Hagan v. Harry

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DAMONT HAGAN,

Plaintiff CIVIL ACTION NO. 1:22-CV-00868

v. (MEHALCHICK, J.)

U/K STEIN, et al.,

Defendants.

MEMORANDUM

Plaintiff Damont Hagan (“Hagan”), a state inmate in the custody of the Pennsylvania

Department of Corrections (“DOC”), commenced this action pursuant to 42 U.S.C. § 1983.

(Doc. 1). The matter is proceeding via an amended complaint. (Doc. 20). The remaining

Defendants are Sergeant Funk, Licensed Psychologist Manager Stein, and Psychology

Services Specialist Gross. Before the Court is Defendants’ motion (Doc. 45) for summary

judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, the

Court will deny Defendants’ motion.

I. BACKGROUND AND PROCEDURAL HISTORY1

Beginning in March of 2020, the DOC made changes to slow the spread of the

coronavirus disease 2019 (“COVID-19”) within its institutions, including implementing a

system wide lockdown across all institutions. (Doc. 50, at 1, ¶ 1; Doc. 67, at 1, ¶ 1). When the

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

of Civil Procedure 56 be supported “by a separate, short, and concise statement of the material

facts, in numbered paragraphs, as to which the moving party contends there is no genuine

issue to be tried.” M.D. PA. LOCAL RULE OF COURT 56.1. A party opposing a motion for

summary judgment must file a separate statement of material facts, responding to the

numbered paragraphs set forth in the moving party’s statement and identifying genuine issues

to be tried. M.D. PA. LOCAL RULE OF COURT 56.1. Unless otherwise noted, the factual

background herein derives from the parties’ statements of material facts. (Doc. 50; Doc. 67).

system wide lockdown ended, inmates who contracted COVID-19 were housed in isolation

in the infirmary. (Doc. 50, at 1, ¶ 2; Doc. 67, at 1, ¶ 2). When bed capacity in the infirmary

was exceeded, D Block at the State Correctional Institution at Camp Hill, Pennsylvania

(“SCI-Camp Hill”) was used as an additional quarantine unit for medical isolation purposes.

(Doc. 50, at 1, ¶ 3; Doc. 67, at 1, ¶ 3).

Hagan was housed at SCI-Camp Hill in February 2021. (Doc. 50, at 1, ¶ 4; Doc. 67,

at 1, ¶ 4). Elicia Stein was a Licensed Psychologist Manager at SCI-Camp Hill in February

2021. (Doc. 50, at 2, ¶ 7; Doc. 67, at 1, ¶ 7). Thaddeus Gross was a Psychology Services

Specialist at SCI-Camp Hill in February 2021. (Doc. 50, at 2, ¶ 8; Doc. 67, at 1, ¶ 8). Sergeant

Funk was a Corrections Officer 2 at SCI-Camp Hill in February 2021. (Doc. 50, at 2, ¶ 9;

Doc. 67, at 1, ¶ 9).

Hagan had no issues with the conditions he experienced when all institutions were on

a system wide lockdown for weeks at the beginning of the pandemic. (Doc. 50, at 2, ¶ 10;

Doc. 67, at 1, ¶ 10). Additionally, Hagan had no issues with the conditions he experienced

when he contracted COVID-19 and was quarantined on blocks other than D Block. (Doc. 50,

at 2, ¶ 10; Doc. 67, at 1, ¶ 10).

Hagan contracted COVID-19 and was sent to D Block for a two-week quarantine.

(Doc. 50, at 2, ¶ 11; Doc. 67, at 1, ¶ 11). Defendants maintain that when Hagan was escorted

to D Block, Sergeant Funk directed him to a cell that was assigned to Hagan from a

predetermined list created by someone other than Sergeant Funk. (Doc. 50, at 2-3, ¶ 12).

Defendants maintain further that Sergeant Funk had no involvement with what occurred

prior to inmates being placed on D Block. (Doc. 50, at 2-3, ¶ 12). In response, Hagan contends

that Sergeant Funk controlled inmate placement and “personally created a list that identified

cells that were ‘filthy’ and used these cells to put the inmates in…who wished to file

grievances.” (Doc. 67, at 1, ¶ 12). Defendants assert that D Block was still considered a general

population housing unit when it was used for quarantine purposes. (Doc. 50, at 3, ¶ 13).

Hagan contends that due to the nature of the quarantine, inmates were in their cells for 23

hours per day, essentially resulting in solitary confinement. (Doc. 67, at 1, ¶ 3). On a weekly

and sometimes daily basis throughout the pandemic, psychology staff conducted cell door

contacts to check on all inmates in the quarantine units during their rounds. (Doc. 50, at 3, ¶

14). Hagan asserts that he was placed in quarantine on February 25, 2021, and was checked

by psychology staff on March 3, 2021, March 8, 2021, and March 9, 2021. (Doc. 67, at 2, ¶

14).

On March 3, 2021, Defendants Stein and Gross met with Hagan and put in a

psychiatry referral that same day. (Doc. 50, at 3, ¶ 15; Doc. 67, at 2, ¶ 15). Hagan asserts that

this referral was considered “non-emergent.” (Doc. 67, at 2, ¶ 15). Defendants maintain that

Hagan was seen by psychiatry the following day, and it was reported that Hagan recanted his

story about a suicide attempt when talking to psychiatry staff. (Doc. 50, at 3, ¶ 16; Doc. 67,

at 2, ¶ 16). Hagan denies that he recanted any story. (Doc. 67, at 2, ¶ 16). Staff confirmed that

Hagan was seen by psychology and psychiatry staff according to policy standards during his

placement on D Block. (Doc. 50, at 3, ¶ 17; Doc. 67, at 2, ¶ 17). Hagan avers that psychology

staff should have seen him daily. (Doc. 67, at 2, ¶ 17).

Defendants further assert that Hagan’s claims of substandard conditions in the cells on

D Block were investigated and found to be unsubstantiated. (Doc. 50, at 3, ¶ 18). Hagan

counters that “[a]t no time did any staff come to [his] cell during his stay on D-block.” (Doc.

67, at 2, ¶ 18).

II. LEGAL STANDARDS

A. MOTION FOR SUMMARY JUDGMENT

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be

granted only if “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” only if it might

affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return

a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary

judgment motion, all inferences “should be drawn in the light most favorable to the non-

moving party, and where the non-moving party’s evidence contradicts the movant’s, then the

non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir.

1994). 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.” See M.D. Pa. 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. Morrison v. United States, No. 1:20-

CV-01571, 2021 WL 4192086, at *3 (M.D. Pa. Sept. 15, 2021) (citing Mala v. Crown Bay

Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (noting that pro se parties “cannot flout

procedural rules—they must abide by the same rules that apply to all other litigants”)).

A federal court should grant summary judgment “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 a

judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000).

In deciding a motion for summary judgment, the court’s function is not to make credibility

determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249.

Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson,

477 U.S. at 249.

The party seeking summary judgment “bears the initial responsibility of informing the

district court of the basis for its motion,” and demonstrating the absence of a genuine dispute

of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes

such a showing, the non-movant must go beyond the pleadings with affidavits or declarations,

answers to interrogatories, or the like to demonstrate specific material facts which give rise to

a genuine issue. FED. R. CIV. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce

evidence to show the existence of every element essential to its case, which it bears the burden

of proving at trial, because “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. Furthermore, mere conclusory allegations and self-serving testimony, whether made in

the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment

when uncorroborated and contradicted by other evidence of record. See Lujan v. Nat’l Wildlife

Fed’n, 497 U.S. 871, 888 (1990); see also Thomas v. Delaware State Univ., 626 F. App’x 384, 389

n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is

contradicted by the record, is insufficient to defeat summary judgment.”); Nat’l Labor Rel. Bd.

v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff’s] testimony . . . amounts to an

unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s

burden of proof on summary judgment.”). With the aforementioned standards in mind, a

document filed pro se is “to be liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).

B. 42 U.S.C. SECTION 1983

Section 1983 is the vehicle by which private citizens may seek redress for violations of

federal constitutional rights committed by state officials. See 42 U.S.C. § 1983. The statute

states, in pertinent part:

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

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

causes to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

“Section 1983 is not a source of substantive rights,” but is merely a means through

which “to vindicate violations of federal law committed by state actors.” See Pappas v. City of

Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536 U.S.

273, 284-85 (2002)). To state a cause of action under Section 1983, a plaintiff must allege that:

(1) the conduct complained of was committed by persons acting under color of state law; and

(2) the conduct violated a right, privilege, or immunity secured by the Constitution or laws of

the United States. See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005)

(quoting West v. Atkins, 487 U.S. 42, 48 (1988)).

III. DISCUSSION

The sole remaining claim in this action is a First Amendment retaliation claim against

Defendants Funk, Stein, and Gross. The First Amendment offers protection for a wide variety

of expressive activities. See U.S. CONST. amend I. These rights are lessened, but not

extinguished in the prison context, where legitimate penological interests must be considered

in assessing the constitutionality of official conduct. See Turner v. Safley, 482 U.S. 78, 89

(1987). Retaliation for expressive activities can infringe upon an individual’s rights under the

First Amendment. See Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000).

To prevail on a retaliation claim, Hagan bears the burden of demonstrating three

elements. First, he must prove that he was engaged in a constitutionally protected activity.

See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Second, he must demonstrate that he

“suffered some ‘adverse action’ at the hands of the prison officials.” Rauser, 241 F.3d at 333

(quoting Allah, 229 F.3d at 225). This requirement is satisfied by showing adverse action

“sufficient ‘to deter a person of ordinary firmness’ from exercising his First Amendment

rights.” Allah, 229 F.3d at 225 (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)).

Significantly, the effect of the adverse action must be more than de minimis. McKee v. Hart, 436

F.3d 165, 170 (3d Cir. 2006). Third, Hagan is required to show that “his constitutionally

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

against him. Rauser, 241 F.3d at 333 (quoting Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

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

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.” Rauser, 241 F.3d at 334. “This is often referred to as the ‘same decision

defense.’” Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016). 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).

A. DEFENDANT FUNK

Hagan contends that Defendant Funk placed him in cell 512 on D Block in retaliation

for requesting a grievance to air his complaints about staff being responsible for spreading

COVID-19. Hagan’s announcement of his intent to file a grievance constitutes

constitutionally protected conduct. See Stewart v. Varano, 601 F. App’x 107, 111 (3d Cir. 2015)

(not precedential) (stating intention to grieve satisfied first element of retaliation claim).

Additionally, Hagan’s complaints regarding prison staff may be considered constitutionally

protected activity. See Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282-83 (3d Cir. 2004) (“All

speech is protected by the First Amendment except narrow categories that are entitled to no

protection, including obscenity and ‘fighting words.’”). He has thus satisfied the first Rauser

prong.

With respect to the second prong of the Rauser test, depending on the circumstances,

a prisoner’s transfer to an undesirable cell block may represent an adverse action for purposes

of a retaliation claim. See, e.g., Allah, 229 F.3d at 225-26 (holding that continued placement in

administrative confinement with reduced privileges could be an adverse action). Hagan

asserts that his cell on D Block had inadequate airflow, inadequate space to exercise, was

filthy and lacked cleaning supplies, was extremely hot, had no working electrical outlet, was

infested with rodents, and that he was placed on the top tier while using crutches, and was

confined to his cell for 23 hours per day. (Doc. 20, at 4-5, ¶ 18; Doc. 66, at 4-5; Doc. 68, at 2-

3, ¶¶ 4-6). Hagan conclusively claims that these conditions amounted to restricted housing.

2Hagan primarily states that he was placed in cell 51 on D Block, though he also states

that he was placed in cell 50 on D Block. (See Doc. 66, at 4; Doc. 68-1, at 2, ¶¶ 4-5; Doc. 68-

2, at 13). This appears to be a mere typographical error, and the Court assumes that Hagan

was housed in cell 51 on D Block at all relevant times.

Hagan has presented evidence that his cell on D Block was less desirable than his previous

location and has demonstrated that a factfinder could conclude that this transfer was sufficient

to deter a person of ordinary firmness from exercising their First Amendment rights. Hagan

has met prong two.

The Court must next determine whether there is a causal connection between the

exercise of the constitutional right and the adverse action. Hagan has established an unusually

suggestive temporal proximity between his protected conduct and Defendant Funk’s adverse

action to support an inference of retaliatory motive—Defendant Funk purportedly placed

Hagan in cell 51 on D Block on the very day that Hagan announced his intention to grieve

his allegation that staff transmitted COVID-19 to inmates. Defendants argue that Funk was

not substantially motivated by Hagan’s request to file a grievance against other staff members.

(Doc. 51, at 11). However, there is evidence that Funk placed Hagan, as well as other inmates,

in certain cells on D Block after they requested grievance forms. (Doc. 68, at 2-3; Doc. 68, at

6-9; Doc. 68, at 11-12; Doc. 68, at 17-18). Hagan has satisfied the third Rauser prong.

Assuming that causation exists, Defendants invoke the same decision defense. They

argue that Funk would have made the same decision even in the absence of the protected

activity, i.e., Hagan’s complaint about prison staff and request to file a grievance. (Doc. 51,

at 11-12). Based on the record, the Court concludes that there is a genuine dispute as to

whether Defendant Funk would have assigned Hagan to cell 51 on D Block, even in the

absence of Hagan’s protected conduct. Although Defendants argue that Hagan was already

assigned to the cell block by other staff members and Funk’s duties only involved directing

inmates to their pre-assigned cells, Hagan has presented evidence disputing Defendants’

position. (Doc. 49-5, at 2, ¶ 4; Doc. 68). Specifically, Hagan has submitted declarations from

fellow inmates who attest that: (1) although inmates were assigned to D Block, they were not

assigned a specific cell until they spoke to Defendant Funk upon entry to the housing block;

(2) when Defendant Funk was directing inmates to their cells on D Block, he assigned inmates

to cells marked “filthy” when they voiced their intent to file a grievance; (3) Defendant Funk

reassigned inmates to a more desirable housing block when they retracted their intent to file

a grievance; and (4) there were many vacant cells on more desirable housing blocks. (Doc.

68, at 6-9; Doc. 68, at 11-12; Doc. 68, at 17-18). In light of the evidence in the record and

recognizing that all disputed facts must be viewed in the light most favorable to Hagan and

all reasonable inferences must be drawn in his favor, there is sufficient evidence for a

reasonable factfinder to conclude that Defendant Funk acted with retaliatory intent. The

Court will deny the motion for summary judgment with respect to the retaliation claim against

Defendant Funk.

B. DEFENDANTS STEIN AND GROSS

Hagan next asserts that Defendants Stein and Gross falsified his mental health records

in retaliation for filing grievances, informal complaints, and verbal threats to file a lawsuit.

The filing of grievances and lawsuits against prison officials constitutes constitutionally

protected activity.3 See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). Hagan has met prong

one of the Rauser test.

Moving to the second Rauser prong, Hagan asserts that because Defendants Stein and

Gross misstated their notes in his medical records, he was left in a cell that allowed him to

3Because Hagan did file a grievance, the Court need not decide whether the threat to file

a lawsuit, standing alone, amounts to protected activity. See DeFranco v. Wolfe, 387 F. App’x

147, 155 (3d Cir. 2010) (not precedential) (“assuming without deciding that threatening to file

a lawsuit is constitutionally protected conduct…”).

engage in self-mutilation. (Doc. 66, at 9-10; Doc. 68-1, at 2-3). Falsifying medical records,

which in turn leads to an inmate with mental illness being left alone in a cell to harm himself,

may constitute adverse action “sufficient to deter a person of ordinary firmness from

exercising his [First Amendment] rights.” Rauser, 241 F.3d at 333. However, the parties

largely dispute the material facts relevant to this claim. By way of background, on March 3,

2021, Hagan purportedly informed Defendants Stein and Gross that he attempted suicide on

February 27, 2021. (Doc. 66, at 9-10; Doc. 68-1, at 2-3). Despite this report, Hagan asserts

that Defendants Stein and Gross indicated in his records that he was not suicidal, thus leaving

him in a cell with several self-mutilating objects, which he used to harm himself. (Doc. 44-1,

Declaration of Damont Hagan, Notes of Transcript, 33:11-35:22; Doc. 66, at 9-10). The

Mental Health Contact Note dated March 3, 2021, reveals that Defendants Stein and Gross

treated Hagan on that date and that Hagan denied any suicidal thoughts or plans. (Doc. 68-

1, at 13-18; Doc. 68-1, at 35). The Note also reveals that Defendant Stein made a non-

emergent referral to psychiatry.4 (Doc. 68-1, at 15). There is a genuine dispute as to whether

Hagan informed Stein and Gross that he was suicidal, and whether the March 3, 2021 Mental

Health Contact Note contains accurate and truthful information regarding Hagan’s mental

state. As such, the Court finds the presence of disputed facts which should be resolved by a

jury and not this Court on summary judgment. Further, in light of this factual dispute related

to adverse action, the Court will also send to a jury the question of whether Hagan has

established a causal connection.

4The record contains conflicting documents as to when Hagan was seen by psychiatry

staff. The DOC Inmate Cumulative Adjustment Record reveals that psychiatry staff treated

Hagan on March 8, 2021, on D Block. (Doc. 68-1, at 35). The record also contains grievance

documents that indicate psychiatry staff treated Hagan on March 4, 2021. (Doc. 44-3, at 2;

Doc. 44-3, at 4).

C. QUALIFIED IMMUNITY

Defendants also argue that qualified immunity shields Funk, Stein, and Gross from

Hagan’s claims. (Doc. 51, at 22-24). Qualified immunity protects a state actor who has

committed a constitutional violation if the plaintiff’s rights were not “clearly established”

when the individual acted. Pearson v. Callahan, 555 U.S. 223, 244-45 (2009). No liability will

attach if a reasonable actor could have believed the challenged conduct was consonant with

settled law. Pearson, 555 U.S. at 244-45; see Springer v. Henry, 435 F.3d 268, 280 (3d Cir. 2006).

The burden to establish qualified immunity rests with the defendant claiming its protection.

Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001) (citing Stoneking v. Bradford Area

Sch. Dist., 882 F.2d 720, 726 (3d Cir. 1989)).

A court evaluating a claim of qualified immunity considers a two-pronged inquiry:

whether, based on the facts, a constitutional right has been violated and, if so, whether the

right was “clearly established” at the time of the alleged violation. See Spady v. Bethlehem Area

Sch. Dist., 800 F.3d 633, 637 (3d Cir. 2015) (quoting Pearson, 555 U.S. at 232). The Court has

determined that Hagan has adequately established a constitutional violation in the form of a

retaliation claim. Defendants argue that, even if the Court concludes that there was a

constitutional violation, the rights at issue were not clearly established. (Doc. 51, at 23-24).

For a constitutional right to be clearly established, its contours “must be sufficiently

clear that a reasonable official would understand that what he is doing violates that right.”

Hope v. Pelzer, 536 U.S. 730, 739 (2002). Although earlier cases involving “fundamentally

similar” facts can provide especially strong support for a conclusion that the law is clearly

established, they are not necessary to such a finding. Hope, 536 U.S. at 741. The Supreme

Court of the United States has cautioned that courts must not cast the right at issue too

narrowly; indeed, the Court has said “‘[w]e do not require a case directly on point’ before

concluding that the law is clearly established.” Stanton v. Sims, 571 U.S. 3, 6 (2013) (per curiam)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). At the same time, the Court must take

care not to define the right at issue “at a high level of generality.” White v. Pauly, 580 U.S. 73,

79 (2017) (per curiam) (quoting Ashcroft, 563 U.S. at 742). The Supreme Court has explained

that to strike the appropriate balance, “clearly established law must be ‘particularized’ to the

facts of the case.” White, 580 U.S. at 79 (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)).

Based on the disputed evidence as to whether Defendant Funk acted with retaliatory

intent and whether Hagan suffered adverse action at the hands of Defendants Stein and Gross,

the Court finds that Defendants are not entitled to qualified immunity at this time.

IV. CONCLUSION

The Court will deny Defendants’ Rule 56 motion. (Doc. 45). An appropriate Order

shall issue.

Dated: July 9, 2024 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States District Judge