NANCE v. BONDS

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LYLE D. NANCE,

Case No. 17–cv–00679–ESK–SAK

Plaintiff,

v.

OPINION

WILLIE BONDS, et al.,

Defendants.

KIEL, U.S.D.J.

THIS MATTER comes before the Court on defendants Willie Bonds,

Johnathan Gramp, and Dianna Sheehan’s motion for summary judgment

(Motion) (ECF No. 109.) The Motion is unopposed. For the following reasons,

I will grant the Motion and enter judgment in defendants’ favor.

I. PROCEDURAL HISTORY

Plaintiff filed a pro se complaint on January 31, 2017 alleging various

violations of his rights under 42 U.S.C. § 1983 (Complaint) while he was

incarcerated at South Woods State Prison (South Woods) and East Jersey State

Prison (East Jersey). (ECF No. 1 (Compl.).) Plaintiff also filed a separate

action in the Newark vicinage about his confinement in East Jersey. See

Nance v. Nogan, No. 17–cv–00672. He filed a motion to consolidate cases.

(ECF No. 14.) District Judge Noel L. Hillman denied the motion in this case

and stayed consideration of the Complaint while the consolidation motion was

pending in Newark. (ECF No. 15.)

On December 21, 2020, Judge Hillman lifted the stay and allowed the

Complaint to proceed in part. (ECF No. 17.) Judge Hillman dismissed

plaintiff’s claims regarding the alleged deprivation of an effective grievance

procedure, deprivation of property, sexual harassment, and conspiracy to

deprive plaintiff of his constitutional rights. (Id. passim). He permitted

plaintiff’s claims that South Woods administrator Willie Bonds, assistant

superintendent Johnathan Gramp, and mailroom supervisor Dianna Sheehan

retaliated against plaintiff for filing grievances to proceed. (Id. ¶ 15.)

II. FACTS

A. Allegations in Complaint

Plaintiff was transferred to South Woods from East Jersey on March 10,

2015. (Compl. ¶ 19.) Plaintiff went to pick up his personal property items,

but a South Woods mailroom officer refused to give him items that were

considered to be prohibited items at South Woods even though plaintiff had

been permitted to have them at East Jersey. (Id. ¶ 23.) Plaintiff filed a

prison inquiry on March 23, 2015 with Sheehan asking for an accounting of his

property that he had packed up in East Jersey. (Id. ¶ 24.) Prison officials

rejected the inquiry because he “initialed his first name … .” (Id.) Gramp

removed plaintiff from the NJSTEP1 program on March 26, 2015 and assigned

plaintiff a job that paid significantly less than plaintiff’s job at East Jersey.

(Id. ¶ 25.) Plaintiff sent the New Jersey Department of Corrections

Ombudsman a letter detailing his difficulties with South Woods. (Id. ¶ 34.)

Plaintiff filed a grievance on May 4, 2015 about the items that were being

withheld from him. (Id. ¶ 36.) The grievance was rejected and returned to

plaintiff with the instruction to file a property claim. (Id.) On May 12, 2015,

plaintiff sent a letter to Sheehan telling her that his father would pick up the

property and requesting the return of his surge protector. (Id. ¶ 38.) She did

1 “The New Jersey Scholarship and Transformative Education in Prisons

(NJSTEP) initiative is an association of higher education institutions in New Jersey

that works in partnership with the State of New Jersey Department of Corrections and

New Jersey State Parole Board to provide higher education courses toward a college

degree for students while they are incarcerated, and to assist in their transition to

college life upon release from prison.” (ECF No. 109–1 p. 8.)

not respond. (Id.) Plaintiff received a letter from the Ombudsman that

stated Sheehan “was ‘aware of the situation with [p]laintiff’s property, and was

‘unsure’ why his surge protector was rejected.” (Id. ¶ 39.) Sheehan also

claimed that plaintiff could not have his college books and calculator “because

he was ‘not currently active in the college program at [South Woods.]’” (Id.)

She also did not permit plaintiff to have his eyeglasses “because they were metal

frames when in fact, all three were plastic” or his sunglasses “because they were

not prescription, when in fact they were and transitional lenses.” (Id.)

Plaintiff got his surge protector back on May 15, 2015. (Id. ¶40.)

Plaintiff obtained permission to have his father collect his property as well

as an extension of time to collect the property. (Id. ¶ 41.) He wrote to

Sheehan asking that his items be mailed to his father because his father was

ill. (Id. ¶ 42.) She did not respond. (Id.) Plaintiff wrote to Bonds asking to

be transferred back to East Jersey and for help getting his property back, but

Bonds did not respond either. (Id. ¶ 45.)

On May 28, 2015, plaintiff was given “gang minimum status” and denied

“full minimum status.” (Id. ¶ 48.) Plaintiff sent a letter to Bonds objecting to

his transfer from East Jersey, classification status, removal from the NJSTEP

program, and the lack of response to his inquires. (Id. ¶ 49.) He filed a formal

grievance on June 3, 2015. (Id. ¶ 50.) Bonds rejected plaintiff’s grievance on

June 25, 2015. (Id. ¶ 55.)

On June 15, 2015, Sheehan disposed of plaintiff’s property. (Id. ¶ 52.)

Plaintiff filed a grievance on June 18, 2015 and sent a property claim to Bonds

on June 30, 2015. (Id. ¶¶ 53, 56.) He also sent Bonds a list of 49 items valued

at $ 3,357.08 that were missing. (Id. ¶ 56.) Despite paying to send the letter

via certified mail, the post office never received the mail. (Id.)

Plaintiff was taken to the hospital for a dislocated finger on July 10, 2015.

(Id. ¶ 58.) When he returned to the prison, he was taken to South Woods’s

extended care unit. (Id.) His property was taken to the unit’s storage room,

and he discovered that some items had been stolen or broken when he went to

retrieve his property on July 17, 2015. (Id. ¶ 59.) Plaintiff mailed another

complaint to Bonds on August 5, 2015 containing receipts for his discarded

property as well as for the damaged and stolen property that had been in the

storage room. (Id. ¶ 64.) Sheehan charged $5.53 to have the mail sent by

certified mail. (Id. ¶ 65.) Plaintiff filed an inquiry asking for the date that

his items arrived in the storage room,2 but staff returned the inquiry and gave

plaintiff directions on how to file a property claim “as if having knowledge that

an act of maleficence had occurred.” (Id. ¶ 68.) He filed another grievance

seeking compensation for money that Sheehan deducted from his account for

postage that he did not request. (Id. ¶ 72.) Bonds denied plaintiff’s property

claim on September 14, 2015. (Id. ¶ 76.)

Bonds wrote to plaintiff on September 29, 2015 stating that he could not

tell plaintiff why he had been transferred from East Jersey. (Id. ¶ 78.) Bonds

denied plaintiff’s request to be transferred back to East Jersey. (Id. ¶ 79.)

Bonds also acknowledged that South Woods had charged inmates to file

inquiries on the prison kiosks. (Id. ¶ 80.) Plaintiff states this continued until

July 15, 2016. (Id. ¶ 81.)

On December 7, 2015, plaintiff was directed to pack up his property

because he was being transferred to Northern State Prison (Northern State).

(Id. ¶ 88.) He packed 10 boxes to be transferred with him. (Id.) The transfer

was cancelled, but Sheehan “allowed” plaintiff’s items to be shipped to Northern

State on December 9, 2015. (Id. ¶ 89.) Plaintiff filed a grievance claiming

this had been done to retaliate against him. (Id.)

2 Plaintiff later learned through a different inquiry that staff did not know the

specific date but that his property should have arrived the same day plaintiff went to

the extended care unit, i.e., on July 10, 2015. (Compl. ¶ 70.)

Plaintiff received some of his property on December 22, 2015. (Id. ¶ 91.)

He filed a grievance against Sheehan on December 24, 2015 for an

“unreasonable delay of [six] additional days before [he] received the remaining

items minus his ‘missing’ Grand Jury and Post Conviction Relief transcripts.”

(Id.) He filed an inquiry on December 29, 2015 asking why it had taken 17

days to send out his word processor for repair. (Id. ¶ 92.) Plaintiff filed

another grievance regarding his missing transcripts on January 7, 2016 and

another inquiry about his word processor on January 13, 2016. (Id. ¶¶ 94, 95.)

B. Defendants’ Statement of Facts3

Plaintiff received the Inmate Handbook when he arrived at South Woods

in March 2015. (ECF No. 109–20 ¶ 8.) It states that “non-permissible

property shall be removed by a family member or friend within [30] days after

written notification.” (Id.) It also states that a “correctional facility shall

hold non-permissible for property for up to [60] days and that the correctional

facility shall not be liable for non-permissible property held longer than [60]

days.” (Id. ¶ 9.) Claims of lost, damaged, or destroyed property had to be filed

within 15 days of discovery. (Id. ¶ 10.) “The Institutional Classification

Committee will make all job assignments. The job needs of the institution

have priority.” (Id. ¶ 12 (internal quotation marks omitted).) The handbook

3 Plaintiff did not submit opposition to the Motion when it was originally filed.

(ECF No. 110.) On January 23, 2024, Judge Hillman denied plaintiff’s request to stay

the proceedings until plaintiff was released from prison but, “in light of [p]laintiff’s pro

se status and the preference that matters be decided on the merits,” briefly extended

the time for plaintiff to file opposition to the Motion to February 16, 2024. (ECF No.

114 ¶¶ 9, 10.) Judge Hillman warned plaintiff that the Motion “will be considered

unopposed if [p]laintiff does not submit his papers by that date.” (Id.) Plaintiff did

not submit any opposition by the time set by Judge Hillman. I denied plaintiff’s May

17, 2024 request for a further extension because he had not asserted any facts that

would warrant another extension. (ECF No. 117.) Accordingly, the Motion is

considered unopposed and defendants’ statement of material of facts is “deemed

undisputed for purposes of the summary judgment motion.” L. Civ. R. 56.1(a).

states that an inmate may request to be enrolled in educational programs but

acceptance is not automatic. (Id. ¶ 13.)

According to Bonds, plaintiff was transferred to South Woods for

administrative reasons. (Id. ¶ 16.) A prisoner could be transferred within the

New Jersey Department of Corrections for several reasons. (Id. ¶ 17.) Bonds

was not involved with plaintiff’s transfer to South Woods beforehand and

“would not expect anyone to tell him about [plaintiff’s] history.” (Id. ¶ 18.) He

states that all inmates that were “mistakenly charged a fee were reimbursed.”

(Id. ¶ 19.)

Bonds sent plaintiff a memorandum on September 14, 2015 responding to

plaintiff’s property claim. (Id. ¶ 20.) He told plaintiff that plaintiff had been

notified on April 7, 2015 that he had 60 days to have a friend or family member

retrieve his property. (Id. ¶ 21.) Bonds also told plaintiff that his property

had been disposed of on June 15, 2015 because no one had claimed the property

for plaintiff. (Id. ¶ 22.) Plaintiff admitted at his deposition that he had

received the memorandum. (Id. ¶ 23.) He also admitted that Bonds had

never indicated that he was aware of plaintiff’s grievances at East Jersey. (Id.

¶ 14.) Bonds also never said anything to plaintiff about retaliating against

him. (Id. ¶ 15.)

Gramp stated that he would have only learned about plaintiff’s transfer

from East Jersey from the daily movement sheet and that he did not know

“anything about [plaintiff] that distinguished him from other general

population prisoners.” (Id. ¶ 28.) Gramp denied that he retaliated against

plaintiff when plaintiff was not put into the NJSTEP program, which was just

getting started at South Woods. (Id. pp. 29, 30.) Plaintiff’s “prior

participation in the program at East Jersey State Prison placed him at a higher

education level.” (Id. ¶ 30.) Plaintiff started NJSTEP at South Woods on

June 25, 2015. (Id. ¶ 31.) Gramp told plaintiff “that due to his accumulated

amount of points, [plaintiff’s] status was being changed to ‘gang minimum

status’ which was a better status than [plaintiff’s] current status and it meant

[plaintiff] would be afforded more liberties.” (Id. ¶ 33.)

According to Sheehan, plaintiff’s property arrived at South Woods between

March 12, 2015 and March 19, 2015. (ECF No. 109–20 ¶ 34.) She never

spoke with plaintiff about any retaliation. (Id. ¶ 36.) Sheehan did not know

about plaintiff’s grievances at East Jersey as her first contact with plaintiff was

through his March 23, 2015 property grievance. (Id. ¶¶ 37, 38.) Some of his

property was found after he filed the grievance. (Id. ¶ 39.) Plaintiff received

multiple notices from South Woods staff about the need to claim his property.

(Id. ¶ 40.) Sheehan responded to plaintiff’s property grievance on June 25,

2015, stating that she had given plaintiff an additional 30 days beyond the 60

days set forth in the handbook to have someone retrieve his property. (Id.

¶¶ 40, 41, 42.) Plaintiff failed to have anyone pick up the property. (Id. ¶¶ 44,

46.) Sheehan acknowledged that plaintiff had been overcharged for mail and

had contacted the business office to have them refund plaintiff. (Id. ¶ 50.)

III. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material

if it “might affect the outcome of the suit under the governing law” and a dispute

about a 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 248.

The moving party has the initial burden of showing the basis for its motion

and that there is no genuine dispute of material fact. See Celotex Corp., 477

U.S. at 323. The moving party must cite specific materials in the record. Fed.

R. Civ. P. 56(c)(1)(A). “[T]he burden on the moving party may be discharged

by ‘showing’ … that there is an absence of evidence to support the nonmoving

party’s case.” Celotex Corp., 477 U.S. at 325. Once the moving party has

satisfied its burden, the non–moving party, “must present affirmative evidence

in order to defeat a properly supported motion for summary judgment.”

Anderson, 477 U.S. at 257. “While the evidence that the non–moving party

presents may be either direct or circumstantial, and need not be as great as a

preponderance, the evidence must be more than a scintilla.” Hugh v. Butler

Cnty. Fam. YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citing Anderson, 477 U.S.

at 251).

IV. DISCUSSION

Defendants move for summary judgment on plaintiff’s claims that they

retaliated against him because he filed grievances and inquiries at East Jersey

and South Woods. To prove his retaliation claim, plaintiff must show that: “(1)

he was engaged in constitutionally protected conduct, (2) he suffered some

adverse action at the hands of prison officials, and (3) his constitutionally

protected conduct was a substantial or motivating factor in the decision’ to take

that action.” Wisniewski v. Fisher, 857 F.3d 152, 156 (3d Cir. 2017) (cleaned

up). “Once the prisoner has made his prima facie case, the burden shifts to the

defendant to prove by a preponderance of the evidence that it ‘would have made

the same decision absent the protected conduct for reasons reasonably related

to a legitimate penological interest.’” Oliver v. Roquet, 858 F.3d 180, 190 (3d

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

Defendants concede that filing prison grievances and inquiries are

constitutionally protected activities. (ECF No. 109–1 p. 11.) In addition to

asserting that plaintiff has not satisfied his burden of proof, defendants also

argue they are entitled to qualified immunity. (Id. p. 20.)

After reviewing the evidence submitted by defendants, I find that they

have shown that plaintiff cannot establish that his constitutionally protected

activity was a substantial or motivating factor in any actions they took. See

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

A. Gramp4

Plaintiff alleges Gramp did not permit him to continue the NJSTEP

program after transferring to South Woods and assigned plaintiff to the lowest

paying job. (Compl. ¶ 122.) He also alleges that Gramp changed his

classification to “gang minimum status” to punish him for filing grievances at

East Jersey. (Id. ¶ 48.)

Plaintiff testified in his deposition that he could not say why Gramp “did

what he did” and could “only tell you the results of what happened to [him].”

(ECF No. 109–4 p. 21.) He relies on an “underlying belief … that [he] was

going to be punished … for [his] activities at [East Jersey] once [he] got to [South

Woods]” and an assumption that Gramp knew plaintiff was being transferred

to South Woods as Gramp was part of the administrative staff. (Id. pp. 21, 33.)

Gramp never made a statement to plaintiff that indicated Gramp was

motivated by plaintiff’s grievance activity at East Jersey. (Id. p. 23.) Plaintiff

theorizes that Gramp set his classification as “gang minimum status” in order

to keep him from participating in NJSTEP, but he admitted that Gramp never

said anything to him that would support this theory. (Id. p. 54.) Plaintiff also

admitted that classification status is determined by an objective score

4 The copy of Gramp’s responses to plaintiff’s interrogatories that was filed with

the Motion is unsigned. (ECF No. 109–6 p. 13.) “The evidentiary value of this

declaration is drastically reduced because it is unsigned.” Arnold v. Gilmore, No.

2:16–cv–01299, 2019 WL 430503, at *7 n. 7 (W.D. Pa. Feb. 4, 2019). I will not consider

this document as part of the Motion. See Bastista v. U.S. Dep’t of Just., 129 F. App’x

724, 725 (3d Cir. 2005) (“We will not consider the unsigned declaration that the

Government submitted to show that Bastista failed to exhaust his administrative

remedies.”)

calculation based on the individual prisoner and their behavior and that even

prisoners with the highest custody status are permitted to participate in

NJSTEP. (Id. pp. 51, 52.)

After considering the undisputed record and evidence, I find that plaintiff

cannot establish Gramp was motivated by plaintiff’s East Jersey grievances.

To the extent plaintiff relies on the short period of time between his transfer to

South Woods and Gramp’s actions to prove causation, he needs “to show … that

the decision maker had knowledge of the protected activity.” Moore v. City of

Philadelphia, 461 F.3d 331, 351 (3d Cir. 2006), as amended (Sept. 13, 2006).

“It is not reasonable for a factfinder to infer that [defendant’s] reaction was

motivated by an intent to retaliate for conduct of which the … decision maker

was not aware.” Id. Plaintiff has not supplied this evidence, citing only his

“underlying belief” that retaliation played a role. “A non–moving party must

point to concrete evidence in the record which supports each essential element

of his case.” Herbert v. Newton Mem’l Hosp., 933 F. Supp. 1222, 1229 (D.N.J.

1996), aff’d, 116 F.3d 468 (3d Cir. 1997). “ [A] party cannot rely upon self–

serving conclusions, unsupported by specific facts in the record.” Id. Gramp

has shown that plaintiff cannot meet his burden on proof for his retaliation

claim; therefore, Gramp is entitled to judgment as a matter of law.

B. Bonds

Plaintiff alleges Bonds “personally direct[ed] or acquiesce[ed] to the

inexplicable transfer” to Northern State out of retaliation and to prevent him

from filing further grievances. (Compl. ¶ 113.) He also claims Bonds allowed

his property to be destroyed. (Id. ¶ 117.)

According to Bonds, prisoners within the New Jersey Department of

Corrections may be transferred between state prisons for a number of reasons.

(ECF No. 109–5 ¶ 2.) Plaintiff was transferred for administrative reasons, the

specifics of which “cannot be shared with the inmate population” as it concerns

the security and operation of the facilities. (Id. ¶¶ 2, 4.) Bonds stated that he

usually would not know about a prisoner’s disciplinary history when they

arrived at South Woods, especially if they had no prior disciplinary history like

plaintiff. (Id. ¶ 3.) Bonds denied authorizing or acquiescing to the

destruction of plaintiff’s property and denied that his “express written or verbal

authorization” was required to destroy property. (Id. ¶¶ 8, 17.) Generally

speaking, “[p]roperty issues were handled by mailroom staff.” (Id. ¶ 7.)

Bonds had no recollection of receiving a letter from plaintiff that requested help

in retrieving plaintiff’s property or about plaintiff’s father trying to make

arrangements to pick up the property. (Id. ¶¶ 10, 11.) Bonds certified that

he did not arrange to have plaintiff transferred to Northern State out of

retaliation. (Id. ¶ 22.) Bonds states that all inmates who were mistakenly

charged fees for copies of inquiries or grievances were refunded. (Id. ¶ 23.)

Bonds has presented evidence that he was not aware of plaintiff’s history

of grievances at East Jersey and that he was not involved in the destruction of

plaintiff’s property or plaintiff’s transfer to Northern State. He also has

submitted evidence that the unauthorized charges to plaintiff’s account were

the result of a prison-wide problem, which was rectified, and not a targeted

action against plaintiff. Plaintiff has not produced any evidence to contradict

Bonds’s sworn statements.

Plaintiff testified at his deposition that he had no personal knowledge that

Bonds knew about his East Jersey grievances, stating only that he was “sure

[Bonds] was privy to [his history] … .” (ECF No. 109–4 pp. 71, 72.) Plaintiff

admitted that he never had a direct conversation with Bonds about anything.

(Id. p. 80.) “‘[A]n inference based upon a speculation or conjecture does not

create a material factual dispute sufficient to defeat summary judgment.’

Inferences must flow directly from admissible evidence.” Halsey v. Pfeiffer,

750 F.3d 273, 287 (3d Cir. 2014) (quoting Robertson v. Allied Signal, Inc., 914

F.2d 360, 382 n. 12 (3d Cir. 1990)); see also Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986). Bonds cannot have been motivated by plaintiff’s East

Jersey grievances if he was not aware of them. Moore v. City of Philadelphia,

461 F.3d 331, 351 (3d Cir. 2006), as amended (Sept. 13, 2006).

Plaintiff also has not established causation between his grievances filed at

South Woods and the cancelled transfer to Northern State. “When a plaintiff

relies solely on circumstantial evidence of temporal proximity, the time between

the protected conduct and the adverse action is often measured in days rather

than weeks or months.” Owens v. Deb, No. 4:22–cv–01571, 2024 WL 387675,

at *5 (M.D. Pa. Jan. 31, 2024) (citing Conard v. Pennsylvania State Police, 902

F.3d 178, 184 (3d Cir. 2018)). Plaintiff filed a state tort claim about the June

15 destruction his property on August 31 and September 8, 2015. (Compl.

¶¶ 73, 74.) Plaintiff submitted a prison property claim to Bonds on June 30,

2015, (Id. ¶ 56), which Bonds denied on September 14, 2015, (ECF No. 109–8

p. 1). Plaintiff was not almost transferred to Northern State until December

9. (ECF No. 109–4 p. 62.) A difference of nearly three months between

plaintiff’s property grievances and the cancelled transfer is not unusually

suggestive timing. “Where the temporal proximity is not so close as to be

unduly suggestive, the appropriate test is timing plus other evidence.” Watson

v. Rozum, 834 F.3d 417, 424 (3d Cir. 2016) (cleaned up). Plaintiff has not

produced “other evidence” of retaliation. Moreover, the undisputed evidence

in the record does not support a reasonable inference of a pattern of antagonism.

Accordingly, I find that Bonds has shown that plaintiff cannot meet his burden

on proof for his retaliation claim; therefore, Bonds is entitled to judgment as a

matter of law.

C. Sheehan

Plaintiff alleges that Sheehan caused the destruction of his property and

improperly charged him fees in order to retaliate against him for his East Jersey

and South Woods grievances. (Compl. ¶ 138.)

Sheehan certified that plaintiff’s property arrived at South Woods from

East Jersey sometime between March 12, 2015 and March 19, 2015. (ECF No.

109–7 ¶ 2.) Plaintiff would have been provided “an inventory slip from both

[East Jersey] and [South Woods] which would have contained an itemized list

of his property.” (Id. ¶ 4.) Plaintiff filed a grievance on March 23 asking to

inventory his property from East Jersey. (ECF No. 109–4 p. 86.) He sent

another letter to Sheehan on March 26 stating that certain transcripts and legal

briefs were missing. (Id. p. 88.) Plaintiff received some of his property as a

result of his grievances. (Id. p. 91.)

On April 7, plaintiff was informed that he had 60 days to pick up his items.

(ECF No. 109–8 p. 1.) Plaintiff’s father spoke with Sheehan and told her that

he would come pick up the items on May 26, so Sheehan extended the time for

plaintiff to retrieve his items. (ECF No. 109–10.) Plaintiff’s father never

arrived to pick up the items and Sheehan did not hear anything else from

plaintiff, so plaintiff’s items were destroyed on June 15 pursuant to South

Woods’s policy. (Id; ECF No. 109–9 p. 98.) Sheehan denied that she disposed

of plaintiff’s property in order to retaliate against him for filing grievances and

complaints. (ECF No. 109–7 ¶ 17.) She further denied purposely sending

plaintiff’s property to Northern State after the transfer was cancelled or

overcharging him to retaliate against him. (Id. ¶¶ 22, 25.)

Once again, there is nothing but speculation supporting plaintiff’s

retaliation claim against Sheehan. “[S]ummary judgment is essentially ‘put

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

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

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

v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); see also Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 257 (1986) (“[T]he plaintiff must present affirmative

evidence in order to defeat a properly supported motion for summary

judgment.”). “[C]ausation, like any other fact, can be established from the

evidence gleaned from the record as a whole.” Watson v. Rozum, 834 F.3d 417,

424 (3d Cir. 2016). There is no evidence that Sheehan was aware of any

grievances filed at East Jersey, and plaintiff never had a direct conversation

with Sheehan about anything. (ECF No. 109–4 p. 80.)

Plaintiff’s deposition testimony is full of speculation and assumptions

about Sheehan’s motivations, but he has not submitted any affirmative

evidence from which a reasonable factfinder could rule in his favor. He argued

during his deposition that Sheehan did not follow the relevant policy about

notifying him of the specific date his property would be destroyed, (see, e.g., ECF

No. 109–4 pp. 94, 98, 99, 103), but plaintiff received a letter from the

Ombudsman on May 14, 2015 stating that “someone must pick-up the items in

question by May 19th.” (ECF No. 109–12.) The letter from assistant

superintendent Christopher Cline dated May 18, 2015 only confirms that

plaintiff was to arrange to have his father pick up the property. (ECF No. 109-

13.) Sheehan held onto plaintiff’s property for another 28 days; Cline’s letter

did not require Sheehan to hold the property indefinitely. After the

considering the record as a whole, there is insufficient to create a genuine issue

of material fact that Sheehan had a retaliatory motive for disposing of plaintiff’s

property.

Alternatively, Sheehan has shown by a preponderance of the evidence that

she would have made the same decision to destroy the property regardless of

whether plaintiff had filed grievances. Oliver v. Roquet, 858 F.3d 180, 190 (3d

Cir. 2017). South Woods policy only requires the mailroom to hold onto excess

property for a maximum of 60 days, after which time the prison is no longer

responsible for any property. (ECF No. 109–9 p. 98.) “The property will be

disposed of if it is not removed by a specific date.” (Id.) Plaintiff received

notices from the mailroom on March 19 and March 26 that he had unauthorized

items in the South Woods property room. (ECF No. 109–10.) On April 7,

plaintiff was informed that he had 60 days to pick up his items. (ECF No. 109–

8 p. 1.) Plaintiff received a letter from the Ombudsman on May 14, 2015

stating that “someone must pick-up the items in question by May 19th.” (ECF

No. 109–12.) Sheehan gave plaintiff extra time beyond this date because

plaintiff’s father said he would come to pick everything up on May 26. (ECF

No. 109–10.) In total, plaintiff’s property was stored for 97 days after his

arrival at South Woods and 69 days after receiving the March 31, 2015 property

memo. (ECF No. 109–8 p. 1.) This was longer than South Woods was

required to store his property, supporting Sheehan’s assertion that she would

have disposed of the property as part of normal policy and procedure even in

the absence of any grievances from plaintiff. (ECF No. 109–7 ¶ 16.)

Plaintiff has not presented any evidence from which a reasonable jury

could conclude that his grievances were a substantial or motivating factor for

defendants’ actions. Therefore, I will grant the motion for summary

judgment.5

D. Doe Defendants

I will also dismiss plaintiff’s claims against the still unnamed Doe

defendants. (Compl. ¶ 16.) Fact discovery closed May 31, 2023. (ECF No.

83.) Despite the close of discovery, plaintiff has failed to identify these

5 As summary judgment will be granted in favor of Gramp, Bonds, and Sheehan,

it is unnecessary to address their qualified immunity argument beyond noting that the

evidence viewed in the light most favorable to plaintiff does not show that defendants

violated a federal statutory or constitutional right.

unnamed defendants. Because plaintiff has failed to identify them and

because the time for doing so has since past, I must dismiss them pursuant to

Federal Rule of Civil Procedure 21, which allows a court to “on motion or on its

own, … at any time, on just terms, add or drop a party.” Fed. R. Civ. P. 21; see

also Blakeslee v. Clinton County, 336 F. App’x 248, 250 (3d Cir. 2009) (affirming

dismissal of Doe defendants pursuant to Rule 21). “Use of John Doe

defendants is permissible in certain situations until reasonable discovery

permits the true defendants to be identified. If reasonable discovery does not

unveil the proper identities, however, the John Doe defendants must be

dismissed.” Id. Plaintiff has had more than enough time to allow him to

identify the individual unnamed defendants and thereafter to amend the

complaint, but he has failed to do so.

V. CONCLUSION

For the reasons stated above, I will grant defendants’ unopposed motion

for summary judgment. (ECF No. 109.) An appropriate Order accompanies

this Opinion.

/s/ Edward S. Kiel

EDWARD S. KIEL

UNITED STATES DISTRICT JUDGE

Dated: October 17, 2024