Yow v. Correctional Officer Robinson

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KEVIN YOW, : 1:19-CV-01042

:

Plaintiff, :

:

v. : (Magistrate Judge Schwab)

:

CORRECTIONAL OFFICER :

S. ROBERTSON, et al., :

:

Defendants. :

:

MEMORANDUM OPINION

I. Introduction.

A fellow prisoner slashed Plaintiff Kevin Yow in the back with a razor.

Yow claims that several of the corrections officer defendants failed to protect him

in violation of the Eighth Amendment. Yow also claims that other defendants

retaliated against him because he filed grievances about the slashing incident and

about events after the slashing incident. Currently pending is the defendants’

motion for summary judgment. For the reasons discussed below, we will grant in

part and deny in part the motion for summary judgment. More specifically, we

will grant the defendants summary judgment based on qualified immunity as to

Yow’s Eighth Amendment failure-to-protect claim. But we will deny the

defendants summary judgment as to Yow’s retaliation claim.

II. Background and Procedural History.

Yow, through his counsel, began this action by filing a complaint. After

Yow amended the complaint several times, the operative complaint is the Third

Amended Complaint naming the following individuals as defendants:

(1) Correctional Officer Robertson; (2) Correctional Officer Macking; (3) Security

Lieutenant Gardzalla; (4) Correctional Officer Mabin; (5) Correctional Officer

DeLuca; and (6) Correctional Officer John Doe 2.

Yow alleges that in July 2017, in the showers in the Restricted Housing Unit

at the State Correctional Institution at Dallas, inmate Kalief Shelton reached

through the open wicket between the shower he was in and the shower that Yow

was in and slashed Yow in the back with a razor blade. Yow alleges that after he

filed a grievance about the shower incident, defendants Mabin and Gardzalla

searched his cell, strip searched him, threatened him with pepper spray, and

confiscated a religious text. And, according to Yow, after he filed a grievance

about those events, defendant Gardzalla ordered John Does 1 and 21 to search his

cell, during which search those officers destroyed or defaced Yow’s property.

1 The Third Amended Complaint specifically names only one Doe defendant—

Correctional Officer John Doe 2—as a defendant. See doc. 28 at 1, 3 ¶ 10. And in

his Third Amended Complaint, Yow states: “This Amendment adds Defendant

Correctional Office[r] DeLuca as the initial John Doe and removes John Doe 1.”

Id. at 2. Given this, the reference in the body of the Third Amended Complaint to

John Doe 1 is unclear.

Yow then called his mother to complain. And Yow alleges that the day after the

second search, he received a misconduct for unauthorized use of the telephone and

for threatening defendant Gardzalla.2

The Third Amended Complaint contains two counts. In Count I, Yow

claims that defendants Robertson, DeLuca, and Macking violated the Eighth

Amendment by failing to protect him from Shelton. In Count II, Yow claims that

defendants Mabin and Gardzalla retaliated against him in violation of the First

Amendment.3

The parties consented to proceed before a magistrate judge pursuant to 28

U.S.C. § 636(c), and the case was referred to the undersigned. After the discovery

deadline passed but within the deadline set for the filing of dispositive motions, the

defendants filed a motion for summary judgment. That motion has been briefed,

and for the reasons discussed below we will grant in part and deny in part that

motion.

2 The Third Amended Complaint actually refers to “Garzales.” Doc. 28 ¶ 56.

From the context, however, it appears that this reference was meant as a reference

to defendant Gardzalla.

3 Although John Doe 2 is named as a defendant in the Third Amended Complaint,

see n.1, the Third Amended Complaint does not list John Doe 2 as a defendant as

to either Count I or Count II. See doc. 28 at 8.

III. Summary Judgment Standards.

The defendants move for summary judgment under Rule 56(a) of the Federal

Rules of Civil Procedure, which provides that “[t]he court shall grant summary

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

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

56(a). “Through summary adjudication the court may dispose of those claims that

do not present a ‘genuine dispute as to any material fact’ and for which a jury trial

would be an empty and unnecessary formality.” Goudy-Bachman v. U.S. Dept. of

Health & Human Services, 811 F. Supp. 2d 1086, 1091 (M.D. Pa. 2011) (quoting

Fed. R. Civ. P. 56(a)).

The moving party bears the initial responsibility of informing the court of

the basis for its motion and identifying those portions of the record that

demonstrate the absence of a genuine dispute of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). With respect to an issue on which the

nonmoving party bears the burden of proof, the moving party may discharge that

burden by “‘showing’—that is, pointing out to the district court—that there is an

absence of evidence to support the nonmoving party’s case.” Id. at 325.

Once the moving party has met its burden, the nonmoving party may not rest

upon the mere allegations or denials of its pleading; rather, the nonmoving party

must show a genuine dispute by “citing to particular parts of materials in the

record, including depositions, documents, electronically stored information,

affidavits or declarations, stipulations (including those made for purposes of the

motion only), admissions, interrogatory answers, or other materials” or “showing

that the materials cited do not establish the absence . . . of a genuine dispute.” Fed.

R. Civ. P. 56(c). If the nonmoving party “fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which

that party will bear the burden at trial,” summary judgment is appropriate. Celotex,

477 U.S. at 322.

Summary judgment is also appropriate if the nonmoving party provides

merely colorable, conclusory, or speculative evidence. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986). There must be more than a scintilla of evidence

supporting the nonmoving party and more than some metaphysical doubt as to the

material facts. Id. at 252. “Where the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is no ‘genuine issue for

trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986).

The substantive law identifies which facts are material, and “[o]nly disputes

over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. A

dispute about a material fact is genuine only if there is a sufficient evidentiary

basis that would allow a reasonable fact finder to return a verdict for the non-

moving party. Id. at 248–49.

When “faced with a summary judgment motion, the court must view the

facts ‘in the light most favorable to the nonmoving party.’” N.A.A.C.P. v. N.

Hudson Reg’l Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011) (quoting Scott v.

Harris, 550 U.S. 372, 380 (2007)). At the summary judgment stage, the judge’s

function is not to weigh the evidence or to determine the truth of the matter; rather

it is to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at

249. The proper inquiry of the court “is the threshold inquiry of determining

whether there is the need for a trial—whether, in other words, there are any

genuine factual issues that properly can be resolved only by a finder of fact

because they may reasonably be resolved in favor of either party.” Id. at 250.

Summary judgment is warranted, after adequate time for discovery, against a

party who fails to make a showing sufficient to establish the existence of an

element essential to that party’s case and on which that party will bear the burden

of proof at trial. Celotex, 477 U.S. at 322. “Under such circumstances, ‘there can

be no genuine issue as to any material fact, since a complete failure of proof

concerning an essential element of the nonmoving party’s case necessarily renders

all other facts immaterial.’” Anderson v. Consol. Rail Corp., 297 F.3d 242, 247 (3d

Cir. 2002) (quoting Celotex, 477 U.S. at 323). “[S]ummary judgment is essentially

‘put up or shut up’ time for the non-moving party: the non-moving party must

rebut the motion with facts in the record and cannot rest solely on assertions made

in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group, Ltd.

v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006).

IV. The Eighth Amendment Failure-to-Protect Claim.

Defendants Robertson, DeLuca, and Macking seek summary judgment in

their favor as to Yow’s claim that they failed to protect him from Shelton in

violation of the Eighth Amendment.

A. Material Facts.

Local Rule 56.1 requires a party moving for summary judgment to file “a

separate, short and concise statement of the material facts, in numbered

paragraphs, as to which the moving party contends there is no genuine issue to be

tried.” M.D. Pa. L.R. 56.1. The Rule, in turn, requires the non-moving party to file

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

numbered paragraphs set forth in the statement required [by the moving party], as

to which it is contended that there exists a genuine issue to be tried.” Id. The

“[s]tatements of material facts in support of, or in opposition to, a motion shall

include references to the parts of the record that support the statements,” and “[a]ll

material facts set forth in the statement required to be served by the moving party

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

by the opposing party.” Id.

Here, the defendants filed a statement of undisputed material facts. Yow

filed a response in which he admits most of the facts set forth by the defendants.

But as to several facts set forth by the defendants, Yow responds by denying the

fact and stating, “strict proof demanded at time of trial.” See doc. 53 at ¶¶ 5, 6, 21,

22. And in his response to the defendants’ statement of material facts, Yow does

not cite to evidence to support those denials. Id. Such a denial without citation to

record evidence does comply with Local Rule 56.1.

Yow has, however, set forth additional facts in his brief and he provides

citations to the record to support some of those facts. Given that Yow is the non-

moving party, and we must accept his version of the facts where properly

supported, we will accept Yow’s version of those facts set forth in his brief that are

properly supported by citations to the record. The following facts are the material

facts for purposes of the pending summary judgment motion as to the Eighth

Amendment failure-to-protect claim.

In July of 2017, the defendants were all employed at the State Correctional

Institution at Dallas (“SCI Dallas”). Doc. 50 ¶ 3; Doc. 53 ¶ 3. On July 14, 2017,

both Yow and Kalief Shelton were incarcerated in the Restricted Housing Unit

(“RHU”) at SCI Dallas. Doc. 50 ¶¶ 1, 2, 4; Doc. 53 ¶¶ 1, 2, 4. Inmates in the RHU

at SCI Dallas are permitted to shower every other day. Doc. 51-6 at 3. They must

request a shower and be put on a list for a shower. Id. Inmates requesting a shower

put their hands through a wicket in their cell door to get handcuffed, and they are

then escorted to the showers. Id.

The shower area in the RHU consists of a room with two cages. Id. There

are two wickets—or apertures—on the shower cages, one on the outside door that

is solid, and the other between the two shower cages. Id. One inmate is brought in

first, put in the back cage, and then uncuffed through the wicket. Id. Then another

inmate is put in the front cage and uncuffed. Id. Pennsylvania Department of

Corrections Administrative Directive 6.5.1, Administration of Security Level 5

Housing Units, requires that shower stalls “be equipped with a lockable aperture

through which inmates can be cuff[ed]/uncuffed.” Id.; see also doc. 51-13 at 5.

DC-ADM 6.5.1 also requires that “[a]ll showers are to be taken in an enclosed

shower room with the door locked.” Doc. 51-6 at 3; Doc. 51-13 at 6. In July 2017,

the aperture between the shower stalls in the RHU at SCI Dallas did not have a

locking device; it was just a hole approximately a foot long and a half a foot wide.

Doc. 51-6 at 3–4.

On July 17, 2017, Yow and Shelton were placed in adjacent showers. Doc.

50 ¶ 11; Doc. 53 ¶ 11. After handcuffing Yow in his cell, defendants DeLuca and

Macking escorted Yow to the showers. Doc. 51-6 at 4. DeLuca and Macking put

Yow in the first shower stall—the one farther from the hallway—and uncuffed

him. Id. Defendants Macking and Robertson then put inmate Shelton into the other

shower stall. Id.

Shelton has a long history of mental illness: he attempted suicide several

times, he cut himself on numerous occasions, he was in a mental-health facility,

and he had been diagnosed with bipolar 1, PTSD, and borderline personality

disorder. Id. Shelton’s mental difficulties continued while incarcerated. Id.

Shelton was a recent transfer from the nearby State Correctional Institution at

Retreat (“SCI Retreat”). Id. at 3. SCI Dallas sometimes gets D Code (the highest

stability code for mental illness) inmates from SCI Retreat. Id. Shelton was a D

Code inmate. Id. Shelton’s father died on July 13, 2017, causing him mental

anguish, and he started cutting himself again. Id. at 4.

As Shelton was entering the shower, Yow heard him ask if he could go to

the POC (“Psychiatric Observation Cell.”). Id. After Shelton was told that the

POC was full, he then asked to see “psych,” and he was told no. Id. Defendant

Macking refused Shelton’s request for mental assistance. Id.

As an inmate enters the showers, he asks for his shower bag. Id. Yow

received his shower bag. Id. Defendant Macking offered Shelton a shower bag

with a razor. Id. Shelton, who was put on razor restriction on April 4, 2017, while

at SCI Retreat, told Macking that he was on razor restriction. Id. Responding that

the razor restriction was from SCI Retreat and did not apply at SCI Dallas,

Macking gave Shelton a shower bag with a razor. Id. Yow saw that Shelton

received a shower bag with a razor. Id.

While in the shower, Shelton, who is familiar with how to break open the

razors that are provided in the RHU to access the blade itself, started to cut

himself. Doc. 50 ¶ 13; Doc. 53 ¶ 13; Doc. 51-6 at 4. He then cut Yow. Id. Yow

had placed his towel in the aperture of the shower door, rather than on the available

hook in the shower stall. Doc. 50 ¶ 14; Doc. 53 ¶ 14. And after the shower was

over, Yow turned his back to Shelton to dry off. Doc. 50 ¶ 15; Doc. 53 ¶ 15.

Shelton reached through the aperture in the door between the shower stalls and cut

Yow with the razor. Doc. 50 ¶ 16; Doc. 53 ¶ 16; Doc. 51-6 at 4. At that time, Yow

was standing right next to the door in question with his back turned. Doc. 50 ¶ 17;

Doc. 53 ¶ 17.

According to Yow, after he finished his shower and was drying off, he felt

something go across his back. Doc. 51-6 at 4–5. Yow then turned and saw Shelton

cutting himself. Id. at 5. When corrections officers came to get Shelton’s razor,

they told Yow that he was also cut. Id. Yow then turned around and saw that his

“boxers and everything was red” from the blood. Id. Yow, who had a five-inch

laceration across his lower back that was approximately one-quarter inch wide and

two to three inches deep, was taken to the infirmary, where he received 22 stitches

to close his wound. Id. Yow still has pain in his back and a scar. Id.

As mentioned, in July 2017, the aperture between the shower stalls did not

have a locking device; it was just a hole approximately a foot long and a half a foot

wide. Doc. 51-6 at 3–4. The wicket was repaired in 2018. Id. at 3. Weekly

Fire/Safety/Sanitation Reports failed to note either the deficiency in July 2017 or

the repairs done in 2018. Id. at 4. A review of three years of Weekly

Fire/Safety/Sanitation Reports indicates that each report is identical in every

respect. Id.

B. Defendants Robertson, DeLuca, and Macking are entitled to

summary judgment.

Defendants Robertson, DeLuca, and Macking seek summary judgment as to

the Eighth Amendment failure-to-protect claim against them.

Under the Eighth Amendment, prison officials “must ‘take reasonable

measures to guarantee the safety of . . . inmates.’” Farmer v. Brennan, 511 U.S.

825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)).

“Being violently assaulted in prison is simply not ‘part of the penalty that criminal

offenders pay for their offenses against society.’” Id. at 834 (quoting Rhodes v.

Chapman, 452 U.S. 337, 347 (1981)). Thus, prisoners have “a clearly established

constitutional right to have prison officials protect [them] from inmate violence.”

Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012) (footnote omitted), abrogated on

other grounds by Bistrian v. Levi, 912 F.3d 79 (3d Cir. 2018).

But “not . . . every injury suffered by one prisoner at the hands of another

. . . translates into constitutional liability for prison officials responsible for the

victim’s safety.” Farmer, 511 U.S. at 834. Rather, in addition to causation, “[f]or

an inmate to prevail on an Eighth Amendment failure-to-protect claim, two

requirements must be met.” Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997).

“First, the prisoner must demonstrate ‘that he is incarcerated under conditions

posing a substantial risk of serious harm.’” Id. (quoting Farmer, 511 U.S. at 834).

“This element is satisfied when the alleged ‘punishment’ is ‘objectively

sufficiently serious.’” Id. (quoting Farmer, 511 U.S. at 834). “Second, the prison

officials involved must have a sufficiently culpable state of mind.” Id. They must

have been deliberately indifferent to a substantial risk to the inmate’s health and

safety. Bistrian, 696 F.3d at 367. “Specifically, the inmate must show that the

official ‘knows of and disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and [s]he must also draw the inference.”

Hamilton, 117 F.3d at 746 (quoting Farmer, 511 U.S. at 837).

“Consequently, to survive summary judgment on an Eighth Amendment

claim asserted under 42 U.S.C. § 1983, a plaintiff is required to produce sufficient

evidence of (1) a substantial risk of serious harm; (2) the defendants’ deliberate

indifference to that risk; and (3) causation.” Id. ‘“Whether one puts it in terms of

duty or deliberate indifference, prison officials who act reasonably cannot be found

liable’ on a failure-to-protect claim.” Bistrian, 696 F.3d at 367–68 (quoting

Farmer, 511 U.S. at 845).

Defendants Robertson, DeLuca, and Macking contend that they are entitled

to summary judgment because Yow cannot show that they placed him in

conditions posing an obvious and excessive risk of harm or that they were

deliberately indifferent to any such risk. They also contend that they are entitled to

summary judgment based on qualified immunity. We conclude that defendants

Robertson, DeLuca, and Macking are entitled to qualified immunity.

Despite their participation in constitutionally impermissible conduct,

government officials “may nevertheless be shielded from liability for civil

damages if their actions did not violate ‘clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Hope v.

Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). Qualified immunity ensures that before officers are subjected to suit, they

have notice that their conduct is unlawful. Id. “Qualified immunity balances two

important interests—the need to hold public officials accountable when they

exercise power irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). “If the law was clearly established, the

immunity defense ordinarily should fail, since a reasonably competent public

official should know the law governing his conduct.” Harlow, 457 U.S. at 818–19.

The qualified immunity analysis has two prongs. Pearson, 555 U.S. at 232.

One prong of the analysis is whether the facts that the plaintiff has alleged or

shown make out a violation of a constitutional right. Id. The other prong of the

analysis is whether the right was clearly established. Saucier v. Katz, 533 U.S. 194,

201 (2001). The court is permitted to exercise its discretion in deciding which of

the two prongs of the qualified-immunity analysis should be addressed first in light

of the circumstances of the particular case. Pearson, 555 U.S. at 236. Thus, the

court may forego difficult constitutional issues and award qualified immunity to a

defendant if it is apparent that the defendant did not violate rights that were clearly

established at the time the defendant acted. Id. In fact, the Supreme Court has

stressed “that lower courts ‘should think hard, and then think hard again,’ before

addressing both qualified immunity and the merits of an underlying constitutional

claim.” D.C. v. Wesby, 138 S. Ct. 577, 589 n.7 (2018) (quoting Camreta v. Greene,

563 U.S. 692, 707 (2011)).

Here, given that we conclude that the law was not clearly established such as

to put defendants Robertson, DeLuca, and Macking on notice that placing Yow

and Shelton in adjacent showers under the circumstances present in the RHU at

SCI Dallas violated the Eighth Amendment, we will decide the failure-to-protect

claim based on qualified immunity without deciding whether there was, in fact, a

constitutional violation.

We thus turn to whether the law was clearly established. This “qualified

immunity analysis looks through the rearview window, not the windshield.”

Williams v. Secretary PA Dept. of Corrections, 848 F.3d 549, 570 (3d Cir. 2017).

“The inquiry focuses on the state of the relevant law when the violation allegedly

occurred.” Id.

“To determine whether a right was ‘clearly established,’ we conduct a two-

part inquiry.” Peroza-Benitez v. Smith, 994 F.3d 157, 165 (3d Cir. 2021). “First,

we must ‘define the right allegedly violated at the appropriate level of specificity.’”

Id. (quoting Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012)). “This requires

us to frame the right ‘in light of the specific context of the case, not as a broad

general proposition.’” Id. (quoting Saucier, 533 U.S. at 201). “Second, we must

ask whether that right was ‘clearly established’ at the time of its alleged violation,

i.e., whether the right was ‘sufficiently clear that a reasonable official would

understand that what he is doing violates that right.’” Id. (quoting Saucier, 533

U.S. at 202). “This is an ‘objective (albeit fact-specific) question,’ where ‘[an

officer]’s subjective beliefs . . . are irrelevant.’” Id. (quoting Anderson v.

Creighton, 483 U.S. 635, 641 (1987)).

“To be clearly established, a legal principle must have a sufficiently clear

foundation in then-existing precedent.” Wesby, 138 S. Ct. at 589. In other words,

“[t]he rule must be ‘settled law,’ which means it is dictated by ‘controlling

authority’ or ‘a robust ‘consensus of cases of persuasive authority.’” Id. at 589–90

(internal citations omitted). “It is not enough that the rule is suggested by then-

existing precedent.” Id. at 590. Rather, “[t]he precedent must be clear enough that

every reasonable official would interpret it to establish the particular rule the

plaintiff seeks to apply.” Id.

Still, “the facts of the existing precedent need not perfectly match the

circumstances of the dispute in which the question arises.” Williams, 848 F.3d at

570. “A public official does not get the benefit of ‘one liability-free violation’

simply because the circumstance of his case is not identical to that of a prior case.”

Peroza-Benitez, 994 F.3d at 166 (quoting Kopec v. Tate, 361 F.3d 772, 778 (3d

Cir. 2004)). But if the law did not put the officer on notice that his conduct would

be clearly unlawful, qualified immunity is appropriate. Bayer v. Monroe County

Children & Youth Services, 577 F.3d 186, 193 (3d Cir. 2009). “In other words,

‘existing precedent must have placed the statutory or constitutional question

beyond debate.’” Reichle v. Howards, 566 U.S. 658, 664 (2012) (quoting Ashcroft

v. al-Kidd, 563 U.S. 731, 741 (2011)). “This exacting standard ‘gives government

officials breathing room to make reasonable but mistaken judgments’ by

‘protect[ing] all but the plainly incompetent or those who knowingly violate the

law.’” City & Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 611 (2015)

(quoting al-Kidd, 563 U.S. at 743).

Here, defendants Robertson, DeLuca, and Macking contend that given the

circumstances surrounding Shelton’s attack on Yow, they are entitled to qualified

immunity. As the defendants note, those circumstances include the small opening

between the shower stalls (an open aperture of approximately one foot by an half a

foot) and the fact that Yow was standing directly in front of that opening with his

back to Shelton to dry off. Doc. 49 at 17. And the defendants suggest that Yow

was standing in the only possible place where Shelton could have reached him. Id.

at 13.4

In response, Yow contends that Farmer v. Brennan, 511 U.S. 825 (1994),

“has been the leading case in this area for over 25 years and is clearly established

law.” Doc. 51-6 at 8. After Farmer, a transexual who was placed in the general

4 The parties have not provided the court with the dimensions of the shower stalls.

But Yow testified that the shower stall he was in was approximately six feet in

length, that he put his towel in the open aperture between the showers stalls rather

than on the hook on the other side of the stall, that when Shelton cut him he was

standing in front of the open aperture with his back to Shelton, and that an inmate

in the other stall would not have been able to reach him if he had been standing in

the area where, when turned on, the water comes down. Doc. 51-3 (Yow Dep. at

27, 37, 38, 45).

population of a male prison, was beaten and raped by another inmate in his cell, he

filed suit claiming that prison officials failed to protect him in violation of the

Eighth Amendment. Id. at 830–31. In Farmer, the Supreme Court summarized

that for an Eighth Amendment claim “based on a failure to prevent harm, the

inmate must show that he is incarcerated under conditions posing a substantial risk

of serious harm[,]” and that the defendants acted with “deliberate indifference.” Id.

at 834 (footnote omitted). The issue in Farmer was how to define deliberate

indifference. Id. at 829 (“This case requires us to define the term ‘deliberate

indifference,’ as we do by requiring a showing that the official was subjectively

aware of the risk.”). The Court held that “a prison official cannot be found liable

under the Eighth Amendment for denying an inmate humane conditions of

confinement unless the official knows of and disregards an excessive risk to inmate

health or safety; the official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and he must also draw

the inference.” Id. Put another way, the Court held that “a prison official may be

held liable under the Eighth Amendment for denying humane conditions of

confinement only if he knows that inmates face a substantial risk of serious harm

and disregards that risk by failing to take reasonable measures to abate it.” Id. at

847.

Farmer clearly established the standard for deliberate indifference under the

Eighth Amendment. But for qualified immunity purposes the law cannot be

defined at such “a high level of generality.” al-Kidd, 563 U.S. at 742. “Qualified

immunity is no immunity at all if ‘clearly established’ law can simply be defined”

in such a general way. Sheehan, 135 S. Ct. at 1776. Rather, because the qualified-

immunity inquiry “focuses on the official’s actual situation, the analysis ‘must be

undertaken in light of the specific context of the case, not as a broad general

proposition. . . .’” Montanez v. Thompson, 603 F.3d 243, 251 (3d Cir. 2010)

(quoting Saucier, 533 U.S. at 201). In other words, “ we examine an official’s

‘particular conduct’ in ‘the specific context of the case.’” Williams v. City of York,

Pennsylvania, 967 F.3d 252, 259 (3d Cir. 2020) (internal citation omitted)

(quoting al-Kidd, 563 U.S. at 742 and Saucier, 533 U.S. at 201). “Of course,

‘general statements of the law are not inherently incapable of giving fair and clear

warning’ to officers, but ‘in the light of pre-existing law the unlawfulness must be

apparent[.]” White v. Pauly, 137 S. Ct. 548, 552 (2017) (internal citation omitted).

The circumstances in Farmer are not akin to the circumstances in this case.

Here, given the circumstances surrounding Shelton’s attack on Yow—specifically,

the small opening that was the only access that Shelton had to Yow and that

Shelton could only reach Yow because he was standing directly in front of that

small opening—we conclude that Farmer is not sufficient to put reasonable

officials on notice that placing Shelton and Yow in adjacent showers under the

circumstances violated the Eighth Amendment. Although any time an inmate who

expresses mental issues and who is given a razor is placed in proximity to another

inmate, there is some risk of harm. But the Eighth Amendment is violated only if

the defendants were deliberately indifferent to a substantial risk of serious harm.

Here, given the small opening between the showers, this case involves whether the

risk of harm was substantial. But in Farmer, the Court specifically noted that “[a]t

what point a risk of inmate assault becomes sufficiently substantial for Eighth

Amendment purposes is a question this case does not present, and we do not

address it.” 511 U.S. at 834 n.3. Because Farmer did not address when the risk of

harm becomes substantial, we cannot conclude that Farmer clearly established that

law in these circumstances. See Beck v. Hamblen Cty., Tennessee, 969 F.3d 592,

602 (6th Cir. 2020) (observing that “Farmer’s reasonableness test—like the Fourth

Amendment’s reasonableness test—does not itself provide ‘fair warning’ to

Jarnagin that his responses to the risk of inmate-on-inmate violence were

constitutionally inadequate”); Est. of Ford v. Ramirez-Palmer, 301 F.3d 1043,

1050–51 (9th Cir. 2002) (stating that “it is not sufficient that Farmer clearly states

the general rule that prison officials cannot deliberately disregard a substantial risk

of serious harm to an inmate; here, in addition, it is relevant that neither Farmer

nor subsequent authorities has fleshed out ‘at what point a risk of inmate assault

becomes sufficiently substantial for Eighth Amendment purposes’” (quoting

Farmer, 511 U.S. at 834 n. 3)).

Given the small opening with which Shelton could assault Yow, this is not

an obvious case such that any reasonable official would know that putting Yow

and Shelton in adjacent shower stalls violated the Eighth Amendment. And the

parties do not cite, and we are not aware, of any cases with substantially similar

facts where the defendants were held to have violated the Eighth Amendment.

And so, we conclude that the law was not clearly established such as to put the

defendants on notice that placing Yow and Shelton in adjacent shower stalls under

the circumstances violated the Eighth Amendment. Thus, defendants Robertson,

DeLuca, and Macking are entitled to qualified immunity.

V. The Retaliation Claim.

Defendants Gardzalla and Mabin seek summary judgment in their favor as to

Yow’s retaliation claim against them.

“Retaliating against a prisoner for the exercise of his constitutional rights is

unconstitutional.” Bistrian, 696 F.3d at 376. “To [establish] a claim for retaliation,

a prisoner must [establish] that: (1) he was engaged in constitutionally protected

conduct, (2) ‘he suffered some “adverse action” at the hands of prison officials,’

and (3) ‘his constitutionally protected conduct was “a substantial or motivating

factor” in the decision’ to take that action.” Wisniewski v. Fisher, 857 F.3d 152,

156 (3d Cir. 2017) (quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)).

“Once a prisoner has made his prima facie case, the burden shifts to the

defendant to prove by a preponderance of the evidence that [he or she] ‘would

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

related to penological interest.’” Carter v. McGrady, 292 F.3d 152, 158 (3d Cir.

2002) (quoting Rauser, 241 F.3d at 334). Prison officials may prevail by proving

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.

In their statement of material facts, the defendants set forth only the

following four facts regarding the retaliation claim. On July 24, 2017, defendants

Gardzalla and Mabin were involved in a search of Yow’s cell. Doc. 50 ¶ 20. The

search was investigative in nature. Id. ¶ 21. These searches are routine. Id. ¶ 22.

During the search, a book was confiscated, though it was later returned. Id. ¶ 23.

Yow admits the first and fourth of these facts. See doc. 53 ¶¶ 20, 23. But as

to the second and third facts, Yow denies the facts stating that the “search was

retaliatory in nature” and that “strict proof demanded at time of trial.” Id. ¶¶ 21, 22.

As noted above, however, in his response to the defendants’ statement of material

facts, Yow does not cite to evidence to support those denials, id., and such denials

without citation to record evidence do not comply with Local Rule 56.1. In his

brief, however, Yow sets forth many additional facts purportedly about this search.

He sometimes (but sometimes not) cites to the record to support those facts. And

as the defendants point out in their reply brief, in his brief, Yow mixes up

testimony regarding two different searches.

Given the above, we conclude that we are simply unable on the current

record to decide whether defendants Gardzalla and Mabin are entitled to summary

judgment. Thus, we will deny the defendants’ motion as to the retaliation claim

without prejudice to the defendants filing another summary judgment motion as to

the retaliation claim that is properly teed up and to which Yow properly responds.5

5 Defendants Gardzalla and Mabin contend, among other things, that Yow cannot

show that he was subjected to an adverse action because verbal harassment, a cell

search, and confiscation of a book do not constitute adverse actions for purposes of

a retaliation claim. They cite some unpublished cases to support that assertion. See

doc. 49 at 19 (citing cases). But there are other cases that hold otherwise. See e.g.,

Humphrey v. Sec’y Pennsylvania Dep’t of Corr., 712 F. App’x 122, 124–25 (3d

Cir. 2017) (“We are doubtful about the District Court’s conclusion that Humphrey

had not sufficiently pleaded an adverse action, as a retaliatory search and seizure

may be sufficient to satisfy this prong of the claim.” (citing Bell v. Johnson, 308

F.3d 594, 604 (6th Cir. 2002) (citing cases)); Christian v. Garman, No. 3:18-CV-

1363, 2019 WL 5450573, at *7 (M.D. Pa. Oct. 24, 2019) (“While cell searches are

a routine part of prison life, it does not mean that searches which constitute

‘calculated harassment unrelated to prison needs’ are permissible.” “Thus, a cell

search, and the resulting confiscation of property, may nonetheless constitute

adverse action ‘if motivated solely by a retaliatory motive.’” (internal citations

omitted)); Nichols v. Phillips, No. 2:17-CV-02604, 2018 WL 286740, at *6 (E.D.

Pa. Jan. 3, 2018) (“Although verbal harassment alone does not state a

constitutional deprivation, verbal harassment or threats, with some “reinforcing act

accompanying them” may establish an adverse action. A retaliatory search and

VI. Conclusion.

Based on the foregoing, we will grant in part and deny in part the

defendants’ motion for summary judgment. An appropriate order will issue.

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge

seizure may satisfy the adverse action element of a retaliation claim if the search

and seizure would deter a person of ‘ordinary firmness’ from the protected

activity.” (internal citations omitted)). Further, as the summary of the allegations

of the Third Amended Complaint earlier in this opinion shows, Yow’s retaliation

claim is based on more than a single cell search. And a ‘“campaign of harassment

which though trivial in detail may have been substantial in gross’” may amount to

an adverse action. Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000) (quoting

Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)). Here, given that the parties

have not adequately set forth the facts as to the retaliation claim, we cannot at this

time determine whether Yow was subjected to an adverse action.