BUXTON v. WETZEL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PITTSBURGH

ANDY BUXTON, )

)

Plaintiff, )

)

vs. ) 2:20-CV-01647-CRE

)

JOHN E. WETZEL, SECRETARY OF )

CORRECTIONS; DORINA VARNER, )

)

ZACHARY J. MOSLAK, MELINDA L.

)

ADAMS,SUPERINTENDENT/WARDEN/F )

ACILITY MANAGER; SHANE DADY, )

DSCS/DEPUTY; J. YODIS, HEARING )

EXAMINER/COORDINATOR; EDWARD )

)

WHITMAN, UNIT MANAGER; SGT. )

HAMILTON, KAREN FEATHERS, CHCA; )

AND ADAM MILLIREN, )

CORRECTIONAL OFFICER; )

)

Defendants, )

MEMORANDUM OPINION1

CYNTHIA REED EDDY, United States Magistrate Judge

This is a civil rights action initiated under 42 U.S.C. § 1983 by pro se Plaintiff Andy Buxton

(“Plaintiff”), a former SCI-Mercer inmate. Presently before the Court are the following:

(i) a motion filed by Plaintiff seeking summary judgment on his remaining claim of First

Amendment retaliation—related to a misconduct charge (“Misconduct #D320655”), against

Defendants Wetzel, Varner, Moslak, Adams, Dady, Yodis, Whitman, and Milliren (collectively

“Corrections Defendants” or individually referenced), (ECF No. 119); and

1 All parties consented to jurisdiction before a United States Magistrate Judge. (ECF Nos.

41, 42). Thus, the Court can decide dispositive motions, and eventually enter final judgment. See

28 U.S.C. § 636, et seq.

(ii) a motion filed by Corrections Defendants seeking summary judgment on Plaintiff’s

remaining claim of First Amendment retaliation—related to Misconduct #D320655, (ECF No.

123).2

The motions are fully briefed, and the record is thoroughly developed. See (ECF Nos. 118,

120, 121, 124, 125, 126, 127, 128, 129, 130, 131, 133, 134, 135).

For the reasons that follow, Plaintiff’s motion will be denied, and Corrections Defendants’

motion will be denied in part and granted in part: denied as to the remaining claim of First

Amendment retaliation—related to Misconduct #D320655, against Defendant Milliren; granted as

to the remaining claim of First Amendment retaliation—related to Misconduct #D320655,

including conspiracy to retaliate, against Corrections Defendants; and granted as to Plaintiff’s

claim for compensatory damages is precluded by the Prison Litigation Reform Act, 42 U.S.C. §

1997e(e).

I. Background

Plaintiff was incarcerated at SCI-Mercer where the events giving rise to this lawsuit

occurred. Plaintiff’s remaining claim against Corrections Defendants alleges First Amendment

retaliation related to Misconduct #D320655.

According to Plaintiff, “as a result of the protected conduct (filing grievances), [Defendant]

Milliren took adverse action (retribution) against Plaintiff by fabricating [Misconduct #D320655]

[.]” [sic]. See Fourth Am. Compl. (“FAC”) (ECF No. 67) at p. 19. Plaintiff claims Defendant

Milliren stated to Plaintiff that he was aware of Plaintiff’s grievances stemming from 2019 and, as

2 In Corrections Defendants’ motion for summary judgment and brief in support, counsel

sometimes includes Defendant Hamilton and Defendant Feathers. (ECF Nos. 123, 124). By

Memorandum Opinion and Order filed on August 15, 2022, Defendant Hamilton and Defendant

Feathers were dismissed with prejudice. See Memo. Op. and Order (ECF Nos. 73, 74).

a result, retaliated against him. Id. Plaintiff alleges that Defendant Milliren “knew that a

misconduct would jeopardize Plaintiff’s liberty interest (granting of parole).” Id. Plaintiff further

alleges that Corrections Defendants “aided, abetted and encouraged [Defendant] Milliren’s

retaliatory conduct.” [sic]. Id. at p. 20.

Plaintiff initiated this action pro se on November 2, 2020, and proceed in forma pauperis.

The original complaint was filed on January 29, 2021. (ECF No. 16). After several motions for

leave to amend, among others, the operative FAC was filed on January 12, 2022. FAC (ECF No.

67). Plaintiff’s FAC asserted many causes of action under 42 U.S.C. § 1983 against ten-named

defendants, related to incidents while incarcerated at SCI-Mercer. Id. Then-defendants moved to

dismiss the entire FAC under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. (ECF No. 69).

By Memorandum Opinion and Order filed on August 15, 2022, the Court granted in part and

denied in part the motion to dismiss. See Memo. Op. and Order (ECF Nos. 73, 74). As a result,

Plaintiff’s remaining claim against Corrections Defendants alleges retaliation related to

Misconduct #D320655 in violation of his First Amendment rights. Id. Plaintiff seeks compensatory

and punitive damages each “in the amount of anywhere up to $11 million against each defendant.”

FAC, Paragraph V – Prayer for Relief (ECF No. 69).

After discovery closed, the parties cross-moved for summary judgment.

II. Standard of Review

Summary judgment is proper only “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). “A fact is material if it ‘affect[s] the outcome of the suit under the governing law’.” Bland

v. City of Newark, 900 F.3d 77, 83 (3d Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)). In deciding a motion for summary judgment, the Court's function is not to

weigh the evidence, to determine the truth, or to evaluate credibility. See Montone v. City of Jersey

City, 709 F.3d 181 (3d Cir. 2013). Rather, “[i]n determining whether a genuine dispute of material

fact exists, [the Court] view[s] the underlying facts and draw[s] all reasonable inferences in favor

of the party opposing the motion.” Bland, 900 F.3d at 83 (citing Dougherty v. Sch. Dist. of

Philadelphia, 772 F.3d 979, 986 (3d Cir. 2014)).

The summary judgment rules do not apply any differently to cross-motions. Lawrence v.

City of Philadelphia, Pa., 527 F.3d 299, 310 (3d Cir. 2008). “ ‘Cross-motions are no more than a

claim by each side that it alone is entitled to summary judgment, and the making of such inherently

contradictory claims does not constitute an agreement that if one is rejected the other is necessarily

justified or that the losing party waives judicial consideration and determination whether genuine

issues of material fact exist.’ ” Id. (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d

Cir. 1968)). If upon review of cross-motions for summary judgment the court finds no genuine

dispute over material facts, then judgment will be entered in favor of the party deserving judgment

considering the law and undisputed facts. Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d

Cir. 1998) (citation omitted).

When a party represents himself pro se, his filings are to be construed liberally. Haines v.

Kerner, 404 U.S. 519, 520-21 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). If the

court can reasonably read the plaintiff’s pleadings together with his summary judgment

submissions to show an entitlement to relief, then the court should do so despite any failure to cite

proper legal authority, confusion of legal theories, poor syntax, and sentence construction, or the

litigant’s unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982).

Still, at the summary judgment stage of the proceedings, the Court need not credit any “bald

assertions” or “legal conclusions” that are unaccompanied by evidentiary support. Jones v. United

Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000); Schoch v. First Fid. Bancorporation, 912 F.2d

654, 657 (3d Cir. 1990) (“[U]nsupported allegations . . . and pleadings are insufficient to repel

summary judgment.”). “[A] pro se plaintiff is not relieved of his obligation under [Fed. R. Civ. P.]

56 to point to competent evidence in the record that is capable of refuting a defendant’s motion for

summary judgment.” Dawson v. Cook, 238 F. Supp. 3d 712, 717 (E.D. Pa. 2017) (citation omitted).

III. Discussion

A. First Amendment Retaliation Claim

Retaliation for the exercise of a constitutionally protected activity violates rights secured

by the Constitution and is actionable under § 1983.3 Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001).

“[G]overnment actions, which standing alone do not violate the Constitution, may nonetheless be

constitutional torts if motivated in substantial part by a desire to punish an individual for exercise

of a constitutional right.” Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (quoting Allah v.

Seiverling, 229 F.3d 220, 224-225 (3d Cir. 2000)).

To prevail on a First Amendment retaliation claim, a prisoner-plaintiff must make a three-

part prima facia showing. Rauser, 241 F.3d 330. First, the prisoner must “prove that the conduct

which led to the alleged retaliation was constitutionally protected.” Id. at 333. (citations omitted).

Next, the prisoner “must show that he suffered some ‘adverse action’ at the hands of the prison

officials.” Id. (citation omitted). The prisoner satisfies the adverse action requirement by

“demonstrating that the action ‘was sufficient to deter a person of ordinary firmness from

exercising his [constitutional] rights’.” Id. (quoting Allah, 229 F.3d at 225). Finally, the prisoner

must demonstrate “a causal link between the exercise of his constitutional rights and the adverse

3 “Title 42 U.S.C. § 1983 is not a source of substantive rights but a vehicle for vindicating

rights conferred by the U.S. Constitution or by federal statute.” DiBella v. Borough of Beachwood,

407 F.3d 599, 601 (3d Cir. 2005) (citation omitted).

action taken against him.” Rauser, 241 F.3d at 333. A causal link is established when the

“constitutionally protected conduct was a substantial or motivating factor in the decision” to take

the alleged adverse action. Carter v. McGrady, 292 F.3d 152, 158 (3d Cir. 2002) (citing Rauser,

241 F.3d at 333); Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (citing Rauser, 241 F.3d at

333–334). The mere fact that an adverse action occurs after a complaint or grievance is filed is

relevant to establish a causal link between the two events, but it is not dispositive. See Lape v.

Pennsylvania, 157 F. App'x 491, 497-498 (3d Cir. 2005).

After a prisoner states a prima facie case, the burden shifts to the defendant prison officials

to show they would have engaged in the same alleged adverse action even without the protected

conduct. Rauser, 241 F.3d at 334. “[M]ost prisoners’ retaliation claims will fail if the misconduct

charges are supported by the evidence” because courts afford prison officials “great deference” in

the context of prison disciplinary proceedings. Watson, 834 F.3d at 425 (citing Carter, 292 F.3d

at 158). Prison officials are entitled to summary judgment for disciplining a prisoner, even if their

actions were motivated by animus, so long as the quantum of evidence shows that the prisoner

committed a “clear and overt” violation of prison policy. Carter, 292 F.3d at 159. On the other

hand, prison officials are not entitled to summary judgment where the prisoner’s misconduct was

not such a clear and overt violation of prison policy that a reasonable fact finder could conclude

that he was punished not in furtherance of a legitimate penological interest but for engaging in the

protected conduct. See Watson, 834 F.3d at 426.

i. Defendant Milliren

Plaintiff maintains that Defendant Milliren fabricated Misconduct #D320655 in retaliation

for Plaintiff’s “grievance.” (ECF No. 120) at p. 3. Corrections Defendants maintain there is no

causal connection between Plaintiff’s filed grievances and Defendant Milliren’s issuance of

Misconduct #D320655. (ECF No. 124) at p. 5.

Misconduct #D3206554

On February 23, 2020, Defendant Milliren issued Misconduct #D320655 against Plaintiff

for obscene language towards an employee; presence in an unauthorized area; and refusal to obey

an order. See Appendix, Defs. [’] Concise Stmt. of Facts, Exhibit E (ECF No. 126-5) at p. 3.

Defendant Milliren’s version of the evidence in Misconduct #D320655 provided:

[Around 10:50 A.M. on 2/23/20] after block out terminated and I secured the doors

on the housing unit, I/M [“inmate”] Buxton failed to lock himself into his cell as

ordered to do. I opened his door and ordered him to lock into his cell. [Inmate]

Buzton said to me “ok Bastard” on three occasions. [Inmate] Buxton then tried to

shake out his rugs which were left out on the table. I ordered [inmate] Buxton again

to lock into his cell and square his door behind him. [Inmate] Buxton then said that

I was “treating him like a slave”. After five minutes of him taking about me treating

him like a slave, he went into his cell and failed to lock it behind him as he was

ordered to do. [Inmate] Buxton has multiple entries on his D.C. 14 for not locking

into his cell and loitering in the day room.

Id. Plaintiff’s version of the evidence in Misconduct #D320655 provided:

Complied with the order given at said time. In which the video will clearly show

this and exonerate me. . . . I do not know [Defendant Milliren’s] mother nor father

to be calling him a “bastard” that doesn’t even make any sense. . . . I am doing

everything I need to be doing to secure my release. . . .

Id. at p. 6. The Hearing Examiner, Defendant Yodis, found that a preponderance of the evidence

existed to support the charges of obscene language towards an employee and refusal to obey an

order: Plaintiff was sanctioned with 30 days of cell restriction and loss of job effective February

25, 2020. Id. at p. 2. On March 2, 2020, the Program Review Committee upheld that decision

4 The details of Misconduct #D320655 are gathered from the parties’ relative exhibits of it;

reviewed individually, one exhibit was incomplete, and the other exhibit had portions lacking

perceivable visual quality. See Appendix, Defs. [’] Concise Stmt. of Facts, Exhibit E (ECF No.

126-5) and Appendix, Pl. [’s] Concise Stmt. of Facts, Exhibit 2 (ECF No. 118-1). The parties’

relative exhibits reviewed together, however, are sufficient. Id.

“finding no reason to alter the sanction at this time. The punishment [was] within the presumptive

guidelines per DC ADM 801 and the Hearing Examiner [Defendant Yodis was] in the best position

to objectively rule in this case.” Appendix, Pl.[’s] Concise Stmt. of Facts, Exhibit 2 (ECF No. 118-

1) at p. 17. Plaintiff appealed to the Superintendent, Defendant Adams, and it was initially denied

on March 16, 2020, for these reasons:

In your appeal, you argue the findings of fact. The Hearing Examiner [Defendant

Yodis] is in the best position to make that determination. [Program Review

Committee] choosing to watch the video and the Hearing Examiner [Defendant

Yodis] not, does not change anything. That was each of their decisions. Either way,

as stated by the Hearing Examiner [Defendant Yodis], there is no audio. No

additional information or evidence was submitted to change the decision.

Therefore, I am sustaining the misconduct and impose sanctions. Your appeal is

denied.

Id. at p. 19. Plaintiff appealed again, and on March 23, 2020, Superintendent Defendant Adams

dismissed Misconduct #D320655 and its related charges. Id. at p. 21. No specifics were otherwise

provided within the notated decision. Id.

According to the FAC, Defendant Milliren stated to Plaintiff that he knew about Plaintiff’s

grievances stemming from 2019 and, as a result, retaliated against him. FAC (EFF No. 67) at p.

20. Corrections Defendants argue the grievances filed by Plaintiff before the issuance of

Misconduct #D320655 had no mention of Defendant Milliren. (ECF No. 124) at p. 2.

It is undisputed that from 2019 to February 23, 2020—when Defendant Milliren’s issued

Misconduct #D320655, Plaintiff filed these grievances: # 787422 on February 20, 2019; # 823683

on September 19, 2020; and # 845115 on January 17, 2020. Appendix, Defs. [’] Concise Stmt. of

Facts, Exhibit A (ECF No. 126-1). It is also undisputed that Defendant Milliren was unmentioned

in those grievances. (ECF Nos. 125, 130) ¶¶ 3, 5, 7. Indeed no causal connection exists between

Misconduct #D320655 and grievances # 787422, # 823683, or # 845115. Carter, 292 F.3d at 158.

That said, Plaintiff’s response argues a causal connection between Misconduct #D320655 and

grievances # 852829 and # 859407. (ECF No. 127) ¶ 12. Plaintiff’s grievances # 852829 and #

859407 are discussed next.

Grievance # 852829

On February 23, 2020—the same day Defendant Milliren issued Misconduct #D320655

against Plaintiff—Plaintiff filed grievance # 852829 against Defendant Milliren. Grievance #

852829 (ECF No. 126-6). Receipt of grievance # 852829 was acknowledged by the facility

grievance coordinator, but because Plaintiff initially “fail[ed] to comply with the submission

provisions of DC-ADM 804” it was ultimately processed on March 2, 2020, after Plaintiff

accordingly amended it. (ECF No. 126-6) at pp. 6, 8. Plaintiff’s grievance complained of

Defendant Milliren’s conduct and comments:

On 2-23-20 Officer Milliren referred to me and other inmates as [“]indentured

slaves” . . . [Officer Milliren] found this to be very amusing. In which I replied “ok

Master”[.] . . . This ethic intimidation and retaliation behavior is being displayed

for letting my voice be heard. . . . This behavior . . . is used to prevent me from

making parole. Clearly an act of retaliation for letting my voice be heard[.] . . . Due

to the numerous of warnings I brought to the staff and wardens attention[.] [sic]

(ECF No. 126-6) at pp. 6-7. As relief, Plaintiff requested Defendant Milliren’s termination. Id. The

grievance was denied because “on the date in question, [Plaintiff] blatantly disregarded direct

orders to lock in. The record indicates that [Defendant] Milliren made a derogatory comment in

response to [Plaintiff’s] behavior, . . . based upon your claims and [Defendant Milliran’s]

conversation with this Unit Manager I am denying this grievance due to the adage “two wrongs

don’t make it right”. [Defendant Milliren] will also receive a verbal reprimand regarding this

incident.” (ECF No. 126-6) at p. 5. Plaintiff appealed to the facility’s manager and to final review;

both appeals were denied on April 2, 2020, and May 22, 2020, respectively. Id. at pp. 1-2.

Grievance # 859407

On March 31, 2020, Plaintiff filed grievance #859407 which stated that Unit Manager

Defendant Whitman, spoke to Plaintiff about Misconduct #D320655 and grievance # 852829.

Grievance #859407 (ECF No. 118-1) at p. 93. Plaintiff’s grievance asserted: “the reason

everything happening to me is because he is white” and “I was crying and licking the

Superintendent’s Ass. That’s why the charges were dismissed. . . . this is retaliatory. . . .”. Id. As

relief, Plaintiff requested a million dollars. Id. The grievance was denied on April 22, 2020, for

these reasons:

Note: You reference Misconduct #D320655 in your grievance, but there is no

record of a misconduct with that number in your [Department of Corrections]

records.

. . .

Mr. Whitman did admit that he described your discussing this matter with

Superintendent [Defendant] Adams as ‘crying.’ He also stated that he told you that

you continue to receive misconducts due to your behavior and actions on the

housing unit. Mr. Whitman denied depicting you as a racist, suggesting that you

were receiving misconducts because he (Mr. Whitman) was white, or retaliating

against you because you voiced your Constitutional Rights.

. . .

Based upon review of the information received and conversations with you and Mr.

Whitman, this grievance is denied, and you will not be receiving compensatory

and/or punitive damages.

Id. at 94. Plaintiff appealed to the facility’s manager and to final review; both appeals were denied.

Id. at pp. 96, 98.

Plaintiff’s grievance # 859407 lacks causal connection with Misconduct #D320655.

Defendant Milliren issued Misconduct #D320655 on February 23, 2020, and Plaintiff filed

grievance # 859407 on March 31, 2020. On the other hand, Plaintiff’s filing of grievance # 852829

demonstrates temporal proximity to Misconduct #D32065.

The initial filing of Grievance # 852829 was not time-stamped—it only included the date:

February 23, 2020. Grievance # 852829 (ECF No. 126-6) at pp. 9-10. Which leads to conjecture

as to whether Defendant Milliren filed Misconduct #D320655 after Plaintiff filed grievance #

852829. As to the February 23, 2020 incident, Plaintiff claims Defendant Milliren stated to

Plaintiff that he would “get [him] by writing [him] up, so [he] don’t make parole.” [sic] (ECF No.

129) ¶ 17. Plaintiff also claims that at one point Defendant Milliren said to Plaintiff “this is the

DOC all staff members stick together and are all immune” and “so, it’s my word against a slave

let’s see if [Plaintiff] files anymore grievances.” (ECF No. 118-2) ¶ 18. The summary judgment

record is unclear if Defendant Milliren knew of Plaintiff’s grievance # 852829 and acted on that

information to issue Misconduct #D320655.

As to the two remaining prima facia parts of Plaintiff’s retaliation claim against Defendant

Milliren, the Court finds that Plaintiff participated in a constitutionally protected activity and

suffered adverse action. Corrections Defendants argue that the verbal exchange between Plaintiff

and Defendant Milliren on February 23, 2020, is not a constitutionally protected activity. (ECF

No. 133) at pp. 3-4. But Plaintiff filed grievance # 852829 against Defendant Milliren complaining

of their February 23, 2020 verbal exchange. See Fantone v. Latini, 780 F.3d 184, 192 n.8 (3d Cir.

2015), as amended (Mar. 24, 2015) (“The filing of a prison grievance is an activity protected by

the First Amendment.”). As a result of Misconduct #D320655, Plaintiff was penalized with cell

restriction and loss of job from February 25, 2020, until at least March 23, 2020—when

Misconduct #D320655 was dismissed.5 Rauser, 241 F.3d 330.

5 Compare Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011) (holding that, in the

absence of a penalty arising from an allegedly false misconduct, no adverse action is suffered) and

Jordan v. Wetzel, No. CV 16-307, 2019 WL 1382512, at *4 (W.D. Pa. Mar. 27, 2019) (same) with,

Williams v. Lee, No. 1:19-CV-41, 2020 WL 5704272, at *7 (W.D. Pa. Sept. 24, 2020) (holding

Moreover, Corrections Defendants have not shown that Defendant Milliren would have

filed Misconduct #D320655 even without the protected activity. Rauser, 241 F.3d at 334. In fact,

after the Superintendent, Defendant Adams, reviewed the appeal of Grievance # 852829—which

included Defendant Milliren’s admission of calling Plaintiff inappropriate names, Misconduct

#D320655 was dismissed, and Plaintiff’s charges were exonerated. See Pl. [’s] Appendix, Concise

Stmt. of Facts, Exhibit 9 (ECF No. 118-1) ¶ 12. The summary judgment record reveals facts in

genuine dispute about whether Defendant Milliren would have issued Misconduct #D320655

despite Plaintiff filing grievance # 852829. These credibility determinations are the province of a

jury.

As a result, the cross-motions will be denied as to Plaintiff’s remaining claim of First

Amendment retaliation—related to Misconduct #D320655, against Defendant Milliren.

ii. Corrections Defendants

Next, Plaintiff maintains that Corrections Defendants conspired to retaliate and deny

Plaintiff’s parole in June 2020.6 (ECF No. 120) at p. 4. He relatedly maintains that Misconduct

#D320655 caused his June 2020 parole to be denied. (ECF No. 129) ¶ 18. Corrections Defendants

maintain that Plaintiff failed to adduce evidence of conspiratorial retaliation. (ECF No. 124) at pp.

5-6.

To show a claim of civil conspiracy under § 1983, Plaintiff must allege that (1) two or more

persons conspired to deprive him of a constitutional right; (2) that one or more of the conspirators

performed an overt act in furtherance of the conspiracy; and (3) the overt act injured Plaintiff by

that an inmate serving penalties in response to a misconduct before it is dismissed is sufficient

adverse action).

6 Plaintiff’s exhibits reveal June 12, 2020, as the affiliated parole at issue. See Pl. [’s]

Appendix, Concise Stmt. of Fact, Exhibit 13 (ECF No. 118-1) at pp. 86-87.

depriving him of his constitutional right; and (4) the conspirators were acting under color of state

law. Barnes Found. v. Twp. of Lower Merion, 242 F.3d 151, 162 (3d Cir. 2001) (quoting 42 U.S.C.

§ 1983). A “mere general allegation” or “averment of conspiracy or collusion without alleging the

facts which constituted such conspiracy or collusion is a conclusion of law and is insufficient” to

state a claim for civil conspiracy under § 1983. Kalmanovitz v. G. Heileman Brewing Co., 595 F.

Supp. 1385, 1400 (D. Del. 1984), aff'd, 769 F.2d 152 (3d Cir. 1985).

Plaintiff’s June 2020 Parole

Plaintiff was considered for parole by the Pennsylvania Parole Board (“Parole Board”) in

June 2020. See Pl. [’s] Appendix, Concise Stmt. of Fact, Exhibit 13 (ECF No. 118-1) at pp. 86-87.

On June 12, 2020, the Parole Board denied Plaintiff’s parole for various reasons:

Your institutional behavior, including reported misconducts. Your risk and needs

assessment indicating your level of risk to the community. Your failure to

demonstrate motivation for success. Other factors deemed pertinent in determining

that you should not be paroled: your lack of insight into your criminal thinking and

how it affects you [sic] life requires a longer period of incarceration. You are to be

reviewed in or after June 2021. At your next interview, the board will review your

filed and consider whether you have maintained a favorable recommendation for

parole from the department of corrections.

Id. (quoted verbatim).7

As the basis for conspiracy, Plaintiff recites his interpretation of SCI Mercer’s general

misconduct review process such that Corrections Defendants had “awareness” and thus

purportedly conspired against him. (ECF No. 129) ¶ 44. The summary judgment record otherwise

lacks evidentiary support to reveal that Corrections Defendants conspired to retaliate against

Plaintiff; in this regard, it merely contains Plaintiff’s bald assertions. For example, Plaintiff claims

7 On December 15, 2022, Plaintiff filed a notice of address change which indicated a non-

incarcerated address. (ECF No. 86).

Corrections Defendants conspired against Plaintiff to “caus[e] Plaintiff loss of parole,” and

“worked in unison to have Plaintiff’s Parole denied, harass and intimidate Plaintiff.” [sic] (ECF

No. 120) at p. 4.

Plaintiff next appears to argue that the denial of his June 2020 parole was an “adverse

action” caused by Corrections Defendants as retaliation. He generally asserts that Corrections

Defendants “could have carefully reviewed [Misconduct #D320655] and dismissed [it] but all did

not perform their duty in an unbiased manner thereby failing to perform their duty as required”.

(ECF No. 120) at p. 4.

Because Plaintiff was denied parole for various reasons that resulted from his own

behavior—not Corrections Defendants’ conduct, Plaintiff cannot prove retaliation. See (ECF No.

118-1) pp. 86-87. For instance, Plaintiff’s June 2020 parole was denied because of his level of risk

to the community; his failure to demonstrate motivation for success; and his refusal to accept

responsibility for offenses committed, among other reasons. Id. In addition, from before April 22,

2020, no record of Misconduct #D320655 in Plaintiff’s Department of Corrections records existed.

See Grievance # 859407, Appendix, Pl.[’s] Resp., Exhibit 17 (ECF No. 128-16) at p. 4. Misconduct

#D320655 was not the cause of Plaintiff’s June 2020 parole denial.

Corrections Defendants’ motion will be granted as to the remaining claim of First

Amendment retaliation—related to Misconduct #D320655, including conspiracy to retaliate,

against Corrections Defendants.

iii. Damages

Corrections Defendants argue that if Plaintiff established a constitutional violation, then

compensatory damages cannot be recovered because Plaintiff suffered no corollary physical injury

to the constitutional violation. (ECF No. 124) at p. 6. Plaintiff responds that because of his “eye

surgery 3-16-20,” [sic] (ECF No. 129) at p. 2, physical injuries ensued such that “[he] had

difficulties after being on anesthesia and medication hit his eye and head several times while being

confined unattended (falling of bed, tripping, forming limp on back of plaintiff hear).

Simultaneously dealing with skin rashes, foot pain, cysts, boils, insect bites.” [sic] (ECF No. 130)

at p. 3. The Court agrees with Corrections Defendants.

Compensatory damages for claims brought under § 1983 “may only be awarded to

compensate for actual injury suffered as a result of the violation of a constitutional right.” Allah v.

Al-Hafeez, 226 F.3d 247, 250 (3d Cir. 2000) (citing Memphis Cmty. Sch. Dist. v. Stachura, 477

U.S. 299, 308 (1986)). The Prison Litigation Reform Act provides that “[n]o Federal civil action

may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or

emotional injury suffered while in custody without a prior showing of physical injury[.]” 42 U.S.C.

§ 1997e(e). That said, §1997e(e) only applies to claims for compensatory damages. Mitchell, 318

F.3d at 533. It does not bar claims for nominal damages, punitive damages, or prospective

equitable relief, such as injunctive or declaratory relief. See Mitchell, 318 F.3d at 533–534; Doe v.

Delie, 257 F.3d 309, 314 (3d Cir. 2001) n. 3 (3d Cir. 2001) (“Section 1997e(e) does not bar claims

seeking nominal damages to vindicate constitutional rights, nor claims seeking punitive damages

to deter or punish egregious violations of constitutional rights.”); Allah, 226 F.3d at 252 (holding

that § 1997e(e) does not bar nominal and punitive damages for violating constitutional rights even

without physical injury).

Plaintiff’s FAC seeks compensatory and punitive damages. FAC, Paragraph V – Prayer for

Relief (ECF No. 69). Because Plaintiff fails to establish a physical injury because of the

constitutional violation, compensatory damages are precluded. 42 U.S.C. § 1997e(e). Although

Plaintiff does not explicitly seek nominal damages, he need not plead it. See Mitchell, 318 F.3d at

533. Thus, it is for the jury to determine whether Plaintiff is entitled to nominal and punitive

damages.

Corrections Defendants’ motion will be granted as to Plaintiff’s claim for compensatory

damages is precluded by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e).

IV. Conclusion

For these reasons, Plaintiff’s motion (ECF No. 119) will be denied, and Corrections

Defendants’ motion (ECF No. 123) will be denied in part and granted in part: denied as to the

remaining claim of First Amendment retaliation—related to Misconduct #D320655, against

Defendant Milliren; granted as to the remaining claim of First Amendment retaliation—related to

Misconduct #D320655, including conspiracy to retaliate, against Corrections Defendants; and

granted as to Plaintiff’s claim for compensatory damages is precluded by the Prison Litigation

Reform Act, 42 U.S.C. § 1997e(e).

An appropriate Order follows.

Dated: March 25, 2024

BY THE COURT:

s/Cynthia Reed Eddy

Cynthia Reed Eddy

United States Magistrate Judge

cc: ANDY BUXTON

(via ECF electronic notification)

Counsel of Record

(via ECF electronic notification)