McClenton v. Doe (1) Ms. Ryan

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL MCCLENTON, :

Plaintiff :

: No. 1:19-cv-1958

v. :

: (Judge Rambo)

JANE DOE (1) MS. RYAN, et al., :

Defendants :

MEMORANDUM

This matter is before the Court pursuant to the motion for summary judgment

(Doc. No. 24) filed by Defendants Jane Doe 1 Ms. Ryan (“Ryan”), Jane Doe 2 Ms.

Wadsworth (“Wadsworth”), John Doe 3 Mr. Roberts (“Roberts”), John Doe 4 Mr.

Cavenas (“Cavenas”), Jane Doe 5 C. Stanitis (“Stanitis”) and John Doe 6 Mr. Gutsie

(“Gutsie”). Plaintiff has filed neither a response to the motion nor a motion seeking

an extension of time to do so. Accordingly, because the time for filing a response

has expired, Defendants’ motion for summary judgment is ripe for disposition.

I. BACKGROUND

Plaintiff, who is currently incarcerated at the State Correctional Institution

Mahanoy in Frackville, Pennsylvania (“SCI Mahanoy”), initiated the above-

captioned action on November 14, 2019 by filing a complaint pursuant to 42 U.S.C.

§ 1983 against Defendants. (Doc. No. 1.) Plaintiff also filed a motion for leave to

proceed in forma pauperis. (Doc. No. 2.) In an Order dated November 21, 2019,

the Court denied Plaintiff’s motion for leave to proceed in forma pauperis because

Plaintiff had not demonstrated an inability to pay the requisite $400.00 filing fee.

(Doc. No. 11.) Plaintiff paid the filing fee on December 19, 2020, and the Court

directed service of his complaint upon Defendants. (Doc. Nos. 13, 14.) Defendants

filed an answer on February 18, 2020 (Doc. No. 18), and the parties subsequently

engaged in discovery. In an Order dated October 5, 2020, the Court directed the

parties to file any dispositive motions within sixty (60) days. (Doc. No. 23.)

In his complaint, Plaintiff alleges that he was working on the food service line

on July 21, 2017 when Defendant Ryan stated, “If I start calling y’all out of your

names then y’all want to . . . [sensitive] and write a grievance on me! Don’t look at

me like you don’t know what I’m talking about McClenton.” (Doc. No. 1 ¶ 10.)

Plaintiff alleges that this outburst “was in direct response to a grievance submitted

by inmate Prince,” and that Defendant Ryan had “received information that

[P]laintiff had encouraged and assisted Prince with preparing his grievance against

her.” (Id. ¶¶ 11-12.)

On July 22, 2017, Plaintiff had just returned to his cell from the recreation

yard when his block officer told him that Defendant Ryan had called to say that

Plaintiff was not to return to work. (Id. ¶ 14.) Plaintiff was “laid in (not called to

work)” without pay from July 23-27, 2017. (Id. ¶ 15.) He was called back to work

on July 28, 2017. (Id. ¶ 16.) Plaintiff approached Defendant Cavenas and asked to

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speak to Defendant Roberts about Defendant Ryan’s actions. (Id. ¶ 17.) Defendant

Cavenas, in Defendant Ryan’s presence, told Defendant Roberts that Plaintiff “has

an issue with Defendant Ryan and wished to speak to him in his office.” (Id. ¶ 18.)

Plaintiff went to Defendant Roberts’ office and asked why Defendant Ryan had

called his block officer and “laid [him] in [on] July 22, 2017.” (Id. ¶ 20.) Defendant

Roberts replied, “Word on the compound is you meet with inmates in the yard and

help then write grievances against kitchen staff.” (Id. ¶ 21.) Plaintiff asked who had

called the block to tell him to return to work. (Id. ¶ 22.) Defendant Roberts replied

that he did not know, but that if Plaintiff was willing to “squash it” he could get

Defendant Ryan so that she and Plaintiff could talk. (Id. ¶ 23.) Plaintiff told

Defendant Roberts that Defendant Ryan was apparently upset about the grievance

submitted by inmate Prince. (Id. ¶ 24.)

On July 29, 2017, Defendant Cavenas removed Plaintiff from the food service

line and “essentially demoted him to a table wiper in the kitchen.” (Id. ¶ 25.) On

August 2, 2017, Plaintiff heard Defendant Wadsworth tell another inmate that

Plaintiff would be wiping tables every day since he “likes to complain and help you

guys file grievances.” (Id. ¶ 26.) Plaintiff maintains that from August 2-5, 2017,

Defendant Wadsworth conspired with the kitchen steward to retaliate against

Plaintiff “by way of removing him from the kitchen food service line and demoting

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him to a table wiper.” (Id. ¶ 27.) Plaintiff alleges that Defendant Ryan also demoted

him to a table wiper on August 6, 9, and 10, 2017. (Id. ¶ 28.)

On August 10, 2017, Plaintiff filed grievance #691907. (Id. ¶ 29.) On August

15, 2017, Defendant Stanitis was assigned as the grievance officer. (Id. ¶ 30.) On

August 16, 2017, Plaintiff worked the food service line for lunch, but Defendant

Cavenas removed him from the line and demoted him to a table wiper for dinner.

(Id. ¶¶ 31-32.) After completing work, Plaintiff approached Defendant Cavenas to

be pat searched. (Id. ¶ 33.) He asked Defendant Cavenas why he had been removed

from the food service line for dinner, and Defendant Cavenas replied that it was

because of Plaintiff’s grievance. (Id. ¶ 34.) Plaintiff responded, “That’s retaliation.

I’m writing you up!” (Id. ¶ 35.) Plaintiff alleges that after he expressed his intent

to file a grievance, Defendant Ryan yelled, “What did he just say? I can’t take him

anymore. This has been going on for weeks. Call Supervisor Roberts and tell him

to call security.” (Id. ¶ 38.) Plaintiff asserts that because of his statement, he was

“essentially fired and told not to come back to work by his housing unit officers

when he arrived back to his housing unit.” (Id. ¶ 36.)

On August 28, 2017, Defendant Stanitis called Plaintiff to the kitchen to

interview him about grievance #691907. (Id. ¶ 40.) Defendant Stanitis, in

Defendant Gutsie’s presence, told Plaintiff that “inmates and staff alike in the

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kitchen did not want to work with him because he ‘complaints to[o] much about

staff.’” (Id. ¶ 41.) Defendant Stanitis asked about Plaintiff’s work status, and

Defendant Gutsie replied that Plaintiff was pending a support hearing. (Id. ¶ 42.)

Defendant Stanitis “asked to see Defendant Roberts[’] report and while reviewing it

she laughed.” (Id. ¶ 43.) Defendant Stanitis told Plaintiff that if he withdrew his

grievance, she could get him a job in the C.I. shop or allow him to come back to

work and reassign him to the food service line. (Id. ¶ 44.) Plaintiff “refused to

withdraw his grievance.” (Id. ¶ 45.) While leaving the office, Defendant Gutsie

“urged Plaintiff to withdraw his grievance,” otherwise “they’ll make sure he won’t

get any job and won’t get paid.” (Id. ¶ 47.) Plaintiff asserts that he has been jobless

for over two (2) years and that SCI Mahanoy’s employment office cannot assign him

to a new job because he “has been awaiting a unit management team support hearing

for over 2 years.” (Id. ¶¶ 48-49.)

Based on the foregoing, Plaintiff alleges that Defendants violated his First

Amendment rights by retaliating against him. (Id. ¶¶ 52-86, 94-100, 117-23.) He

maintains further that Defendants Cavenas and Ryan and Defendants Stanitis and

Gutsie conspired to violate his civil rights. (Id. ¶¶ 87-93, 109-16.) Finally, Plaintiff

asserts that Defendant Gutsie violated his rights by failing to intervene to stop

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Defendant Stanitis from retaliating against him. (Id. ¶¶ 101-08.) Plaintiff requests

declaratory relief as well as damages. (Id. ¶ 124.)

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(a) requires the court to render summary

judgment “if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“[T]his standard provides that the mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue of material

fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

A disputed fact is “material” if proof of its existence or nonexistence would

affect the outcome of the case under applicable substantive law. Id. at 248; Gray v.

York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material

fact is “genuine” if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United

Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact, the court

must view the facts and all reasonable inferences in favor of the nonmoving party.

Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963

6

F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59

(3d Cir. 1988). To avoid summary judgment, however, the nonmoving party may

not rest on the unsubstantiated allegations of his or her pleadings. When the party

seeking summary judgment satisfies its burden under Rule 56 of identifying

evidence which demonstrates the absence of a genuine issue of material fact, the

nonmoving party is required by Rule 56 to go beyond his pleadings with affidavits,

depositions, answers to interrogatories or the like in order to demonstrate specific

material facts which give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S.

317, 324 (1986). The party opposing the motion “must do more than simply show

that there is some metaphysical doubt as to the material facts.” Matsushita Electric

Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule 56 shifts the

burden of production to the nonmoving party, that party must produce evidence to

show the existence of every element essential to its case which it bears the burden

of proving at trial, for “a complete failure of proof concerning an essential element

of the nonmoving party’s case necessarily renders all other facts immaterial.”

Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir.

1992).

In determining whether an issue of material fact exists, the court must

consider the evidence in the light most favorable to the nonmoving party. White,

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826 F.2d at 59. In doing so, the Court must accept the nonmovant’s allegations as

true and resolve any conflicts in his favor. Id. (citations omitted). However, a party

opposing a summary judgment motion must comply with Local Rule 56.1, which

specifically directs the oppositional party to submit a “statement of the material

facts, responding to the numbered paragraphs set forth in the statement required [to

be filed by the movant], as to which it is contended that there exists a genuine issue

to be tried”; if the nonmovant fails to do so, “[a]ll material facts set forth in the

statement required to be served by the moving party will be deemed to be admitted.”

L.R. 56.1. A party cannot evade these litigation responsibilities in this regard simply

by citing the fact that he is a pro se litigant. These rules apply with equal force to

all parties. See Sanders v. Beard, No. 09-CV-1384, 2010 WL 2853261, at *5 (M.D.

Pa. July 20, 2010) (pro se parties “are not excused from complying with court orders

and the local rules of court”); Thomas v. Norris, No. 02-CV-01854, 2006 WL

2590488, at *4 (M.D. Pa. Sept. 8, 2006) (pro se parties must follow the Federal Rules

of Civil Procedure).

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III. STATEMENT OF MATERIAL FACTS1

Beginning in October of 2015, Plaintiff was employed in the food service

department at SCI Mahanoy. (Doc. No. 25 ¶ 2.) His employment there “was a

challenge from the start.” (Id. ¶ 3.) Plaintiff “asked other inmates to call him

‘Corleone as if [he] were the God Father’ and other inmate reported to prison staff

that they did not want to work with Plaintiff.” (Id. ¶ 4.)

On July 29, 2017, Defendant Cavenas, who was a steward in the food service

department, “removed Plaintiff from the food service line and asked Plaintiff to wipe

tables.” (Id. ¶ 5.) Plaintiff did not want to wipe tables “and believed that the request

to wipe tables was a ‘demotion.’” (Id. ¶ 6.) On August 10, 2017, “Plaintiff filed

grievance 691907 in which he alleged that he was ordered to wipe tables in

1 The Local Rules of Court provide that in addition to filing a brief in opposition to the moving

party’s brief in support of its motion, “[t]he papers opposing a motion for summary judgment shall

include a separate, short and concise statement of material facts responding to the numbered

paragraphs set forth in the statement [of material facts filed by the moving party] . . . as to which

it is contended that there exists a genuine issue to be tried.” M.D. Pa. L.R. 56. 1. The Rule further

requires the inclusion of references to the parts of the record that support the statements. Id.

Finally, the Rule states that the statement of material facts required to be served by the moving

party will be deemed to be admitted unless controverted by the statement required to be served by

the opposing party. See id. Unless otherwise noted, the background herein is derived from

Defendants’ Rule 56.1 statement of material facts. (Doc. No. 25.) Plaintiff did not file a response

to Defendants’ statement of facts in compliance with Local Rule 56.1. Moreover, Plaintiff’s

complaint is not verified and, therefore, may not be treated as an affidavit in opposition to summary

judgment. See Ziegler v. Eby, 77 F. App’x 117, 120 (3d Cir. 2003) (noting that “the complaint

was not verified, thereby precluding the District Court from treating it as the equivalent of an

affidavit for purposes of Federal Rule of Civil Procedure 56(e)”). Accordingly, the Court deems

the facts set forth by Defendants to be undisputed. See M.D. Pa. LR 56. 1; Fed. R. Civ. P. 56(e)(2).

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retaliation for assisting other inmates in filing grievances.” (Id. ¶ 7.) On August 18,

2017, Plaintiff was suspended from the food service department pending further

action because he was “acting aggressively as well as trying to intimidate staff by

staring and making loud grunting like noises toward staff.” (Id. ¶ 8.)

Notwithstanding this conduct, Defendant Stanitis, the food service manager, met

with Plaintiff on August 28, 2017 “and told Plaintiff he could resume employment

in the food service department.” (Id. ¶ 9.) “Plaintiff declined to resume his

employment.” (Id. ¶ 10.)

IV. DISCUSSION

Defendants assert that they are entitled to summary judgment because: (1)

Defendants Cavenas, Wadsworth, and Ryan are entitled to summary judgment on

Plaintiff’s first three (3) counts of retaliation; and (2) there is no evidence that any

Defendant took sufficient adverse action. (Doc. No. 26 at 4-6.) The Court considers

these arguments below.

To state a retaliation claim under the First Amendment, a plaintiff bears the

burden of satisfying three (3) elements. First, a plaintiff must prove that he was

engaged in a constitutionally protected activity. See Rauser v. Horn, 241 F.3d 330,

333 (3d Cir. 2001). Second, a plaintiff must demonstrate that he “suffered some

‘adverse action’ at the hands of prison officials.” Id. (quoting Allah v. Seiverling,

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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 First

Amendment rights.” Id. (quoting Suppon v. Dadonna, 2013 F.3d 228, 235 (3d Cir.

2000)). Third, a prisoner must prove that “his constitutionally protected conduct

was ‘a substantial or motivating factor’ in the decision to discipline him.” Rauser,

241 F.3d at 333-34 (quoting Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 287 (1977)).

The mere fact that an adverse action occurs after either a complaint or

grievance is filed is relevant, but not dispositive, for the purpose of establishing a

causal link between the two events. See Lape v. Pennsylvania, 157 F. App’x 491,

498 (3d Cir. 2005). Only when the facts of a particular case are “unusually

suggestive” of a retaliatory motive will temporal proximity, on its own, support an

inference of causation. See Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir.

1997). The Third Circuit has noted that an inmate can satisfy this burden “with

evidence of either (1) an unusually suggestive temporal proximity between the

protected activity and the allegedly retaliatory action or (2) a pattern of antagonism

coupled with timing that suggests a causal link.” Watson v. Rozum, 834 F.3d 417,

422 (3d Cir. 2002).

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If a prisoner establishes a prima facie case of retaliation, the burden shifts to

prison officials to show, by a preponderance of the evidence, that “they would have

made the same decision absent the protected conduct for reasons reasonably related

to a legitimate penological interest.” Rauser, 241 F.3d at 334. “This is often referred

to as the ‘same decision defense.’” Watson, 834 F.3d at 422. If the prison officials

can make this showing, it defeats the retaliation claim. See Carter v. McGrady, 292

F.3d 152, 159 (3d Cir. 2002).

A. Protected Activity

The filing of grievances constitutes protected activity. See Mearin v.

Vidonish, 450 F. App’x 100, 102 (3d Cir. 2011). Verbal complaints constitute

protected activity, as well. See Mack v. Warden Loretto FCI, 839 F.3d 286, 297-99

(3d Cir. 2016); Brewer v. Kamas, 533 F. Supp. 2d 318, 329 (W.D.N.Y. 2008) (citing

Smith v. Woods, No. 9:03-cv-480, 2006 WL 1133247, at *10 (N.D.N.Y. 2006);

Davila-Bajana v. Holohan, No. 04-253 Erie, 2007 WL 2811633, at *5 (W.D. Pa.

Sept. 24, 2007) (assuming that an inmate-plaintiff’s verbal complaints were

constitutionally protected activity). Defendants Cavenas, Wadsworth, and Ryan

assert that they are entitled to qualified immunity on Plaintiff’s first three counts of

retaliation because they are “based on allegations that they asked Plaintiff to wipe

tables after learning that he was assisting other inmates in filing grievances,” and

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that there is no Supreme Court or Third Circuit precedent suggesting that such

activity is protected speech. (Doc. No. 26 at 5.) The Court considers this argument

below.

“Qualified immunity shields federal and state officials from money damages

unless a plaintiff pleads facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time of the

challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine whether a right was clearly

established, the Court must ask “whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.” See Schmidt v.

Creedon, 639 F.3d 587, 598 (3d Cir. 2011). “If it would not have been clear to a

reasonable officer what the law required under the facts alleged, then he is entitled

to qualified immunity.” Id. Stated differently, for a right to be clearly established,

“existing precedent must have placed the statutory or constitutional question beyond

debate.” See al-Kidd, 563 U.S. at 741. As the Supreme Court recently noted, “[t]his

demanding standard protects ‘all but the plainly incompetent or those who

knowingly violate the law.’” See District of Columbia v. Wesby, 138 S. Ct. 577, 589

(2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Accordingly, “there

must be sufficient precedent at the time of action, factually similar to the plaintiff’s

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allegations, to put [the] defendant on notice that his or her conduct is constitutionally

prohibited.” See Mammaro v. N.J. Div. of Child Prot. & Permanency, 814 F.3d 164,

169 (3d Cir. 2016) (quoting McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir.

2001)).

The United States Supreme Court’s decision in White v. Pauly, 137 S. Ct. 548

(2017), clarifies the Court’s inquiry in this regard. In that case, the Supreme Court

reaffirmed that its case law “do[es] not require a case directly on point” for a right

to be clearly established, but “existing precedent must have placed the statutory or

constitutional question beyond debate.”2 See id. at 551 (internal quotation marks

omitted) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). The Supreme Court

reiterated that the clearly-established law “must be ‘particularized’ to the facts of the

case,” and cautioned that the fact that a case presents a unique set of facts and

circumstances is an “important indication” that a defendant’s conduct at issue did

not violate a “clearly established” right. See id. at 552 (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)).

As an initial matter, Defendants have too narrowly construed Plaintiff’s first

three counts of retaliation set forth in his complaint. In those counts, Plaintiff alleges

2 There may be the rare “obvious case,” however, where “a body of case law” is not necessary.

See Brosseau v. Haugen, 543 U.S. 194, 199 (2004).

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that Defendants Cavenas, Wadsworth, and Ryan not only retaliated against him by

demoting him to a table wiper for not only encouraging and assisting other inmates

with filing grievances, but also for lodging verbal complaints about Defendant

Ryan’s actions with Defendant Roberts. (Doc. No. 1 ¶¶ 52-72.) As noted above,

Plaintiff’s verbal complaints constitute protected speech. See Mack, 839 F.3d at

297-99. Thus, to the extent Plaintiff’s first three counts of retaliation are based upon

his verbal complaints, Defendants Cavenas, Wadsworth, and Ryan are not entitled

to qualified immunity.

The Court, however, concludes that Defendants Cavenas, Wadsworth, and

Ryan are entitled to qualified immunity to the extent that Plaintiff asserts that they

retaliated against him for encouraging and assisting other inmates with filing

grievances. In 2016, this Court recognized that it was not clearly established that

advising or encouraging another inmate to file a grievance is protected speech. See

Mobley v. Snyder, No. 1:13-cv-772, 2016 WL 3387178, at *8 (M.D. Pa. June 20,

2016). Moreover, prisoners generally “do not have a First Amendment right to

provide legal assistance to other prisoners.” Cooper v. Pa. Dep’t of Corr., 756 F.

App’x 130, 133 (3d Cir. 2018). The Court recognizes that in May of 2017, the Third

Circuit held that legal assistance provided by one inmate to another “was both

pursuant to [the plaintiff’s] job duties [at the prison] and in accordance with prison

15

regulations, [and] was not inconsistent with legitimate penological interests,” such

assistance “could fall within the limited First Amendment rights that prisoners

retain.” Wisniewski v. Fisher, 857 F.3d 152, 156-57 (3d Cir. 2017). In the instant

case, however, there is no evidence before the Court suggesting that Plaintiff’s job

duties involved the provision of legal assistance or assistance with preparing

grievances to other inmates. Thus, “because the existing precedent did not place the

constitutional question of whether [Plaintiff] engaged in constitutionally protected

speech [by encouraging and assisting other inmates in filing grievances] beyond

debate,” Defendants Cavenas, Ryan, and Wadsworth are entitled to partial qualified

immunity. Mobley, 2016 WL 3387178, at *8. Thus, the motion for summary

judgment will be granted to the extent that Plaintiff asserts that Defendants Cavenas,

Ryan, and Wadsworth retaliated against him for encouraging and assisting other in

filing grievances.

B. Adverse Action

To be actionable under § 1983, the adverse action “need not be great” but

“must be more than de minimus.” See McKee v. Hart, 436 F.3d 165, 170 (3d Cir.

2006). The Third Circuit has recognized that, for purposes of a retaliation claim,

“an action which on its own would not violate the Constitution could be actionable

if motivated by retaliation.” Collazo v. Rozum, 646 F. App’x 274, 276 n.5 (3d Cir.

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2016). Defendants argue that they are entitled to summary judgment because

Plaintiff cannot satisfy this element. (Doc. No. 26 at 6.) Specifically, they maintain

that wiping tables was part of Plaintiff’s job in the food service department, and that

“the temporary suspension of Plaintiff’s employment was not an adverse action

sufficient to deter a person of ordinary firmness [from] exercising his constitutional

rights.” (Id.)

The Court agrees that Plaintiff’s “demotion” to wiping tables is not an adverse

action sufficient to satisfy the second prong of a retaliation claim. Plaintiff

confirmed during his deposition that wiping table is part of the duties of food service.

(Doc. No. 25-1 at 10; see also Doc. No. 25-2 at 1.)3 Nothing in the record before

the Court suggests that such a “demotion” was “sufficient to deter a person of

ordinary firmness from exercising his First Amendment rights.” Rauser, 241 F.3d

at 333 (internal quotation marks omitted); see also Schilling v. Loredo, No. 17-cv-

4054, 2019 WL 2247787, at *12 (N.D. Cal. May 24, 2019) (suggesting that inmate-

3 The Court notes that counsel for Defendants deposed Plaintiff via videoconference on August

18, 2020. (Doc. No. 25-1 at 2.) Rule 30(a)(2)(B) of the Federal Rules of Civil Procedure requires

that leave of court be obtained prior to deposing an individual who is incarcerated. See Fed. R.

Civ. P. 30(a)(2)(B). In the instant case, counsel for Defendants did not seek leave of this Court to

depose Plaintiff. It appears, however, that Plaintiff has not objected to this failure. Moreover, the

failure to obtain such leave would not automatically entitle Plaintiff to relief on his claims. See

Irish v. U.S. Dep’t of Justice, No. 11-2703, 2015 WL 1178072, at *21 (D. Minn. Mar. 13, 2015).

The Court reminds counsel that, in the future, he must seek such leave in any matters in which he

wishes to depose an incarcerated individual.

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plaintiff’s demotion to another position within the prison’s furniture factor was

insufficient to establish adverse action); cf. Verbanik v. Harlow, No. 09-448, 2012

WL 4378198, at *3 (W.D. Pa. Sept. 25, 2012) (concluding that an inmate-plaintiff’s

“housing demotion” was insufficient to satisfy the adverse action prong). Moreover,

as noted supra, Plaintiff was suspended from work without pay from July 23-27,

2017. (Doc. No. 1 ¶ 15.) The Court agrees with Defendants that this “single,

temporary inconvenience does not meet the standard.” See Walker v. Mathis, 665 F.

App’x 140, 143 (3d Cir. 2016) (concluding that inmate-plaintiff’s two (2)-day

suspension from work assignment without pay was insufficient to meet the adverse

action prong of a retaliation claim).

Plaintiff also maintains that Defendants Cavenas and Ryan retaliated against

him for filing grievances by fabricating threat allegations and placing negative

comments regarding his work performance in his file, ultimately leading to his

removal from the kitchen. (Doc. No. 1 ¶ 82.) Plaintiff suggests that Defendant

Roberts instructed Defendants Cavenas and Ryan to take these actions. (Id. ¶ 119.)

Plaintiff maintains further that Defendant Stanitis retaliated against him by forcing

him to choose between withdrawing his grievance or returning to work, and that

Defendant Gutsie failed to intervene to stop Defendant Stanitis’ actions. (Id. ¶¶ 96,

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98, 104.) Defendants have not specifically addressed these allegations in their

motion for summary judgment.

The Third Circuit has recognized that “the termination of prison employment

constitutes adverse action sufficient to deter the exercise of First Amendment rights,

satisfying the second element of a retaliation claim.” Wisniewski, 857 F.3d at 157.

Moreover, threatening an inmate with unpleasant consequences unless he agrees to

withdraw a grievance or complaint is sufficient to constitute adverse action. See,

e.g., Williams v. Lee, No. 1:19-cv-41, 2020 WL 5704272, at *5 (W.D. Pa. Sept. 24,

2020); Wrigley v. Peters, No. 3:18-cv-135, 2020 WL 4207066, at *1 (D. Nev. July

22, 2020); Sharpe v. Costello, No. 1:06-cv-1493, 2007 WL 1098964, at *6 (M.D.

Pa. Apr. 11, 2007). During his deposition, Plaintiff testified that, contrary to

Defendants’ assertions, he never acted aggressively or attempted to intimidate

kitchen staff. (Doc. No. 25-1 at 14.) Plaintiff testified further that Defendant Stanitis

indicated that he could resume employment in the food service department if he

“signed off on” (withdrew) his grievance. (Id. at 13-15.) Plaintiff indicated that he

was given the choice of withdrawing the grievance and continuing to be employed

or having no job at all. (Id. at 14.) Similar “Hobson’s choices” have been presumed

to constitute sufficient adverse action for purposes of a retaliation claim. See

Johnson v. Piper, No. 2:14-cv-173-RWS-JCF, 2017 WL 11493976, at *7-8 (N.D.

19

Ga. Aug. 25, 2017) (assuming that being provided the “Hobson’s choice” of

“confinement in Max-Iso or separation from his legal materials” was adverse

action”).

In light of the evidence, it is the Court’s view that there are genuine issues of

material fact as to whether certain actions (fabricating threat allegations, placing

negative comments in Plaintiff’s work file, and offering a choice between

employment and withdrawing his grievance) constitute adverse action sufficient to

satisfy the second element of a retaliation claim. As noted supra, Defendants have

not addressed these allegations. Notably, Defendants have not submitted affidavits

in support of their motion for summary judgment. Defendants have also not

addressed whether such actions are causally connected to Plaintiff’s grievance. Such

issues of fact will likely turn on a credibility assessment, a task in which this Court

may not partake at the summary judgment stage. See Anderson, 477 U.S. at 25.

Thus, the Court will deny Defendants’ motion for summary judgment as to

Plaintiff’s claims that Defendants retaliated against him by fabricating threat

allegations, placing negative comments in his work file, and offering a choice

between continued employment and withdrawing his grievance.4

4 Plaintiff also alleges that Defendants Cavenas and Ryan, as well as Defendants Stanitis and

Gutsie, conspired to violate his civil rights. (Doc. No. 1 ¶¶ 87-93, 109-16.) To maintain an action

for civil conspiracy under § 1983, a plaintiff must “prove that persons acting under color of state

law ‘reached an understanding’ to deprive him of his constitutional rights.” Jutrowski v. Twp. of

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V. CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment (Doc.

No. 24) will be granted in part and denied in part. The motion (Doc. No. 24) will be

granted with respect to: (1) Plaintiff’s claims that Defendants Cavenas, Ryan, and

Wadsworth retaliated against him for encouraging and assisting other inmates with

filing grievances; (2) Plaintiff’s claims that Defendants Cavenas, Ryan, and

Wadsworth retaliated against him by “demoting” him to a table wiper and

temporarily suspending him from his work assignment; and (3) Plaintiff’s

conspiracy claims against Defendants Cavenas, Ryan, Stanitis, and Gutsie. The

motion (Doc. No. 24) will be denied with respect to Plaintiff’s claims that

Defendants Cavenas, Ryan, Roberts, Stanitis, and Gutsie retaliated against him for

Riverdale, 904 F.3d 280, 293-94 (3d Cir. 2018) (quoting Adickes v. S.H. Kress & Co., 398 U.S.

144, 150-52 (1970)). Moreover, “[b]are conclusory allegations of ‘conspiracy’ or ‘concerted

action’ will not suffice to allege a conspiracy. The plaintiff must expressly allege an agreement or

make averments of communication, consultation, cooperation, or command from which such an

agreement can be inferred.” Flanagan v. Shively, 783 F. Supp. 922, 928 (M.D. Pa. 1992). The

plaintiff’s allegations “must be supported by facts bearing out the existence of the conspiracy and

indicating its broad objectives and the role each Defendant allegedly played in carrying out those

objectives.” Id. A plaintiff cannot rely on subjective suspicions and unsupported speculation.

Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991). Moreover, “to successfully counter a

motion for summary judgment, a plaintiff must provide specific evidence establishing that

defendants agreed among themselves to act against him either unlawfully or for an unlawful

purpose.” Payne v. Gordon, 3:17-cv-1230, 2018 WL 3649026, at *11 (M.D. Pa. Aug. 1, 2018).

Here, Plaintiff ha failed to introduce into the record any evidence which shows an agreement or

plan created and executed by Defendants that rises to the level of a conspiracy. Without such,

Plaintiff’s conspiracy claims amount to nothing more than mere conjecture and bare speculation,

which is not sufficient to demonstrate a genuine issue of fact as to the existence of an agreement

designed to deny his constitutional rights. See Young, 926 F.2d at 1405 n.16. Accordingly,

Defendants are entitled to summary judgment with respect to Plaintiff’s conspiracy claims.

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filing grievances by fabricating threat allegations, placing negative comments in his

work file, and offering a choice between continued employment and withdrawing

his grievance. An appropriate Order follows.

s/ Sylvia H. Rambo

United States District Judge

Date: January 12, 2021

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