Salter v. Wahl

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

EDWARD R. SALTER, :

Plaintiff : CIVIL ACTION NO. 3:24-0332

v. : (JUDGE MANNION)

MARK WAHL, et ai., :

Defendants :

MEMORANDUM

Plaintiff Edward R. Salter is a serial pro se litigant currently

incarcerated at the State Correctional Institution at Waymart (SCI-Waymart),

located in Waymart, Pennsylvania. (Doc. 1). He filed the instant civil rights

action, pursuant to 42 U.S.C. §1983,' claiming that SCl-Waymart officials

conspired to terminate him from his position as an inmate porter due to his

race and litigious activities, in violation of his First and Fourteenth

Amendment rights. Presently pending before the Court is Defendants’

motion for summary judgment under Federal Rule of Civil Procedure 56.

(Doc. 21). Because Salter has not responded to Defendants’ Rule 56 motion,

1 Section 1983 creates a private cause of action to redress

constitutional wrongs committed by state officials. The statute is not a source

of substantive rights; it serves as a mechanism for vindicating rights

otherwise protected by federal law. See Gonzaga Univ. v. Doe, 536 U.S.

273, 284-85 (2002).

after being granted a time extension,” the Court will grant Defendants’

unopposed motion for summary judgment.*

|. BACKGROUND

On February 27, 2024, Plaintiff, Edward R. Salter, an inmate confined

at SCl-Waymart filed the above caption civil rights action, pursuant to 42

U.S.C. §1983. (Doc. 1). In his complaint, he alleged that the following SCI-

Waymart employees, Superintendent Mark Wahl, Unit Manager Michael

Skutack, Correction Officer Halipen and Correction Officer Giaordano,

entered into a conspiracy to discriminate against him on the basis of his race.

(/d., J{]5-8). Plaintiff argued that he was not hired as an Inmate Porter

because of his race and in retaliation for filing grievances and lawsuits

2 Plaintiff filed a motion to compel service of Defendants’ filings—and

a motion to strike Defendants’ motion for summary judgment—asserting that

he was not properly served or in receipt of those documents (Docs. 28, 32).

While Plaintiff did not formally acknowledge receipt, the fact that he drafted

and filed motions based on those specific filings listed in the docket

demonstrates that he was indeed in possession of them. The Court

dismissed Plaintiff's motions, finding that service had been properly effected

and that Plaintiff, by virtue of relying on those filings, was clearly aware of

them. The Court also construed Plaintiff's filings as a request for an

extension of time, which it granted (Doc. 35).

3 Despite being granted an extension of time, Defendant failed to file

an opposition to the motion for summary judgment or to respond to the

accompanying statement of facts. Instead, Defendant has engaged in

dilatory conduct by submitting frivolous motions, which the Court will no

longer entertain. Accordingly, the Court will treat Defendants’ motion for

summary judgment as unopposed and deem the accompanying statement

of facts admitted.

28

against various prison officials at SCl-Waymart. (/d.) Furthermore, Plaintiff

alleged that such discrimination and retaliation violated his First and

Fourteenth Amendment rights. (/d.)

From March 22, 2022 until May 18, 2022, Plaintiff worked as an Inmate

Porter as part of the Medical Service Staff at SCl-Waymart. (Doc. 22, □□□□

On that last day, Plaintiff was terminated from his assignment due to his

attitude, and refusal to follow directions. (/d., 910). A short time thereafter,

on May 27, 2022, Defendant Skutack informed the Inmate Employment

Officer via an email exchange that the Plaintiff was removed from the

assignment. (/d., 9/11). A unit management support team action form

provided the following details regarding the removal:

Inmate Salter was removed from his position as a K2 block Live-

In Porter on 5/18/22. Inmate Salter was observed earlier that day

getting upset with another inmate and yelling at them because

inmate Salter said “he sneezed on my shower shoe and didn't

tell me and | was gonna put it on.” Officer Giordano and Officer

Hal[i]Jpen intervened and inmate Salter continued his frustration

toward the officers as well as the other inmate and ignored their

instruction and continued to argue and attempt to make a case

for his reacting in an agitated manner.

(Id., ]12; see also Doc. 23-4). Plaintiff had a history of the above-described

type of behavior while working as an Inmate Porter. (/d., 913). For example,

oes

“(Plaintiff], in previous instances, has been observed yelling at inmates who

soiled the bathroom floor after he had cleaned it. He also continued to ‘close’

the bathroom and do a ‘deep clean’ of the bathroom despite being instructed

by staff not to ‘close’ the bathroom for an extended period of time as inmates

on the block need to use the bathroom and not always are the other inmates

able to wait until he completed this task.” (Doc. 23-4, at 2). It was reported

that the Plaintiff “ha[d] difficulty in accepting the officer’s instruction and often

insist{ed] on completing tasks ‘his own way’ without adhering to the direction

given by the block officers and staff.” (/d.)

Despite documented issues with his refusal to follow instructions, poor

temperament, and unprofessional conduct—which led to his removal from

the inmate porter position—Plaintiff alleges that his termination was actually

motivated by racial discrimination’ and retaliation for filing grievances and

lawsuits against prison officials. (Doc. 1, at 16-18). Plaintiff claims that

Defendant Skutack told him that he would be “officially blackballed from ever

working as [an] Inmate Porter at SCI| Waymant[.]” (/d., at 18). Furthermore,

Plaintiff asserts that Superintendent Defendant Wahl personally accosted

4 Although Plaintiff contends that he was not rehired as a porter due to

his race, he simultaneously acknowledges that an African American

individual was hired for that position—highlighting a fundamental

inconsistency in his allegations. wen 12, at 18).

him and stated that, “myself, Mr. Skutack, C.O. Halipen, C.O. Giordano,

were] wrong for using Invidious Discrimination, Conspiracy, Retaliation,

against you for not hiring you as a Inmate Porter, however, | must support

them, and stand by my actions and their actions as well.” (/d., at 17).

Although Plaintiff's allegations might be striking, they are unsupported by any

evidence beyond mere recitals in his complaint and contradicted by the

record evidence.

On July 17, 2023, over a year after his employment was terminated,

Plaintiff filed grievance 1042843 regarding the above incidents against the

moving Defendants. (Doc. 22, 914-15). The grievance was denied by

Lieutenant Grecco, and later appealed to the facility manager. (/d., {]16-17).

On August 18, 2023, Defendant Wahl responded to the appeal and upheld

the initial response grievance as denied. (/d., 418). Three days later, Plaintiff

appealed the grievance for final review. (/d., 19). On October 16, 2023, the

grievance was dismissed because the initial grievance was illegible. (/d.,

420).

Since 2011, Plaintiff has filed four lawsuits against various DOC

employees. (Doc. 22, 21). Moving Defendants Wahl, Skutack, Giordano,

and Halipen were only named as defendants in this present litigation. (/d.,

122). The remaining lawsuits named different DOC employees. (/d.)

-5-

Plaintiff filed his complaint on February 27, 2024. (Doc. 1). In response,

Defendants filed an answer on May 24, 2024, (Doc. 14), to which Plaintiff

responded. (Doc. 16). On February 28, 2025, Defendants filed the instant

motion for summary judgment, (Doc. 21), along with a statement of material

facts (Doc. 22) and a supporting brief (Doc. 23). Rather than respond,

Plaintiff filed a motion to compel service and a motion to strike the summary

judgment motion, claiming he had not been properly served or received the

relevant documents (Docs. 28,32). Although Plaintiff did not formally

acknowledge receipt, his motions referenced and relied on the very filings at

issue, which were publicly available on the docket—indicating he had access

to and possession of them. The Court denied Plaintiffs motions, finding that

service was properly effected and that Plaintiff was clearly aware of the

filings. The Court further construed Plaintiffs filings as a request for an

extension of time, which was granted, extending the response deadline to

June 5, 2025, and directed Defendants to re-serve Plaintiff with the materials.

(Doc. 35).

Despite this extension, Plaintiff again failed to file an opposition to the

motion for summary judgment or to respond to the statement of material

facts. Instead, he filed a motion for sanctions against Defendants (Doc. 36),

once more alleging that he had not been served. However, Defendants

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submitted evidence confirming proper service on both occasions (Docs. 21

at 3, 22 at 6, 23 at 21, and 40-1), and the Court had already determined that

Plaintiff was aware of the materials forming the basis of his repeated claims,

which were publicly available. Accordingly, the Court will construe

Defendants’ motion for summary judgment as unopposed and deem the

accompanying statement of material facts admitted. The motion for summary

judgment is now ripe for review.

ll. STANDARD OF REVIEW

“One of the principal purposes of the summary judgment rule is to

isolate and dispose of factually unsupported claims or defenses.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment is

appropriate where “the movant shows that there is no genuine dispute as to

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

Fed. R. Civ. P. 56(a). The Court must view the facts and evidence presented

“in the light most favorable to the non-moving party” and must “draw all

reasonable inferences in that party’s favor.” Thomas v. Cumberland County,

749 F.3d 217, 222 (3d Cir. 2014). This evidence, however, must be

adequate—as a matter of law—to sustain a judgment in favor of the

nonmoving party on claim or claims at _—siissue.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita

nF -

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986). A

“scintilla of evidence” supporting the nonmovant’s position is insufficient;

“there must be evidence on which the jury could reasonably find for the

[nonmovant].” Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 192 (3d Cir. 2015)

(quoting Liberty Lobby, 477 U.S. at 252) (alteration in original). Succinctly

stated, summary judgment is “put up or shut up time” for the nonmoving

party. Daubert v. NRA Grp., LLC, 861 F.3d 382, 391 (3d Cir. 2017) (quoting

Berkeley Inv. Grp. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006)).

lil. DISCUSSION

Defendants contend that Plaintiff is unable to satisfy his Rule 56

burden because he cannot adduce any competent evidence to establish a

genuine issue of material fact as to his Section 1983 claims. The Court

agrees and finds that Plaintiff has failed to carry his Rule 56 burden, so

judgment must be entered in favor of Defendants.

A. Failure to Oppose a Rule 56 Motion

First, Plaintiff has failed to carry his burden at summary judgment

because he has not opposed Defendants’ Rule 56 motion in any way.

Plaintiff has not identified any record evidence that would rebut Defendants’

contention (and supporting evidence) that they terminated him from the

position as inmate porter due to his refusal to follow instructions, poor

ies

temperament, and unprofessional conduct—and not on the basis of race or

in retaliation for his filed lawsuits. Plaintiff has not, for example, pointed to a

declaration or affidavit, witness statements, documentary support, or any

other evidence that could sustain a verdict in his favor. In fact, Plaintiff has

not even responded to Defendants’ Rule 56 motion, meaning that—pursuant

to Local Rule 7.6—the motion is deemed unopposed.°

At summary judgment, “the non-moving party must oppose the

motion and, in doing so, may not rest upon the mere allegations or denials

of his pleadings but, instead, must set forth specific facts showing that there

is a genuine issue for trial. Bare assertions, conclusory allegations, or

suspicions will not suffice.” Jutrowski v. Township of Riverdale, 904 F.3d 280,

288-89 (3d Cir. 2018) (emphasis added) (alteration omitted) (quoting D.E. v.

Cent. Dauphin Sch. Dist., 765 F.3d 260, 268-69 (3d Cir. 2014)). Moreover,

“[t]he court need consider only the cited materials” when ruling on a motion

for summary judgment. Fed. R. Civ. P. 56(c)(3). No materials have been

provided or cited to by Plaintiff in opposition to Defendants’ Rule 56 motion.

Thus, because Plaintiff has failed to establish that there is a genuine dispute

5 See Local Rule of Court 7.6 (stating that failure to file a brief in

opposition to a motion, including one for summary judgment, results in said

motion being deemed “unopposed”).

of material fact for trial, the Court must grant Defendants’ unopposed motion

for summary judgment.

B. Merits of Claims

Second, summary judgment must be granted in Defendants’ favor

because, upon consideration of the Rule 56 record, there is no evidence that

would sustain a verdict in his favor on his Section 1983 claims.

1. Fourteenth Amendment Equal Protection Claim

The Equal Protection Clause of the Fourteenth Amendment

commands that no state shall “deny to any person within its jurisdiction the

equal protection of the laws,” which is “essentially a direction that all persons

similarly situated should be treated alike.” City of Cleburne v. Cleburne Living

Center, 473 U.S. 432, 439 (1985). Two independent legal theories exist upon

which a plaintiff may predicate an equal protection claim: the traditional

theory and the class-of-one theory. Here, it appears Plaintiff has pursued

both theories at once and failed to succeed on either.

Under the traditional theory, to state a cognizable equal protection

claim, a plaintiff “must allege that he is a member of a protected class,

similarly situated to members of an unprotected class, and treated differently

from the unprotected class.” Pollack v. City of Phila., 2007 WL 576264, at *4

(E.D. Pa. Feb. 16, 2007). The differential treatment must have been

=ip<

intentional. See, e.g., McClesky v. Kemp, 481 U.S. 279, 292 (1987) ("[A

plaintiff] who alleges an equal protection violation has the burden of proving

the existence of purposeful discrimination.”). Claims of racial discrimination

by prisoners fall under the equal protection clause. Bacon v. Minner, 229

Fed. Appx. 96 (3d Cir. 2007) (citing Turner v. Safley, 482 U.S. 78, 84 (1987)).

Race is a suspect class, including in prisons, and strict scrutiny is applied

such that any racial classifications must be narrowly tailored measures that

further compelling government interests. Johnson v. California, 543 U.S.

499, 505 (2005). Thus, a plaintiff need only show that the differential

treatment was “not precisely tailored to serve a compelling governmental

interest.” /d.

Under a class of one theory, a plaintiff may advance an equal

protection claim absent membership in a protected class if the plaintiff shows

that the defendants engaged in irrational and intentional differential

treatment of him when compared with similarly situated individuals. See

Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). This theory allows

a plaintiff to assert an equal protection claim regardless of protected class

when the government irrationally treats the plaintiff differently from similarly

situated individuals. /d. at 564; Hill v. Borough of Kutztown, 455 F.3d 225,

239 (3d Cir. 2006). To prevail on a class-of-one claim, the plaintiff must

244~

demonstrate that: (1) the defendants treated him differently from others

similarly situated; (2) the defendants did so intentionally; and, (3) there was

no rational basis for the difference in treatment. Hill, 455 F.3d at 239.

“Persons are similarly situated under the Equal Protection Clause

when they are alike ‘in all relevant aspects.’”” Startzell v. City of Philadelphia,

533 F.3d 183, 203 (3d Cir. 2008) (quoting Nordlinger v. Hahn, 505 U.S. 1,

10 (1992)). But “similarly situated’ does not mean ‘identically situated.”

Harvard v. Cesnalis, 973 F.3d 190, 205 (3d Cir. 2020) (quoting Bennun v.

Rutgers State Univ., 941 F.2d 154, 178 (3d Cir. 1991), abrogated on other

grounds by St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515-16 (1993)).

“[C]ourts conducting the ‘similarly situated’ inquiry ‘should not demand exact

correlation, but should instead seek relevant similarity.” /d. (quoting Stimmel

v. Sessions, 879 F.3d 198, 212 (6th Cir. 2018) (citation omitted)).

Determination of whether individuals are similarly situated is a “case-by-

case fact-intensive inquiry.”” McLaughlin v. Forty Fort Borough, 64 F. Supp.

3d 631, 648 (M.D. Pa. 2014) (quoting Suber v. Guinta, 902 F. Supp. 2d 591,

607 (E.D. Pa. 2012)).

Plaintiffs Equal Protection claim broadly alleges that all Defendants

intentionally treated him differently due to racial animus and without any

rational basis. Specifically, he asserts that the Defendants terminated him

=(2s

from his inmate porter position because he is African American. However,

Plaintiff offers no evidence that similarly situated inmates of other races—

those who also failed to follow orders, displayed poor temperaments, or

talked back to Department of Corrections staff—were retained in their porter

positions. There is no indication that Defendants treated Plaintiff differently,

let alone on the basis of race. Rather, the record reflects that Plaintiff was

removed from the position due to his inability to meet the behavioral

expectations of the role. Moreover, Plaintiff fails to show that he was treated

differently from others similarly situated, which is fatal to his “class of one”

Equal Protection claim. Accordingly, summary judgment will be granted in

favor of the Defendants on this claim.

2. Fourteenth Amendment Conspiracy Claim

Plaintiff's complaint is riddled with allegations of a conspiracy; alleging

that “Defendant Skutack admitted to Plaintiff that himself, Defendants Wahl,

Halipen, Giordano, conspired and used Invidious Discrimination against

Plaintiff.” (Doc. 1, at 34). As astounding as this claim may be, it remains

entirely unsubstantiated by the record evidence, and, standing alone, is

insufficient to support a civil conspiracy claim.

To state a claim for civil conspiracy under Section 1983, “a plaintiff

must establish (1) the existence of a conspiracy involving state action and

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(2) a deprivation of civil rights in furtherance of the conspiracy by a party to

the conspiracy.” Gale v. Storti, 608 F. Supp. 2d 629, 635 (E.D. Pa. 2009). To

prove the existence of a conspiracy, plaintiff must plead that there was “an

agreement, understanding, or ‘meeting of the minds’ to violate the plaintiff's

rights.” Id. (quoting Startzell v. City of Phila., 533 F.3d 183, 205 (3d Cir.

2008)); Mikhail v. Kahn, 991 F. Supp. 2d 596, 645 (E.D. Pa. 2014), affd, 572

F. App’x 68 (3d Cir. 2014) (“A conspiracy is not parallel conduct by different

parties; it must embody, at its heart, ‘an agreement between the defendants

and state officials[.]”). A civil rights conspiracy also requires “a predicate

federal violation” to “anchor” the claim. Dondero v. Lower Milford Twp., 431

F. Supp. 3d 590, 606 (E.D. Pa. 2019), affd, 5 F.4th 355 (3d Cir. 2021); see

also Rink v. Ne. Educ. Intermediate Unit 19, 717 F. App'x 126, 141 (3d Cir.

2017) (“There can be no civil conspiracy to commit an unlawful act under

§1983 where the plaintiff has not proven a deprivation of a constitutional or

federal statutory right or privilege.”).

Here, Plaintiff points to no facts indicating any agreement among the

Defendants, the roles each played, or any overt act in furtherance of a

conspiracy. Furthermore, Plaintiff has failed to produce any evidence

demonstrating that the Defendants acted in concert to commit any unlawful

act. As previously discussed, Plaintiff was removed from his porter position

-14-

due to his temperament and not his race—making his removal lawful and

foreseeable. All in all, the allegation remains a naked assertion—legal

conclusion masquerading as fact—and thus fails as a matter of law.

Accordingly, summary judgment will be granted in favor of the Defendants

on this claim.

3. First Amendment Retaliation Claim

Plaintiff alleges that Defendants retaliated against him for filing

grievances and lawsuits when they removed him from his porter position.

However, such a claim does not withstand scrutiny under the record

evidence and fails to survive summary judgment.

To state a prima facie case of retaliation in violation of the First

Amendment, a_ plaintiff must establish the following elements: “(1)

constitutionally protected conduct, (2) retaliatory action sufficient to deter a

person of ordinary firmness from exercising his constitutional rights, and (3)

a causal link between the constitutionally protected conduct and the

retaliatory action.” Thomas v. Independence Twp., 463 F.3d 285, 296 (3d

Cir. 2006); see also Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001);

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000). To

amount to retaliation, the conduct must be adverse and “sufficient to deter a

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

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McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (quotation marks and

citation omitted). 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 Lape v.

Pennsylvania, 157 F. App’x 491, 498 (3d Cir. 2005). 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. Krouse v.

Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997).

“Although the elements of a First Amendment retaliation claim remain

constant, the underlying concepts that they signify will vary with the setting—

whether activity is ‘protected’ or an action is ‘adverse’ will depend on

context....” Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir. 1999). The

fact of incarceration and the valid penological objectives of deterrence of

crime, rehabilitation of prisoners, and institutional security justify limitations

on the exercise of constitutional rights by inmates. See Pell v. Procunier, 417

U.S. 817, 822-23 (1974). Thus, a prison inmate “retains [only] those rights

that are not inconsistent with his status as a prisoner or with the legitimate

penological objectives of the corrections system.” /d. at 822.

Here, Defendants concede that Plaintiff engaged in constitutionally

protected speech when he filed various lawsuits and grievances against

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DOC employees. See Jackson v. Knapp, et al., Civ. No. 3:22-0138, Doc. 39,

at *37 (M.D. Pa. Oct. 30, 2024) (the filing of grievances has been viewed by

certain courts as a protected activity under the First Amendment). However,

as Defendants correctly argue, Plaintiff has failed to establish a causal link

between the filing of those lawsuits and grievances, and his loss of

employment. Plaintiff was terminated from his porter position in May of 2022,

at least three years after his last filed lawsuit in 2019. Moreover, none of the

Defendants were even named in Plaintiffs prior lawsuit—further fracturing

any causal link between the two events. See Ambrose v. Twp. Of Robinson,

Pa., 303 F.3d 488, 493 (3d Cir. 2002) (“for protected conduct to be a

substantial or motivating factor in a decision, the decisionmakers must be

aware of the protected conduct.”). The only relevant grievance against the

Defendants found pertained to the matter at hand and was lodged 14 months

after Plaintiff was terminated from his porter position.

Defendants further argue that the same decision to terminate Plaintiff

from the inmate porter position would have been made because the prison

has a penological interest in ensuring that inmate porters have the correct

temperament for the position. The Court agrees. As noted earlier, valid

penological objectives of deterrence of crime, rehabilitation of prisoners, and

institutional security justify limitations on the exercise of constitutional rights

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by inmates. See Pell, 417 U.S. at 822-23. If an inmate demonstrates that his

exercise of a constitutional right was a substantial or motivating factor in the

challenged decision, the prison officials may still prevail by proving that they

would have made the same decision absent the protected conduct for

reasons related to a legitimate penological interest. Rauser v. Horn, 241 F.3d

330, 333-34 (3d Cir. 2011); see also Turner v. Safley, 482 U.S. 78, 89 (1987).

Here, Plaintiff would have been removed from his porter position even in the

absence of his grievance against Defendants or other DOC employees. The

record evidence demonstrates that Plaintiff displayed insubordination, poor

temperament and unprofessional conduct during his short stint as a porter.

Clearly, the reasons for his termination related to legitimate penological

interests. Accordingly, summary judgment will be granted in favor of the

Defendants on this claim.

4. Supervisor Liability Claim

Defendants argue that Plaintiff has provided conclusory statements in

an attempt to establish supervisor liability against Defendants Wahl and

Skutack. The Court agrees.

In general, “a defendant in a civil rights action must have personal

involvement in the alleged wrongs’ to be liable. See Rode v. Dellarciprete,

845 F.2d 1195, 1207 (3d Cir. 1988). Additionally, to the extent that Plaintiff

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attempts to hold either Wahl or Skutack liable simply because of their

positions as Superintendent and Unit Manager, respectively, he cannot do

so because liability under Section 1983 cannot be predicated on respondeat

superior. See Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 227 (3d Cir.

2015) (“[Plaintiff] cannot predicate liability on her §1983 claims on a

respondeat superior basis.” (citing Rode, 845 F.2d at 1207) (emphasis

omitted)); Robinson v. Delbalso, 2022 WL 17248100, at *2 (3d Cir. Nov. 28,

2022). Instead, if Plaintiff is seeking to hold either Wahl or Skutack liable for

unconstitutional acts by their subordinates, Plaintiff's allegations must satisfy

one of two theories of supervisory liability: first, “[i]Jndividual defendants who

are policymakers may be liable under §1983 if it is shown that such

defendants, with deliberate indifference to the consequences, established

and maintained a policy, practice or custom which directly caused [the]

constitutional harm[;]” and second, “a supervisor may be personally liable

under §1983 if [they] participated in violating the plaintiff's rights, directed

others to violate them, or, as the person in charge, had knowledge of and

acquiesced in [their] subordinates’ violations.” See A.M. ex rel. J.M.K. v.

Luzerne County Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citation

omitted); Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014)

(explaining requirements for supervisory liability in section 1983 claim and

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describing “two general ways in which a supervisor-defendant may be liable

for unconstitutional acts undertaken by subordinates”), rev’d on other

grounds sub nom., Taylor v. Barkes, 575 U.S. 822 (2015).

To allege a plausible claim for supervisory liability under the first

theory—the policy-and-practice strand of supervisory liability—a_ plaintiff

such as Salter must:

(1) identify the specific supervisory practice or procedure that the

supervisor failed to employ, and show that (2) the existing

custom and practice without the identified, absent custom or

procedure created an unreasonable risk of the ultimate injury, (3)

the supervisor was aware that this unreasonable risk existed, (4)

the supervisor was indifferent to the risk; and (5) the underling's

violation resulted from the supervisor's failure to employ that

supervisory practice or procedure. Put another way, the inmate

must identify the supervisor's specific acts or omissions

demonstrating the supervisor's deliberate indifference to the

inmate's risk of injury and must establish a link between the

supervisor, the act, and the injury.

See Chavarriaga, 806 F.3d at 227 (quoting Brown v. Muhlenberg Twp.,

269 F.3d 205, 216 (3d Cir. 2001)). For the second theory of supervisory

liability—participating in, directing others to, or knowledge and acquiescence

of constitutional violation—generalized allegations that a supervisory

defendant is “in charge of’ or “responsible for” an office or facility are

2 ote

insufficient to allege personal involvement in an underlying constitutional

violation. See Saisi v. Murray, 822 F. App’x 47, 48 (3d Cir. 2020)

(unpublished) (“Saisi asserted that some defendants were in charge of

agencies that allowed this to happen, and that liability stemmed merely from

defendants’ ‘belief that their conduct would be ‘tolerated.’ However, a

director cannot be held liable ‘simply because of [their] position as the head

of the [agency].” (quoting Evancho v. Fisher, 423 F.3d 347, 354 (3d Cir.

2005))); Zigler v. Warren, 2022 WL 903383, at *2 (D.N.J. Mar. 28, 2022) (“In

simpler terms, a supervisor is not liable for the unconstitutional conduct of

his employees solely because he is a supervisor.”). Additionally, “[a]lthough

a court can infer that a defendant had contemporaneous knowledge of

wrongful conduct from the circumstances surrounding a case, the knowledge

must be actual, not constructive.” See Chavarriaga, 806 F.3d at 222 (citing

Baker v. Monroe Twp., 50 F.3d 1186, 1194 (3d Cir. 1995) and Rode, 845

F.2d at 1201 n.6).

Here, Plaintiff alleges, without any factual support, that Defendant

Wahl stated, “Salter, myself, Mr. Skutack, C.O. Halipen, C.O. Giordano,

w[ere] wrong for using Invidious Discrimination, Conspiracy, Retaliation,

against you for not hiring you as a Inmate Porter, however, | must support

them, and stand by my actions and their actions as well;” see supra, at 5,

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and that Defendant Skutack admitted that he violated Plaintiff's constitutional

rights through discrimination, conspiracy, retaliation, and his subordinates.

(Doc. 1, 17161, 63). However, Plaintiff presents no evidence to substantiate

his conclusory allegations. As in Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555-56 (2007), such bare assertions amount to nothing more than a

“formulaic recitation of the elements” of a discrimination and retaliation claim

based on supervisor liability. Absent factual support, these conclusory

statements are inadequate to establish such a claim. Accordingly, summary

judgment will be granted in favor of the Defendants on this claim.

C. Motion for Sanctions

Plaintiff filed a motion for sanctions, claiming that the Defendants failed

to follow this Court’s directive “to serve upon the Plaintiff, their motion for

summary judgment, briefings in support thereof, [and] statement of the

facts.” (Doc. 36, at 2). Contrary to Plaintiff's assertion, Defendants have

effected such service, as shown by the record evidence. (Doc. 40).

Accordingly, this motion is denied.

539%.

IV. CONCLUSION

For the foregoing reasons, the Court will grant Defendants’ unopposed

motion for summary judgment (Doc. 21) pursuant to Federal Rule of Civil

Procedure 56, and deny Plaintiffs motion for sanctions (Doc. 36). An

appropriate Order follows.

MAL Y E. MANNION

□ United States District Judge

DATE: éfu/2s

24-0332-01

1938