The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RICHARD POPLAWSKI : CIVIL ACTION
:
v. :
:
SERGEANT P. GREEN : NO. 22-4483
MEMORANDUM
Bartle, J. November 7, 2023
Plaintiff Richard Poplawski, an inmate at the
Pennsylvania Correctional Institution at Phoenix and proceeding
pro se, brings this action against defendant Sergeant P. Green
for one count of retaliation pursuant to 42 U.S.C. § 1983. He
asserts that Sergeant Green, a correctional officer, retaliated
against him for filing a grievance by using profanity, issuing
verbal threats, denying him recreation, and arranging a cell
search. Before the court is Sergeant Green’s motion for summary
judgment.
I
Under Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is appropriate “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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). A dispute is genuine if the evidence is such that a
reasonable factfinder could return a verdict for the nonmoving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254
(1986). The court views the facts and draw all inferences in
favor of the nonmoving party. See In re Flat Glass Antitrust
Litig., 385 F.3d 350, 357 (3d Cir. 2004).
Summary judgment is granted when there is insufficient
record evidence for a reasonable factfinder to find for the
nonmovant. See Anderson, 477 U.S. at 252. “The mere existence
of a scintilla of evidence in support of the [nonmoving party]’s
position will be insufficient; there must be evidence on which
the jury could reasonably find for [that party].” Id. In
addition, Rule 56(e)(2) provides that “[i]f a party fails to
properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by
Rule 56(c), the court may . . . consider the fact undisputed for
the purposes of the motion.” Fed. R. Civ. P. 56(e)(2).
II
The facts are taken in the light most favorable to
Poplawski as the nonmoving party. On March 17, 2022, Poplawski
filed a grievance with prison officials criticizing new yard
time procedures implemented by “the quad 4 sergeant.” “Yard
time” is the colloquial term used by inmates and correctional
staff for recreational time in the prison yard, which inmates
are permitted up to three times per day. Poplawski later
learned that “the quad 4 sergeant” was Sergeant P. Green but did
not amend the grievance to include her name. On April 6, 2022,
Poplawski’s grievance was dismissed as frivolous. No hearing
was held and Poplawski did not take an administrative appeal.1
On the morning of April 4, 2022, while his grievance
was pending, Poplawski and other inmates in his block were
passing through metal detectors for their morning yard time.
About six or seven correctional officers were conducting the
screening. Inmates are required to carry their identification
cards and present them to officers on request. That morning,
Poplawski had attached his ID card to the front of his cap.
After Poplawski had passed through the metal
detectors, Sergeant Green called to him, “Poplawski! Stop! You
gotta have your ID. Go back.” Poplawski turned around and
pointed to his cap. His ID was “conspicuously visible.”
Sergeant Green responded, “Boy. If you don’t get out of my face
and go back to the fuckin’ block, I’m gonna spray your ass [with
oleoresin capsicum spray].” (alteration by Poplawski).
1. Inmates at correctional institutes in the Commonwealth of
Pennsylvania have access to a formal grievance procedure to
resolve problems arising during their incarceration. Pa. Dep’t
of Corrections, Policy Statement No. DC-ADM 804, Inmate
Grievance System (2015). Grievances are submitted by inmates in
writing and decided by an assigned grievance officer. Id. at 1-
1 to 1-3, 1-7. An inmate may appeal a grievance twice. Id. at
1-4 to 1-5, 2-7.
Poplawski left the area and spent that morning’s recreation time
in the law library.
Two inmates waiting to pass through the metal detectors
heard the officers discuss the incident as Poplawski walked back.
Francis Harris heard an unnamed officer ask Sergeant Green, “Why
did you send him back? His ID was on his hat.” According to
Harris, Sergeant Green responded, “That motherfucker filed some
nut-ass paper on me.” Richard Boxley, another inmate, heard
Sergeant Green say that she was “tired of Poplawski’s grievances.”
About one to three days after this incident, Officer
Knox and an unnamed officer conducted a search of Poplawski’s
cell.2 Officer Knox waited outside with Poplawski while the
unnamed officer looked through Poplawski’s bedding, magazines,
papers, and food containers. This latter officer left
Poplawski’s personal property “needlessly disheveled.” As the
unnamed officer exited the cell, Poplawski heard him say
something to the effect of, “Green says hi,” in a thick African
accent.
On April 18, 2022, Poplawski filed a grievance against
Sergeant Green. The grievance was dismissed as frivolous and
2. Sergeant Green disputes that any cell search occurred. She
maintains that a survey of Pennsylvania Department of
Corrections records from April 5, 2023, shows no evidence of a
cell search. For present purposes, the court will accept as
true Poplawski’s version of the facts.
Poplawski’s subsequent appeal was denied. Having exhausted his
administrative remedies,3 Poplawski filed the instant action on
November 2, 2022.
III
Poplawski contends that Sergeant Green retaliated
against him for filing a grievance in violation of 42 U.S.C.
§ 1983. Section 1983 makes liable any person who, acting under
color of state law, deprives another “of any rights, privileges,
or immunities secured by the Constitution and laws.” Id.
Poplawski maintains that correctional staff retaliated against
him for exercising his right under the First Amendment to file a
grievance.
To establish a prima facia claim of retaliation,
Poplawski must prove by a preponderance of the evidence that:
(1) he was engaged in conduct protected by the First Amendment;
(2) he suffered an adverse action at the hands of prison
officials “sufficient to deter a person of ordinary firmness
from exercising his constitutional rights;” and (3) there was “a
causal link between the exercise of his constitutional rights
and the adverse action taken against him.” Mitchell v. Horn,
3. Sergeant Green argues that Poplawski did not exhaust his
administrative remedies because he never alleged a retaliatory
cell search in the grievance process. However, in his appeal to
the Superintendent, Poplawski wrote that he “was subject to a
suspicious ‘random’ cell search the very next day.” (emphasis
in original).
318 F.3d 523, 530 (3d Cir. 2003) (internal quotations and
citations omitted). The burden then shifts to Sergeant Green to
prove that she would have taken the same actions even if
Poplawski were not engaging in protected conduct. Rauser v.
Horn, 241 F.3d 330, 334 (2001).
Here, it is not disputed that filing a grievance is
constitutionally protected conduct. Accordingly, the court
first considers whether Poplawski has established a sufficiently
adverse action. Poplawski alleges four retaliatory acts:
(a) using profanity and a racially charged term, (b) threatening
physical force, (c) denying recreation, and (d) arranging a
retaliatory cell search.
To state an actionable claim under Section 1983, the
adverse action “need not be great” but “must be more than de
minimis.” McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006).
Here, none of the four alleged retaliatory acts was sufficiently
severe to give rise to retaliation.
First, Sergeant Green’s use of profanity and the term
“Boy” on March 4, 2022 was at most one instance of mere verbal
harassment, which does not constitute retaliation. See Burgos
v. Canino, 358 F. App’x 302, 306 (3d. Cir. 2009). Verbal
harassment or threats, standing alone, do not constitute
retaliation. See, e.g., id.; Marten v. Hunt, 479 F. App’x 436,
439 (3d Cir. 2012); Johnson v. Glick, 481 F.2d 1028, 1033 n.7
(2d Cir. 1973).
Second, Sergeant Green’s mere threat to spray
Poplawski is de minimis because she did not accompany the threat
with some escalating action, such as brandishing the canister of
pepper spray. E.g., Bailey v. Digby, No. CV 3:20-0762, 2022 WL
4537879 at *8 (M.D. Pa. Sept. 28, 2022).
Third, Sergeant Green denied Poplawski only one period
of yard time. See Burgos, 358 F. App'x at 307. Denial of one
period of yard time is too de minimis to constitute retaliation
because the inmate otherwise has “ample opportunity to
exercise.” See id. Indeed, in Coit v. Garman, the Court held
that the loss of even three periods of yard time was de minimis.
No. 1:17-CV-1438, 2019 WL 2612703 at *9 (M.D. Pa. June 26,
2019), aff'd, 812 F. App'x 83 (3d Cir. 2020).
Fourth, even assuming that Sergeant Green orchestrated
the cell search, this was a single instance of a routine and
appropriate practice in a correctional institution. See Hudson
v. Palmer, 468 U.S. 517, 529 (1984); Sims v. Vaughn, 189 F.
App’x 139, 141 (3d Cir. 2006). Random cell searches “are valid
and necessary to ensure the security of the institution and the
safety of inmates and all others within its boundaries.”
Hudson, 468 U.S. at 529. A single cell search is a “generally
acceptable prison practice” that does not constitute
retaliation. See Sims, 189 F. App’x at 141; id. The fact that
Poplawski’s personal items were “disheveled” is quite different
from correctional staff seizing personal property and does not
amount to retaliation. See Humphrey v. Sec’y Pennsylvania Dep’t
of Corr., 712 F.Appx. 122, 125 (3d Cir. 2017).
Furthermore, this court does not find that the
cumulative impact of one harassing comment, one threat, one
denial of yard time, and one cell search would deter a person of
ordinary firmness from filing grievances. See Mitchell, 318
F.3d at 530. Indeed, there is evidence on the record that
Poplawski has filed and appealed dozens of grievances since this
incident. Because Poplawski failed to establish an adverse
action, his prima facia retaliation claim fails, and this court
need not consider the third element of causation.
IV.
Sergeant Green makes a second argument that she is
subject to qualified immunity. In Saucier v. Katz, the Supreme
Court explained that “[q]ualified immunity is an entitlement not
to stand trial or face the other burdens of litigation,” and not
merely a defense to liability. 533 U.S. 194, 200-201 (2001).
The Court set forth a two-pronged test for a determination of
qualified immunity: (a) whether a constitutional or federal
right has been violated; and (b) whether that right was “clearly
established.” Id. at 201. Courts are “permitted to exercise
their sound discretion in deciding which of the two prongs of
the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at hand.”
Pearson v. Callahan, 555 U.S. 223, 236 (2009)
This court began the inquiry at the first step and
determined that Poplawski’s constitutional right to file a
grievance was not violated. The court need not consider the
second prong of the Saucier test. See 533 U.S. 201.
Accordingly, the motion of defendant Sergeant P. Green
for summary judgment will be granted.