U.S. 123, 149, 28 S. Ct. 441, 52 L.
Ed. 714 (1908). By this language, the Eleventh Amendment bars
suits in federal courts by private parties against states, state
agencies, and state officials in their official capacities
absent consent by the state. Floyd v. Attorney General of
Pennsylvania, No. 17-2823, 722 Fed. Appx. 112, 114, 2018 U.S.

App. LEXIS 442, 2018 WL 317266 (3d Cir. Jan. 8, 2018). Hence,
“[a]s a general rule, ‘federal courts may not entertain a
private person’s suit against a State unless the State has
waived its immunity or Congress has permissibly abrogated it.’”
Delaware River Joint Toll Bridge Commission v. Secretary,
Pennsylvania Department of Labor & Industry, 985 F.3d 189, 193
(3d Cir. 2021)(quoting Waterfront Commission of N.Y. Harbor v.
Governor of N.J.¸ 961 F.3d 234, 238 (3d Cir. 2020) and Va. Off.
For Prot. & Advoc. V. Stewart (VOPA), 563 U.S. 247, 254, 131 S.
Ct. 1632, 179 L. Ed.2d 675 (2011)).
There is, however, an important exception under the

equitable powers of the federal courts pursuant to which a
plaintiff may bring a federal suit against state officials. Id.
(citing Ex Parte Young, supra.) Under this exception which was
first recognized in Ex Parte Young, the court must “conduct a
straightforward inquiry into whether the complaint alleges an
ongoing violation of federal law” and whether it “seeks relief
properly characterized as prospective.” Id, 985 F.3d at 193-
194(quoting Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535
U.S. 635, 645, 122 S. Ct. 1753, 152 L. Ed.2d 871 (2002)). The
exception “is narrow: [i]t applies only to prospective relief,
does not permit judgments against state officers declaring that
they violated federal law in the past, and has no application in

suits against the States and their agencies, which are barred
regardless of the relief sought.” Puerto Rico Aqueduct & Sewer
Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S. Ct.
684, 688, 121 L. Ed.2d 605 (1993). Indeed, under the Ex Parte
Young exception, suits for prospective relief such as those
seeking injunctions “are deemed to be against officials and not
the States or their agencies, which retain their immunity
against all suits in federal court.” Id; Perez v. Ci, Civ. A.
No. 20-CV-4562, 2020 U.S. Dist. LEXIS 236198, n. 1, 2020 WL
7384888 (E.D. Pa. Dec. 16, 2020)(“The Eleventh Amendment does
not bar claims for prospective relief against state officials,
provided the state is not the real party in interest, because

such claims are not treated as claims against the state.”).
Here, the grounds underlying Plaintiffs’ claims against the
defendants is clearly not prospective in nature. Although
Plaintiff does ask that he be awarded a preliminary and
permanent injunction ordering Defendants to cease their
retaliation against him and ordering an expungement of the
misconduct from his prison record, there is nothing in the
complaint or in the record that suggests that the alleged
retaliation is still ongoing or that it continued past June 2019
such that injunctive relief would be warranted. In all other
respects, Plaintiff is seeking damages to compensate him for the
physical injuries and property destruction which he allegedly

sustained as a result of the defendants’ actions in May and June
of 2019. As such, we find that Plaintiff’s claims against
Defendants in their official capacities are really claims
against the State and in the absence of any showing of a waiver
of immunity, the protections of the Eleventh Amendment remain.
For these reasons, judgment is entered in favor of Defendants on
Mr. Simms’ claims against them in their official capacities.
B. First Amendment Retaliation Claims
Defendants Darryl Bradley, Richard Kayden, Jose Mejias,
Matthew Lahr, Francis Webster and Joseph Yodis next seek the

entry of judgment in their favor on Plaintiff’s claims that they
retaliated against him for filing grievances in violation of his
rights under the First Amendment. Again, the grounds for
Plaintiff’s First Amendment claims against these defendants are
the deprivation of his exercise/yard and shower privileges, his
placement in a so-called sensory deprivation cell, his receipt
of threats of harm and misconducts if he did not rescind his
grievances, and the refusal/failure to act on the grievances.
Plaintiff contends that Defendant Yodis retaliated against him
by finding him guilty of a misconduct and sentencing him to 30
days of disciplinary confinement.
The First Amendment guarantees “the right of the people …

to petition the Government for a redress of grievances.” U.S.
Const. Amend. 1. The First Amendment of course, is applicable
to the States under the Due Process Clause of the Fourteenth
Amendment. Eck v. Oley Valley School District, Civ. A. No. 19-
1873, 2019 U.S. Dist. LEXIS 137743 at *9, 2019 WL 3842399 (E.D.
Pa. Aug. 15, 2019)(citing Packingham v. North Carolina, 137 S.
Ct. 1730, 1733, 198 L. Ed.2d 273 (2017)). “The right to petition
that the First Amendment protects ‘extends to all departments of
the Government, including administrative agencies… and
encompasses formal and informal complaints about matters of
public and private concern.” Adams v. Ross Township, No. 2:20-
cv-00355, 2021 U.S. Dist. LEXIS 49320 at *12, 2021 WL 972520

(W.D. Pa. Mar. 16, 2021)(quoting Arnealt v. O’Toole, 513 Fed.
Appx. 195, 198, n.2 (3d Cir. 2013) and Cole v. Encapera, 2015
U.S. Dist. LEXIS 166396, 2015 WL 8528449, at *5 (W.D. Pa. Dec.
11, 2015)). Indeed, “the law is settled that as a general
matter the First Amendment prohibits government officials from
subjecting an individual to retaliatory actions, including
criminal prosecutions, for speaking out.” Hartman v. Moore, 547
U.S. 250, 256, 126 S. Ct. 1695, 1703, 164 L. Ed.2d 441 (2006).
As with anyone else, retaliating against a prisoner for the
exercise of his constitutional rights is unconstitutional.
Bistrian v. Levy, 696 F.3d 352, 376 (3d Cir. 2012). “To prevail
on a First Amendment retaliation claim under 42 U.S.C. § 1983, a

plaintiff must prove that (1) he engaged in ‘constitutionally
protected conduct,’ (2) the defendant engaged in ‘retaliatory
action sufficient to deter a person of ordinary firmness from
exercising his constitutional rights,’ and (3) ‘a causal link
existed between the constitutionally protected conduct and the
retaliatory action.’” Baloga v. Pittston Area School District,
927 F.3d 742, 752 (3d Cir. 2019)(quoting Palardy v. Township of
Millburn, 906 F.3d 76, 80-81 (3d Cir. 2018), cert. denied, No.
18-830, 139 S. Ct. 2011, 204 L. Ed.2d 215 (May 13, 2019) and
Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006)). It is
of course axiomatic that "a defendant in a civil rights action
must have personal involvement in the alleged wrongs" and that

personal involvement can be shown through evidence "of
participation or actual knowledge and acquiescence." Thomas v.
Tice, 948 F.3d 133, 144 (3d Cir. 2020); Jones v. Kirchenbauer,
No. 21-1123, 2021 U.S. App. LEXIS 17486 at *5 (3d Cir. June 11,
2921); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988).
1. Defendant Darryl Bradley
Applying these legal precepts to the matter at bar,
Defendants first seek the entry of summary judgment in favor of
Darryl Bradley who Plaintiff alleged on June 7, 2019 had
threatened him with charges if he did not withdraw his
grievances and who allegedly never answered the grievance

Plaintiff filed on June 6, 2019. The complaint avers that
because Plaintiff did not withdraw the grievances, he received a
misconduct report charging him with the possession of MDMA that
same day. (Compl., ¶s 22, 23, 42, 52).
In his deposition, Plaintiff clarified that his claim
against "Deputy Superintendent Bradley, who is in charge of
security" is premised upon his belief that he conspired with
Defendants Kayden, Webster, Mejias and Lahr, who filed the
misconduct for the MDMA as it was filed "directly after" he had
this conversation with Bradley. Plaintiff also believes that
Bradley “sent a substance that he says was recovered from
[plaintiff] to the state police and those were where the charges

were stemmed from … so that was the substance that was recovered
on May 25th.” (Pl’s Dep., attached as Exhibit “A” to Def’s
Motion for Summary Judgment, pp. 32, 46-47). Although Plaintiff
testified that several other inmates witnessed/overheard his
conversation with Bradley and could vouch for him, he has not
provided any evidence other than his own deposition testimony to
support these allegations.
Defendant Bradley, for his part, has provided a signed and
sworn declaration in which he states that he is the Deputy
Superintendent for Internal Security at SCI Phoenix and SCI
Chester and that in those roles, he oversees the internal
security departments which includes internal investigations.

After reviewing the files on Plaintiff, Bradley attested that on
May 25, 2019, Plaintiff was escorted back to his cell where
Defendants Hunter and McLean and Alexander Martinez were
present, that K2 (synthetic marijuana) was found in the cell
which Plaintiff attempted to destroy by flushing it, and that
the three officers prevented him from doing so by “assist[ing]
him to the ground and restrain[ing] him.” (Exhibit "B" to Def's
Motion for Summary Judgment, ¶s 1, 3, 4(a) – (f)). Defendant
Bradley’s Declaration further states that Plaintiff has been
criminally charged for possession of the K2, that Plaintiff
filed a grievance against the officers for abuse which was
subsequently investigated and found unsubstantiated and that he

"never informed Lahr, Mejias, Kayden and Webster that Plaintiff
had filed any grievances or complained about any allegations of
abuse." (Exhibit "B" to Def's Motion for Summary Judgment, ¶s
4(h), (i), (j), (m)).
Finally, in addition to attaching copies of the
investigation into Plaintiff’s abuse complaint conducted by Lt.
John Everding, Defendant Bradley’s Declaration attests that on
June 7, 2019 another search of Plaintiff’s property in the
Restricted Housing Unit (“RHU”) was conducted by Officers Lahr,
Mejias, Kayden and Webster during which Officer Lahr’s K-9 (dog)
alerted and the illegal drug MDMA was found on a yellow piece of
paper in Plaintiff’s possession. As a result of this finding,

misconduct proceedings were initiated against Plaintiff by
Defendant Officer Kayden. (Exhibit “B,” ¶s (k), (l), (n)).
Bradley stated that he had no involvement in initiating these
misconduct proceedings. (Exhibit “B,” ¶ (o)).
In view of the lack of evidentiary support for Plaintiff’s
version of events, we must agree that Defendant Bradley is
entitled to the entry of judgment in his favor at this time. To
be sure, while Plaintiff may have sufficiently alleged a cause
of action against Bradley, the onus is now upon him to provide
concrete evidence of the truth of the averments contained in his
complaint and a showing that Bradley himself participated in a
pattern of retaliatory conduct against Plaintiff for filing a

grievance or that he actually knew that Plaintiff was being
retaliated against by the other defendants or acquiesced in
their retaliatory actions. Plaintiff has not provided the
necessary evidence and accordingly, the motion for summary
judgment shall be granted with respect to Darryl Bradley.
2. Defendants Kayden, Mejias, Lahr and Webster
Defendants next seek the grant of summary judgment in favor
of Defendants Richard Kayden, Jose Mejias, Matthew Lahr and
Francis Webster for the reason that Plaintiff can show no
evidence that they were aware of his grievances as is necessary
to make out a cause of action for unlawful retaliation.
Evidence of knowledge of the filing of grievances by an

inmate with prison administrators does indeed appear to be a
necessary precondition to successful prosecution of a
retaliation claim. See, Booth v. King, No. 06-1552, 228 Fed.
Appx. 167, 172, 2007 U.S. App. LEXIS 8327 (3d Cir. 2007)
(affirming grant of summary judgment where plaintiff failed to
provide any evidence that the parties responsible for searching
his cell, confiscating his property and approving the
disciplinary sanction against him had any knowledge of the
grievances he filed with prison administrators or that the
administrators directed the search and seizure or had any
knowledge that it had occurred). See also: McKinney v. Perez,
2019 U.S. Dist. LEXIS 83123 at *8 - *9 (D.N.J. May 5, 2019)(mere

allegations that Plaintiff “had words” with Defendants about his
medical treatment and “immediately filed a grievance after he
got back to the unit” held insufficient to establish the
necessary causal link between Plaintiff’s protected behavior and
the alleged retaliatory act).
However, it has been said that in some cases “the requisite
causal connection can be demonstrated by ‘(1) an unusually
suggestive temporal proximity between the protected activity and
the allegedly retaliatory action, or (2) a pattern of antagonism
coupled with timing to establish a causal link.’” Obiegbu v.
Werlinger, No. 13-1662, 581 Fed. Appx. 119, 122, 2014 U.S. Dist.
LEXIS 17308, 2014 WL 4401647 (3d Cir. Sept. 8, 2014)(quoting

Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d
Cir. 2007)). But “even if timing alone could ever be sufficient
to establish a causal link, the timing of the alleged
retaliatory action must be unusually suggestive of retaliatory
motive before a causal link will be inferred.” Estate of
Marasco, 318 F.3d 497, 512 (3d Cir. 2003).
In this case, Plaintiff asserts that on June 7, 2019
Defendant Bradley went to his cell door and told him that if he
didn’t withdraw his grievances, he would “have him charged.”
(Compl., ¶ 23). Plaintiff refused to do so and “on that same
day,” he “received a misconduct report alleging “that a security
team consisting of CO Kayden, CO Mejias, CO Webster, and K-9

Sergeant Lahr discovered ‘MDMA’ in his property.” (Compl., ¶s
23, 43). The Complaint further avers that as of June 7th,
Plaintiff “had not had access to his property for 68 days” as
“it had been stored in the medical triage unit on A-unit since
April 1, 2019 and had been searched twice prior to this incident
and inventoried by CO Snyder.” (Compl., ¶ 43).
A copy of the misconduct report dated June 7, 2019 is
attached to the Declaration of Joseph Yodis (Exhibit “C” to
Def’s Motion for Summary Judgment) and it does indeed bear out
Plaintiff’s allegations that his property was searched on that
date where it was stored in the Property Room on A-Unit. The
report states that Officers Kayden, Webster, Mejias and K-9 Sgt.

Lahr conducted the search at approximately 11:50 a.m., that the
canine alerted to Mr. Simms’ property and that a yellow
page/letter containing a white powdery substance was discovered
which then tested positive for MDMA using a rapid scan system
itemizer (ION SCAN).
Plaintiff testified in his deposition that he has never
spoken with Mejias, Lahr or Webster, and that Officer Kayden
told him that he doesn’t remember being present during this
search. (Exhibit “A,” pp. 48-49). Because Officer Mejias is
the lead witness against Plaintiff in the proceeding against him
that Bradley initiated four days after threatening to charge him
if he didn’t withdraw his grievances, Plaintiff admitted that he

can only speculate and assume that these officers conspired with
Bradley - he doesn’t “know for a fact” that these officers knew
that he had filed grievances. (Exhibit “A,” pp. 48-50). In
addition, Bradley attested in his Declaration that he “never
informed Lahr, Mejias, Kayden, and Webster that Plaintiff had
filed any grievances or complained about any allegations of
abuse.” (Exhibit “B,” ¶ 4(m)).
While all of this militates in favor of granting summary
judgment in favor of these defendants, we note that no evidence
from any of these four defendants themselves has been provided.
It may be well and good that Defendant Bradley did not inform
them that Plaintiff had filed grievances, but this does not end

the matter. Indeed, it is entirely plausible that these
officers may very well have learned through other channels and
other individuals that Plaintiff was endeavoring to obtain
relief for what he believed were violations of his
constitutional rights through the prison grievance procedure.
Further, we find the timing of Defendant Bradley’s alleged
appearance at Plaintiff’s cell door and the search of his
property and receipt of the misconduct for the MDMA possession
to be quite suspicious, given that there were hours at most
between the two events and that Plaintiff was not and had not
for some time been in possession of the property which was
searched. Again, at summary judgment the moving party bears the

initial burden of demonstrating that there is no genuine issue
of material fact and that the movant is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(a). It is only once a
properly supported motion is made that the burden shifts to the
non-moving party who must then set forth specific facts showing
that there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2502, 91 L. Ed.2d 202
(1986); Noble v. City of Camden, 112 F. Supp. 3d 208, 219 (D.
N.J. 2015). And, in reviewing summary judgment motions, the
court is required to examine the evidence in the light most
favorable to the non-movant resolving all reasonable inferences
in favor of that party. Applying these well-settled principles

and, mindful that Plaintiff is an incarcerated individual
proceeding pro se, we find that genuine issues of material fact
still exist as to whether Defendants Kayden, Mejias, Webster and
Lahr knew that Plaintiff had filed grievances when they
conducted the search of his property and/or that Plaintiff’s
grievances were the impetus for the search and his subsequent
receipt of a misconduct. Accordingly, the Defendants’ motion is
denied as to Plaintiff’s claims against these four officers.
3. Defendant Joseph Yodis
Plaintiff has similarly claimed that Hearing Officer Yodis
retaliated against him for exercising his right to seek redress

from the prison by using prison grievance procedures by finding
him guilty of misconduct and sentencing him to an additional 30
days of disciplinary confinement. Summary judgment is now being
sought as to this Defendant for the reason that he would have
found Plaintiff guilty even if he had not filed grievances.
Again, "[a] prisoner alleging that prison officials have
retaliated against him for exercising his constitutional rights
must prove that: (1) the conduct in which he was engaged was
constitutionally protected; (2) he suffered 'adverse action' at
the hands of prison officials; and (3) his constitutionally-
protected conduct was a substantial or motivating factor in the
decision to discipline him." Carter v. McGrady, 292 F.3d 152,

157-158(3d Cir. 2002)(citing Mount Healthy Bd. of Educ. v.
Doyle, 129 U.S. 274, 287, 97 S. Ct. 568, 50 L. Ed.2d 471 (1977)
and Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)). "Once a
prisoner has made his prima facie case, the burden shifts to the
defendant to prove by a preponderance of the evidence that it
'would have made the same decision absent the protected conduct
for reasons reasonably related to penological interest.'" Id,
at 158. On this point, courts "evaluate 'the quantum of
evidence' of the misconduct to determine whether the prison
officials' decision to discipline an inmate for his violations
of prison policy was within the broad discretion we must afford
them." Rivera v. McCoy, No. 17-3202, 729 Fed. Appx. 142, 144,

2018 U.S. App. LEXIS 7503, 2018 WL 1468352 (3d Cir. Mar. 26,
2018)(quoting Watson v. Rozum, 834 F.3d 417, 426 (3d Cir.
2016)). "[M]ost prisoners' retaliation claims will fail if the
misconduct charges are supported by the evidence." Id, (quoting
Watson, at 425).
In support of the instant motion, Defendant Yodis has
provided his sworn declaration in which he attests that is a 23
year-employee of the Pennsylvania Department of Corrections, he
is the Hearing Examiner for SCI Phoenix, and that a hearing was
held on the misconduct charge (No. D257142) filed against
Plaintiff by CO Kayden for possession of MDMA on June 10, 2019.
Plaintiff was allowed to give his version of events, which he

did in a written version, but Defendant Yodis attests that he
nevertheless found him guilty "because there was a preponderance
of evidence that existed that he had committed the charges and I
relied on the Rapid Scan System Itemizer (Ion Scan) and the
photos." (Exhibit "C" to Def's Motion for Summary Judgment, ¶
4(f)). Mr. Yodis further declared:
"The fact he had filed grievances did not play a part in my
decision to find him guilty. I declare under penalty of
perjury that the foregoing facts are true and correct to
the best of my knowledge."
Exhibit "C," ¶ 4(g).

Plaintiff has produced no evidence to rebut this
declaration and we therefore find that sufficient evidence
exists to substantiate the charge that MDMA was indeed found in
Plaintiff's property and that this was the basis upon which he
was found guilty of misconduct. Insofar as keeping illegal
drugs out of prisons is indeed a valid penological interest,
summary judgment is appropriately entered in favor of Defendant
Yodis.
4. Defendants Tammy Ferguson and Andretta Golden.
Defendants next seek the entry of judgment in favor of
Defendants Tammy Ferguson and Andretta Golden, who are the
Prison Superintendent and Unit Manager of A Block, respectively,
on several grounds. First, Defendants submit that neither
Golden nor Ferguson had any personal involvement in Plaintiff

having been placed in the Restricted Housing Unit or in his
having been deprived of showers and exercise. Second, they
allege that Plaintiff in fact received due process for his
misconduct; and third, as to the constitutional claim which
arises out of his cell placement, neither a non-tinted cell
window nor access to television are necessities of life.
To reiterate, "a defendant in a civil rights action must
have personal involvement in the alleged wrongs" which may be
shown through evidence "of participation or actual knowledge and
acquiescence." Jones v. Kirchenbauer, supra; Gerhold v. Wetzel,
No. 20-3398, 2021 U.S. App. LEXIS 15721 at *5, 2021 WL 2135950
(3d Cir. May 26, 2021)(both citing Rode v. Dellarciprete, 845

F.2d 1195, 1207 (3d Cir. 1988). Furthermore, "[t]o prevail
against prison officials on a claim that an inmate's conditions
of confinement violated the Eight Amendment, the inmate must
meet two requirements: (1) the deprivation alleged must be
'objectively, sufficiently serious,' and (2) the 'prison
official must have a sufficiently culpable state of mind.'"
Thomas v. Tice, 948 F.3d at 138 (quoting Farmer v. Brennan, 511
U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed.2d 811 (1994)). In
considering whether conditions of confinement violated the
Eighth Amendment, courts must remember that "the Constitution
does not mandate comfortable prisons, and prisons which house
persons convicted of serious crimes, cannot be free of

discomfort." Id, at 138-139 (quoting Rhodes v. Chapman, 452
U.S. 337, 349, 101 S. Ct. 2392, 69 L. Ed.2d 59 (1981)). Thus,
"[t]he first element is satisfied when an inmate is deprived of
the 'minimal civilized measure of life's necessities,' and
"[t]he second element is satisfied when an inmate shows that
prison officials acted with deliberate indifference to the
inmate's health or safety or conditions of confinement that
violated the inmate's constitutional rights.'" Id (quoting
Wilson v. Seiter, 501 U.S. 294, 299, 111 S. Ct. 2321, 115 L.
Ed.2d 271 (1971)).
The gravamen of Plaintiff's claims against both Ferguson

and Golden is that he submitted Request to Staff Member forms
and reported the abuse and retaliation which he was suffering at
the hands of the other defendants to Defendant Golden but
neither she nor Superintendent Ferguson ever responded or took
any action to ameliorate his complaints, despite having been
"made aware" of them. In doing nothing, Plaintiff contends that
they "subjected" him "to cell conditions that impose atypical
and significant hardship … in relation to ordinary conditions of
prison life in the RHU without proper due process…" (Compl., ¶s
17, 19, 37, 48).
Here, the cell conditions of which Plaintiff complains --
not being able to shower for an extended period or exercise when

he wanted to, not being able to see out of a window or see the
television or clock, are undoubtedly unpleasant but do not rise
to the level of a deprivation of the 'minimal civilized measure
of life's necessities' which is required to reach the dimension
of unconstitutionality under the Eighth Amendment. And, while
Golden and Ferguson are charged with doing nothing to alleviate
Plaintiff's discomforts, there is no evidence whatsoever that
they were personally involved in his placement in the so-called
sensory deprivation cell in the RHU or in denying him his shower
and exercise privileges. (See, Pl's Dep., Exhibit "A," pp. 43-
46). Hence under the above-referenced authority, we conclude
that summary judgment is properly now entered in favor of these

two defendants as well.
Conclusion
For all of the reasons set forth above, Defendants' motion
for summary judgment is granted in part and judgment is entered
in favor of Defendants Martinez, Bradley, Ferguson, Yodis and
Golden as a matter of law on all of the plaintiff's claims
against them and in favor of all of the Defendants in their
official capacities. The motion is otherwise denied with
respect to Defendants Mejias, Webster, Kayden, and Lahr.
An Order follows.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10401434. Public record. Not legal advice.