The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARCELLUS A. JONES, No. 4:18-CV-02353
Plaintiff, (Chief Judge Brann)
v.
MICHAEL WENEROWICZ, et al.,
Defendants.
MEMORANDUM OPINION
AUGUST 19, 2022
Pro se Plaintiff Marcellus A. Jones (“Plaintiff”), who is presently
incarcerated in the State Correctional Institution-Camp Hill (“SCI-Camp Hill”) and
was incarcerated in the State Correctional Institution-Frackville (“SCI-Frackville”)
and the State Correctional Institution-Greene (“SCI-Greene”) during the period of
time relevant to this case, brought this case alleging civil rights violations by
Defendants employed at SCI-Frackville. Defendants have moved for summary
judgment. I will grant the motion in part and deny it in part.
I. BACKGROUND
Plaintiff initiated this case through the filing of a civil rights complaint under
42 U.S.C. § 1983 on December 7, 2018.1 Plaintiff additionally moved for leave to
proceed in forma pauperis.2 United States Magistrate Judge Martin C. Carlson
granted the motion for leave to proceed in forma pauperis on January 17, 2019.3
On May 15, 2019, I dismissed the claims against several defendants without
prejudice and granted Plaintiff leave to file an amended complaint.4 Plaintiff
timely amended his complaint on August 22, 2019.5 According to the allegations
in the amended complaint, Plaintiff was enrolled in SCI-Frackville’s Behavioral
Management Program in March 2018 when he was temporarily transferred to SCI-
Greene so that he could attend a court hearing in a habeas corpus case he had
previously filed.6 Upon Plaintiff’s return to SCI-Frackville, Defendants White,
Sorber, Albert, O’Kane, and Boyce conducted an administrative hearing to
determine whether Plaintiff was eligible to graduate from the Behavioral
Management Program.7 Defendants purportedly informed Plaintiff that due to his
temporary absence from the program while he was at SCI-Greene, he would not be
allowed to graduate from the Behavioral Management Program, despite the fact
that he met all the other eligibility criteria for graduation.8 Plaintiff, perceiving this
decision as a punishment for having attended court in the habeas corpus
proceeding, decided not to attend the next hearing in the proceeding, which
2 Doc. 3.
3 Doc. 9.
4 Doc. 19.
5 Doc. 22.
6 Id. at 5.
7 Id.
resulted in the habeas corpus petition being denied.9 Plaintiff alleges that the
decision to deny him graduation from the Behavioral Management Program arose
from a conspiracy by the Defendants to violate Plaintiff’s constitutional rights as
retaliation for him having filed the habeas corpus petition.10
The amended complaint further alleges that on March 17, 2018, prison staff
confiscated a newspaper belonging to Plaintiff.11 Prison staff subsequently notified
him that the newspaper would be returned.12 Plaintiff then filed several complaints
and grievances to have the newspaper returned, but it never was.13 Plaintiff
purportedly asked Defendant Brittain whether the newspaper would be returned,
and Brittain allegedly stated, “if you keep crying[,] complaining[,] bitching[,] and
moaning about being abused we’ll never give anything.”14 Plaintiff also allegedly
asked Defendants Newberry, Dowd, and Albert about the missing newspaper, but
none of the Defendants returned the newspaper.15 Plaintiff alleges that the
confiscation and subsequent failure to return the newspaper violated his rights
under the First Amendment, violated his right to due process under the Fourteenth
Amendment, and constituted conversion under Pennsylvania law.16
9 Id.
10 Id. at 6.
11 Id.
12 Id.
13 Id.
14 Id. at 7.
15 Id.
The amended complaint alleges that on April 4, 2018, Plaintiff spoke with
Defendants Wenerowicz, Hammond, Brittain, White and Sorber outside of his
cell.17 The Defendants, who all purportedly held supervisory roles with SCI-
Frackville or the Department of Corrections, were at Plaintiff’s cell while they
were touring the facility.18 Plaintiff allegedly informed the defendants that prison
staff were abusing him and retaliating against him.19 As a result of Plaintiff
informing these defendants of the abuse and retaliation that he was purportedly
suffering, prison staff allegedly targeted Plaintiff for “retaliatory attacks” on April
20, 2018, June 9, 2018, June 16, 2018, June 25, 2018, July 1, 2018, July 4, 2018,
July 6, 2018, July 11, 2018, October 4, 2018, and October 9, 2018.20 Plaintiff
alleges that this retaliation violated his rights under the First, Fourth, Eighth, and
Fourteenth Amendments.21
Defendants McCord, Beach, and other unnamed individuals allegedly
entered Plaintiff’s cell on March 27, 2018 and stole some of Plaintiff’s personal
property.22 Plaintiff’s personal property was then allegedly given to white inmates
“as payment.”23 This action purportedly followed from a pattern of action by
prison staff of stealing personal property from non-white inmates and giving the
17 Id.
18 Id.
19 Id.
20 Id. at 8.
21 Id.
22 Id. at 9.
property to white inmates “as payment.”24 Plaintiff purportedly informed prison
staff that his personal property had been taken, which allegedly resulted in
Defendant McCord confiscating legal mail that Plaintiff was trying to send to the
United States Court of Appeals for the Third Circuit as part of then-extant
litigation.25 Defendant McCord allegedly destroyed or stole the confiscated legal
materials with the approval of Defendants Wenerowicz, Hammond, Brittain,
White, Sorber, and Albert.26 The fact that the legal documents were never sent to
the Third Circuit led to the Third Circuit ruling against Plaintiff.27 Plaintiff alleges
that if the Third Circuit had received the documents, the court would have instead
ruled in his favor.28
The amended complaint alleges that on April 20, 2018, an inmate hired by
Defendants Hoffner and Thompson went to Plaintiff’s cell and threatened Plaintiff
with violence.29 The inmate purportedly banged and kicked on the outside of
Plaintiff’s cell, slammed his meal tray against the cell, and shouted that he would
“kill [Plaintiff] for being such a fucking snitch” and that Defendants would “fuck
[Plaintiff] up for ratting [them] out.”30 Prison staff allegedly did nothing to stop
24 Id.
25 Id.
26 Id. at 10.
27 Id.
28 Id.
29 Id. at 11.
the inmate.31 The amended complaint alleges that video footage from April 20,
2018 shows Defendant Hoffner delivering payment to the hired inmate in the form
of tobacco and other items.32 The amended complaint alleges that the same hired
inmate and Defendant Boyce fabricated a disciplinary report against Plaintiff on
July 1, 2018.33 Further, on July 2, 2018 the hired inmate and Defendant Hoffner
purportedly spoke to each other outside of Plaintiff’s cell, pointed at the cell, and
said “we need to get that n[---] snitch” and “don’t worry he’ll pay dearly for being
such a cry baby bitch before the weeks out.”34
Defendants allegedly allowed the same inmate to assault Plaintiff on July 4,
2018 by spraying Plaintiff in the face with disinfectant.35 Defendants then
purportedly fabricated a misconduct report against Plaintiff for assault arising from
the incident.36 Defendants Moser, Dowd, and Hoffner allegedly denied Plaintiff a
shower after he provided his account of the incident during an interview with
prison staff.37 The amended complaint alleges that prison surveillance footage
from August 19, 2018 shows Defendant Hoffner and the inmate who was allegedly
hired by Defendants engaged in “sex acts” in a secluded, isolated area of the
31 Id.
32 Id.
33 Id.
34 Id.
35 Id. at 12.
36 Id.
prison.38 The amended complaint also alleges that video evidence from September
30, 2018 shows Hoffner stating, “now it’s time to get him,” in reference to Plaintiff
and that mere hours later Plaintiff was targeted for a cell inspection by Hoffner.39
The amended complaint alleges that on October 1, 2018, Defendant Boyce
conferred with the inmate allegedly hired by Defendants in order to plot against
Plaintiff, after which Boyce “zeroed in” on Plaintiff’s cell, threatened Plaintiff, and
issued a false misconduct charge against Plaintiff.40 The next day, October 2,
2018, Defendants Hoffner and Palerino allegedly entered Plaintiff’s cell and kicked
and punched him while shouting “yeah pussy now you have a reason to snitch” and
“this ass whooping is a reason for you to file another lawsuit.”41 Defendant Eidem
allegedly told Plaintiff shortly after the assault that the attacks by prison staff
would get worse if Plaintiff continued to file complaints to prison administrators.42
Plaintiff was also allegedly denied medical care following the assault and was told
by Defendants Eidem and Kathy that he would not be given medical care unless he
stopped filing complaints.43
The amended complaint raises ten claims for relief. First, the amended
complaint alleges that Defendants violated Plaintiff’s right to equal protection.44
38 Id.
39 Id. at 13.
40 Id.
41 Id.
42 Id.
43 Id.
Second, the amended complaint alleges that Defendants engaged in a conspiracy to
violate Plaintiff’s civil rights under the First, Fifth, Sixth, Eighth, and Fourteenth
Amendments.45 Third, the amended complaint alleges that Defendants failed to
intervene in the violation of Plaintiff’s civil rights.46 Fourth, the amended
complaint alleges that Defendants retaliated against Plaintiff in violation of the
First Amendment.47 Fifth, the amended complaint alleges that Defendants
committed cruel and unusual punishment in violation of the Eighth Amendment.48
Sixth, the amended complaint alleges that Defendants violated Plaintiff’s right of
access to the courts under the First Amendment.49 Seventh, the amended
complaint alleges that Defendants violated Plaintiff’s right to due process under the
Fourteenth Amendment.50 Eighth, the amended complaint alleges that Defendants
committed defamation under Pennsylvania law.51 Ninth, the amended complaint
alleges that Defendants committed “intentional and conversion torts” under
Pennsylvania law.52 Finally, the amended complaint alleges that Defendants
committed “peculiar risk and superior knowledge torts” under Pennsylvania law.53
The amended complaint seeks damages, declaratory relief, and injunctive relief.54
45 Id.
46 Id.
47 Id.
48 Id. at 15.
49 Id.
50 Id.
51 Id.
52 Id.
53 Id.
Defendants answered the amended complaint on November 12, 2019,55 and
subsequently moved for summary judgment on June 25, 2020 following the close
of fact discovery.56
On July 1, 2020, Defendants moved for reconsideration of the Order
granting Plaintiff’s request for leave to proceed in forma pauperis, arguing that the
Supreme Court’s decision in Lomax v. Ortiz-Marquez,57 constituted an intervening
change in controlling law that prevented Plaintiff from proceeding in forma
pauperis given that three previously dismissed cases that he had filed now
qualified as strikes under 28 U.S.C. § 1915(g).58 I granted the motion for
reconsideration on July 29, 2020 and revoked Plaintiff’s permission to proceed in
forma pauperis.59 Plaintiff moved for reconsideration on August 14, 2020, arguing
that one of the three cases that the court had determined was a strike, Jones v.
Wetzel,60 should not qualify as a strike under § 1915(g).61 I denied the motion for
reconsideration on December 29, 2020, dismissed Defendants’ motion for
summary judgment as moot, and directed the Clerk of Court to close the case.62
Plaintiff appealed.63
55 Doc. 31.
56 Doc. 61.
57 590 U.S __, 140 S. Ct. 1721 (2020).
58 Doc. 63.
59 Doc. 70.
60 No. 2:15-CV-00130 (E.D. Pa. filed Jan. 29, 2015).
61 Doc. 71.
62 Docs. 81-82.
On appeal, the United States Court of Appeals for the Third Circuit
determined that Jones v. Wetzel does not qualify as a strike because it was not
explicitly dismissed for failure to state a claim upon which relief could be
granted.64 The court accordingly vacated my Orders revoking Plaintiff’s in forma
pauperis status and denying Plaintiff’s motion for reconsideration and remanded
the case for further proceedings with instructions to grant Plaintiff’s application for
leave to proceed in forma pauperis.65
In accordance with the Third Circuit’s instructions, I reopened the case,
reinstated Plaintiff’s in forma pauperis status, and granted Defendants leave to file
a renewed motion for summary judgment.66 Defendants timely moved for
summary judgment on January 31, 2022.67 Briefing on the motion is complete and
it is ripe for disposition.68 Plaintiff has additionally moved for an order denying
Defendants’ motion for summary judgment.69 That motion is also ripe.
II. STANDARD OF REVIEW
Summary judgment is appropriate where “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.”70 “Facts that could alter the outcome are ‘material facts,’ and
64 Doc. 85.
65 Id.
66 Doc. 86.
67 Doc. 90.
68 See Docs. 92, 96, 98.
69 Doc. 97.
disputes are ‘genuine’ if evidence exists from which a rational person could
conclude that the position of the person with the burden of proof on the disputed
issue is correct.”71 “A defendant meets this standard when there is an absence of
evidence that rationally supports the plaintiff’s case.”72 “A plaintiff, on the other
hand, must point to admissible evidence that would be sufficient to show all
elements of a prima facie case under applicable substantive law.”73
“The inquiry involved in a ruling on a motion for summary judgment or for
a directed verdict necessarily implicates the substantive evidentiary standard of
proof that would apply at the trial on the merits.”74 Thus, “if the defendant in a
run-of-the-mill civil case moves for summary judgment or for a directed verdict
based on a lack of proof of a material fact, the judge must ask himself not whether
he thinks the evidence unmistakably favors one side or the other but whether a fair-
minded jury could return a verdict for the plaintiff on the evidence presented.”75
“The mere existence of a scintilla of evidence in support of the plaintiff’s position
will be insufficient; there must be evidence on which the jury could reasonably
find for the plaintiff.”76 “The judge’s inquiry, therefore unavoidably asks . . .
71 Clark v. Modern Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993) (Hutchinson, J.) (first citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); and then citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)).
72 Clark, 9 F.3d at 326.
73 Id.
74 Anderson, 477 U.S. at 252.
75 Id.
‘whether there is [evidence] upon which a jury can properly proceed to find a
verdict for the party producing it, upon whom the onus of proof is imposed.”77 The
evidentiary record at trial, by rule, will typically never surpass that which was
compiled during the course of discovery.
“A party seeking summary judgment always bears the initial responsibility
of informing the district court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, which it believes demonstrate the
absence of a genuine issue of material fact.”78 “Regardless of whether the moving
party accompanies its summary judgment motion with affidavits, the motion may,
and should, be granted so long as whatever is before the district court demonstrates
that the standard for the entry of summary judgment, as set forth in Rule 56(c), is
satisfied.”79
Where the movant properly supports his motion, the nonmoving party, to
avoid summary judgment, must answer by setting forth “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.”80 For movants and nonmovants alike, the
assertion “that a fact cannot be or is genuinely disputed” must be supported by: (i)
77 Id. (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S. 442, 447 (1871)).
78 Celotex, 477 U.S. at 323 (internal quotations omitted).
79 Id.
“citing to particular parts of materials in the record” that go beyond “mere
allegations”; (ii) “showing that the materials cited do not establish the absence or
presence of a genuine dispute”; or (iii) “showing . . . that an adverse party cannot
produce admissible evidence to support the fact.”81
“When opposing summary judgment, the non-movant may not rest upon
mere allegations, but rather must ‘identify those facts of record which would
contradict the facts identified by the movant.”82 Moreover, “if a party fails to
properly support an assertion of fact or fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court may . . . consider the fact
undisputed for purposes of the motion.”83 On a motion for summary judgment,
“the court need consider only the cited materials, but it may consider other
materials in the record.”84
Finally, “at the summary judgment stage the judge’s function is not himself
to weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.”85 “There is no issue for trial unless there
is sufficient evidence favoring the nonmoving party for a jury to return a verdict
81 Fed. R. Civ. P. 56(c)(1).
82 Port Auth. of N.Y. & N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003).
83 Fed. R. Civ. P. 56(e)(2).
84 Fed. R. Civ. P. 56(c)(3).
for that party.”86 “If the evidence is merely colorable . . . or is not significantly
probative, summary judgment may be granted.”87
III. MATERIAL FACTS
Local Rule 56.1 requires a party moving for summary judgment to submit “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.”88 The non-movant must file a statement in response to the movant’s
statement that responds to the numbered paragraphs in the movant’s statement and
sets forth which paragraphs present a genuine issue of material fact.89 Any facts
that are set forth in the movant’s statement that are not contradicted by the non-
movant’s statement are “deemed to be admitted.”90 In this case, Defendants filed a
statement of material facts as required by Local Rule 56.1, and Plaintiff filed a
statement of disputed facts as part of his motion for an order denying summary
judgment that responds to the substance of Defendants’ statement.91
Before turning to the material facts, I must address an evidentiary issue that
has arisen between the parties. Defendants’ statement of material facts relies
heavily on Plaintiff’s testimony during his February 4, 2020 deposition.92 Plaintiff
86 Id.
87 Id. at 249-50 (internal citations omitted).
88 M.D. Pa. L.R. 56.1.
89 Id.
90 Id.
91 See Docs. 91, 97.
notes, however, that Defendants did not seek leave of the court before conducting
the deposition.93 Plaintiff therefore seeks to have the deposition stricken from the
summary judgment record and not considered in determining whether a genuine
issue of material fact exists.94
Under Federal Rule of Civil Procedure 30, a party “must obtain leave of
court” before conducting a deposition if the deponent “is confined in prison.”95
There is no exception to this rule when the deponent is a party to the lawsuit.96
Neither the Supreme Court nor the Third Circuit has addressed whether testimony
from a deposition that was conducted without the leave of court required by Rule
30 may subsequently be used as evidence in the case. Case law from this district
and other circuits, however, indicates that Rule 30 does not create a per se rule
requiring suppression of the deposition.97 In the absence of such a per se rule,
courts have generally looked to whether the deponent suffered any prejudice or
injury as a result of the deposing party not obtaining leave of court.98
93 See Doc. 97 at 3.
94 See id.
95 Fed. R. Civ. P. 30(a)(2)(B).
96 Ashby v. McKenna, 331 F.3d 1148, 1150 (10th Cir. 2003); Miller v. Bluff, 131 F.R.D. 698, 700
(M.D. Pa. 1990).
97 See Kendrick v. Schnorbus, 655 F.2d 727, 729 (6th Cir. 1981); Miller, 131 F.R.D. at 700; see
also, e.g., Vogelsberg v. Kim, No. 17-CV-596, 2021 WL 1535576, at *1 (W.D. Wis. Apr. 19,
2021); Scroggins v. United States, No. 4:19-CV-163, 2020 WL 1862556, at *2 n.2 (N.D. Tex.
Apr. 13, 2020); Osborne v. Vasquez, No. 3:12-CV-213, 2013 WL 995070, at *5 (D. Conn.
Mar. 11, 2013); Forrester Envtl. Servs., Inc. v. Wheelabrator Techs., Inc., No. 10-CV-154,
2012 WL 1161125, at *3 (D.N.H. Apr. 6, 2012); Subil v. U.S. Marshal, No. 2:04-CV-257,
2008 WL 4372404, at *1 (N.D. Ind. Sept. 19, 2008).
In this case, I will strike Plaintiff’s deposition from the summary judgment
record and will not consider testimony from the deposition in determining whether
a genuine issue of material fact exists. Plaintiff objected to Defendants deposing
him almost immediately after the deposition occurred through the filing of a
document titled “Judicial Notice Improper Deposition Taken on Feb. 4, 2020.”99
Plaintiff noted that he had not received any advance notification from opposing
counsel or the Court that a deposition would be occurring.100 Plaintiff thus averred
that he was put at a disadvantage throughout the deposition because he did not
have the opportunity to review relevant evidence prior to the deposition.101
Defendants never responded to this document nor refuted Plaintiff’s contention
that he was not given advance notice of the deposition. Thus, from the record
before me, it appears that Plaintiff has suffered actual prejudice as a result of
Defendants’ failure to obtain court leave as required by Rule 30. Moreover, I have
held Plaintiff responsible for his failure to comply with procedural rules multiple
times in this litigation.102 It would be incongruous to strictly enforce procedural
rules against Plaintiff without doing the same with respect to Defendants,
especially considering Plaintiff’s status as a pro se litigant. Accordingly, I will not
99 See Doc. 39.
100 See id.
101 Id.
102 See, e.g., Doc. 78 (deeming plaintiff’s motion withdrawn for his failure to file a supporting
consider any testimony from Plaintiff’s deposition in resolving the instant motion
for summary judgment.
In the absence of evidence taken from Plaintiff’s deposition, Defendants’
statement provides scant facts that Defendants assert are undisputed. Defendants
assert that contrary to Plaintiff’s allegations, video evidence shows Plaintiff
attacking the other inmate on July 4, 2018 and does not show Plaintiff being
assaulted.103 Defendants also assert that documentary evidence related to the July
4, 2018 incident shows that the other inmate was attacked by Plaintiff.104 As for
the alleged assault by Defendants Hoffner and Palerino on October 2, 2018,
Defendants assert that Plaintiff covered the relevant camera during the incident,
meaning that video footage does not exist.105 Defendants also note that a nurse in
the prison, Kathleen Shorts, “confirmed that the Plaintiff was not attacked as he
alleged,” that Plaintiff did not report the incident until October 3, 2018, and that
another inmate in the prison stated that Plaintiff injured himself to fabricate a claim
against Hoffner and Palerino.106 Finally, Defendants assert that Plaintiff’s
misconduct history indicates why he did not progress in the Behavioral
Management Program.107 Plaintiff disputes Defendants’ contentions as to what the
103 Doc. 91 ¶¶ 17, 28, 33, 50, 55.
104 Id. ¶¶ 55-56.
105 Id. ¶ 57.
106 Id. ¶¶ 57-58.
107 Id. ¶ 59. Defendants also include several factual assertions relating to Plaintiff’s purported
failure to exhaust administrative remedies. See id. ¶¶ 60-63. These documents will be
video evidence depicts.108 Plaintiff also disputes Defendants’ contentions
regarding documentary evidence about the alleged assaults.109 Finally, Plaintiff
asserts that Department of Corrections policy voided his misconduct history upon
his entrance into the Behavioral Management Unit.110 I address this evidence, and
whether there are any genuine issues of material fact, in my analysis below.
IV. ANALYSIS
Plaintiff’s constitutional claims are brought under 42 U.S.C. § 1983, which
provides in pertinent part:
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. . . .
42 U.S.C. § 1983.
“To establish a claim under 42 U.S.C. § 1983, [a plaintiff] must demonstrate
a violation of a right secured by the Constitution and the laws of the United States
[and] that the alleged deprivation was committed by a person acting under color of
state law.”111 “The first step in evaluating a section 1983 claim is to ‘identify the
their brief in support of their motion for summary judgment, and arguments may not be raised
for the first time in a reply brief.
108 Doc. 97 ¶¶ 49, 60, 65, 81, 86, 88.
109 Id. ¶¶ 87-90.
110 Id. ¶ 91.
exact contours of the underlying right said to have been violated’ and to determine
‘whether the plaintiff has alleged a deprivation of a constitutional right at all.’”112
Defendants in this case seek summary judgment as to all ten of Plaintiff’s
claims. Plaintiff contends that additional discovery is needed before the motion for
summary judgment can be resolved and also opposes the motion for summary
judgment on its merits. For the sake of clarity, I will first analyze Plaintiff’s
request for additional discovery and then address the summary judgment
arguments pertaining to Plaintiff’s ten legal claims seriatim.
A. Additional Discovery
When a party opposing a motion for summary judgment shows that it
“cannot present facts essential to justify its opposition,” the court may allow the
parties additional time for discovery.113 “If discovery is incomplete, a district court
is rarely justified in granting summary judgment, unless the discovery request
pertains to facts that are not material to the moving party’s entitlement to judgment
as a matter of law.”114
To properly request additional discovery for purposes of opposing summary
judgment, “a party must indicate to the district court its need for discovery, what
material facts it hopes to uncover and why it has not previously discovered the
112 Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (quoting County of Sacramento v. Lewis,
523 U.S. 833, 841 n.5 (1998)).
113 Fed. R. Civ. P. 56(d).
114 In re Avandia Mktg., Sales & Prods. Liab. Litig., 945 F.3d 749, 761 (3d Cir. 2019) (quoting
information.”115 A properly filed request for additional discovery under Rule 56(d)
is generally granted “as a matter of course.”116 A request for additional discovery
does not need to be made through a formal motion and can instead be raised
through the brief opposing summary judgment.117 The decision of whether to
permit additional discovery is left to the discretion of the district court.118
In this case, Plaintiff asserts in his brief in opposition to the motion for
summary judgment that additional discovery is needed before the motion can be
resolved.119 Specifically, he requests video evidence of the April 20, 2018 incident
between him and the other inmate who was purportedly hired by Defendants and
video evidence purportedly depicting Defendant McCord confiscating Plaintiff’s
mail and Defendants Dowd and Hoffner denying Plaintiff a shower.120 He also
requests relevant phone records from 2018.121
All of the discovery that Plaintiff now requests was previously requested in
Plaintiff’s February 10, 2020 motion to compel discovery and March 11, 2020
brief in support of the motion.122 I denied the motion to compel discovery without
prejudice on May 1, 2020, noting that Defendants had allowed Plaintiff to review
115 Dinnerstein v. Burlington Cty. College, 764 F. App’x 214, 217 n.1 (3d Cir. 2019) (quoting
Radich v. Goode, 886 F.2d 1391, 1393–94 (3d Cir. 1989)).
116 Avandia, 945 F.3d at 761 (quoting Shelton, 775 F.3d at 468).
117 Shelton, 775 F.3d at 567–68.
118 Woloszyn v. Cty. of Lawrence, 396 F.3d 314, 324 n.6 (3d Cir. 2005) (citing Bradley v. United
States, 299 F.3d 197, 206 (3d Cir. 2002)).
119 Doc. 96 at 4.
120 Id.
121 Id.
the relevant discovery materials and that Plaintiff could file another motion to
compel discovery if he felt that Defendants’ discovery responses were still
deficient after he had reviewed the requested materials.123 Plaintiff subsequently
filed another motion to compel discovery,124 but he did not specifically request
production of this evidence, and I deemed the motion withdrawn on August 26,
2020 for Plaintiff’s failure to file a brief in support of the motion.125 Plaintiff has
not explained why he failed to make any subsequent efforts to have this discovery
produced. Accordingly, I find that Plaintiff has failed to show why the requested
information was not previously obtained through discovery and I will deny his
request for additional discovery on that basis.126
B. Equal Protection
Plaintiff’s equal protection claim is based on a class of one theory.127 To
succeed on a class of one equal protection claim, a plaintiff must show that he “has
been intentionally treated differently from others similarly situated and that there is
no rational basis for the difference in treatment.”128 Defendants assert that they are
entitled to summary judgment as to Plaintiff’s equal protection claim because
123 Doc. 56.
124 Doc. 65.
125 Doc. 78.
126 See Dinnerstein, 764 F. App’x at 217 n.1.
127 See Doc. 22 at 14.
Plaintiff has not identified any similarly situated inmates who were treated
differently from him.129
I agree. Neither Plaintiff’s brief in opposition to the motion for summary
judgment nor his response to the statement of material facts identifies any similarly
situated inmate who was treated differently from him.130 Accordingly, I will grant
Defendants’ summary judgment as to the equal protection claim.
C. Conspiracy
To succeed on a civil conspiracy claim, a plaintiff must prove “that persons
acting under color of state law ‘reached an understanding’ to deprive him of his
constitutional rights.”131 Defendants assert that Plaintiff has not produced any
evidence that Defendants reached such an understanding.132 Plaintiff does not
address this argument in his opposition brief and does not offer any evidence of an
understanding between Defendants.133 Accordingly, I will grant Defendants’
motion for summary judgment with respect to the conspiracy claim.
D. Failure to Intervene
Plaintiff’s amended complaint raises a claim for “failure to intervene,” but
does not allege any specific facts in support of this claim.134 Instead, Plaintiff
129 Doc. 92 at 11.
130 See Docs. 96-97.
131 Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 294 (3d Cir. 2018) (quoting Adickes v. S.H.
Kress & Co., 398 U.S. 144, 152 (1970)).
132 Doc. 92 at 9-10.
133 See Doc. 96.
simply states, “whereas the defendants/tortfeasors mentioned thru-out paragraphs
#4-62 knew that their acts and omissions would amount to and/or have legal
ramifications/consequences when these defendants/tortfeasors failed to stop
violations of Jones’ 1st, 5th, 6th, 8th and 14th amendment rights.”135 Given the
lack of specific allegations regarding this claim, I find that Plaintiff has failed to
state a claim upon which relief can be granted and will grant Defendants’ summary
judgment on that basis.
E. Retaliation
A plaintiff bringing a retaliation claim under 42 U.S.C. § 1983 must
establish that (1) he engaged in constitutionally protected conduct; (2) the
defendant took retaliatory action against the plaintiff that was sufficient to deter a
person of ordinary firmness from exercising his constitutional rights; and (3) there
was a causal connection between the plaintiff’s protected conduct and the
defendant’s retaliatory action.136 Causation may be established by showing either
an unusually suggestive temporal proximity between the plaintiff’s protected
conduct and the defendant’s allegedly retaliatory action or a pattern of antagonism
coupled with timing.137 Causation may also be implied by “the record as a
whole.”138
135 Id.
136 Javitz v. Cty. of Luzerne, 940 F.3d 858, 863 (3d Cir. 2019).
137 Dondero v. Lower Milford Twp., 5 F.4th 355, 361-62 (3d Cir. 2021) (citing Lauren W. ex rel.
Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).
Plaintiff alleges that he was subjected to retaliation for two separate reasons:
his filing of a habeas corpus case and his conversation with Defendants
Wenerowicz, Hammond, Brittain, White and Sorber on April 4, 2018, during
which he purportedly reported wrongdoing by prison staff.139
Defendants argue they are entitled to summary judgment with respect to the
retaliation claims because the delay in Plaintiff graduating from the Behavioral
Management Program was not a sufficiently adverse action to constitute retaliation
and because there is no evidence of a causal connection between Plaintiff’s habeas
corpus case and the allegedly retaliatory action by Defendants.140 Defendants also
assert that the prison would have taken the same action against Plaintiff regardless
of whether he had filed the habeas corpus case because Plaintiff’s disciplinary
record provided an independent basis for Plaintiff failing to graduate from the
Behavioral Management Program.141
I agree with Defendants that Plaintiff cannot establish causation with respect
to his retaliation claim arising from his placement in the Behavioral Management
Program. Plaintiff alleges that he was not allowed to graduate from the Behavioral
Management Program as retaliation for the filing of his habeas corpus petition, but
his amended complaint indicates that the habeas corpus petition was filed “to
139 See Doc. 22 at 6-8.
140 Doc. 92 at 5-6.
expose the cruel and unusual confinement conditions at SCI-Green[e].”142 Plaintiff
has not offered any evidence to show why Defendants located at SCI-Frackville
were motivated to retaliate against Plaintiff for a petition that implicated the prison
conditions at SCI-Greene. Accordingly, he cannot establish a causal connection
between the filing of his habeas corpus case and the decision by SCI-Frackville
staff to delay his graduation from the Behavioral Management Program, and
summary judgment as to that claim is appropriate.
Plaintiff also alleges, however, that he was subjected to retaliation because
he reported misconduct to Defendants Wenerowicz, Hammond, Brittain, White,
and Sorber on April 4, 2018, and Defendants have not presented any argument as
to why they are entitled to summary judgment for that retaliation claim.
I find that there is sufficient evidence for this retaliation claim to proceed.
Plaintiff alleges (1) that he engaged in protected conduct by reporting misconduct
to supervisory prison officials; (2) that Defendants engaged in various acts of
retaliation against Plaintiff, including an alleged assault by Defendants Hoffner and
Palerino on October 2, 2018; and (3) that Defendants made various comments
indicating that the retaliatory actions were done in response to Plaintiff’s protected
conduct, including, most notably, Hoffner and Palerino’s alleged comments of
“yeah pussy now you have a reason to snitch” and “this ass whooping is a reason
for you to file another lawsuit” during the alleged assault.143 Defendants have cited
statements from prison staff and other inmates indicating that the assault did not
happen,144 but at this stage of litigation I cannot weigh the evidence or determine
the truth of the matter.145 There is no video or other evidence to conclusively
prove that the assault did not happen, so the question of whether Hoffner and
Palerino assaulted Plaintiff on October 2, 2018 remains a genuine issue of material
fact that precludes summary judgment. The same is true of the other incidents of
retaliation that allegedly followed from Plaintiff reporting staff misconduct to
Wenerowicz, Hammond, Brittain, White, and Sorber, as Defendants have not
offered any evidence to establish the absence of genuine issues of material facts
with respect to those incidents. Accordingly, I will grant summary judgment to the
extent that Plaintiff’s retaliation claim is predicated on his failure to graduate from
the Behavioral Management Program, but will otherwise deny summary judgment
with respect to Plaintiff’s retaliation claim.
F. Cruel and Unusual Punishment
I will next consider Plaintiff’s cruel and unusual punishment claim under the
Eighth Amendment. Although the scope of Plaintiff’s Eighth Amendment claim is
not specifically delineated in his amended complaint, I liberally construe the
143 See Doc. 22 at 13.
144 See Doc. 91 ¶¶ 57-58.
amended complaint as raising excessive force claims arising from the alleged
assaults on July 4, 2018 and October 2, 2018.
The Eighth Amendment “protects convicted prisoners from any force
applied ‘maliciously and sadistically for the very purpose of causing harm.’”146
Thus, the question a court must answer in considering an excessive force claim is
“whether force was applied in a good-faith effort to maintain or restore discipline,
or maliciously and sadistically to cause harm.”147 Courts must consider several
factors in conducting this analysis, including:
(1) the need for the application of force; (2) the relationship between
the need and the amount of force that was used; (3) the extent of the
injury inflicted; (4) the extent of the threat to the safety of staff and
inmates, as reasonably perceived by responsible officials on the basis
of facts known to them; and (5) any efforts made to temper the severity
of the forceful response.148
Excessive force “may constitute cruel and unusual punishment even when the
inmate does not suffer serious injury.”149 Injury and force “are only imperfectly
correlated, and it is the latter that ultimately counts. An inmate who is gratuitously
beaten by guards does not lose his ability to pursue an excessive force claim
merely because he has the good fortune to escape without serious injury.”150
146 Jacobs v. Cumberland Cty., 8 F.4th 187, 193 (3d Cir. 2021) (quoting Whitley v. Albers, 475
U.S. 312, 320-21 (1986)).
147 Hudson v. McMillian, 503 U.S. 1, 7 (1992).
148 Smith v. Mensinger, 293 F.3d 641, 649 (3d Cir. 2002) (quoting Brooks v. Kyler, 204 F.3d 102,
106 (3d Cir. 2000)).
149 Wilkins v. Gaddy, 559 U.S. 34, 34 (2010) (internal alterations omitted) (quoting Hudson, 503
U.S. at 7).
Although courts reviewing motions for summary judgment are required to
view evidence and draw reasonable inferences in the light most favorable to the
non-moving party, they are not required to adopt the non-movant’s version of
events when it is “blatantly contradicted by the record.”151 Thus, where the non-
moving party’s version of evidence is “utterly discredited” by video evidence, the
court should view the facts in the light depicted by the video evidence.152
Defendants argue they are entitled to summary judgment with respect to the
July 4, 2018 incident because video evidence of the incident contradicts Plaintiff’s
version of events and depicts Plaintiff attacking the other inmate rather than the
other inmate attacking Plaintiff.153 Defendants also assert that documentary
evidence related to the July 4, 2018 incident shows that the other inmate was
attacked by Plaintiff.154
I will grant summary judgment with respect to the alleged assault on July 4,
2018. Defendants have produced surveillance footage from July 4, 2018,155 and
the summary of the prison’s investigation of the incident indicates that the relevant
interaction between Plaintiff and the other inmate occurred between the time
stamps of 19:44:32 and 19:49:26 on the surveillance footage.156 The surveillance
151 Scott v. Harris, 550 U.S. 372, 380 (2007).
152 Id.
153 Doc. 91 ¶¶ 17, 28, 33, 50, 55.
154 Id. ¶¶ 55-56.
155 See Defendants’ Exhibit B.
footage during that time period plainly does not show Plaintiff being assaulted, and
Plaintiff has not produced any evidence to refute the contention that the relevant
interaction occurred during that time period, nor has he contested the authenticity
of the surveillance footage.
I will deny summary judgment, however, with respect to the alleged assault
by Defendants Pallerino and Hoffner on October 2, 2018. As I noted above in my
analysis of Plaintiff’s retaliation claim, there is a genuine issue of material fact as
to whether the assault occurred, and I cannot resolve that factual dispute at this
stage of litigation.
G. Access to Courts
To establish a violation of a plaintiff’s right of access to the courts, a
plaintiff must show that some action by defendants caused an actual injury to his
ability to litigate a nonfrivolous legal claim.157 Plaintiff’s access to courts claim is
based on Defendant McCord’s alleged confiscation and subsequent destruction of
documents that Plaintiff attempted to mail to the Third Circuit related to cases that
were pending before that court: Jones v. Wetzel, No. 17-3326 (3d Cir. filed Nov.
20, 2017) and Jones v. Wetzel, No. 17-3482 (3d Cir. filed Dec. 6, 2017).158
Plaintiff alleges that he intended to submit prisoner declarations and “other
157 Lewis v. Casey, 518 U.S. 343, 351 (1996).
exclusive one of a kind materials” that would have persuaded the Third Circuit to
rule in his favor in both cases.159
The records of the two cases before the Third Circuit belie Plaintiff’s access
to courts claim. The record of the earlier case indicates that the case was dismissed
for lack of appellate jurisdiction,160 while the Third Circuit in the later case
affirmed the dismissal of most of Plaintiff’s claims for a variety of pleading defects
and granted summary judgment on the remaining excessive force claim because
Plaintiff failed to exhaust administrative remedies with respect to that claim.161
Plaintiff has not presented any evidence to show how the declarations and “one of
a kind materials” that he intended to submit to the Third Circuit could have altered
these results. Accordingly, he has failed to show that he suffered an actual injury
to his access to the courts and summary judgment is appropriate.
H. Due Process
Plaintiff’s due process claim is based on the alleged confiscation of one
newspaper.162 This is precisely the sort of de minimis deprivation of property with
which the Due Process Clause is not concerned.163 Accordingly, I will grant
Defendants’ summary judgment as to this claim.
159 Id. at 10.
160 See Jones, No. 17-3326.
161 See Jones v. Wetzel, 737 F. App’x 61, 64-66 (3d Cir. 2018).
162 See Doc. 22 at 7.
163 See Bell v. Wolfish, 441 U.S. 520, 539 n.21 (1979) (“There is, of course, a de minimis level of
imposition with which the Constitution is not concerned.” (quoting Ingraham v. Wright, 430
I. Fourth Amendment
Plaintiff mentions the Fourth Amendment at several points throughout his
amended complaint, but it is difficult to discern what Fourth Amendment claim he
is attempting to make.164 To the extent that he attempts to raise a Fourth
Amendment claim based on alleged searches of his cell, Defendants are entitled to
summary judgment. Prisoners do not have any subjective expectation of privacy in
their cells.165 Accordingly, I will grant Defendants’ summary judgment as to the
Fourth Amendment claim.
J. State Law Tort Claims
Defendants seek summary judgment as to Plaintiff’s state tort law claims,
which they characterize as relating to the confiscation of Plaintiff’s newspaper.166
Defendants’ characterization has no basis in the language of Plaintiff’s amended
complaint, which—with the exception of Plaintiff’s conversion claim—nowhere
indicates that Plaintiff’s state law claims are based on the confiscation of Plaintiff’s
newspaper.167 Accordingly, there is no merit to Defendants’ summary judgment
argument.
that as long as a property deprivation is not de minimis, its gravity is irrelevant to the question
whether account must be taken of the Due Process Clause.”); see also, e.g., Walker v. Jackson,
No. 5:08-CV-147, 2009 WL 1768547, at *9 (S.D. Miss. June 23, 2009) (“The Court simply
cannot conclude that being deprived of a newspaper for two weeks is tantamount to a
deprivation of due process, as ‘there is a de minimis level of imposition with which the
Constitution is not concerned.’” (cleaned up) (quoting Bell, 441 U.S. at 539)).
164 See Doc. 22.
165 Hudson v. Palmer, 468 U.S. 517, 525-26 (1984).
166 See Doc. 92 at 1, 11.
Nevertheless, I will dismiss Plaintiff’s state law tort claims pursuant to 28
U.S.C. § 1915(e)(2) because the claims fail to state a claim upon which relief may
be granted.168 Plaintiff’s tort claims allege defamation, “intentional and conversion
torts,” and “peculiar risk and superior knowledge torts.”169
To state a claim for defamation under Pennsylvania law, a plaintiff must
allege, inter alia, that defendants published a communication that was defamatory
towards the plaintiff.170 Plaintiff alleges that unnamed Defendants subjected him
to “defaming slanderous statements with the Commonwealth Courts,” but he
nowhere alleges what those defamatory statements were. Accordingly, Plaintiff
fails to state a defamation claim upon which relief may be granted.
Plaintiff’s claims for “intentional and conversion torts” similarly fail.
Plaintiff does not specify which intentional torts he is alleging or which defendants
committed the intentional torts, and there are no facts alleged to support a claim for
conversion.171 To state a claim for conversion under Pennsylvania law, a plaintiff
must allege “the deprivation of [the plaintiff’s] right of property in, or use or
possession of, a chattel, or other interference therewith, without the owner’s
consent and without lawful justification.”172 Plaintiff’s conversion claim fails
168 See 28 U.S.C. § 1915(e)(2) (stating that court “shall dismiss” claim brought by plaintiff
proceeding in forma pauperis “at any time” if the court determines that the claim “fails to state
a claim on which relief may be granted”).
169 See Doc. 22 at 15.
170 Forbes v. King Shooter’s Supply, 230 A.3d 1181, 1187 (Pa. Super. Ct. 2020).
171 See Doc. 22.
because he does not specify which Defendants committed the tort. Plaintiff alleges
that he complained about the confiscated newspaper to Defendants Brittain,
Newberry, Dowd, and Albert and that none of those Defendants rectified the
situation,173 but he does not allege which Defendants actually confiscated or
possessed the newspaper.
Plaintiff’s claims for “peculiar risk and superior knowledge torts” likewise
fail. Plaintiff does not specify what torts he is attempting to allege with these
claims, and neither “peculiar risk” nor “superior knowledge” are recognized as
torts under Pennsylvania law.174
K. Personal Involvement
Defendants seek summary judgment in favor of Defendants Wenerowicz,
Brittain, Hammond, White, Sorber, Newberry, Dowd, Boyce, Albert, Eidem,
Moser, Young, Pallerino, McCord, Hoffner, and Kathy for Plaintiff’s failure to
allege their personal involvement. Because I have ruled above that Defendants are
entitled to summary judgment with respect to all of Plaintiff’s claims other than the
retaliation claim arising from Plaintiff’s April 4, 2018 conversation with
173 See Doc. 22 at 7.
174 Although the “peculiar risk” doctrine is a recognized element of Pennsylvania tort law, the
doctrine is not relevant to the present case. The peculiar risk doctrine allows landowners to be
held liable for injuries sustained by the employees of a contractor entering the land if (1) a risk
is foreseeable to the contractor at the time the contract is executed and (2) the risk is different
from the ordinary risk expected from the general type of work to be performed. See, e.g.,
Wombacher v. Greater Johnstown Sch. Dist., 20 A.3d 1240, 1243 n.2 (Pa. Commw. Ct. 2011);
Wenerowicz, Hammond, Brittain, White, and Sorber and the cruel and unusual
punishment claim arising from the October 2, 2018 incident, my personal
involvement analysis will be limited to whether Defendants were personally
involved in the facts giving rise to those claims. The amended complaint clearly
alleges that Hoffner and Palerino were the only Defendants personally involved in
the alleged assault on October 2, 2018, so I will further limit my analysis to
whether Defendants were personally involved in the facts giving rise to Plaintiff’s
remaining retaliation claim.
A defendant cannot be liable for a violation of a plaintiff’s civil rights unless
the defendant was personally involved in the violation.175 The defendant’s
personal involvement cannot be based solely on a theory of respondeat superior.176
Rather, for a supervisor to be liable for the actions of a subordinate, there must be
allegations of personal direction or actual knowledge and acquiescence.177 A
defendant’s review and denial of a prisoner’s grievance is not sufficient to
establish the defendant’s personal involvement in an underlying violation of the
prisoner’s constitutional rights.178
Defendants Newberry, Dowd, Moser, and Young are entitled to summary
judgment for lack of personal involvement because Plaintiff does not make any
175 Jutrowski, 904 F.3d at 289.
176 Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
177 Id.
allegations against those Defendants pertaining to his retaliation claim.179
Defendant O’Kane is similarly entitled to summary judgment for lack of personal
involvement despite the fact that Defendants have not made a personal
involvement argument on her behalf because she is not mentioned in any
allegations pertaining to Plaintiff’s remaining retaliation claim.
Defendants Wenerowicz, Brittain, Hammond, White, Sorber, and Albert are
also entitled to summary judgment for their lack of personal involvement. The
amended complaint does not allege that these Defendants personally committed
any retaliatory acts against Plaintiff, and the only allegation of knowledge and
acquiescence by these Defendants is that they gave “tacit approval” for McCord
confiscating Plaintiff’s legal filings.180 Allegations of tacit approval by a
supervisory official may be sufficient to allege personal involvement when the
supervisory official “knows that the subordinate is violating someone’s rights but
fails to act to stop the subordinate from doing so,”181 but here there is no allegation
that Wenerowicz, Brittain, Hammond, White, Sorber, or Albert knew that McCord
was confiscating Plaintiff’s mail, and thus there is no way they could tacitly
approve of such an action.
179 See Doc. 22.
180 See id. at 10.
181 Robinson v. City of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir. 1997), abrogated in nonrelevant
Defendant Boyce is entitled to summary judgment for lack of personal
involvement. Plaintiff alleges that Boyce fabricated a misconduct report against
him on October 1, 2018,182 but the events of October 1, 2018 are not mentioned as
something that was done in retaliation for Plaintiff reporting misconduct to
Defendants Wenerowicz, Hammond, Brittain, White, and Sorber.183
The remaining Defendants—Eidem, Pallerino, McCord, Hoffner, and
Kathy—are not entitled to summary judgment, as Plaintiff sufficiently alleges their
personal involvement. Defendants Pallerino and Hoffner allegedly assaulted
Plaintiff on October 2, 2018, while allegedly making statements indicating that the
assault was done in retaliation for Plaintiff reporting misconduct.184 Hoffner also
allegedly committed a retaliatory cell search against Plaintiff on September 30,
2018.185 Following the alleged assault by Pallerino and Hoffner, Defendants
Eidem and Kathy allegedly told Plaintiff that he would not receive any medical
care if he continued to complain about prison conditions and Eidem allegedly told
him that assaults by prison officials would get worse if he continued to
182 Doc. 22 at 13.
183 See id. at 8.
184 Id. at 13. Although October 2, 2018 is not listed as one of the dates on which Plaintiff suffered
an attack as retaliation for reporting misconduct to Wenerowicz, Hammond, Brittain, White,
and Sorber, see id. at 8, the statements allegedly made by Pallerino and Hoffner—“yeah pussy
now you have a reason to snitch” and “this ass whooping is a reason for you to file another
lawsuit”—support an inference that the assault was done in retaliation for Plaintiff’s reporting
of misconduct. See id. at 13.
complain.186 Finally, Defendant McCord allegedly confiscated Plaintiff’s legal
mail on July 6, 2018 in retaliation for Plaintiff reporting misconduct.187
L. Exhaustion
Finally, Defendants argue in their reply brief that Plaintiff failed to exhaust
administrative remedies prior to filing suit in this case.188 I will disregard this
argument because it was not raised in Defendants’ original brief and arguments
may not be raised for the first time in a reply brief.189
V. CONCLUSION
For the foregoing reasons, I will grant Defendants’ motion for summary
judgment in part and deny it in part. Summary judgment will be denied with
respect to Plaintiff’s claims of retaliation against Defendants Eidem, Pallerino,
McCord, Hoffner, and Kathy arising from Plaintiff’s April 4, 2018 conversation
with Wenerowicz, Hammond, Brittain, White, and Sorber. Summary judgment
will also be denied with respect to Plaintiff’s cruel and unusual punishment claim
against Defendants Hoffner and Pallerino arising from the alleged assault on
October 2, 2018. Summary judgment will be granted to Defendants in all other
186 Id.
187 See id. at 8-10. McCord also allegedly stole Plaintiff’s property on March 27, 2018, see id. at
9, but this action could not have been done in retaliation for Plaintiff’s meeting with
Wenerowicz, Hammond, Brittain, White, and Sorber because it happened eight days before
that meeting occurred on April 4, 2018. See id. at 7.
188 Doc. 98.
189 See, e.g., Hewlette-Bullard ex rel. J.H-B. v. Pocono Mtn. Sch. Dist., 522 F. Supp. 3d 78, 106
n.10 (M.D. Pa. 2021) (“It is improper for a party to present a new argument in a reply brief.”
(quoting Interbusiness Bank, N.A. v. First Nat’l Bank of Mifflintown, 328 F. Supp. 2d 522, 529
respects. Plaintiff’s motion for an order denying the motion for summary
judgment will be denied as moot.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge