Harvey v. Cline

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

VINCENT HARVEY and :

RICHARD HAWKINS, :

Plaintiffs :

: No. 3:18-cv-939

v. :

: (Judge Rambo)

CO1 D. CLINE, et al., :

Defendants :

MEMORANDUM

This matter is before the Court pursuant to Defendants’ motion for

reconsideration (Doc. No. 83) of the Court’s February 26, 2021 Memorandum and

Order (Doc. Nos. 81, 82) granting in part and denying in part Defendants’ first

motion for summary judgment (Doc. No. 75), as well as Defendants’ second motion

for summary judgment (Doc. No. 85). Pro se Plaintiffs Vincent Harvey (“Harvey”)

and Richard Hawkins (“Hawkins”) have not filed responses to the motions and have

not requested extensions of time to do so. Accordingly, because the time for

responding has expired, Defendants’ motions are ripe for disposition.

I. BACKGROUND

On May 4, 2018, Plaintiffs, who were both incarcerated at the State

Correctional Institution Benner Township (“SCI Benner Township”) at that time,1

initiated the above-captioned case by filing a complaint pursuant to 42 U.S.C. § 1983

1 Plaintiff Harvey was released from DOC custody in 2019. (Doc. No. 55.)

against Defendants CO1 D. Cline (“Cline”), Tammy Ferguson (“Ferguson”), the

Pennsylvania Department of Corrections (“DOC”), and inmate Michael Peterson

(“Peterson”). (Doc. No. 1.) Plaintiffs’ claims stem from two (2) separate incidents

that occurred on the same day with inmate Peterson. (Id.) Plaintiffs allege various

constitutional and state law violations arising from these incidents. (Id.) They seek

damages as well as injunctive relief.2 (Id.)

Defendants Cline, Ferguson, and the DOC filed an answer on August 30,

2018. (Doc. No. 18.) Inmate Peterson was dismissed without prejudice pursuant to

Rule 4(m) of the Federal Rules of Civil Procedure on April 30, 2019. (Doc. No. 33.)

Subsequently, counsel appeared on behalf of Plaintiffs. (Doc. No. 57.) The Court

then granted the parties extensions of time to complete fact discovery and file

dispositive motions. (Doc. Nos. 60, 62, 68.) Counsel subsequently moved to

withdraw his representation of Plaintiffs (Doc. No. 73), which the Court granted

(Doc. No. 74). Defendants filed their motion for summary judgment on November

23, 2020, arguing, inter alia, that Plaintiff Hawkins had failed to exhaust his

administrative remedies prior to filing suit. (Doc. Nos. 75, 76, 77.) In its December

7, 2020 Order, the Court informed the parties that, pursuant to Paladino v. Newsome,

2 Plaintiff Harvey’s release from custody moots his claims for injunctive relief. See Robinson v.

Cameron, 814 F. App’x 724 (3d Cir. 2020).

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885 F.3d 203 (3d Cir. 2018), it would consider the exhaustion issue in the context of

summary judgment, and by doing so, would consider matters outside the pleadings

in its role as factfinder. (Doc. No. 78.) Accordingly, the Court directed Plaintiffs to

respond to Defendants’ motion within twenty-one (21) days. (Id.) On December

28, 2020, Plaintiffs moved for a forty-five (45) day extension to respond. (Doc. No.

79.) The Court granted their motion in an Order entered December 30, 2020. (Doc.

No. 80.) Despite receiving an extension of time, Plaintiffs did not file a response.

In a Memorandum and Order dated February 26, 2021, the Court granted in

part and denied in part Defendants’ motion for summary judgment. (Doc. Nos. 81,

82.) The Court granted the motion with respect to Plaintiffs’ § 1983 claims against

Defendants Ferguson and the DOC, Plaintiff Hawkins’ § 1983 claims against

Defendant Cline, Plaintiffs’ Fourteenth Amendment due process claims concerning

the loss of property, and Plaintiff’s § 1983 civil conspiracy claims against

Defendants. (Doc. No. 82.) The Court denied the motion as to Plaintiff’s Harvey’s

§ 1983 Eighth Amendment claims regarding failure to protect and denial of medical

care against Defendant Cline. (Id.) Finally, the Court denied the motion without

prejudice as to Plaintiffs’ First Amendment retaliation claims and state law claims

against Defendants. (Id.) The Court noted that Defendants could file a second

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motion for summary judgment regarding the First Amendment and state law claims

within thirty (30) days. (Id.)

Defendants filed their motion for reconsideration on March 12, 2021, seeking

reconsideration of the Court’s denial of summary judgment as to Plaintiff Harvey’s

Eighth Amendment claims against Defendant Cline. (Doc. Nos. 83, 84.) They filed

their second motion for summary judgment on March 29, 2021. (Doc. Nos. 85, 86,

87.) Defendants argue, inter alia, that Plaintiffs failed to exhaust their administrative

remedies. (Doc. No. 87.) In its March 29, 2021 Order, the Court informed the

parties that, pursuant to Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018), it would

consider the exhaustion issue in the context of summary judgment, and by doing so,

would consider matters outside the pleadings in its role as factfinder. (Doc. No. 88.)

Accordingly, the Court directed Plaintiffs to respond to Defendants’ motion within

twenty-one (21) days. (Id.) Despite this directive, Plaintiffs have not filed a

response.

II. STANDARDS OF REVIEW

A. Summary Judgment Standard

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).

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“[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

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,

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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,

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

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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).

B. Motion for Reconsideration

As noted supra, the Court’s February 26, 2021 Memorandum and Order did

not dispose of all of Plaintiffs’ claims for relief. Accordingly, Defendants seek

reconsideration of an interlocutory ruling, not a final judgment or order. While

reconsideration of a final judgment or order may be considered under Federal Rules

of Civil Procedure 59(e) or 60(b), “the appropriate Rule under which to file motions

for reconsideration of an interlocutory order is Rule 54(b).” Cezair v. JP Morgan

Chase Bank N.A., No. 13-2928, 2014 WL 4955535, at *1 (D. Md. Sept. 30, 2014);

see also Qazizadeh v. Pinnacle Health Sys., 241 F. Supp. 3d 292, 298 (M.D. Pa.

2016) (noting that “motions for reconsideration of interlocutory orders—whether

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denials of summary judgment, grants of partial summary judgment, or any other non-

final orders—are motions under Federal Rule of Civil Procedure 54(b)”). Rule 54(b)

provides:

[A]ny order or other decision, however designated, that adjudicates

fewer than all the claims or the rights and liabilities of fewer than all

the parties does not end the action as to any of the claims or parties and

may be revised at any time before the entry of a judgment adjudicating

all the claims and all the parties’ rights and liabilities.

Fed. R. Civ. P. 54(b).

A motion for reconsideration with respect to a final order or judgment must

rely on one (1) of three (3) grounds: “(1) an intervening change in the controlling

law; (2) the availability of new evidence . . . or (3) the need to correct a clear error

of law or fact or to prevent manifest injustice.” Max’s Seafood Cafe v. Quinteros,

176 F.3d 669, 677 (3d Cir. 1999) (citing North River Ins. Co. v. CIGNA Reinsurance

Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). The purpose of such a motion is “to correct

manifest errors of law or fact or to present newly discovered evidence.” Bootay v.

KBR, Inc., 437 F. App’x 140, 146-47 (3d Cir. 2011) (citing Harsco Corp. v.

Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)). To be successful, the movant must

demonstrate a “definite and firm conviction that a mistake has been committed,” or

that the court overlooked arguments that were previously made. United States v.

Jasin, 292 F. Supp. 2d 670, 676 (E.D. Pa. 2003). “It may not be used as a means to

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reargue unsuccessful theories or argue new facts or issues that were not presented to

the court in the context of the matter previously decided.” Gray v. Wakefield, No.

3:09-cv-979, 2014 WL 2526619, at *2 (M.D. Pa. June 4, 2014); see also Database

Am., Inc. v. Bellsouth Adver. & Publ’g Corp., 825 F. Supp. 1216, 1220 (D.N.J. 1993)

(“A party seeking reconsideration must show more than a disagreement with the

Court’s decision, and ‘recapitulation of the cases and arguments considered by the

court before rendering its original decision fails to carry the moving party’s

burden.’”).

“While the standards articulated [above] are not binding in an analysis of Rule

54(b) motions, courts frequently look to these standards for guidance in considering

such motions.” Ampro Computers, Inc. v. LXE, LLC, No. 13-1937, 2016 WL

3703129, at *2 (D. Del. July 8, 2016) (quoting Cezair, 2014 WL 4955535, at *1).

Reconsideration of interlocutory orders, however, “may be had even if the movant

cannot show an intervening change in controlling law, the availability of new

evidence that was not available when the court issued the underlying order, or the

‘need to correct a clear error of law or fact to prevent manifest injustice.’”

Qazizadeh, 214 F. Supp. 3d at 298 (quoting Quinteros, 176 F.3d at 677). “[T]he

court may permit reconsideration whenever ‘consonant with justice to do so.’” Id.

(quoting St. Mary’s Area Water Auth. v. St. Paul Fire and Marine Ins. Co., 472 F.

9

Supp. 2d 630, 632 (M.D. Pa. 2007)). Courts, however, should exercise this authority

with a “light hand.” Foster v. Westchester Fire Ins. Co., No. 09-1459, 2012 WL

2402895, at *4 (W.D. Pa. June 26, 2012). The United States Court of Appeals for

the Third Circuit has explained that while “[a] court has the power to revisit prior

decisions of its own or of a coordinate court in any circumstance . . . as a rule courts

should be loathe to do so in the absence of extraordinary circumstances such as

where the initial decision was clearly erroneous and would make a manifest

injustice.” In re Pharmacy Benefit Managers, 582 F.3d 432, 439 (3d Cir. 2009)

(quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988)).

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III. STATEMENT OF MATERIAL FACTS3

A. Facts Regarding Administrative Exhaustion

The DOC has established a grievance review system “to provide prisoners in

its custody with a regular procedure to resolve problems or other issues arising

during the course of their confinement.” (Doc. No. 86 ¶ 1.) The grievance system

policy is set forth in DC-ADM 804. (Id.) Under DC-ADM 804, “any inmate

personally affected by a Department or institutional action or policy or by the action

of a Department employee may file a grievance.” (Id. ¶ 2.) Informal resolution prior

3 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’ second Rule 56.1 statement of material facts. (Doc. No. 86.)

Plaintiffs did not file a response to Defendants’ statement of facts in compliance with M.D.

Pa. L.R. 56.1. However, they have filed a verified complaint, which may 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)”); Reese v.

Sparks, 760 F.2d 64, 67 (3d Cir. 1985) (treating verified complaint as an affidavit on summary

judgment motion); see also Boomer v. Lewis, No. 06-850, 2009 WL 2900778, at *2 n.4 (M.D. Pa.

Sept. 9, 2009) (“A verified complaint may be treated as an affidavit in support of or in opposition

to a motion for summary judgment if the allegations are specific and based on personal

knowledge.”). However, this Court is not “required to accept unsupported, self-serving testimony

as evidence sufficient to create a jury question.” Hammonds v. Collins, Civ. No. 12-236, 2016

WL 1621986, at *3 (M.D. Pa. Apr. 20, 2016) (citing Brooks v. Am. Broad. Co., 999 F.2d 167, 172

(6th Cir. 1993)). Accordingly, unless otherwise noted, 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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to submitting a grievance is encouraged. (Id.) A grievance must be submitted to the

Facility Grievance Coordinator, “using the grievance form that is available on all

housing units or blocks.” (Id.) All inmates may file grievances, and all inmates are

provided with a copy of the grievance policy “when coming into one of the

Department’s diagnostic and classification centers and are provided notice of any

revisions to the policy and procedures manual.” (Id. ¶¶ 3-4.) Moreover, “a copy of

the grievance system policy and procedures manual is available on all housing

blocks and in the institutional library for inmates to review or request to obtain

copies.” (Id. ¶ 4.)

DC-ADM 804 sets forth three (3) levels of grievance review: “(1) an initial

review by a Grievance Officer; (2) appeal to the Facility Manager or designee; and

(3) appeal to the SOIGA for final review.” (Id. ¶ 5.) When submitting a grievance,

the inmate must include a statement of relevant facts, as well as the date, time, and

location of the events. (Id. ¶ 7.) The inmate must also identify the individuals

involved, state the claims he wishes to raise, and include a request for the relief

sought. (Id.) “The inmate is required to include a request for the specific relief

sought—such as compensation—in the initial grievance.” (Id.) A grievance for

initial review must be submitted to the Facility Grievance Coordinator “within 15

working days after the event upon which the claim is based.” (Id. ¶ 9.) The Facility

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Grievance Coordinator assigns a tracking number to every grievance upon receipt

and enters it into the Automated Inmate Grievance Tracking System. (Id. ¶ 10.)

An inmate may appeal an Initial Review Response or grievance rejection to

the Facility Manager (Superintendent) within fifteen (15) working days from the

date of the response or rejection. (Id. ¶ 11.) The appeal “must contain the reasons

for the appeal.” (Id. ¶ 12.) “Only an issue that was raised for Initial Review,

determination of frivolousness, rejection and/or placement on grievance restriction

may be appealed.” (Id.) The Facility Manager provides a written response which

“may, among other things: Uphold the Initial Review Response, Uphold Inmate,

Dismiss, Uphold in Part/Deny in Part, or Remand.” (Id. ¶ 13.)

An inmate may appeal the Facility Manager’s response within fifteen (15)

working days to the “Secretary’s Office of Inmate Grievances and Appeals

[(‘SOIGA’)].” (Id. ¶ 14.) “Only issues raised in both the original grievance and the

appeal to the Facility Manager may be appealed to” SOIGA. (Id. ¶ 15.) Along with

the appeal, the inmate must include copies of the Initial Grievance, Initial Review

Response, Inmate Appeal to the Facility Manager, and the Facility Manager’s

response. (Id. ¶ 16.) SOIGA “may, among other things: Uphold Response, Uphold

Inmate, Dismiss, Uphold in Part/Deny in Part, or Remand.” (Id. ¶ 17.) When an

appeal is remanded by SOIGA, “notification is provided to both the inmate and

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facility, and the facility provides a revised response to the inmate.” (Id. ¶ 18.) If an

inmate is dissatisfied with the revised response, he “may appeal the revised response

to final review again within fifteen (15) working days of the date of the revised

response.” (Id. ¶ 19.)

Keri Moore, a grievance officer for SOIGA, checked SOIGA’s files “for

grievances filed by the Plaintiffs against Officer Cline for retaliation.” (Id. ¶ 20.)

Plaintiffs did not file a grievance “against Officer Cline for retaliation for filing

grievances or for seeking medical treatment, or for retaliation at all.” (Id. ¶ 21.)

Moreover, Plaintiff Harvey did not exhaust a claim for damages against Defendant

Cline. (Id. ¶ 62.)

B. Facts Related to Defendant Cline

Defendant Cline had no knowledge at any time that inmate Peterson “had a

propensity for violence against other inmates or that he was involved in gang

activity.” (Id. ¶ 22.) Defendant Cline also had no knowledge of inmate Peterson

“assaulting inmates on the E-Block or having a history of doing so.” (Id. ¶ 23.) At

no time did Plaintiffs inform Defendant Cline “of a risk of harm to either of them

posed by” inmate Peterson. (Id. ¶ 24.)

E-Block “is a general population block and inmates are permitted to leave

their cells for various reasons, and interact freely.” (Id. ¶ 25.) Defendant Cline “did

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not view [inmate] Peterson walking aggressively towards [Plaintiff] Harvey’s cell.”

(Id. ¶ 26.) Defendant Cline had no notice of any plans by inmate Peterson to assault

Plaintiffs. (Id. ¶ 27.) On the day in question, when Defendant Cline saw inmate

Peterson outside of Plaintiff Harvey’s cell, Defendant Cline “directed him to return

to his cell and ordered [Plaintiff] Harvey to close his cell door.” (Id. ¶ 28.)

Defendant Cline “had not opened the cell door for” inmate Peterson. (Id. ¶ 29.)

Neither Plaintiff informed Defendant Cline of an altercation, and Defendant Cline

did not seek any blood. (Id. ¶ 30.) Plaintiff Harvey did not tell Defendant Cline

“that he was attacked, nor did he request to go to medical.” (Id. ¶ 31.)

Defendant Cline “did not mishandle or fail to return Plaintiffs’ property, nor

did [he] delay call outs or cause the Plaintiffs to miss sign up times for kiosk, phone

and haircuts, at all.” (Id. ¶ 32.) Defendant Cline “did not retaliate against the

Plaintiffs for any reason, whatsoever.” (Id. ¶ 33.) Plaintiff Harvey did not interact

with Defendant Cline after the incident, and Defendant Cline was no longer an

officer in charge of Plaintiff Harvey “because they were no longer on the same

block.” (Id. ¶ 34.)

Prior to the incident, Defendant Cline never charged Plaintiff Harvey with any

misconducts, and Plaintiff Harvey never filed any grievances about Defendant Cline.

(Id. ¶ 35.) Plaintiff Harvey and Defendant Cline “had an amicable relationship and

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there was no bad blood between the two.” (Id. ¶ 36.) Plaintiff Harvey testified that

“if he wanted a shower, [Defendant Cline] would allow him to shower, and if he

wanted to use the phone, [Defendant] Cline would let him use the phone.” (Id.

¶ 37.) Plaintiff Hawkins “did not sue [Defendant] Cline on grounds of retaliation.”

(Id. ¶ 38.) Plaintiff Hawkins “had a respectful relationship with [Defendant] Cline

over the years.” (Id. ¶ 40.) Defendant Cline never charged Plaintiff Hawkins with

any misconducts, and Plaintiff Hawkins never filed any grievances about Defendant

Cline. (Id. ¶ 41.) “[Defendant] Cline would ask [Plaintiff] Hawkins if he wanted to

use the phone if [Plaintiff] Hawkins signed up for phone.” (Id. ¶ 42.)

Plaintiff Harvey “never had [] a personal relationship with” inmate Peterson.

(Id. ¶ 45.) He “stays away from people he does not know and only deals ‘with the

people that [he] know[s] from the outside or family members.’” (Id. ¶ 46.) He did

not know inmate Peterson previously. (Id. ¶ 47.) Inmate Peterson was “not one that

he ‘would even say what’s up to or hi’ and that Peterson ‘just was there as another 1

of 125 inmates that was there.’” (Id. ¶ 48.) Plaintiff Harvey testified that “these

interactions (or lack thereof never changed and that [inmate] Peterson remained just

another random person on the block, until the day in question.” (Id. ¶ 49.) He noted

that inmate Peterson “had never made any threats to him, and that ‘the date this

happened was all—it was all just random.’” (Id. ¶ 50.) “[I]t was a normal day

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leading to the incident.” (Id. ¶ 51.) Inmate Peterson was not in a rival gang. (Id.

¶ 52.)

Plaintiff Harvey attacked inmate Peterson first by charging him and hitting

him with a fan, “destroying the fan, at the ‘moment that [Peterson] turn[ed] his head

to look towards the door.’” (Id. ¶ 53.) Plaintiff Hawkins did not see inmate Peterson

approaching Plaintiff Harvey’s cell and did not witness the incident or Plaintiff

Harvey allegedly being stabbed. (Id. ¶ 54.) Plaintiff Harvey had “no knowledge

that [Defendant] Cline knew the attack would occur.” (Id. ¶ 55.) His “cell door may

have been left open or opened accidentally.” (Id. ¶ 56.)

“Plaintiffs are later seen on video, both fully ambulatory and without obvious

injury, viciously and maliciously attacking Inmate Peterson in a two on one fight.”

(Id. ¶ 57.) Plaintiff Harvey “received medical attention for any and all injuries on

the very same day, and within hours, of both alleged incidents.” (Id. ¶ 58.) He “did

not need stitches for his wounds, and he was given gauze, and [] his wounds healed

without issue.” (Id. ¶ 59.) Plaintiff Harvey “did not ask [Defendant] Cline to go to

medical.” (Id. ¶ 60.) No one in the medical department “inquired as to why is

injuries were not looked at earlier.” (Id. ¶ 61.)

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IV. DISCUSSION

A. Claims Pursuant to 42 U.S.C. § 1983

1. Administrative Exhaustion

Pursuant to the Prison Litigation Reform Act (“PLRA”), a prisoner must

pursue all available avenues of relief through the applicable grievance system before

initiating a federal civil rights action. See 42 U.S.C. § 1997e(a); Booth v. Churner,

532 U.S. 731, 741 n.6 (2001) (“[A]n inmate must exhaust irrespective of the forms

of relief sought and offered through administrative avenues.”). Section 1997e

provides, in relevant part, that “[n]o action shall be brought with respect to prison

conditions under [S]ection 1983 of this title, or any other [f]ederal law, by a prisoner

confined in any jail, prison, or other correctional facility until such administrative

remedies as are available are exhausted.” See 42 U.S.C. § 1997e(a). The exhaustion

requirement is mandatory. See Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007);

see also Booth, 532 U.S. at 742 (holding that the exhaustion requirement of the

PLRA applies to grievance procedures “regardless of the relief offered through

administrative procedures”). Moreover, while Plaintiff Harvey was released from

prison after filing the above-captioned case, he is still bound by the exhaustion

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requirement because he has raised claims concerning events that occurred prior to

his release.4 See Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir. 2002).

The Third Circuit has further provided that there is no futility exception to

Section 1997e’s exhaustion requirement. See Nyhuis v. Reno, 204 F.3d 65, 75-76

(3d Cir. 2000). Courts have typically required across-the-board exhaustion by

inmates seeking to pursue claims in federal court. See id. Additionally, courts have

interpreted this exhaustion requirement as including a procedural default component,

holding that inmates must fully satisfy the administrative requirements of the inmate

grievance process before proceeding with a claim in federal court. See Spruill v.

Gillis, 372 F.3d 218 (3d Cir. 2004); see also Oriakhi v. United States, 165 F. App’x

991, 993 (3d Cir. 2006) (providing that “there appears to be unanimous circuit court

consensus that a prisoner may not fulfill the PLRA’s exhaustion requirement by

exhausting administrative remedies after the filing of the complaint in federal

court”). Courts have also concluded that inmates who fail to complete the prison

4 The Court recognizes that the Third Circuit recently concluded that the PLRA’s exhaustion

requirement did not apply to a situation where a plaintiff had been released from prison during the

pendency of his lawsuit and, after release, filed a third and fourth amended complaint. See Garrett

v. Wexford Health, 938 F.3d 69, 84 (3d Cir. 2019). The Garrett court noted that, in that instance,

the plaintiff’s “status as a non-prisoner at the time he filed the [third amended complaint was]

determinative of the Medical Defendants’ administrative exhaustion defense.” See id. at 87. In

the instant case, however, Plaintiff Harvey is proceeding on the complaint he filed while still

incarcerated. The Court concludes that Garrett is inapposite to the above-captioned case and,

therefore, does not apply to excuse Plaintiff Harvey from satisfying the PLRA’s exhaustion

requirement.

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grievance process in a full and timely manner are barred from subsequently litigating

claims in federal court. See, e.g., Bolla v. Strickland, 304 F. App’x 22 (3d Cir. 2008).

This broad rule favoring full exhaustion allows for a narrowly-defined

exception; if the actions of prison officials directly caused the inmate’s procedural

default as to a grievance, the inmate will not be required to comply strictly with this

exhaustion requirement. See Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000).

However, courts also recognize a clear “reluctance to invoke equitable reasons to

excuse [an inmate’s] failure to exhaust as the statute requires.” See Davis v.

Warman, 49 F. App’x 365, 368 (3d Cir. 2002). Thus, an inmate’s failure to exhaust

will be excused only “under certain limited circumstances,” see Harris v.

Armstrong, 149 F. App’x 58, 59 (3d Cir. 2005), and an inmate may defeat a claim

of failure to exhaust only by showing “he was misled or that there was some

extraordinary reason he was prevented from complying with the statutory

mandate.” See Warman, 49 F. App’x at 368.

In the absence of competent proof that an inmate was misled by corrections

officials, or some other extraordinary circumstances warranting a departure from

strict compliance with the exhaustion requirement, courts frequently reject inmate

requests for their failure to exhaust to be excused. An inmate, therefore, may not

excuse a failure to comply with these grievance procedures in a timely manner by

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simply claiming that his efforts constituted “substantial compliance” with this

statutory exhaustion requirement. See Harris, 149 F. App’x at 59. Furthermore, an

inmate may not avoid this exhaustion requirement by merely alleging that the

administrative policies were not clearly explained to him. See Warman, 49 F. App’x

at 368. Consequently, an inmate’s confusion regarding these grievances procedures

does not, alone, excuse a failure to exhaust. See Casey v. Smith, 71 F. App’x 916

(3d Cir. 2003); see also Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t

is well established that ‘ignorance of the law, even for an incarcerated pro se

petitioner, generally does not excuse prompt filing.’” (citations omitted)).

Recently, the Supreme Court considered what renders administrative

remedies unavailable to an inmate such that a failure to exhaust may be excused.

See Ross v. Blake, 136 S. Ct. 1850 (2016). The Court noted “three kinds of

circumstances in which an administrative remedy, although officially on the books,

is not capable of use to obtain relief.” See id. at 1859. First, an administrative

procedure is not available “when (despite what regulations or guidance materials

may promise) it operates as a simple dead end—with officers unable or consistently

unwilling to provide any relief to aggrieved inmates.” See id. Second, a procedure

is not available when it is “so opaque that it becomes, practically speaking, incapable

of use.” See id. Finally, a procedure is unavailable when “prison administrators

21

thwart inmates from taking advantage of a grievance process through machination,

misinterpretation, or intimidation.” See id. at 1860. However, “once the defendant

has established that the inmate failed to resort to administrative remedies, the onus

falls on the inmate to show that such remedies were unavailable to him.” See Rinaldi

v. United States, 904 F.3d 257, 268 (3d Cir. 2018). The Third Circuit recently

established that:

to defeat a failure-to-exhaust defense based on a misrepresentation by

prison staff, an inmate must show (1) that the misrepresentation is one

which a reasonable inmate would be entitled to rely on and sufficiently

misleading to interfere with a reasonable inmate’s use of the grievance

process, and (2) that the inmate was actually misled by the

misrepresentation.

Hardy v. Shaikh, 959 F.3d 578, 588 (3d Cir. 2020).

a. Retaliation Claims

Defendants maintain that they are entitled to summary judgment with respect

to any retaliation claims raised by Plaintiffs because Plaintiffs failed to exhaust their

administrative remedies as to such claims. (Doc. No. 87 at 8-11.) In support of their

argument, Defendants have provided a declaration from Keri Moore, a grievance

officer with SOIGA. (Doc. No. 86-1.) She avers that she checked SOIGA’s files

“for grievances filed by the Plaintiffs against Officer Cline for retaliation.” (Id.

¶ 23.) Neither Plaintiff Harvey nor Plaintiff Hawkins “filed a grievance against

22

Officer Cline for retaliation for filing grievances or for seeking medical treatment,

or for retaliation at all.” (Id. ¶ 24.)

Plaintiffs have not responded to Defendants’ motion for summary judgment.

In their verified complaint, however, they state that they “fully and properly

exhausted their available administrative remedies prior to bringing the instant

action.” (Doc. No. 1 ¶ 57.) Plaintiffs’ conclusory allegation, without any

accompanying evidence, such as any grievances they attempted to submit regarding

claims of retaliation, does not create a genuine issue of material fact with respect to

exhaustion. See Maclary v. Carroll, 142 F. App’x 618, 620 (3d Cir. 2005)

(concluding that inmate-plaintiff’s allegation that he filed unanswered and

unprocessed grievances did not create a genuine issue of material fact because he

failed to offer any support for his bare assertions); Keys v. Caroll, No. 10-cv-1570,

2012 WL 4472020, at *8 (M.D. Pa. Sept. 26, 2012) (concluding that inmate-

plaintiff’s reliance on the complaint, deposition testimony, and affidavit that he

exhausted his administrative remedies was not sufficient to withstand summary

judgment because the allegations were conclusory and made without evidentiary

support). Plaintiffs, therefore, have not refuted the defense that they failed to

properly exhaust their retaliation claims. Accordingly, because the PLRA requires

full and proper exhaustion prior to the initiation of Plaintiffs’ retaliation claims in

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federal court, and this Court cannot excuse compliance with those requirements,

Defendants’ second motion for summary judgment will be granted on the basis that

Plaintiffs failed to properly exhaust their administrative remedies as to any

retaliation claims asserted against Defendants.

b. Plaintiff Harvey’s Damages Claims

In its February 26, 2021 Memorandum, the Court noted that Plaintiff Harvey

did file a grievance regarding the incident on November 7, 2017, with inmate

Peterson. (Doc. No. 81 at 22.) In their first motion for summary judgment,

Defendants did not argue that Plaintiff Harvey had failed to exhaust his

administrative remedies. In their second motion for summary judgment, Defendants

now assert that Plaintiff Harvey did not exhaust a claim for damages and, therefore,

is not entitled to claim damages in connection with the above-captioned action.

(Doc. No. 87 at 23-25.)

Plaintiff Harvey’s release from incarceration moots his claims for injunctive

and declaratory relief. See Abdul-Akbar v. Watson, 4 F.3d 195, 206-07 (3d Cir.

1993). Thus, only his claims for damages remain. As noted supra, when an inmate

files a grievance, he is “required to include a request for the specific relief sought—

such as compensation—in the initial grievance.” (Doc. No. 86 ¶ 7.) With respect to

proper exhaustion under the PLRA, “it is the prison’s requirements, [] not the [Act],

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that define the boundaries of proper exhaustion.” Wright v. Sauers, 729 F. App’x

225, 227 (3d Cir. 2018) (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)). A

review of Plaintiff Harvey’s grievance regarding the November 7, 2017 incident

indicates that he did not seek monetary damages during the grievance process. (Doc.

No. 86-5 at 45-51.) Thus, because Defendant Harvey failed to request monetary

damages, he did not properly exhaust his claim for such. See Johnson v. Wireman,

809 F. App’x 97, 99 (3d Cir. 2020); Murray v. Wetzel, No. 1:17-cv-1637, 2021 WL

1173001, at *7 (M.D. Pa. Mar. 29, 2021). Defendants, therefore, are entitled to

summary judgment with respect to Plaintiff Harvey’s claim for damages.

2. Eighth Amendment Claims

As noted supra, the Court previously denied Defendants’ first motion for

summary judgment with respect to Plaintiff Harvey’s Eighth Amendment claims

against Defendant Cline. (Doc. Nos. 81, 82.) Defendants move for reconsideration

of that decision, arguing that the record could not lead a reasonable fact-finder to

conclude that Defendant Cline failed to protect Plaintiff Harvey from inmate

Peterson’s attack and failed to provide him medical care. (Doc. No. 84.)

The Eighth Amendment prohibits the infliction of cruel and unusual

punishment on prisoners. There are several types of Eighth Amendment claims,

including claims alleging: denial of, or inadequate access to, medical care; exposure

25

to adverse conditions of confinement; and the use of excessive force by prison

guards. An Eighth Amendment claim includes both objective and subjective

components. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). Serious hardship to

the prisoner is required to satisfy the Eighth Amendment’s objective component.

See id. The subjective component is met if the person or persons causing the

deprivation acted with “a sufficiently culpable state of mind.” See id.

a. Failure to Protect

The Eighth Amendment requires prison officials to “take reasonable measures

to protect prisoners from violence at the hands of other prisoners.” Farmer v.

Brennan, 511 U.S. 825, 833 (1994). While prison officials have the duty to protect

prisoners from attacks by other prisoners, not every injury suffered by a prisoner at

the hands of another equates to constitutional liability for the officials responsible

for that inmate’s safety. Id. at 833-34. Rather, an inmate raising a failure to protect

claim under the Eighth Amendment must establish that a prison official both knew

of and chose to disregard an “excessive risk to inmate health or safety.” Beers-

Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (citing Farmer, 511 U.S. at

837). This knowledge requirement is subjective, “meaning that the official must

actually be aware of the existence of the excessive risk; it is not sufficient that the

official should have been aware.” Id.; see also Hamilton v. Leavy, 117 F.3d 742,

26

746 (3d Cir. 1997). Actual knowledge may be proven circumstantially in situations

where the general danger was obvious. Farmer, 511 U.S. at 842. For example, if

the prisoner

presents evidence showing that a substantial risk of inmate attacks was

“longstanding, pervasive, well-documented, or expressly noted by

prison officials in the past, and the circumstances suggest that the

defendant-official being sued had been exposed to information

concerning the risk and thus ‘must have known’ about it, then such

evidence could be sufficient to permit a trier of fact to find that the

defendant-official had actual knowledge of the risk.”

Id. at 842-43. However, “a defendant can rebut a prima facie demonstration of

deliberate indifference either by establishing that he did not have the requisite level

of knowledge or awareness of the risk, or that, although he did know of the risk, he

took reasonable steps to prevent the harm from occurring.” Beers-Capitol, 245 F.3d

at 133.

The Court initially denied summary judgment to Defendants, asserting that

the “averments in Plaintiffs’ verified complaint create a genuine issue of material

fact as to whether Defendant Cline was aware that inmate Peterson posed a risk to

Plaintiff Harvey’s safety and chose to ignore that risk.” (Doc. No. 81 at 26.) In the

verified complaint, Plaintiffs alleged that Defendant Cline was aware of inmate

Peterson’s “gang membership and assaultive behavior,” as well as his “victimization

of vulnerable inmates on E-Block and of the ongoing conflict created by Defendant

27

Peterson upon Plaintiff Harvey.” (Doc. No. 1 ¶¶ 18-19.) They asserted that

Defendant Cline watched inmate Peterson “walk across the tier to Plaintiff Harvey’s

cell, which is an unauthorized area for Defendant Peterson,” and did not stop him

from doing so. (Id. ¶¶ 20-21.) Plaintiffs averred that Defendant Cline opened

Plaintiff Harvey’s cell door and observed inmate Peterson “enter into Plaintiff

Harvey’s cell in a rushed, deliberate and aggressive manner. (Id. ¶¶ 22-23.)

Plaintiffs asserted that Defendant Cline was aware that inmate Peterson often

extorted other inmates “through intimidation [and] threats of force and physical

stabbings.” (Id. ¶ 38.)

Defendants argue that these findings “are directly contradicted by the record

developed in discovery.” (Doc. No. 84 at 12.) Upon review of the record, the Court

agrees. Plaintiffs’ deposition testimony directly conflicts with the statements made

in their complaint. In his deposition, Plaintiff Harvey testified that he had no prior

history with inmate Peterson, that inmate Peterson had never threatened him before

the incident, and that “it was all just random.” (Doc. No. 86-3 at 15-16.) Plaintiff

Harvey testified that “come to find out, this is [inmate Peterson’s] history of what

he does. He’s been in multiple prisons doing the same thing.” (Id. at 16.) He

described the day leading up to the incident as a “normal day.” (Id.) Plaintiff Harvey

surmised that Defendant Cline opened the cell door because only officers can open

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doors, but he then admitted that sometimes cell doors are opened accidentally and

that it was possible his cell was open because he was talking to other inmates. (Id.

at 64-66.) Plaintiff Hawkins testified that he and inmate Peterson were not in rival

gangs. (Doc. No. 86-4 at 12.) He testified further that he had a friendly relationship

with inmate Peterson and did not witness the incident between inmate Peterson and

Plaintiff Harvey. (Id. at 13-14.) Plaintiffs did not testify that inmate Peterson was

known for being violent or assaulting others on their specific housing block.

Moreover, Plaintiffs did not testify that Defendant Cline saw inmate Peterson

walking aggressively towards Plaintiff Harvey’s cell or that Defendant Cline knew

or should have known that an assault would occur. Furthermore, Defendant Cline

avers that at no time did he “have knowledge that [inmate] Peterson had a propensity

for violence against other inmates or that he was involved in gang activity.” (Doc.

No. 86-2 ¶ 3.) He had no knowledge of inmate Peterson “assaulting inmates on the

E-Block or having a history of doing so,” and Plaintiffs never “inform[ed him] of a

risk of harm to either of them posed” by inmate Peterson. (Id. ¶¶ 4-5.) Defendant

Cline did not see inmate Peterson walking to Plaintiff Harvey’s cell and did not open

the cell door for him. (Id. ¶¶ 7, 10.)

While a sworn complaint can be treated as an affidavit on summary judgment,

see Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985), the averments contained in

29

Plaintiffs’ complaint are directly contradicted by their deposition testimony. In light

of Plaintiffs’ deposition testimony, asserting that they had no prior history with

inmate Peterson, that they were not aware of any propensity for violence exhibited

by inmate Peterson, and that they did not see Defendant Cline open Plaintiff

Harvey’s cell door, the Court considers the allegations set forth in Plaintiffs’

complaint “to effectively be a sham affidavit, and conclude[s] that no reasonable

jury could afford [them] evidentiary weight.” Coit v. Garman, 812 F. App’x 83, 87

(3d Cir. 2020) (citations omitted).

In any event, even if Defendant Cline had been aware that inmate Peterson

had a history of violence, the Third Circuit has held that the risk that “an inmate with

a history of violence might attack another inmate for an unknown reason” is too

speculative to maintain a failure to protect claim against prison officials. Bistrian v.

Levi, 696 F.3d 352, 371 (3d Cir. 2012), abrogated on other grounds by Mack v. Yost,

968 F.3d 311 (3d Cir. 2020). The Third Circuit recently reiterated this, affirming a

grant of summary judgment to prison officials even where the inmate had reported

a prior attack to an unnamed guard. See Zuniga v. Chamberlain, 821 F. App’x 152,

157 n.8 (3d Cir. 2020). In the instant case, the record before the Court establishes

that “the assault [by inmate Peterson] was random, and was not the product of

‘longstanding, pervasive, well-documented, or previously noted tensions between’”

30

Plaintiff Harvey and inmate Peterson. See Bozochovic v. Verano, No. 1:17-cv-1439,

2019 WL 929089, at *3 (M.D. Pa. Feb. 26, 2019) (quoting Blackstone v. Thompson,

568 F. App’x 82, 84 (3d Cir. 2014)).

In sum, the Court agrees with Defendants that the record would not permit a

reasonable factfinder to conclude that Defendant Cline knew that inmate Peterson

posed a risk of harm to Plaintiff and deliberately ignored that risk. The Court,

therefore, will grant Defendants’ motion for reconsideration, vacate the portion of

its February 26, 2021 Memorandum and Order denying summary judgment as to

Plaintiff Harvey’s failure to protect claim, and grant summary judgment to

Defendants.

b. Denial of Medical Care

In the context of medical care, the Eighth Amendment “requires prison

officials to provide basic medical treatment to those whom it has incarcerated.”

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). In order to establish an Eighth

Amendment deliberate indifference claim, a claimant must demonstrate “(i) a

serious medical need, and (ii) acts or omissions by prison officials that indicate

deliberate indifference to that need.” Natale v. Camden Cty. Corr. Facility, 318 F.3d

575, 582 (3d Cir. 2003).

31

Deliberate indifference has been found “where the prison official (1) knows

of a prisoner’s need for medical treatment but intentionally refuses to provide it; (2)

delays necessary medical treatment based on a non-medical reason; or (3) prevents

a prisoner from receiving needed or recommended medical treatment.” Rouse, 182

F.3d at 197. The “deliberate indifference” prong of the Eighth Amendment test

requires that the defendant actually know of and disregard “an excessive risk to

inmate health or safety.” Farmer, 511 U.S. at 837. Circumstantial evidence can

establish subjective knowledge if it shows that the excessive risk was so obvious that

the official must have known about it. See Beers-Capitol, 256 F.3d at 133 (citing

Farmer, 511 U.S. at 842)). Moreover, “[i]f a prisoner is under the care of medical

experts . . . a non-medical prison official will generally be justified in believing that

the prisoner is in capable hands.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004).

Accordingly, “absent a reason to believe (or actual knowledge) that prison doctors

or their assistants are mistreating (or not treating) a prisoner, a non-medical prison

official . . . will not be chargeable with the Eighth Amendment scienter requirement

of deliberate indifference.” Id.

In the complaint, Plaintiff Harvey alleges that Defendant Cline violated his

Eighth Amendment rights by delaying access to medical care. Plaintiff Harvey avers

that he asked for medical attention after being assaulted by inmate Peterson, and that

32

Defendant Cline did nothing despite observing Plaintiff Harvey’s “bloody cell and

stab wounds.” (Doc. No. 1 ¶¶ 75-78.) He alleges that the delay in receiving medical

treatment caused him “to sustain further injury, pain, distress, anguish, and

permanent scarring on his face, arm, and leg.” (Id. ¶ 54.) According to Plaintiff,

when he was taken to the medical department following the second incident, medical

personnel asked why his wounds were not called to their attention in a more timely

manner. (Id. ¶ 49.)

Defendants maintain that the record does not support a conclusion that a

reasonable juror could find that Defendant Cline was deliberately indifferent to

Plaintiff Harvey’s medical needs. (Doc. No. 84 at 18-19.) Defendant Cline avers

that Plaintiff Harvey “did not tell [him] that he was attacked, nor did he request to

go to medical.” (Doc. No. 86-2 ¶ 12.) He also states that he did not “see any blood.”

(Id. ¶ 11.) During his deposition, Plaintiff Harvey testified that he was not sure if

there was blood visible on his clothes and that any blood on his face was likely

“consumed” by his beard. (Doc. No. 86-3 at 36-37.) He did testify that there were

droplets and spatter on the cell floor and a cabinet. (Id. at 37-38.) At no time did

Plaintiff Harvey ask Defendant Cline for permission to go to the medical department.

Moreover, he did not testify that anyone in medical asked why his injuries were not

seen to earlier. When asked, Plaintiff Harvey did not mention that he had brought

33

suit against Defendant Cline for any denial of medical care. (Id. at 69-70.) Finally,

the video Defendants submitted in support of their first motion for summary

judgment (Doc. No. 76-6) clearly shows Plaintiff Harvey, ambulatory and without

any obvious injuries, fully participating in the attack on inmate Peterson with

Plaintiff Hawkins.

Although Plaintiff Harvey averred in his complaint that Defendant Cline

denied him medical care when he requested it, at no time did Plaintiff testify to this

during his deposition. Moreover, Plaintiff Harvey has failed to respond to

Defendants’ motion for reconsideration. In light of the “glaring omission of

[Plaintiff Harvey’s] key complaint allegation[s] from . . . his deposition testimony,”

the Court considers such allegations “to effectively be a sham affidavit, and

conclude[s] that no reasonable jury could afford [them] evidentiary weight.” Coit,

812 F. App’x at 87. Given the record before the Court, no reasonable factfinder

could conclude that Defendant Cline “consciously disregarded a serious risk to

[Plaintiff Harvey’s] health or prevented him from receiving necessary medical

treatment.” See Blanchard v. Reigle, 439 F. App’x 102, 104 (3d Cir. 2011)

(concluding the same regarding the inmate-plaintiff’s claims that officers delayed

his access to medical care because the inmate “was able to ambulate on the day of

the incident and did not have any obvious or visible injuries”); see also Williams v.

34

Wetzel, No. 1:17-cv-79, 2020 WL 583983, at *14 (M.D. Pa. Feb. 6, 2020) (citing

Blanchard to conclude the same), aff’d, 827 F. App’x 158 (3d Cir. 2020). The Court,

therefore, will grant Defendants’ motion for reconsideration, vacate its previous

denial of summary judgment, and grant summary judgment to Defendants with

respect to Plaintiff Harvey’s Eighth Amendment denial of medical care claim against

Defendant Cline.

3. First Amendment Retaliation Claims

As noted supra, Plaintiffs failed to exhaust their administrative remedies with

respect to any retaliation claims. Even if they had, Defendants assert that Plaintiffs

cannot maintain a claim for retaliation. (Doc. No. 87 at 11-16.) 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, 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

35

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).

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

36

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

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

In their complaint, Plaintiffs vaguely aver that they were “engaging in the

constitutionally protected conduct of seeking medical treatment after being attacked

and stabbed by [inmate] Peterson, by engaging in the grievance process and seeking

access to the courts for remedies at law.” (Doc. No. 1 ¶ 93.) They allege that

“Defendant Cline and named Defendants and privities did engage in adverse actions

against [them] . . . including loss, mishandling and not returning Plaintiff[s’]

personal property, delaying call outs and missing sign up times for kiosk, phone, and

haircuts.” (Id. ¶ 94.) Plaintiffs suggest that these actions “were substantially

motivated by the Plaintiffs engaging in the aforementioned constitutionally

protected conduct.” (Id. ¶ 94.)

As noted supra, Plaintiff Hawkins confirmed that he did not file suit against

Defendant Cline on grounds of retaliation. (Doc. No. 86 ¶ 38.) In any event, the

Court agrees with Defendants that Plaintiffs “did not adequately plead a claim for

retaliation.” (Doc. No. 87 at 13.) The complaint fails to set forth any facts regarding

any protected activity and does not include any information as to when they were

denied phone and haircuts, subjected to delayed “call outs,” and when their property

was mishandled. Plaintiffs’ complaint, as pled, does nothing more than set forth a

37

threadbare recital of the requirements necessary to establish a retaliation claim. See,

e.g., Lewis v. Mason, No. 1:19-cv-1504, 2020 WL 1953608, at *4 (M.D. Pa. Apr.

23, 2020); Nifas v. Serrano, No. 1:19-cv-1646, 2020 WL 905583, at *4 (M.D. Pa.

Feb. 25, 2020); Alvarez v. Ebbert, No. 1:18-cv-1964, 2019 WL 2762964, at *9 (M.D.

Pa. July 2, 2019). In any event, the omission of any allegations of retaliation from

Plaintiffs’ depositions renders their allegation “to effectively be a sham affidavit,”

and the Court concludes that “no reasonable jury could afford it evidentiary weight.”

See Coit, 812 F. App’x at 87. The Court, therefore, will grant summary judgment to

Defendants as to Plaintiffs’ First Amendment retaliation claims.

B. State Law Claims

Plaintiffs maintain that Defendants’ actions violated their rights under the

Pennsylvania Constitution as well as state law. (Doc. No. 1 at 20-36.) For example,

Plaintiffs appear to assert state tort claims for assault and battery, intentional

infliction of emotional distress, lost property, and negligence. (Id. at 23, 28.)

Defendants first “disagree that such claims are adequately pled such that [they]

would have fairly been on notice of these claims as the case proceeded through

discovery.” (Doc. No. 87 at 16.) However, in an abundance of caution, the Court

has liberally construed Plaintiffs’ complaint as raising such claims.

38

Defendants assert, inter alia, that the Court should decline to exercise

supplemental jurisdiction over any state law claims raised by Plaintiffs. (Id. at 16

n.2.) When a district court has dismissed all claims over which it had original

jurisdiction, as is the case in the above-captioned action, the Court may decline to

exercise supplemental jurisdiction over the pendent state law claims. See 28 U.S.C.

§ 1367(c)(3). The Court’s decision regarding the exercise of supplemental

jurisdiction is one that should be based on “the values of judicial economy,

convenience, fairness, and comity.” See Carnegie Mellon Univ. v. Cohill, 484 U.S.

343, 350 (1988). Ordinarily, when all federal claims have been dismissed and only

state law claims remain, the balance of these factors indicates that the remaining

claims properly belong in state court. See id. In the absence of a viable federal

claim, and finding nothing to distinguish this matter from the ordinary case, the

Court finds that the balance of factors in this case “point[s] toward declining to

exercise jurisdiction over the remaining state law claims.” See id. at 350 n.7.

Accordingly, the Court will dismiss Plaintiffs’ state law claims against Defendants

pursuant to 28 U.S.C. § 1367(c)(3).5

5 The Court notes that when a district court declines to exercise supplemental jurisdiction over

state law claims, the statute of limitations is tolled while the federal suit is pending for a period of

thirty (30) days after the suit is dismissed. See 28 U.S.C. § 1367(d); Hedges v. Musco, 204 F.3d

109, 123-24 (3d Cir. 2000).

39

V. CONCLUSION

For the foregoing reasons, Defendants’ motion for reconsideration (Doc. No.

83) will be granted, the portion of the Court’s February 26, 2021 Memorandum and

Order (Doc. Nos. 81, 82) which denied summary judgment as to Plaintiff Harvey’s

Eighth Amendment claims regarding failure to protect and denial of medical care

against Defendant Cline will be vacated, and Defendants will be granted summary

judgment as to those claims. Defendants’ second motion for summary judgment

(Doc. No. 85) will be granted as to Plaintiffs’ retaliation claims and Plaintiff

Harvey’s claims for damages. Plaintiffs’ state law tort claims against Defendants

will be dismissed without prejudice pursuant to 28 U.S.C. § 1367(c)(3). An

appropriate Order follows.

s/ Sylvia H. Rambo

United States District Judge

Date: April 27, 2021

40