Abney v. Basial

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CLARENCE ABNEY, : Civil No. 1:16-CV-00350

:

Plaintiff, :

:

v. : Judge Jennifer P. Wilson

:

LISA W. BASIAL, et al., :

:

Defendants. : Magistrate Judge Martin C. Carlson

MEMORANDUM

Before the court are the Defendant’s motion for summary judgment, a report

and recommendation from United States Magistrate Judge Martin C. Carlson

addressing the motion, and objections to the report and recommendation filed by

Plaintiff Clarence Abney (“Abney”). (See Docs. 93, 113–14.) For the reasons that

follow, Judge Carlson’s report and recommendation (Doc. 113) is adopted in its

entirety and Abney’s objections to the report and recommendation (Doc. 114) are

overruled. Accordingly, Defendants’ motion for summary judgment (Doc. 93) is

granted.

STANDARD OF REVIEW

When a party objects to a magistrate judge’s report and recommendation, the

district court is required to conduct a de novo review of the contested portions of

the report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3);

Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). The district court may

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accept, reject, or modify the magistrate judge’s report and recommendation in

whole or in part. 28 U.S.C. § 636(b)(1). The district court may also receive

further evidence or recommit the matter to the magistrate judge with further

instructions. Id. “Although the standard is de novo, the extent of review is

committed to the sound discretion of the district judge, and the court may rely on

the recommendations of the magistrate judge to the extent it deems proper.”

Weidman v. Colvin, 164 F. Supp. 3d 650, 653 (M.D. Pa. 2015) (citing Rieder v.

Apfel, 115 F. Supp. 2d 496, 499 (M.D. Pa. 2000)).

De novo review of a magistrate judge’s report and recommendation is not

required where no objections to the report and recommendation have been raised.

Univac Dental Co. v. Dentsply Int’l, Inc., 702 F. Supp. 2d 465, 469 (M.D. Pa.

2010) (citing Thomas v. Arn, 474 U.S. 140, 149 (1985)). Instead, the court is only

required to “satisfy itself that there is no clear error on the face of the record in

order to accept the recommendation.” Id. (quoting Fed. R. Civ. P. 72 advisory

committee’s note to 1983 addition). De novo review is also not required where a

party raises only general objections to the report and recommendation. Goney v.

Clark, 749 F.2d 5, 6–7 (3d Cir. 1984). “To obtain de novo determination of a

magistrate’s findings by a district court, 28 U.S.C. § 636(b)(1) requires both timely

and specific objections to the report.” Id. at 6.

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SUMMARY JUDGMENT STANDARD

A court may grant a motion for summary judgment when “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 dispute of fact is material if resolution of

the dispute “might affect the outcome of the suit under the governing law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is

not precluded by “[f]actual disputes that are irrelevant or unnecessary.” Id. “‘A

dispute is genuine if a reasonable trier-of-fact could find in favor of the

nonmovant’ and ‘material if it could affect the outcome of the case.’” Thomas v.

Tice, 943 F.3d 145, 149 (3d Cir. 2019) (quoting Lichtenstein v. Univ. of Pittsburgh

Med. Ctr., 691 F.3d 294, 300 (3d Cir. 2012)).

In reviewing a motion for summary judgment, the court must view the facts

in the light most favorable to the non-moving party and draw all reasonable

inferences in that party’s favor. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288

(3d Cir. 2018) (citing Scheidemantle v. Slippery Rock Univ. State Sys. of Higher

Educ., 470 F.3d 535, 538 (3d Cir. 2006)). The court may not “weigh the evidence”

or “determine the truth of the matter.” Anderson, 477 U.S. at 249. Instead, the

court’s role in reviewing the facts of the case is “to determine whether there is a

genuine issue for trial.” Id.

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The party moving for summary judgment “bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those

portions of ‘the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The non-moving party must then

oppose the motion, and in doing so “‘may not rest upon the mere allegations or

denials of [its] pleadings’ but, instead, ‘must set forth specific facts showing that

there is a genuine issue for trial. Bare assertions, conclusory allegations, or

suspicions will not suffice.’” Jutrowski, 904 F.3d at 288–89 (quoting D.E. v. Cent.

Dauphin Sch. Dist., 765 F.3d 260, 268–69 (3d Cir. 2014)).

Summary judgment is appropriate where the non-moving 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.”

Celotex, 477 U.S. at 322. “The mere existence of a scintilla of evidence in support

of the plaintiff’s position will be insufficient; there must be evidence on which the

jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. “Where

the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

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PROCEDURAL HISTORY

Abney first filed suit in this case on February 25, 2016, and he subsequently

filed an amended complaint on July 11, 2016. Abney’s factual allegations arise

indirectly from another case currently pending before this court, Abney v. Younker,

13-CV-01418 (“Abney I”). Abney alleges that Defendant Lisa Basial (“Basial”),

who previously served as defense counsel in Abney I, orchestrated a conspiracy

among the various defendants to infringe on his constitutional rights as retaliation

for the fact that he was litigating his claims in Abney I.

According to the factual allegations in Abney’s amended complaint, the

actions that give rise to the present suit began in the summer of 2013, when various

defendants at SCI Huntingdon began intimidating inmates who had witnessed the

assault on Abney that was being litigated in Abney I. (Doc. 22 ¶¶ 26–31.) This led

Abney’s counsel, Marianne Sawicki (“Sawicki”), to contact Basial to inform her

that witnesses in Abney I were being intimidated and to ask her to tell her clients

not to discuss Abney I with potential witnesses. (Id. ¶ 31.) After this

communication with Sawicki, Basial allegedly communicated with other

defendants at SCI Huntingdon, who subsequently beat up an Abney I witness. (Id.

¶¶ 32–33.) Several prisoners allegedly witnessed the beating and overheard the

defendants saying things to indicate that it was because the witness was going to

testify in Abney I. (Id. ¶¶ 34–36.)

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In addition to the intimidation of witnesses, the amended complaint alleged

that Defendant Younker coached Defendant Snyder on what to say in his

deposition in Abney I. (Id. ¶¶ 46–48.) Sawicki informed Basial of this coaching,

but Basial took no action to stop it from happening and instead allegedly “let the

Huntingdon Defendants know that she acquiesced in it and approved of it.” (Id. ¶

50.)

The amended complaint alleges that in October 2013, Basial caused the

DOC to transport Abney from SCI Houtzdale to SCI Camp Hill for purposes of

conducting a deposition. (¶¶ 55–72.) During transport to SCI Camp Hill and

while he was incarcerated in that prison, Abney was allegedly subjected to abuse

and harassment from various DOC defendants, including taking away his

medication, forcing him to take a call from Sawicki while he was still wet from a

shower, and limiting his ability to have phone calls with Sawicki. (Id. ¶¶ 73–91.)

Basial was informed of these actions but allegedly acquiesced in them. (Id.)

During his return trip from SCI Camp Hill to SCI Houtzdale, Abney was

made to remove his jumpsuit and given a travel jumpsuit. (Id. ¶ 92.) He then had

a brief layover at SCI Smithfield, during which he was told to remove his travel

jumpsuit. (Id. ¶ 93.) Abney was not given clothes to wear until later that day

when officers from SCI Houtzdale arrived to transport him back to that prison. (Id.

¶¶ 95–96.)

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According to the amended complaint, Basial communicated and colluded

with the other defendants throughout the period of time giving rise to Abney’s

claims:

On information and belief, DAG Basial acted in communication and

collusion with DOC Staff at the four prisons—Huntingdon, Houtzdale,

Smithfield, and Camp Hill—including some of the defendants whom

she represented in Abney v. Younker. Details of their collusion await

discovery.

(Id. ¶ 113.) Abney alleges that this communication and collusion by Basial was

done to intimidate Abney, retaliate against him for the filing of Abney v. Younker,

and discourage him from actively pursuing his claims in that case. (Id. ¶ 114.)

The amended complaint raises claims for conspiracy to obstruct federal testimony

in violation of 42 U.S.C. § 1985, cruel and unusual punishment in violation of the

Eighth Amendment, infringement of free speech in violation of the First

Amendment, infringement of the right to petition the government for redress of

grievances in violation of the First Amendment, and conspiracy to violate

constitutional rights. (Id. ¶¶ 127–57.)

On January 26, 2017, United States District Judge Yvette Kane denied the

Defendants’ motion to dismiss. (Doc. 34.) On March 30, 2018, Judge Kane

granted summary judgment to Defendants Whalen, Fisher, Younker, Snyder, Hills,

Booher, Nickum, and Myers, finding that Abney had failed to exhaust his

administrative remedies as to his claims against those defendants. (Doc. 78.) As a

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result of Judge Kane’s order, Basial and Shoop are the only defendants who remain

in the case, though Judge Kane’s order deferred the entry of judgment in favor of

the other defendants until the conclusion of the case. (Id.)

On July 15, 2019, Defendants moved for summary judgment, arguing that

there is insufficient evidence for Abney’s claims to survive to trial. (Docs. 93, 95.)

Abney opposed the motion on August 25, 2019, Defendants filed a reply brief on

September 20, 2019, and Abney filed a sur reply on September 23, 2019. (Docs.

106, 109, 112.) Judge Carlson addressed the motion for summary judgment in a

report and recommendation on October 8, 2019. (Doc. 113.) The undersigned was

assigned to the case as the presiding judge pursuant to a verbal order from Chief

United States District Judge Christopher C. Conner on November 20, 2019.

JUDGE CARLSON’S REPORT AND RECOMMENDATION

Judge Carlson’s report and recommendation recommends granting the

Defendants’ motion for summary judgment in its entirety. (Doc. 113.) Judge

Carlson first considers Abney’s constitutional claims against Defendant Shoop.

(Id. at 11.) He finds that Shoop is entitled to summary judgment as to Abney’s

Eighth Amendment claim because a prisoner being denied clothing for a brief

period of time does not violate the Eighth Amendment. (Id. at 15.)

Turning to Abney’s First Amendment claims against Shoop, Judge Carlson

first concludes that a First Amendment retaliation claim against Shoop fails

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because Abney has not introduced any evidence to show that his protected First

Amendment activity was a motivating factor behind Shoop’s actions. (Doc. 113 at

17.) Judge Carlson then concludes that Abney’s First Amendment access to the

courts claim against Shoop fails because Abney cannot show any actual injury to

his right of access to the courts from Shoop briefly taking away Abney’s clothing.

(Id. at 18.) Judge Carlson additionally concludes that, even if Shoop should be

denied summary judgment on the merits of Abney’s claims, he should nonetheless

be granted summary judgment because he is entitled to qualified immunity. (Id. at

19–21.)

After determining that Shoop should be granted summary judgment, Judge

Carlson analyzes Abney’s claims against Defendant Basial. Judge Carlson finds

that Abney’s First Amendment claims against Basial fail because “Abney has

presented no evidence to support his theory that Basial’s decision to transport him

for the deposition was retaliatory or designed to impede his access to the courts.”

(Doc. 113 at 23.) Judge Carlson finds that rather than being motivated by an intent

to harass or intimidate Abney, Basial’s decision to transport him from SCI

Houtzdale to SCI Camp Hill was motivated by her own convenience in conducting

Abney’s deposition. (Id. at 24.) Judge Carlson further finds that there is no

evidence to support Abney’s claims that Basial was involved in the intimidation of

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any witnesses, and that Basial would be entitled to qualified immunity as to

Abney’s claims against her. (Id. at 27–30.)

Finally, Judge Carlson considers Abney’s claims of civil conspiracy against

the Defendants. (Id. at 30.) Judge Carlson first concludes that the Defendants

should be granted summary judgment on the conspiracy claims because the

underlying torts on which the conspiracy claims are based—Abney’s constitutional

claims—should be dismissed on their merits. (Id.) Judge Carlson further

concludes that the Defendants should be granted summary judgment because

Abney has introduced no evidence to support a finding that there was an agreement

between the Defendants. (Id. at 31–35.)

ABNEY’S OBJECTIONS

Abney filed objections to the report and recommendation on October 22,

2019, raising seven objections. (Doc. 114.) Abney’s first objection is that the

report and recommendation misapprehends his First Amendment claim against

Basial as one for retaliation, and that such a misapprehension “distorts [the report

and recommendation’s] view of the evidence of Ms. Basial’s wrongful conduct.”

(Id. at 5.)

Abney’s remaining arguments focus on the proposition that, contrary to

Judge Carlson’s conclusions, evidence of record supports his claims against

Defendants Basial and Shoop. Abney argues that there is sufficient evidence of

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record for a finder of fact to determine that (1) Basial lied to the Office of

Population Management to effectuate Abney’s temporary transfer to SCI Camp

Hill in violation of federal law and with the motive to prevent Abney from

conferring with his attorney prior to his deposition; (2) Basial’s actions interfered

with his ability to litigate both Abney I and the present case; (3) Basial was

complicit in the intimidation of Abney I witnesses; (4) Basial’s wrongdoing

precludes a finding that she is entitled to qualified immunity; (5) Shoop violated

Abney’s Eighth Amendment rights and is therefore not entitled to qualified

immunity; and (6) there was sufficient contact between the Defendants to support a

civil conspiracy claim. (See id. at 6–30.)

Defendants responded to Abney’s objections on November 14, 2019. (Doc.

117.) Defendants first argue that Abney’s objections do not warrant de novo

review of the report and recommendation because the objections raised are

identical to the arguments that were raised before the magistrate judge. (Id. at 1–

2.) Defendants then argue that Abney’s First Amendment claim was properly

construed as a retaliation claim. (Id. at 2–3.)

Turning to Abney’s claims against Basial, Defendants first argue that the

evidence of record does not support a finding that Basial lied or engaged in any

other wrongdoing, or that Basial’s actions caused Abney any injuries. (Id. at 3–6.)

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Defendants then argue that there is no evidence to support a finding that Basial was

complicit in the intimidation of witnesses. (Id. at 6–7.)

Defendants similarly argue that Abney’s objections related to the claims

against Shoop should be overruled. Defendants note that Shoop’s alleged

knowledge of the claims against the other defendants in Abney I and Abney II is not

sufficient to establish that he was part of a conspiracy with the other defendants.

(Id. at 8.) Defendants then attack Abney’s argument that Shoop violated the

Eighth Amendment because Abney was the only inmate who was unclothed in the

cell at SCI Smithfield. (Id. at 9.) Defendants note that the only evidence Abney

cites in support of this argument is that Defendants admitted the fact in their

answer, which they did not do. (Id.) Defendants additionally argue that, even if

Abney were unclothed while other inmates were clothed, this would still be

insufficient to establish a violation of the Eighth Amendment. (Id.) Finally,

Defendants argue that there is no record evidence to support Abney’s conspiracy

claim, since there was no evidence of an agreement between the parties. (Id. at

11–12.)

Abney filed a reply brief on November 21, 2019. (Doc. 118.) Abney

reiterates his several arguments in support of his objections, but cites no additional

evidence. (Id.)

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DISCUSSION

At the outset, the court notes that the parties disagree as to the proper

standard of review in this case. Abney argues that the proper standard is de novo

review of Judge Carlson’s report and recommendation, while Defendants argue

that the report and recommendation should only be reviewed for clear error. (See

Doc. 114 at 30; Doc. 117 at 1–2; Doc. 118 at 2.) The court need not determine

whether de novo review or clear error review is the proper standard because Judge

Carlson’s report and recommendation withstands district court scrutiny under

either standard. Nevertheless, because it is the more exacting standard, the court

will review the portions of Judge Carlson’s report and recommendation to which

objections have been raised de novo.

Abney’s first objection is that Judge Carlson’s report and recommendation

misapprehends his First Amendment claims as retaliation claims and that this

misapprehension leads to a distorted understanding of the factual record. (Doc.

114 at 5.) This objection will be overruled because the court agrees with Judge

Carlson’s conclusion that the First Amendment claims can very clearly be

understood as retaliation claims. Abney’s amended complaint states his First

Amendment claim against Basial as follows:

In violation of the Free Speech Clause of the First Amendment of the

U.S. Constitution, as incorporated by the Fourteenth, Defendant Basial

retaliated against Plaintiff for filing Abney v. Younker, sought to deter

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him from future testimony and from other protected activity by causing

Plaintiff to be transported, under abusive conditions, in violation of

federal statutes, and did so with wrongful intent to discourage Plaintiff

from exercising his Free Speech rights.

(Doc. 22 at 29.) Similarly, Abney’s First Amendment claim against Shoop is

pleaded as follows:

In violation of the Free Speech Clause, Defendant Shoop retaliated

against Plaintiff for filing Abney v. Younker because of its allegations

against other corrections officers and because discovery in that matter

was about to inconvenience SCI Smithfield with a site tour, and Shoop

sought to deter Plaintiff from future testimony and other protected

activity, by causing Plaintiff to stand in his underwear for about two

hours under adverse conditions, with intent to discourage Plaintiff from

exercising Free Speech rights.

(Id.)

Moreover, Abney has previously argued in this litigation that his First

Amendment claims were pleaded as retaliation claims. In his brief in opposition to

the Defendants’ motion to dismiss on August 18, 2016, Abney made the following

argument:

To state a claim for violation of free speech rights through

retaliation, a prisoner plaintiff must plead three elements:

(1) constitutionally protected conduct, (2) an adverse

action by prison officials “ ‘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.”

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Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (quoting Rauser v.

Horn, 241 F.3d 330, 333 (3d Cir. 2001) (alteration in Rauser). All three

elements are plausibly pleaded here.

First, plaintiff was engaged in active litigation of Abney v.

Younker. He had filed a complaint in this district, and he intended to

testify about the misconduct of several DOC employees. Am. Compl.

¶¶ 15-21 & passim. The defendants do not contest the fact that

litigation and testimony are constitutionally protected conduct.

Second, plaintiff lists adverse actions. His witnesses were beaten

and intimidated, and his name was made synonymous with lynching.

Id. ¶¶ 26, 27, 33-35, 126. Abney, in fragile health, was transported

between prisons after his attorney assured him it could not happen, and

the transport was timed to cause maximum distress to Abney by

depriving him of the chance to prepare with his counsel for his

deposition. Id. ¶¶ 57-61, 67, 70. Defendants continued to terrorize

Abney at the distant prison by showing him that his counsel and even

the court could not protect him. His thyroid medication was taken

away, which caused distress when the untreated hyperthyroidism flared

up and as well as anxiety because he knew this would lessen his ability

to concentrate during the deposition. Id. ¶¶ 76, 86, 120. Abney was

sent into the showers immediately before a scheduled phone call with

counsel. He had to take the call dripping wet, and then the call was cut

short. Id. ¶¶ 82-85. On the return trip, Abney was deprived of clothing

and made to stand in his underwear in a cold holding cell surrounded

by fully clothed prisoners. Id. ¶¶ 92-96, 106-08. The effect of this

abuse over a five-day period was to impress upon Abney that the court

and his counsel were powerless to keep DOC employees from abusing

him and disabling him from giving testimony about misconduct of other

DOC employees, as he was attempting to do in the course of the

litigation of Abney v. Younker. Id. ¶¶ 123-25. The adverse action was

calculated to deter the average person from continuing the litigation and

from ever filing another lawsuit.

Third, plaintiff pleads the causal, motivational links between his

litigation and the adverse action. The witnesses were terrorized

explicitly in order to deter them from testifying in the litigation. Id. ¶¶

18, 20, 21, 28, 33-36, 41. The irregular transport and its timing were

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geared to impede Abney’s participation in the litigation by making it

hard for him to testify with a composed and calm mind. Id. ¶¶ 58-61,

67. Abney’s thyroid medication was confiscated and his telephone

conference with his counsel was disrupted a few days before a

scheduled deposition for the same reason. Id. ¶¶ 81-87. The Smithfield

Defendants, Shoop and Fisher, exacted a price from Abney during the

layover on November 5, 2013 for his litigation, because they were being

forced to give Abney’s counsel a site tour of the prison two days later,

on November 7, 2013, for discovery in that litigation. Id. ¶¶ 97-101,

104. All of the wrongful conduct alleged in this action occurred during

a protected activity – plaintiff’s litigation of Abney v. Younker – and

was calculated to punish Abney for bringing it, prevent him from

continuing it, and deter him from any similar action in the future.

All three of the Rauser prongs are pleaded here. Defendants’

argument to the contrary cannot be credited. Defendants’ brief distorts

the content of the pleading, while neglecting to cite the pleading itself.

See Br. in Supp. at 5-7. Count III states a claim for infringement of

First Amendment free speech rights. It should not be dismissed.

(Doc. 29 at 19–21.) Abney cannot now argue that Judge Carlson erred by

analyzing his First Amendment claims as retaliation claims when he previously

argued that those same claims should survive a motion to dismiss because they

plausibly pleaded claims for retaliation. Abney’s first objection will accordingly

be overruled.

As for Abney’s remaining objections—all of which argue that Judge Carlson

erred in his review of the factual record—the court has conducted a de novo review

of Judge Carlson’s report and recommendation and finds that he correctly

concludes that there is insufficient evidence for Abney’s claims against the

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remaining defendants to survive a motion for summary judgment. The court will

address these remaining objections seriatim.

Abney’s second objection is that there is sufficient evidence of record for a

finder of fact to find that Basial lied to the Office of Population Management to

effectuate Abney’s temporary transfer to SCI Camp Hill in violation of federal law

and with the motive to prevent Abney from conferring with his attorney prior to his

deposition. (Doc. 114 at 6–15.) Relevant to this objection, Judge Carlson

concluded that “Abney has presented no evidence to support his theory that

Basial’s decision to transport him for the deposition was retaliatory or designed to

impede his access to the courts,” and that, instead, Basial’s decision seemed to be

motivated by her own convenience and trial schedule in other cases. (Doc. 113 at

23–24.)

The court agrees with Judge Carlson. It is not enough for Abney to

introduce evidence that Basial directed him to be transferred to SCI Camp Hill;

there must be evidence of a causal connection between Abney engaging in conduct

protected by the First Amendment and Basial’s subsequent decision to transfer him

to SCI Camp Hill. See, e.g., Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)

(“A prisoner alleging retaliation must show (1) constitutionally protected conduct,

(2) an adverse action by prison officials ‘sufficient to deter a person of ordinary

firmness from exercising his constitutional rights,’ and (3) ‘a causal link between

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the exercise of his constitutional rights and the adverse action taken against him.’”

(quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001))). Abney has

introduced no such evidence. Accordingly, his second objection is overruled.

Abney’s third objection is that Basial’s actions interfered with his ability to

litigate both Abney I and the present case and therefore caused injuries to his right

of access to the courts. According to Abney, Basial’s actions interfered with his

ability to speak with his counsel prior to his deposition, which hindered his ability

to respond to affirmative defenses raised in Abney I. (Doc. 114 at 15–17.) Abney

further argues that claims in both Abney I and the present case were lost because

Basial’s actions caused the statute of limitations to run. (Id.)

While the court agrees with Judge Carlson’s conclusion that Abney has not

introduced sufficient evidence to establish an injury to his access to the courts, the

court finds that such a conclusion does not actually need to be reached because

Abney has not introduced any evidence to establish the predicate fact that Basial

interfered with his access to the courts. The record shows that although Basial

caused Abney to be temporarily transferred to SCI Camp Hill, Sawicki was still

able to speak with Abney prior to the scheduled deposition and was able to act as

Abney’s counsel during the deposition. While Abney alleges that Defendant

Whalen—who has already been granted summary judgment—interfered with

Abney’s ability to speak with Sawicki prior to the deposition, see Doc. 22 ¶¶ 83–

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85, there is no evidence that Basial was personally involved in this interference.

Basial’s act of having Abney transferred to another prison for the purpose of

conducting a deposition is insufficient to support a claim that she interfered with

Abney’s right of access to the courts. The court will accordingly overrule Abney’s

third objection.

Abney’s fourth objection is that there is record evidence to support the

conclusion that Basial was complicit in the intimidation of Abney I witnesses. The

court agrees with Judge Carlson’s conclusion that Abney “presents no evidence to

support his claim that Basial was involved in the intimidation of any witnesses.”

(Doc. 113 at 27.)

The court finds it troubling that Abney and his counsel continue to press the

argument that Basial was involved in the intimidation of witnesses when they have

presented no evidence of record to support such an argument. Abney argues that

“circumstantial” evidence supports a finding of Basial’s involvement, but the

circumstantial evidence on which Abney relies is limited to the fact that Abney’s

counsel informed Basial of possible intimidation and that more intimidation

allegedly occurred on the same day. (See Doc. 114 at 17–20.)

There is absolutely no evidence of record that Basial was involved in the

intimidation of witnesses, no evidence that she encouraged the intimidation of

witnesses, and no evidence that she acquiesced in the intimidation of witnesses.

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Indeed, there is no evidence that she even spoke with the individuals who allegedly

intimidated the witnesses after communicating with Abney’s counsel. Thus the

“circumstantial” evidence on which Abney and his counsel rely is solely Abney’s

self-serving description of his counsel’s recollection of her own comments to

Basial. This circumstantial evidence—to the extent it can even be characterized as

such—is clearly insufficient to support a claim of wrongdoing against Basial.

Abney’s fifth objection argues that Basial is not entitled to qualified

immunity. (Doc. 114 at 20–23.) Because the court finds that Basial is entitled to

summary judgment on the merits of Abney’s claims, the court will overrule this

objection as moot.

Abney’s sixth objection argues that record evidence supports a finding that

Shoop violated the Eighth Amendment and that, by extension, he is not entitled to

qualified immunity. (Id. at 23–27.) Judge Carlson concluded that Shoop did not

violate the Eighth Amendment because an inmate being denied clothing for two

hours is insufficient to establish a violation of the Eighth Amendment where the

denial does not threaten his health or safety. (Doc. 113 at 15.) This conclusion is

supported by case law from the Third Circuit and will accordingly be adopted.

See, e.g., Guinn v. Rispoli, 323 F. App’x 105, 108 (3d Cir. 2009) (finding that the

denial of clothing for fourteen days did not violate the Eighth Amendment where

the denial did not cause the inmate physical harm); Trammell v. Keane, 338 F.3d

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155, 165 (3d Cir. 2003) (finding that denial of clothing did not violate Eighth

Amendment where the denial did not threaten the inmate’s health or safety).1

Abney’s final objection is that there was sufficient contact between the

Defendants to support a civil conspiracy claim. (Doc. 114 at 27–30.) Abney

argues that because there was circumstantial evidence in the form of Basial and

Shoop speaking with other Defendants, there is sufficient evidence for his

conspiracy claim to go to trial. (Id.) Relevant to this objection, Judge Carlson

concluded that “Abney has not presented any evidence from which a factfinder

could conclude that Shoop and Basial entered into an agreement to violate his

rights.” (Doc. 113 at 31.)

The court agrees with Judge Carlson that Abney has not produced any

evidence to support a finding of an agreement between the Defendants. The mere

fact that Defendants spoke with one another is insufficient to defeat a summary

judgment motion; there must be evidence of an agreement between the Defendants.

This is especially true in Basial’s case, since she actually represented a number of

her co-defendants in Abney I. Abney’s argument would lead to the absurd result

1 Abney additionally argues that Shoop violated the Eighth Amendment because Abney was

unclothed in a cell with other men who were fully clothed. (Doc. 114 at 24.) The only evidence

Abney offers to support this fact is that Defendants admitted it in their answer. (Id.) As Abney

later acknowledged, however, such an argument was erroneous since Defendants had not

admitted the fact in their answer. (Doc. 118 at 12 n.4.) The court will accordingly disregard this

argument.

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that the mere fact of an attorney speaking with her clients is independent evidence

that the attorney is liable for a civil conspiracy. The court does not accept this

argument. Therefore, because Abney has produced no evidence of an agreement

between Defendants, his final objection will be overruled.

CONCLUSION

For the foregoing reasons, Judge Carlson’s report and recommendation is

adopted in its entirety, and Abney’s objections to the report and recommendation

are overruled. Accordingly, the Defendants’ motion for summary judgment is

granted. An appropriate order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: January 30, 2020

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