Hagan v. Mason

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAMONT HAGAN, : CIVIL ACTION NO. 1:19-CV-2120

:

Plaintiff : (Judge Conner)

:

v. :

:

BERNADETTE MASON, STETLER, :

BANTA, MILLER, GROHOWSKI, :

CONTRERAS, KLICK, HUBER, :

:

Defendants :

MEMORANDUM

Plaintiff Damont Hagan (“Hagan”), an inmate who was housed at all relevant

times at the State Correctional Institution at Retreat, Pennsylvania (“SCI-Retreat”),

commenced this action pursuant to 42 U.S.C. § 1983 alleging that defendants

retaliated against him in violation of his First Amendment rights. (Doc. 1). Named

as defendants are Superintendent Bernadette Mason, Deputy Superintendent

Stetler, Deputy Superintendent Banta, Corrections Classification Program

Manager Miller, Unit Manager Grohowski, Lieutenant Contreras, Lieutenant Klick,

and Correctional Officer Huber. Hagan moves for partial summary judgment

pursuant to Federal Rule of Civil Procedure 56. (Doc. 26). For the reasons set forth

below, the court will deny the motion.

I. Factual Background & Procedural History1

Hagan alleges that from December 2018 through February 2019 he filed

several meritorious grievances. (Doc. 1 ¶ 9). In retaliation for filing these

grievances, Hagan alleges, inter alia, that defendants converted a misconduct from

informal resolution to a formal misconduct, placed him into Phase 4 of the

Behavioral Management Unit (“BMU”), and extended his disciplinary time until

August 2027. (Id. ¶ 39 (count I), ¶ 42 (count IV), ¶ 43 (count V)).

A. Material Facts Regarding Protective Conduct

On January 10, 2019, a grievance filed by Hagan was found to be meritorious

and upheld in his favor. (Doc. 27 ¶ 1; Doc. 51 ¶ 1). On January 2, 2019, a grievance

filed by Hagan was upheld in part and denied in part. (Id. ¶ 2; Doc. 27 at 15). On

February 4, 2019, a grievance filed by Hagan was upheld in part and denied in part.

(Doc. 27 ¶ 3; Doc. 51 ¶ 3; Doc. 27 at 16).

On February 14, 2019, a hearing examiner dismissed a misconduct charge

issued against Hagan. (Doc. 27 ¶ 4; Doc. 51 ¶ 4; Doc. 27 at 17).

1 Local Rule 56.1 requires that a motion for summary judgment pursuant to

Federal Rule of Civil Procedure 56 be supported “by 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.” LOCAL RULE OF COURT 56.1.

A party opposing a motion for summary judgment must file a separate statement of

material facts, responding to the numbered paragraphs set forth in the moving

party’s statement and identifying genuine issues to be tried. Id. Unless otherwise

noted, the factual background herein derives from the parties’ Rule 56.1 statements

of material facts and exhibits. (See Docs. 27, 51, 52). To the extent the parties’

statements are undisputed or supported by uncontroverted record evidence, the

court cites directly to the statements of material facts.

On March 22, 2019, Hagan filed two grievances against staff which were

received by the Facility Grievance Coordinator on March 26, 2019. (Doc. 27 ¶¶ 5, 6;

Doc. 51 ¶¶ 5, 6; Doc. 27 at 18-21).

Hagan filed a grievance against defendant Stetler wherein he asserted that

Stetler informed him that he would be placed back into Phase 4 of the BMU, and

stated: “Enjoy your stay Hagan, you’ll file your grievances from here from now on.”

(Doc. 27 ¶¶ 7, 30; Doc. 51 ¶¶ 7, 30; Doc. 27 at 22). Defendants deny that Stetler made

such a statement. (Doc. 51 ¶¶ 7, 30).

As of February 5, 2019, defendant Mason was aware that Hagan was engaged

in filing meritorious grievances. (Doc. 27 ¶ 8; Doc. 51 ¶ 8; Doc. 27 at 23). Defendants

deny that Stetler and Banta were aware of the filing of such grievances. (Doc. 51 ¶

8).

From February 2019 to March 2019, Hagan filed other forms of complaints

such as letters to Central Office, request slips and letters to the Governor’s office.

(Doc. 27 ¶ 9; Doc. 51 ¶ 9).

B. Material Facts Regarding Adverse Actions

On February 12, 2019, a misconduct was issued against Hagan charging him

with lying to an employee, which he classifies as a “false” misconduct. (Doc. 27 ¶ 10;

Doc. 51 ¶ 10; Doc. 27 at 27). The misconduct was referred to the Program Review

Committee (“PRC”) based on the seriousness of the issue. (Id.) Due to PRC’s

decision to make the misconduct formal, Hagan was placed in the BMU, which is an

isolation unit. (Doc. 27 ¶ 11; Doc. 51 ¶ 11). Hagan contends that he was placed in

one cell with dried feces on the walls and bedframe, dried blood on the side walls,

and oleoresin capsicum (“OC”) chemicals on the desk and walls. (Doc. 27 ¶ 11; Doc.

27 at 28-29). Defendants deny that the cell was in such a condition. (Doc. 51 ¶ 11).

Defendants assert that Hagan was placed in cell GA 1008 on February 12, 2019, the

cell was cleaned thoroughly and painted on February 8, 2019, and no inmate was

housed in that cell from February 8, 2019 to February 12, 2019, when Hagan was

placed in the cell. (Doc. 51 ¶ 11; Doc. 52-2).

Hagan contends that defendants Banta and Stetler are members of the PRC

and did not personally check the BMU cell before Hagan was placed in the cell.

(Doc. 27 ¶ 12). He further contends that Stetler and Banta know that inmates in the

BMU smear feces on a regular basis. (Id.)

On February 13, 2019, Hagan appeared before defendants Banta and Stetler

for an administrative hearing wherein he alleged that a false misconduct was issued

against him. (Doc. 27 ¶ 13; Doc. 51 ¶ 13; Doc. 27 at 30). Hagan contends that he

presented evidence establishing that the misconduct was false. (Doc. 27 ¶ 13).

On March 22, 2019, a misconduct was issued against Hagan charging him

with threatening an employee, refusing to obey an order, and using abusive

language. (Doc. 27 ¶¶ 14, 15; Doc. 51 ¶¶ 13, 15; Doc. 27 at 31-32). Hagan avers that

two of the charges were false and resulted in his placement in the BMU. (Doc. 27 ¶

13).

On March 27, 2019, Hagan was placed back in Phase 4 in the BMU, which is a

very restricted phase, and was given a document indicating that he would be in

disciplinary time until August 16, 2027. (Doc. 27 ¶ 16; Doc. 51 ¶ 16; Doc. 27 at 33-35).

On April 23, 2019, Hagan received an Individual Recovery Plan that did not state

when Hagan could return to Phase 1. (Doc. 27 ¶ 17; Doc. 51 ¶ 17; Doc. 27 at 36-37).

On June 6, 2019, defendant Contreras responded to Hagan in a “Remanded Initial

Review Response” based on a grievance he filed against defendant Stetler. (Doc. 27

¶ 18; Doc. 51 ¶ 18; Doc. 27 at 22). Defendant Contreras advised Hagan that “At no

time were you placed back in Phase 4. As of this date, June 6th, 2019 you were

released back to General Population.” (Doc. 51 ¶ 18; Doc. 27 at 22). Hagan asserts

that the document was false. (Doc. 27 ¶ 18).

In May 2020, Hagan appeared before the Parole Board and was denied parole

based on his reported misconducts, his level of risk to the community, and the

negative recommendation made by the Department of Corrections (“DOC”). (Doc.

27 ¶¶ 19, 20; Doc. 51 ¶¶ 19, 20; Doc. 27 at 38-39). Hagan contends that the DOC

issued a negative recommendation because he “needed a longer period of

adjustment” and must be misconduct free. (Doc. 27 ¶ 21).

DC-ADM 801, Section 2. C. 4 states: “For the purpose of parole and the

Pennsylvania Additive Classification Tool (PACT), informal resolutions are not

considered misconducts, but should be reflected on applicable block and work

reports.” (Doc. 27 ¶ 22; Doc. 51 ¶ 22; Doc. 27 at 48).

When considering misconducts, the Parole Board concentrates on those that

occurred within the prior two years. (Doc. 27 ¶ 23; Doc. 51 ¶ 23; Doc. 27 at 63-64).

C. Material Facts Regarding Causation

Hagan avers that he received a false misconduct on February 12, 2019, seven

days after defendants Banta and Stetler became aware that Hagan filed three

meritorious grievances. (Doc. 27 ¶ 24). In response, defendants maintain that the

misconducts were not false and there is no evidence that Banta and Stetler were

aware of his previously filed grievances. (Doc. 51 ¶ 24). Hagan further avers that

defendants Banta and Stetler kept him in the BMU despite establishing his

innocence on February 13, 2019, eight days after they were made aware that Hagan

had filed three meritorious grievances. (Doc. 27 ¶ 25).

On March 27, 2019, the PRC reviewed Hagan’s case and placed him back in

Phase 4, one day after he filed grievances against staff. (Doc. 27 ¶ 26; Doc. 51 ¶ 26).

The PRC also determined that Hagan’s disciplinary custody release date is August

16, 2027. (Doc. 27 ¶¶ 27, 29; Doc. 51 ¶¶ 27, 29). Defendants maintain that the PRC

made these decisions after considering that Hagan received 228 misconducts since

the initial misconduct. (Doc. 51 ¶ 26; Doc. 27 at 33). On March 27, 2019, Hagan was

placed back in Phase 4. (Doc. 27 ¶ 28; Doc. 51 ¶ 28). The parties dispute whether

such placement was retaliatory. (Id.)

Hagan contends that on March 25, 2019, defendant Mason stated that Hagan

was being subjected to the formal process, and other inmates were not, was because

he filed grievances. (Doc. 27 ¶ 31). Defendants deny that Mason ever made such a

statement. (Doc. 51 ¶ 31).

On May 7, 2019, Hagan filed an inmate request to staff wherein he alleged

that staff refused to put time parameters in his Individual Treatment Plan and

changed the decision to release him back to general population based on his filing

of grievances. (Doc. 27 at 67). The parties dispute whether defendant Mason

accepted these allegations. (Doc. 27 ¶ 32; Doc. 51 ¶ 32). In the request slip, Hagan

stated that he would work with staff and would not file any more grievances if his

treatment plan indicated when he would be placed back in general population.

(Doc. 27 ¶ 33; Doc. 51 ¶ 33; Doc. 27 at 68).

On May 22, 2022, defendants Stetler, Banta, and Mason reviewed Hagan’s

disciplinary custody and did provide time parameters as to when he would be

released back to general population. (Doc. 27 ¶ 34; Doc. 51 ¶ 34; Doc. 27 at 72).

Hagan states that he did not file any grievances or civil actions from May 22,

2019 through July 2019, when he graduated from the BMU Program. (Doc. 27 ¶ 35).

In response, defendants provide that Hagan filed a grievance during this time—

grievance number 813085 on July 19, 2019. (Doc. 51 ¶ 35; Doc. 52-3).

On February 13, 2019, Hagan appeared before defendants Stetler and Banta

to determine if he would be continued in Administrative Custody. (Doc. 27 ¶ 36;

Doc. 51 ¶ 36; Doc. 27 at 30).

The DOC does not hold inmates in Administrative Custody if the inmate has

disciplinary time. (Doc. 27 ¶ 37; Doc. 51 ¶ 37). DC-ADM 13.8.1, Section 12.A.2.

states, in part: “An inmate’s custody level will be suspended while in the BMU but

their Disciplinary Custody (DC) sanctions, if they have any, will run concurrent to

their time in the BMU until the sanction expires or until placed in Phase 1 of the

program.” (Doc. 27 ¶ 38; Doc. 51 ¶ 38; Doc. 27 at 74). In December 2018, Hagan was

placed into Phase 1. (Doc. 27 ¶ 39; Doc. 51 ¶ 39).

On August 19, 2020, Hagan received a document from his counselor, who is

trained in DOC Policy, acknowledging that he is not considered DC time while in

Phase 1. (Doc. 27 ¶ 40; Doc. 51 ¶ 40; Doc. 27 at 82).

D. Material Facts Showing that Defendants Cannot Prove by a

Preponderance of the Evidence that they Would Have Taken the

Same Actions Absent the Protected Conduct

The parties dispute whether Hagan presented a document to defendants

Banta, Stetler, and Miller on February 1, 2019 showing that Chaplain Germer

requested a one-on-one meeting with Hagan. (Doc. 27 ¶ 41; Doc. 51 ¶ 41). On

February 12, 2019, Hagan’s misconduct, charging him with lying to an employee,

was dismissed with prejudice. (Doc. 27 ¶ 42; Doc. 51 ¶ 42; Doc. 27 at 17).

Hagan contends that defendants Banta, Stetler, and Miller did not conduct

any investigation regarding the history between Hagan and Chaplain Germer.

(Doc. 27 ¶ 43). In response, defendants submitted an excerpt from the Inmate

Cumulative Adjustment Records which provides that the matter was investigated.

(Doc. 51 ¶ 43; Doc. 52-4).

Hagan avers that he was never issued any misconducts pertaining to

Chaplain Germer. (Doc. 27 ¶ 44). Defendants respond that on February 12, 2019,

Hagan was issued misconduct number D050031 for lying to an employee when he

told an officer that he had a scheduled one-on-one meeting with Chaplain Germer.

(Doc. 51 ¶ 44; Doc. 27 at 17). The officer contacted the chapel and was informed that

they were unaware of any such meeting. (Id.) On February 14, 2019, a disciplinary

hearing was held, and the charge was dismissed with prejudice. (Id.).

Hagan contends that after he was released back to general population,

Chaplain Germer continued to call him for a one-on-one meeting every Monday.

(Doc. 27 ¶ 45). Defendants deny this statement and further state that this fact is

immaterial because Chaplain Germer is not a party to this action. (Doc. 51 ¶ 45).

On March 26, 2019, a hearing examiner dismissed charge 15—threatening an

employee. (Doc. 27 ¶ 46; Doc. 51 ¶ 46; Doc. 27 at 85-87). The parties dispute whether

Hagan was subjected to isolation as a result of the misconduct. (Id.)

DC-ADM 801, Section 1.b.4.b. states, in part: “If the inmate is a juvenile or

carried on the active MH/ID Roster and the misconduct is non-violent in nature

(i.e., misconduct charges #26 to #52) the Shift Commander will refer the

misconduct for informal resolution.” (Doc. 27 ¶ 47; Doc. 51 ¶ 47; Doc. 27 at 44).

Hagan was on the active mental health roster. (Doc. 27 ¶ 48; Doc. 51 ¶ 48). Hagan

contends that, in accordance with DC-ADM 801, Section 2, staff is not authorized to

place him in isolation if he is found guilty of charges #26 to #52. (Doc. 27 ¶ 49; Doc.

27 at 85-87). Defendants deny this statement and assert that, in accordance with

DC-ADM 801, Section 3-Misconduct Hearings, subsection A.4, the Hearing

Examiner is solely responsible for decisions of credibility and guilt or innocence,

and any sanction is to be decided by the Hearing Examiner. (Doc. 51 ¶ 49).

Hagan contends that DC-ADM 13.8.1, Section 12.Q, which covers

misconducts, only authorizes action if the inmate is found guilty of charges #1-14 or

#15-25. (Doc. 27 ¶ 50; Doc. 27 at 80). In response, defendants assert that Hagan

may be sanctioned for committing any misconduct. (Doc. 51 ¶ 50).

DC-ADM 13.8.1, Section 12.O, which covers phase modifications, states in

part: “The modifications will be documented on the IRP with the rationale and

goals for the modification and the steps to taken to reach those goals.” (Doc. 27 ¶

51; Doc. 51 ¶ 51).

DC-ADM 13.8.1, Section 12.L.4. states, in part: “The length of time spent in

each phase is dependent on the inmate’s demonstrated level of adjustment. The

specific time parameters for each phase movement will be defined in the inmate’s

IRP.” (Doc. 27 ¶ 52; Doc. 51 ¶ 52).

DC-ADM 13.8.1, Section 12.S states that Phase 1 constitutes a release from

the BMU and there is nothing within the subsection that authorizes staff to reissue

disciplinary time that has been resolved. (Doc. 27 ¶ 53; Doc. 51 ¶ 53).

DC-ADM 13.8.1, Section 12.A states, in part: “An inmate’s custody level will

be suspended while in the BMU but their Disciplinary Custody (DC) sanctions, if

they have any, will run concurrent to their time in the BMU until the sanction

expires or until placed in Phase 1 of the Program.” (Doc. 27 ¶ 54; Doc. 51 ¶ 54; Doc.

27 at 74).

Hagan now moves for partial summary judgment on counts I, IV, and V of the

complaint. (Doc. 26). The motion is fully briefed and ripe for resolution.

II. Legal Standard

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. FED. R. CIV. P. 56(a). The burden of

proof tasks the non-moving party to come forth with “affirmative evidence, beyond

the allegations of the pleadings,” in support of its right to relief. Pappas v. City of

Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986). The court is to view the evidence “in the light most

favorable to the non-moving party and draw all reasonable inferences in that party’s

favor.” Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014). This

evidence must be adequate, as a matter of law, to sustain a judgment in favor of the

non-moving party on the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-

57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89

(1986). Only if this threshold is met may the cause of action proceed. See Pappas,

331 F. Supp. 2d at 315.

III. Discussion

Section 1983 of Title 42 of the United States Code offers private citizens a

cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983.

The statute provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress...

Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95

F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a plaintiff must allege

“the violation of a right secured by the Constitution and laws of the United States,

and must show that the alleged deprivation was committed by a person acting

under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

The First Amendment offers protection for a wide variety of expressive

activities. See U.S. CONST. amend I. To prevail on a retaliation claim, Hagan must

demonstrate that: (1) he engaged in constitutionally protected conduct; (2) he

suffered an 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 the adverse action. Watson v. Rozum, 834 F.3d 417, 422 (3d Cir.

2016) (citing Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001)). An “adverse

action” is one that would “deter a person of ordinary firmness” from exercising his

First Amendment rights. Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)

(quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)). Retaliatory motive

can be inferred from either: (1) an unusually suggestive temporal proximity

between the protected activity and the alleged retaliatory action; or (2) a pattern of

antagonism coupled with timing that suggests a causal link. Id. (citing Lauren W.

ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).

Once a plaintiff has established that he was subjected to a retaliatory

disciplinary measure, the burden shifts to the defendants to demonstrate by a

preponderance of the evidence that they would have made the same penological

decision absent the protected conduct. Rauser, 241 F.3d at 330. This determination

requires the court to “evaluate ‘the quantum of evidence’” in support of the

misconduct “to determine whether the prison officials’ decision to discipline an

inmate for his violations of prison policy was within the broad discretion we must

afford them.” Watson, 834 F.3d at 426. If the evidence supporting the disciplinary

offense is “clear and overt,” the court should conclude that prison officials would

have made the same decision to impose the disciplinary measure regardless of the

inmate’s protected activity. See id.

A. Count I against Defendants Stetler, Banta, and Miller

In count I of the complaint, Hagan asserts that defendants Stetler, Banta, and

Miller retaliated against him by converting a false misconduct from informal

resolution to a formal misconduct. (Doc. 1 ¶ 39).

Before reaching the substantive merits of this claim, defendants Stetler and

Banta direct the court to the lack of evidence connecting them to the alleged

issuance of a false misconduct. (Doc. 57 at 10-11). Individual liability can be

imposed under 42 U.S.C. § 1983 only if the state actor played an “affirmative part”

in the alleged misconduct and “cannot be predicated solely on the operation of

respondeat superior.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)); Sutton v. Rasheed, 323

F.3d 236, 249-50 (3d Cir. 2003). The personal involvement of a defendant in a § 1983

action may be shown “through allegations of personal direction or of actual

knowledge and acquiescence.” Argueta v. U.S. ICE, 643 F.3d 60, 72 (3d Cir. 2011)

(quoting Rode, 845 F.2d at 1207). Such allegations, however, must be made with

appropriate particularity in that a compliant must allege the “conduct, time, place,

and persons responsible.” Evancho, 423 F.3d at 354; Rode, 845 F.2d at 1207-08.

Alleging a mere hypothesis that an individual defendant had personal knowledge or

involvement in depriving the plaintiff of his rights is insufficient to establish

personal involvement. Rode, 845 F.2d at 1208. Moreover, a defendant “cannot be

held responsible for a constitutional violation which he or she neither participated

in nor approved.” C.H. ex rel. Z.H. v. Olivia, 226 F.3d 198, 201-202 (3d Cir. 2000).

Allegations that a supervisor “had constructive knowledge of a subordinate’s

unconstitutional conduct simply because of his role as a supervisor” do not suffice.

Broadwater v. Fow, 945 F.Supp.2d 574, 588 (M.D. Pa. 2013) (citing C.H. ex rel. Z.H.,

226 F.3d at 202). Additionally, simply responding to a grievance or receiving a letter

or request slip from an inmate is insufficient to satisfy the personal involvement

requirement. Mincy v. Chmielsewski, 508 F. App’x 99, 104 (3d Cir. 2013).

Hagan admits that defendant Grohowski wrote the misconduct, not

defendants Stetler or Banta, and that defendant Miller instructed Grohowski to

issue the misconduct against him. (Doc. 1 ¶¶ 11, 13). The evidence confirms that on

February 12, 2019, Correctional Officer Bobrowski2 issued a misconduct against

Hagan charging him with lying to an employee. (Doc. 27 ¶ 10; Doc. 51 ¶ 10; Doc. 27

at 27). The matter was referred to the PRC due to the seriousness of the offense.

(Doc. 27 at 27). On February 13, 2019, Hagan appeared before defendants Stetler,

Banta, and Miller for an Administrative Hearing to determine whether he would

remain in Administrative Custody. (Doc. 27 at 30). At the hearing, Hagan stated

that he was written up for a false misconduct. (Id.) Defendants Stetler, Banta, and

Miller determined that Hagan would continue in the same status, pending a

misconduct hearing. (Id.) On February 14, 2019, Hagan appeared before a Hearing

Examiner, and the misconduct was dismissed with prejudice. (Id. at 17). The

complaint lacks any factual averments that defendants Stetler or Banta were

involved in issuing the false misconduct; instead, they were members of the

committee that held an Administrative Hearing. (Doc. 1 ¶ 11, 13). The summary

2 The court presumes that Correctional Officer Bobrowski is incorrectly

identified in the pleadings as defendant Grohowski.

judgment record similarly fails to connect either of these defendants to this claim.

In the absence of any evidence that either defendants Stetler or Banta played an

affirmative role in issuing the alleged false misconduct, summary judgment must be

denied.

Assuming arguendo that defendants Stetler and Banta were personally

involved, it is well-settled that retaliation claims can be based upon alleged

retaliation against an inmate due to his filing of grievances against prison officials.

See Kelly v. York Cty. Prison, 340 F. App’x 59, 61 (3d Cir. 2009) (“[t]he filing of

grievances is protected under the First Amendment.”). However, in this context it

is essential that the plaintiff show that the defendants knew of the grievance at the

time they took the allegedly retaliatory actions. Here, the parties dispute whether

defendants Stetler and Banta knew that Hagan had previously filed grievances.

(Doc. 27 ¶¶ 8, 24; Doc. 51 ¶¶ 8, 24).

With respect to the second element, there is little doubt that placement for

two days in a cell contaminated with feces, dried blood, and OC residue is an

adverse action. However, defendants refute these claims and submit that Hagan

was placed in cell GA 1008 on February 12, 2019, the cell was cleaned thoroughly

and painted on February 8, 2019, and no inmate was housed in that cell from

February 8, 2019 to February 12, 2019, when Hagan was placed in the cell. (Doc. 51

¶ 11; Doc. 52-2). The factual dispute over the condition of the cell is a material issue

which precludes summary judgment on this claim. With that said, the court does

not reach the third element of whether Hagan has established a causal link between

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

Defendants next raise a qualified immunity defense. In order to establish a

civil rights claim, Hagan must show the deprivation of a right secured by the United

States Constitution or the laws of the United States. However, government officials

performing “discretionary functions,” are insulated from suit if their conduct did

not violate a “clearly established statutory or constitutional right[ ] of which a

reasonable person would have known.” Wilson v. Layne, 526 U.S. 603, 609 (1999).

“The doctrine of qualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation

marks omitted). “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, 555 U.S. at 231. It “provides ample

protection to all but the plainly incompetent or those who knowingly violate the

law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). “Thus, so long as an official

reasonably believes that his conduct complies with the law, qualified immunity will

shield that official from liability.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012)

(citing Pearson, 555 U.S. at 244). Although qualified immunity is generally a

question of law that should be considered at the earliest possible stage of

proceedings, a genuine dispute of material fact may preclude summary judgment

on qualified immunity. Giles v. Kearney, 571 F.3d 318, 325-26 (3d Cir. 2009). A

qualified immunity determination involves a two-pronged inquiry: (1) whether a

constitutional or federal right has been violated; and (2) whether that right was

“clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by

Pearson, 555 U.S. at 236 (permitting federal courts to exercise discretion in deciding

which of the two Saucier prongs should be addressed first).

Hagan’s claims relate to alleged retaliation that occurred in February 2019. It

is clearly established that grievance-related activity is constitutionally protected

conduct. See Kelly, 340 F. App’x at 61. However, the law is unsettled as to whether

the placement of an inmate in a dirty, unsanitary cell for several days constitutes an

adverse action for the purposes of a retaliation claim. But some federal courts have

recognized that subjecting an inmate to similarly unsanitary conditions was

sufficient to deter a person of ordinary fitness from exercising his constitutional

rights. See, e.g., Thaddeus-X v. Blatter, 175 F.3d 378, 403 (6th Cir. 1999) (holding

that placement in an area of the prison used to house mentally disturbed inmates

combined with harassment and physical threats could constitute a sufficient

adverse action for retaliation purposes). We find a genuine dispute of material fact

with respect to whether it would have been clear to a reasonable prison official that

placement of an inmate in a cell under such conditions would be sufficient to

constitute an adverse action. Under the circumstances presented in this case, we

find that defendants are not entitled to qualified immunity from monetary damages

with respect to this retaliation claim.

B. Count IV against Defendants Stetler and Banta

In count IV of the complaint, Hagan asserts that defendants Stetler and

Banta retaliated against him by placing him back in Phase 4 of the BMU. (Doc. 1 ¶

42). Defendants respond that Hagan’s failure to progress through the program is

not an adverse action. (Doc. 57 at 19-20).

As stated supra, the filing of a grievance implicates conduct protected by the

First Amendment. See Watson, 834 F.3d at 422. However, the parties dispute

whether defendants Stetler and Banta knew that Hagan had previously filed

grievances. (Doc. 27 ¶¶ 8, 24; Doc. 51 ¶¶ 8, 24).

With respect to the second element of a retaliation claim, the parties dispute

whether Hagan suffered an adverse action when he was demoted in the BMU

program. On March 27, 2019, the PRC reviewed Hagan’s case and placed him back

in Phase 4, one day after he filed grievances against staff. (Doc. 27 ¶ 26; Doc. 51 ¶

26). The PRC also determined that Hagan’s disciplinary custody release date is

August 16, 2027. (Doc. 27 ¶¶ 27, 29; Doc. 51 ¶¶ 27, 29). The parties disagree as to

whether the demotion in the program stemmed from retaliatory animus and, if so,

whether the PRC decision was independently supported by the evidence. (Doc. 27 ¶

26; Doc. 51 ¶ 26). After carefully reviewing the record, the court concludes that

there are disputed material facts underpinning each of these issues. Summary

judgment on this retaliation claim against defendants Stetler and Banta must be

denied.

C. Count V against Defendants Mason, Stetler, and Banta

In count V of the complaint, Hagan asserts that defendants Mason, Stetler,

and Banta retaliated against him by falsifying a document showing that he had

disciplinary time until August 2027, which interfered with his parole status. (Doc. 1

¶ 43).

Again, Hagan was engaged in the constitutionally protected activity by filing

grievances. See Watson, 834 F.3d at 422. With respect to the second Rauser

element, over-sanctioned disciplinary custody time can constitute an adverse

action. However, defendants argue that Hagan has not demonstrated a causal

connection between this action and his act of filing grievances. (Doc. 57 at 20-23).

Defendants assert that the extension of Hagan’s disciplinary time was the product

of his own bad behavior and illicit activity, including receiving 228 misconducts

since 2005. (Id. at 21). The court concludes that there are genuine issues of

material fact as to whether defendants retaliated against Hagan for filing grievances

by extending his disciplinary custody time. Accordingly, the motion for summary

will be denied as to this retaliation claim.

IV. Conclusion

We will deny Hagan’s motion (Doc. 26) for summary judgment. An

appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: September 30, 2021