Walker v. Digby

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DEMETRIUS BAILEY, :

Plaintiff : CIVIL ACTION NO. 3:20-0762

v. : (JUDGE MANNION)

JEN DIGBY, et al., :

Defendants :

MEMORANDUM

I. BACKGROUND

On May 8, 2020, the above captioned action was initiated by Plaintiffs

Robert Jones, William Walker, Demetrius Bailey, Richard Dennis, James

Jones, Darryl Gardner, Dwayne Gooden, and Cameron Lovett. (Doc. 1,

complaint). By Order dated July 23, 2020, all Plaintiffs, except Demetrius

Bailey were terminated from the above captioned action and the action was

permitted to proceed as to only Demetrius Bailey. (Doc. 12).

By Order dated December 28, 2020, Bailey was permitted to file an

amended complaint on or before January 7, 2021. (Doc. 28). The Order

permitted the filing of an amended complaint by only Demetrius Bailey. Id.

All other Plaintiffs were dismissed from the action.

On December 30, 2020, Bailey filed an amended complaint. (Doc. 35).

The named Defendants in the amended complaint are Jen Digby, Sgt. Mull,

Sgt. Green, Security Lt. Burkeholt, CO Lebo and Sgt. Lengel. Id. In his

amended complaint, Plaintiff states that he “has been complaining about the

problems on N-Block where Defendant Unit Manager Jen Digby is

supposedly running the block and Bailey notify Defendant Harry in this case

about the complaints and they been ignored and I notify the Court but Bailey

continues to be retaliated against by staff on the block due to filing this

complaint and illegally sexually abusing and harassing Bailey while he using

the bathroom and making racism comments and issuing retaliatory

fabricated misconducts and putting his life in danger by staff trying to get into

a confrontation to physically assault him and psychology abuse him in the

RHU.” Id. Plaintiff further alleges that “Sgt. Mull keeps asking Bailey to watch

him go to the bathroom so first plaintiff verbally complained about his

behavior to Defendant Digby the Unit Manager of the Block, and she told me

to deal with it.” Id. Finally, Plaintiff claims that he was issued three

“retaliatory-fabricated misconduct[s]” one on November 21, 2020 for

covering his door while going to the bathroom; one on November 25, 2020

for using the “showers upstairs” which Plaintiff alleges was per orders of

Defendant Digby in retaliation for filing a lawsuit against her; and one issued

on December 18, 2020, where “per order of Defendant Digby she order

Defendant Lengel to issue a retaliatory-fabricated misconduct #D271521

and she wrote misconduct #D271519 against plaintiffs for Bailey filing a

lawsuit against her in which Tacker has a First and Equal Protection Right to

receive a food package from a family friend.” Id.

For relief, Plaintiff seeks compensatory and punitive damages as well

as a “separation from Defendant Digby.” Id.

Presently before the Court is the Defendants’ motion for summary

judgment. (Doc. 75). The motion is ripe for disposition. For the reasons that

follow, the Court will grant Defendants’ motion for summary judgment.

II. SUMMARY JUDGMENT

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

summary judgment “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “[T]his standard provides that the mere existence

of some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment; the requirement

is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986).

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

would affect the outcome of the case under applicable substantive law. Id. at

248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An

issue of material fact is “genuine” if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at

257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am.,

927 F.2d 1283, 1287-88 (3d Cir. 1991).

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

the court must view the facts and all reasonable inferences in favor of the

nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v.

Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse

Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment,

however, the nonmoving party may not rest on the unsubstantiated

allegations of his or her pleadings. When the party seeking summary

judgment satisfies its burden under Rule 56 of identifying evidence which

demonstrates the absence of a genuine issue of material fact, the nonmoving

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

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

specific material facts which give rise to a genuine issue. Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986). The party opposing the motion “must do

more than simply show that there is some metaphysical doubt as to the

material facts.” Matsushita Electric Indus. Co. v. Zenith Radio, 475 U.S. 574,

586 (1986). When Rule 56 shifts the burden of production to the nonmoving

party, that party must produce evidence to show the existence of every

element essential to its case which it bears the burden of proving at trial, for

“a complete failure of proof concerning an essential element of the

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

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

Cir. 1992).

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

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

White, 862 F.2d at 59. In doing so, the Court must accept the nonmovant’s

allegations as true and resolve any conflicts in his favor. Id. (citations

omitted). However, a party opposing a summary judgment motion must

comply with Local Rule 56.1, which specifically directs the oppositional party

to submit a “statement of the material facts, responding to the numbered

paragraphs set forth in the statement required [to be filed by the movant], as

to which it is contended that there exists a genuine issue to be tried”; if the

nonmovant fails to do so, “[a]ll material facts set forth in the statement

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

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

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

equal force to all parties. See Sanders v. Beard, No. 09-CV-1384, 2010 WL

2853261, at *5 (M.D. Pa. July 20, 2010) (pro se parties “are not excused

from complying with court orders and the local rules of court”); Thomas v.

Norris, No. 02-CV-01854, 2006 WL 2590488, at *4 (M.D. Pa. Sept. 8, 2006)

(pro se parties must follow the Federal Rules of Civil Procedure).

III. STATEMENT OF UNDISPUTED FACTS

The DOC has an administrative remedy system in place that is relevant

to the instant motion, DC-ADM 804, which governs the filing of administrative

grievances and associated appeals.

Under DC-ADM 804, a prisoner must first submit a timely written

grievance for review by the Superintendent or regional grievance coordinator

within fifteen days from the date of the incident. See (Doc. 77-1 at 8-42, DC-

ADM 804). DC-ADM 804 provides that the grievance must include “a

statement of the facts relevant to the claim,” “shall identify individuals directly

involved in the events,” and “shall specifically state any claims [the inmate]

wishes to make concerning violations of Department directives, regulations,

court orders, or other law.” Id. If the inmate wishes to receive compensation

or “other legal relief normally available from a court” as a remedy for his

grievance, he “must request the specific relief sought in his/her initial

grievance.” Id. A response should be received within ten business days. Id.

Next, the prisoner must submit a timely written appeal to an intermediate

review level within ten working days. Id. Again, a response should be

received within ten working days. Id. Finally, the inmate must submit a timely

appeal to the Secretary’s Office of Inmate Grievances and Appeals

(“SOIGA”) within fifteen working days, and the inmate should receive a final

determination within thirty days. To fully exhaust an issue or incident in

accordance with DC-ADM 804, “[a]n inmate must exhaust all three levels of

review and comply with all procedural requirements of the grievance review

process.” Id.

A review of the SOIGA files from November 1, 2020 through January

31, 2021, reveal that there were no grievances filed to final review by Plaintiff,

Demetrius Bailey. (Doc. 77-1, Affidavit of Keri Moore, Assistant Chief

Grievance Review Officer for SOIGA). In fact, a copy of Plaintiff’s grievance

history from August, 2020 through July, 2021, reveals that Plaintiff did not

file any grievances from August 28, 2020 through March 1, 2021. (Doc. 77-

2 at 4, Grievance History).

IV. DISCUSSION

A. Exhaustion

Under the PLRA, a prisoner must pursue all available avenues for relief

through the prison’s grievance system before bringing a federal civil rights

action. See 42 U.S.C. §1997e(a); Booth v. Churner, 532 U.S. 731, 741 n.6

(2001) (“[A]n inmate must exhaust irrespective of the forms of relief sought

and offered through administrative avenues.”). Section 1997(e) provides, in

relevant part “[n]o action shall be brought with respect to prison conditions

under section 1983 of the Revised Statutes of the United States, or any other

Federal law, by a prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are exhausted. 42

U.S.C. §1997(e). The exhaustion requirement is mandatory. Williams v.

Beard, 482 F.3d 637, 639 (3d Cir. 2007); Booth, 532 U.S. at 742 (holding

that the exhaustion requirement of the PLRA applies to grievance

procedures “regardless of the relief offered through administrative

procedures”).

The United States Court of Appeals for the Third Circuit has further

provided that there is no futility exception to §1997e’s exhaustion

requirement. Nyhuis v. Reno, 204 F.3d 65, 75-76 (3d Cir. 2000). Courts have

typically required across-the-board administrative exhaustion by inmates

who seek to pursue claims in federal court. Id. Additionally, courts have

imposed a procedural default component on this exhaustion requirement,

holding that inmates must fully satisfy the administrative requirements of the

inmate grievance process before proceeding into federal court. Spruill v.

Gillis, 372 F.3d 218 (3d Cir. 2004). Courts have concluded that inmates who

fail to fully, or timely, complete the prison grievance process are barred from

subsequently litigating claims in federal court. See e.g., Bolla v. Strickland,

304 F. App’x 22 (3d Cir. 2008); Booth v. Churner, 206 F.3d 289 (3d Cir.

2000).

This broad rule favoring full exhaustion allows for a narrowly defined

exception. If the actions of prison officials directly caused the inmate’s

procedural default on a grievance, the inmate will not be held to strict

compliance with this exhaustion requirement. See Camp v. Brennan, 219

F.3d 279 (3d Cir. 2000). However, case law recognizes a clear “reluctance

to invoke equitable reasons to excuse [an inmate’s] failure to exhaust as the

statute requires.” Davis v. Warman, 49 F. App’x 365, 368 (3d Cir. 2002).

Thus, an inmate’s failure to exhaust will only be excused “under certain

limited circumstances,” Harris v. Armstrong, 149 F. App’x 58, 59 (3d Cir.

2005), and an inmate can defeat a claim of failure to exhaust only by showing

“he was misled or that there was some extraordinary reason he was

prevented from complying with the statutory mandate.” Warman, 49 F. App’x

at 368.

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

corrections officials, or some other extraordinary circumstances, inmate

requests to excuse a failure to exhaust are frequently rebuffed by the courts.

Thus, an inmate cannot excuse a failure to timely comply with these

grievance procedures by simply claiming that his efforts constituted

“substantial compliance” with this statutory exhaustion requirement. Harris v.

Armstrong, 149 F. App’x 58, 59 (3d Cir. 2005). Nor can an inmate avoid this

exhaustion requirement by merely alleging that the administrative policies

were not clearly explained to him. Warman, 49 F. App’x at 368. Thus, an

inmate’s confusion regarding these grievance procedures does not, standing

alone, excuse a failure to exhaust. Casey v. Smith, 71 F. App’x 916 (3d Cir.

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

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

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

The Supreme Court considered what renders administrative remedies

unavailable to an inmate such that a failure to exhaust can be excused. See

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

circumstances in which an administrative remedy, although officially on the

books, is not capable of use to obtain relief.” Id. at 1859. First, an

administrative procedure is not available “when (despite what regulations or

guidance materials may promise) it operates as a simple dead end—with

officers unable or consistently unwilling to provide any relief to aggrieved

inmates.” Id. Second, a procedure is not available when it is “so opaque that

it becomes, practically speaking, incapable of use.” Id. Finally, a procedure

is unavailable when “prison administrators thwart inmates from taking

advantage of a grievance process through machination, misinterpretation, or

intimidation. Id. at 1860.

The Third Circuit has joined other circuits to hold “that administrative

remedies are not ‘available’ under the PLRA where a prison official inhibits

an inmate from resorting to them through serious threats of retaliation and

bodily harm.” Rinaldi v. United States, 904 F.3d 257, 267 (3d Cir. 2018). To

defeat a failure-to-exhaust defense based on such threats, “an inmate must

show (1) that the threat was sufficiently serious that it would deter a

reasonable inmate of ordinary firmness and fortitude from lodging a

grievance and (2) that the threat actually did deter this particular inmate.” Id.

at 269.

Finally, failure to exhaust is an affirmative defense that must be pled

by the defendant. Jones v. Bock, 549 U.S. 199, 216 (2007). Once defendants

present evidence of a prisoner’s failure to exhaust, the burden of proof shifts

to the inmate to show that exhaustion occurred or that administrative

remedies were unavailable. Rinaldi v. United States, 904 F.3d 257, 268 (3d

Cir. 2018). “Both the [United States] Supreme Court and [the Third Circuit

Court of Appeals] have rejected judge-made exceptions to the PLRA.”

Downey, v. Pa. Dep’t of Corr., 968 F.3d 299, 305 (3d Cir. 2020). District

courts may not “excuse [a prisoner’s] failure to exhaust.” Ross, 136 S. Ct. at

1856 (rejecting a “special circumstance” exception). Likewise, district courts

do not have the authority “to excuse compliance with the exhaustion

requirement, whether on the ground of futility, inadequacy or any other

basis.” Nyhius v. Reno, 204 F.3d 65, 71 (3d Cir. 2000).

Defendants have properly raised the matter of exhaustion of

administrative remedies with respect to Plaintiff’s claims. They argue that

Plaintiff’s amended complaint, filed on December 30, 2020, complains of

three alleged retaliatory misconducts, issued on November 21, 2020,

November 25, 2020, and December 18, 2020. (Doc. 78 at 9). However,

Plaintiff has failed to file or appeal any grievance relating to retaliation, to

final review before the Chief of the Secretary’s Office of Inmate Grievances

and Appeals. Id.

In an attempt to oppose Defendants’ argument, Plaintiff submits copies

of the November 25 and December 18, 2020 misconducts, in which he pled

guilty to the charges therein, and a series of other misconducts he received

and grievances he filed between February 2020 and June 2020 and after

March 2021.1 (Doc. 93-10). All of which either pre-date or post-date the

events complaint of in Plaintiff’s amended complaint. Plaintiff does not

submit any grievances pertaining to the retaliation allegations contained in

his amended complaint. In fact, Plaintiff does not refute the defense that he

failed to properly exhaust the claims before the Court. Instead, he attempts

to change the facts of his amended complaint, by resurrecting abandoned

claims and attempting to raise new claims. Id. Plaintiff, an avid litigator in this

Court, is reminded that a plaintiff cannot amend a complaint through the filing

of a brief, or through arguments set forth in a brief opposing a dispositive

motion. Indeed, “[i]t is axiomatic that the complaint may not be amended by

the briefs in opposition to a motion to dismiss.” Pennsylvania ex rel.

Zimmerman v. Pepsico, Inc., 836 F.2d 173, 181 (3d Cir.1988) (quoting Car

1 One of the many exhibits submitted by Plaintiff in opposition to Defendants’

motion is a copy of a Grievance Restriction Notice, in which Plaintiff was

placed on grievance restriction from April 14, 2020 through June 14, 2020

and only permitted to file one grievance per 15 working days. (Doc. 93-8 at

1). Such restriction expired on June 14, 2020 months before Plaintiff received

the challenged misconducts herein. Thus, any argument that Plaintiff may

make regarding failure to exhaust due to being on grievance restriction fails.

Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)); cf.

Frederico v. Home Depot, 507 F.3d 188, 202 (3d Cir. 2007) (“[W]e do not

consider after-the-fact allegations in determining the sufficiency of [a]

complaint under Rules 9(b) and 12(b)(6).”). If Plaintiff wishes to bring new

and different claims now, he should do so through a new lawsuit, but he may

not change the fundamental character of his amended complaint at this late

date by arguing new and different claims in response to this motion for

summary judgment. As such, the claims raised in Plaintiff’s amended

complaint remain unexhausted. The PLRA requires full and proper

exhaustion prior to the initiation of Plaintiff’s claims in federal court, and this

Court cannot excuse compliance with those requirements. Moreover,

Plaintiff has not presented any evidence to suggest that the administrative

remedy procedure was rendered unavailable to him. Thus, Plaintiff has failed

to exhaust his administrative remedies available to him under DC-ADM 804.

Finally, under DC-ADM 801, an inmate who has been found guilty of a

misconduct charge may appeal to the Program Review Committee (“PRC”)

for an initial review of the guilty finding within fifteen days of the hearing. See

https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/801%2

0Inmate%20Discipline. The inmate’s appeal must include a brief statement

of the facts relevant to the appeal and the issues complained of on appeal.

Id. If the inmate is unsuccessful at the PRC level, he must appeal the PRC

decision to the Superintendent/designee within seven calendar days. Id. The

Superintendent is required to review the appeal and forward a decision to

the inmate within seven working days of the appeal being filed. Id. If the

inmate is unsuccessful before the Superintendent, he must appeal to the

DOC’s Chief Hearing Examiner’s Officer within seven days. Id. An inmate

must appeal the disciplinary decision through all three stages of appeal to

properly exhaust his administrative remedies. Id.

The summary judgment evidence reflects that although Bailey claims

that the three misconducts issued on November 21, November 25 and

December 18, 2020 were issued for retaliatory purposes, there is no record

evidence that Plaintiff appealed these misconducts as required by DC-ADM

801. See (Doc. 93-15 at 2, 93-16 at 4). An inmate is required to partake in

the administrative process prior to challenging any aspect of the misconduct

in federal court. Failure to appeal a finding of misconduct to final review

constitutes a failure to exhaust administrative remedies regarding that

misconduct. Grisby v. McBeth, No. 1:17-cv-00243, 2018 WL 1518566, *3

(M.D.Pa. Mar. 28, 2018) (citing Hagan v. Chambers, No. 1:08-cv-1766, 2010

WL 4812973, at *6 (M.D. Pa. Nov. 19, 2010)). Here, once again, the record

evidence demonstrates that no appeal was filed to the Chief Hearing

Examiner. Thus, Plaintiff failed to exhaust his administrative remedies under

DC-ADM 801 with respect to his misconduct charges because he failed to

properly file a final appeal to the Chief Hearing Examiner. Plaintiff does not

refute this argument with any record evidence or argue that the

administrative remedy system was made unavailable at any point. Again, his

brief in opposition does not even address exhaustion. Thus, it appears that

Plaintiff has failed to exhaust administrative remedies prior to filing the above

captioned action. The Court, therefore, will grant summary judgment in favor

of the Defendants on the basis that Plaintiff failed to properly exhaust his

administrative remedies.

Regardless of exhaustion, the Court finds that Plaintiff’s claims fail on

their merits.

B. Merits

1. Sexual Harassment Claim

Plaintiff alleges that Defendant Mull has been “sexually abusing and

harassing Bailey for taking a ‘shit’ and writing retaliatory-fabricated

misconducts for complaining to his supervisor.” (Doc. 35 at 8). Specifically,

Plaintiff states that “every time Defendant Mull works the block he keeps

wanting to watch [Plaintiff] take a ‘shit’ due to [his] medical problems where

[he] take[s] Linzess, Mirolax, Colace, Protonix that forces Bailey to go to the

bathroom after colon surgery.” Id. Plaintiff claims that he “verbally

complained about his behavior to Defendant Digby the Unit Manager of the

Block and she told [Plaintiff] to deal with it.” Id. Plaintiff believes that “on 11-

21-20, Defendant Mull issued a retaliatory-fabricated misconduct #D2104182

for covering his door to take a ‘shit’ after complaining to his supervisor and

like every prisoner on the block covers their door when using the bathroom

inmates similarly situated on N-Block so Bailey filed a Prison Rape

2 Misconduct #D210418 reads as follows:

On the above date and time this SGT was conducting the first round of

the day on the November block and upon arriving at cell A1-26 which houses

inmate Bailey (CP7819) who is Z-Coded, the door was completely covered

again. This is an ongoing problem with this inmate who has been counseled

by this SGT on numerous occasions when assigned to November block.

Inmate Bailey continues to cover his door every morning and yell out the

door that he is in the cell and fine. Inmate Bailey has been made aware that

this is against the rules and not acceptable. Quarters card attached for

reference.

(Doc. 93-15 at 1).

Elimination Act complaint3 against Sgt. Mull but was denied4, DC-ADM 008.”

Id.

The Eighth Amendment governs claims brought by convicted inmates

challenging their conditions of confinement. Hubbard v. Taylor, 399 F.3d

150, 166 (3d Cir. 2005). Sexual abuse of inmates or detainees may violate

the Eighth Amendment. Ricks v. Shover, 891 F.3d 468, 473 (3d Cir. 2018)

(“[P]rison sexual abuse can violate the Constitution”).

3 Plaintiff’s PREA complaint reads as follows:

On 11-21-20 SGT Mull keeps sexually harassing Plaintiff Bailey on N-

Block every time he works over here by stating “I like to watch you take a

shit so make sure you remove your cover from your door when I am working.”

This is becoming too much for me when I have a serious medical need that

requires me to use the bathroom for at least three hours straight and to

protect female staff walking around I cover my door, so I don’t expose myself

to them, but I am not going to continue receiving sexual comments from SGT.

Mull when I am taking a shit and witnesses can verify this every morning I

am using the bathroom and the medication that I am on from the outside

specialist dictates how I use the bathroom and this been going on with me

for the last (9) months and regular staff has already been made aware but

this is being done out of retaliation for filing lawsuit against staff and I request

a full investigation and separation from SGT. Mull cause I fear for my life and

it’s a violation of my Constitutional rights First, Eight Amendments and Equal

Protection cause no other prisoner in their cell is being sexually harass but

me when using the bathroom.

(Doc. 93-16 at 2).

4 On November 25, 2020, Plaintiff’s PREA complaint was denied as “the

allegation was reviewed and determined to not meet the definition of PREA”

as Plaintiff is “not permitted to cover window.” (Doc. 93-16 at 3).

In the Eighth Amendment context, a plaintiff must satisfy both an

objective and subjective prong akin to excessive force claims. Ricks, 891

F.3d at 475. In that regard, the conduct in question must be “objectively,

sufficiently intolerable and cruel, capable of causing harm and the official

must have a culpable state of mind.” Id. “Regarding the subjective prong,

[the Court] consider[s] whether the official had a legitimate penological

purpose or if he or she acted maliciously and sadistically for the very purpose

of causing harm.” Id. (internal quotations omitted).

An Eighth Amendment claim for sexual abuse or harassment requires

a showing of physical contact with the alleged perpetrator. See Williams v.

Wetzel, 776 F. App’x 49, 53 (3d Cir. 2019) (affirming dismissal of Eighth

Amendment sexual conduct claim because the allegations did not involve

any sexual contact between the prisoner and the corrections officer);

Armstrong v. Diraimo, Civ. A. No. 17-237, 2018 WL 6788524, at *4 (W.D.

Pa. Dec. 26, 2018), aff’d, 781 F. App’x 61 (3d Cir. 2019); McCain v. Wetzel,

Civ. A. No. 17-194, 2018 WL 1211507, at *3 (W.D. Pa. Mar. 8, 2018) (“sexual

harassment in the absence of contact or touching does not establish an

Eighth Amendment violation”); Washington v. Gilmore, Civ. A. No. 15-1031,

2017 WL 4155371, at *8 (W.D. Pa. Aug. 31, 2017) (dismissing Eighth

Amendment sexual assault claim where plaintiff did not allege any “direct

physical contact” with the alleged perpetrators). “Verbal harassment,

including lewd comments, sexual propositioning, and the like, is not sufficient

to satisfy the objective element of an Eighth Amendment sexual harassment

claim.” McCain, 2018 WL 1211507, at *3 (citing Manon v. Garrison, 2012 WL

3542328 (M.D. Pa. Aug. 15, 2012)). Rather, “physical sexual assault or

threats of physical assault is required for the objective element to be met.”

Id.

Plaintiff’s amended complaint fails to state a claim for sexual abuse

because it does not allege any direct physical contact with Defendant Mull

or that Mull’s conduct was even sexual in nature. Plaintiff does not allege

that Mull touched him in any way, but only states that Mull allegedly watched

him “take a ‘shit.” (Doc. 35 at 7). Without more, these facts are insufficient to

meet the objective prong of an Eighth Amendment sexual abuse claim.

Accord Ricks, 891 F.3d at 477 (noting that “objectively serious sexual contact

would include sexualized fondling, coerced sexual activity, combinations of

ongoing harassment and abuse, and exchanges of sexual activity for special

treatment or to avoid discipline”). Thus, Defendants are entitled to summary

judgment on Plaintiff’s Eighth Amendment Sexual Abuse Claim.

2. Verbal Harassment

It has been recognized that the use of words generally cannot

constitute a constitutional violation. Johnson v. Glick, 481 F.2d 1028, 1033

n. 7 (2d Cir. 1973); Maclean v. Secor, 876 F.Supp. 695, 698–99 (E.D.Pa.

1995); Murray v. Woodburn, 809 F.Supp. 383, 384 (E.D.Pa. 1993) (“Mean

harassment ... is insufficient to state a constitutional deprivation.”); Prisoners’

Legal Ass’n v. Roberson, 822 F.Supp. 185, 189 (D.N.J. 1993) (“[V]erbal

harassment does not give rise to a constitutional violation enforceable under

§1983.”). Mere threatening language and gestures of a custodial officer do

not, even if true, amount to constitutional violations. Fisher v. Woodson, 373

F.Supp. 970, 973 (E.D.Va. 1973); see also Balliet v. Whitmire, 626 F.Supp.

219, 228–29 (M.D. Pa.) (“[v]erbal abuse is not a civil rights violation ...”), aff’d,

800 F.2d 1130 (3d Cir. 1986). A constitutional claim based only on verbal

threats will fail regardless of whether it is asserted under the Eighth

Amendment’s cruel and unusual punishment clause, or under the Fifth

Amendment’s substantive due process clause. See Prisoners’ Legal Ass’n,

822 F.Supp. at 189; Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir. 1991).

Verbal harassment or threats, with some reinforcing act accompanying

them, however, may state a constitutional claim. For example, a viable claim

has been found if some action taken by the defendant escalated the threat

beyond mere words. See Northington v. Jackson, 973 F.2d 1518 (10th Cir.

1992) (guard put a revolver to the inmate’s head and threatened to shoot);

Douglas v. Marino, 684 F.Supp. 395 (D.N.J. 1988) (involving a prison

employee who threatened an inmate with a knife). It has also been found

that verbal harassment can rise to a constitutional level in a situation where

fulfillment of the threat was conditioned on the inmate’s exercising some

constitutionally protected right. Bieros v. Nicola, 860 F.Supp. 226, 233

(E.D.Pa. 1994); see also Prisoners’ Legal Ass’n, 822 F.Supp. at 189; Murray,

809 F.Supp. at 384.

Therefore, based on the foregoing, any claim of verbal harassment

made by Plaintiff fails to rise to the level of a viable civil rights claim. See Hart

v. Whalen, 2008 WL 4107651, *10 (M.D.Pa. 2008).

3. Retaliation Claim

Plaintiff alleges that he “continues to be retaliated against by staff on

the block due to filing this complaint.” (Doc. 35 at 7). Specifically, Plaintiff

claims that he has been issued retaliatory misconducts on November 21, 25

and December 18, 2020. Id.

An inmate stating a retaliation claim pursuant to the First Amendment

bears the burden of satisfying three (3) elements. First, a plaintiff must prove

that he was engaged in a constitutionally protected activity. See Rauser v.

Horn, 241 F.3d 330, 333 (3d Cir. 2002). Second, a plaintiff must demonstrate

that he “suffered some ‘adverse action’ at the hands of prison officials.” See

id. (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). This

requirement is satisfied by showing adverse action “sufficient ‘to deter a

person of ordinary firmness’ from exercising his First Amendment rights.”

See id. (quoting Suppon v. Dadonna, 2013 F.3d 228, 235 (3d Cir. 2000)).

Third, a prisoner must prove that “his constitutionally protected conduct was

‘a substantial or motivating factor’ in the decision to discipline him.” See id.

at 333-34 (quoting Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

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

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

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

establishing a causal link between the two events. See Delli Santi v. CNA

Ins. Cos., 88 F.3d 192, 199 n.10 (3d Cir. 1996). Only when the facts of a

particular case are “unusually suggestive” of a retaliatory motive will

temporal proximity, on its own, support an inference of causation. See

Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997). If a prisoner

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

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

made the same decision absent the protected conduct for reasons

reasonably related to a legitimate penological interest.” See Rauser, 241

F.3d at 334. If the prison officials can make this showing, it defeats the

retaliation claim. See Carter v. McGrady, 292 F.3d 152, 159 (3d Cir. 2002).

It is well-settled that inmates engage in protected activity when they

file grievances and lawsuits. See Anderson v. Davila, 125 F.3d 148, 161-62

(3d Cir. 1997). Thus, the Court must consider whether the alleged adverse

actions set forth above are actionable under §1983.

Plaintiff claims that Defendants retaliated against him for filing the

instant civil rights action, which was filed on May 8, 2020. The alleged

retaliatory conduct occurred on November 21, 25 and December 18, 2020.

“To establish the requisite causal connection, a plaintiff usually must prove

either (1) an unusually suggestive temporal proximity between the protected

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

coupled with timing to establish a causal link.” Alex v. Wetzel, 2014 WL

690610, at *4 (M.D. Pa. Feb. 24, 2014) (citing Lauren W. v. DeFlaminis, 480

F.3d 259, 267 (3d Cir. 2007)). “Courts in civil rights cases have frequently

rebuffed speculative efforts to infer causation from temporal proximity when

a span of weeks, months or years separated the plaintiff's constitutionally

protected conduct from the defendants’ alleged acts of retaliation.” Lawson

v. Crowther, 2018 WL 6524380, at *4 (W.D. Pa. Oct. 30, 2018), report and

recommendation adopted, 2018 WL 6523185 (W.D. Pa. Dec. 12, 2018)

(citations omitted). See also Fischer v. Transue, 2008 WL 3981521, *10

(M.D. Pa. Aug. 22, 2008) (temporal proximity of three weeks insufficient to

establish causation); Mar v. City of McKeesport, 2007 WL 2769718, at *4

(W.D. Pa. Sept. 20, 2007) (three months); Killen v. N.W. Human Servs., Inc.,

2007 WL 2684541, at *8 (E.D. Pa. Sept. 7, 2007) (seventeen days). Plaintiff

claims that Defendants issued retaliatory misconducts against him some six

months after the filing of the instant action on May 8, 2020. Thus, the

temporal distance does not suggest a causal link.

Furthermore, Plaintiff pled guilty to two of the misconducts and was

found guilty on the third, (see doc. 93-16), which negates his retaliation claim.

As the United States Court of Appeals for the Third Circuit has observed:

“[an inmate’s] retaliatory discipline claim fails [when] there is ‘some evidence’

supporting the guilty findings.” Nifas v. Beard, 374 Fed. Appx. 241, 244 (3d

Cir. 2010) (citing Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994))

(stating that a finding of ‘some evidence’ to support a prison disciplinary

determination ‘checkmates’ the prisoner's retaliation claim).” Here, the

record includes evidence to support the misconduct, including admissions by

Bailey. (See Doc. 93-16). Because a finding of some evidence to support a

misconduct citation trumps a retaliation claim involving prison discipline,

Bailey’s admissions that he committed the acts of misconduct bars him from

citing the discipline as some form of retaliation. See, e.g., Rosa-Diaz, v.

Rivello, 2020 WL 6481539, at *11 (M.D. Pa. July 10, 2020), report and

recommendation adopted Rosa-Diaz, v. Rivello, 2020 WL 6449331 (M.D.

Pa. Nov. 3, 2020). Thus, based on the above analysis, Plaintiff’s allegations

do not raise an inference that Defendants’ decision to charge Plaintiff with

misconduct was retaliatory. The Court, therefore, will grant summary

judgment to Defendants with respect to Plaintiff’s First Amendment

retaliation claim.

V. CONCLUSION

For the reasons set forth above, the Court will grant the Defendants’

motion for summary judgment.

A separate Order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: September 28, 2022

20-0762-01