Opinion
Civil Action 19-275
02-08-2021
CARLOS ATANACIO-REYES, Plaintiff, v. LISA DURAND, MR. PERRY, MR. S. ERICKSON, SCOTT RIDDLE, LT. REBER, LT. DICKEY, MS. SKILLMAN, LT. WOODS, CAPT. SALEY, LT. STANLEY, MR. BYERS, MARK CAPOZZA, TROOPER MR. DAVY, MICHAEL E OVERMYER, L. REEHER, and CARTER, Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE United States Magistrate Judge.
I. Recommendation
It is respectfully recommended that Defendants' motion for summary judgment (ECF No. 106) be granted in part and denied in part.
II. Report
A. Relevant Procedural History
After his motion to proceed in forma pauperis was granted, pro se Plaintiff Carlos Atanacio-Reyes (“Reyes”) filed a Complaint in April 2019 in which he alleged violations of his civil rights. He later amended his complaint in August 2019. (ECF No. 20 (“Am. Compl.”).) Reyes, who is an inmate in the custody of the Pennsylvania Department of Corrections (“DOC”), alleges that the sixteen named defendants, who are various DOC employees and state officials, failed to protect him from gang members despite his repeated requests for intervention. (Id.)
Thereafter, the parties engaged in discovery. Defendants produced all incident reports, grievances and appeals therefrom, disciplinary reports, investigative reports or other similar documents in their possession concerning the alleged incident or incidents described in the Amended Complaint; and (2) all records in their possession regarding Reyes that relate to the claims in his Amended Complaint. This included a DVD with three separate videos.
Throughout this action, Reyes has complained that he was not provided with “full discovery.” Reyes persisted in these claims despite the lack of any evidence that Defendants had withheld relevant documents or information, even after the close of discovery. As reflected in the docket, however, Defendants undertook additional investigation as appropriate and have repeatedly represented that they produced all relevant discovery that had been requested of them.
As discussed herein, even if Reyes' complaints about discovery had any merit, they have no bearing on the resolution of Defendants' motion for summary judgment.
Following the close of discovery, Defendants filed the pending motion for summary judgment (ECF No 106), which is fully briefed (ECF Nos. 107-109, 119-122, 125, 126.)
The facts of record are stated in the light most favorable to Reyes. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Additionally, because Reyes has filed a sworn Amended Complaint, the Court treats it “as an affidavit in opposition to summary judgment.” Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985). All references to the numbered paragraphs of the Amended Complaint are from the “Facts” section that begins on page four of the Amended Complaint.
Beginning in April 2010, Reyes was in DOC custody in various state correctional institutions. (Defendants' Statement of Facts (“Defs.' SOF”), ECF No. 108 ¶ 3.) He was paroled on or about September 15, 2014, and subsequently released from the State Correctional Institution (“SCI”) at Rockview. (Id. ¶ 4.) Reyes was returned to DOC custody as a parole violator in June 2016 and assigned to SCI Graterford. (Defs.' SOF ¶ 5.)
During his classification at SCI Graterford, Reyes reported to DOC officials that he had testified against high-ranking members of two gangs in a murder case. (Defs.' SOF ¶ 6; Plaintiff's Response to Defs.' SOF (“Pl.'s Response”), ECF No. 121 ¶ 6.) Apparently, the testimony incriminated a gang member who had killed Reyes' brother. (ECF No. 109-5.) Reyes explained to the classification staff at SCI Graterford that various gang members were aware of his testimony and that Reyes and his family were receiving death threats. (Am. Comp. ¶ 4.) Because he knew that numerous inmates in SCI Graterford's general population were members of these gangs, Reyes asked not to be housed there for his protection. (Id. ¶ 5.) However, the classification staff told Reyes that they could do nothing for him and assigned him to a general population unit. (Id. ¶¶ 6, 7; Defs.' SOF ¶ 5.)
For the remainder of this section, separate citations to Plaintiff's Response to Defendants' Concise Statement of Facts are omitted where Reyes admits to a fact cited by Defendants.
A few days later, Reyes began receiving death threats from gang members, who also began extorting him for money. (Am. Compl. ¶ 8.) Reyes reported this to Defendant Lt. Reber, a security lieutenant at SCI Graterford. (Id. ¶ 9.) He also told Lt. Reber about his prior testimony and his belief that his life was in danger. (Id.) Reyes again requested to be transferred out of the general population unit but Lt. Reber told Reyes that he could do nothing for him. (Id.) The death threats and extortion continued. (Id. ¶¶ 11-13.) In January 2017, Reyes reported the theft of personal property from his cell to DOC staff but was told that there was nothing they could do. (Id. ¶¶ 1417.) Later that day, gang members admitted stealing Reyes' property and threatened to kill him if he reported it to the staff again. (Id. ¶ 18.)
In March 2017, Reyes again told Lt. Reber about the threats and extortion, as well as the theft of his property by gang members. (Defs.' SOF ¶ 8.) Lt. Reber requested proof of payments to verify the extortion claim and subsequently placed Reyes in a Restricted Housing Unit (“RHU”) to ensure his safety. (Id. ¶¶ 8, 9.) One week later, on March 28, 2017, Reyes was transferred to SCI Forest. (Id. ¶ 11.)
Upon his arrival at SCI Forest, Reyes informed Defendant Lt. Dickey, a security lieutenant at SCI Forest, of his concerns regarding the gangs and the threats he had received. (Id. ¶ 12.) Nonetheless, he was placed in a general population unit with a cellmate who belonged to one of the gangs. (Am. Compl. ¶¶ 25, 26.) When Reyes requested to be separated from inmates belonging to the gangs, Lt. Dickey told him that there was nothing that could be done. (Id. ¶ 27.) Thereafter, Reyes' cellmate began extorting and threatening him. (Id. ¶ 28.) Reyes reported this to Defendant Skillman, who is a counselor at SCI Forest, but she refused to take any action. (Id. ¶ 28.) On May 24, 2017, Reyes told Ms. Skillman that since she refused to protect him, he was going to contact his family and lawyer. (Id. ¶ 28.) The next day, Ms. Skillman informed Reyes that all of his means of communication to his family and friends were terminated. (Id. ¶ 29, Pl.'s Response ¶ 14; ECF No. 122-19 at 2.)
A few months later, on September 24, 2017, an inmate belonging to one of the gangs stabbed Reyes on his face, neck, and back with a makeshift knife. (Am. Compl. ¶ 31, 32.) After this incident, Lt. Dickey placed Reyes in the RHU under protective custody pending further investigation. (Defs.' SOF ¶ 18.) In the interim, Reyes sent a letter to the Pennsylvania State Police which was received by Defendant Davy, a state trooper. (Id. ¶ 19.) Reyes remained in the RHU at SCI Forest until his transfer to SCI Fayette on November 9, 2017. (Id. ¶ 20.)
At SCI Fayette, Reyes was initially placed in the RHU. (Id. ¶ 21.) At the time, Reyes spoke to Defendant Lt. Woods, a security lieutenant at SCI Fayette, and requested protection from the gangs. (Id. ¶ 22.) Lt. Woods told Reyes that he would be moved to a general population unit where he would be safe. (Id.) On November 20, 2017, Reyes was moved from the RHU to a general population unit. (Id. ¶ 21.) Later, on August 11, 2018, Reyes was placed in the RHU because he was in danger and could not be protected by alternative means. (ECF No. 109-10.) A few weeks later, on August 30, 2018, one of the gang members entered Reyes' cell and attacked him with a makeshift knife. (Am. Compl. ¶ 44.) Later that day, a different gang member attacked Reyes in his cell with a makeshift knife. (Id. ¶ 45.)
Defendants assert that according to Reyes' cell history and medical records, from on or about August 11, 2018, until early September 2018, Reyes was either in the RHU, a Psychiatric Observation Cell, or an outside hospital. (Defs.' SOF ¶ 26.) He was released from the RHU on September 15, 2018. (Id. ¶ 27.) He has made no factual allegations about events after September 15, 2018, to support his claims. (Id. ¶ 28.)
Reyes alleges that he was assaulted twice on August 31, 2018, in separate incidents and that a week later he was taken to an outside hospital for emergency surgery. See Am. Comp. at ¶¶ 4449.
Reyes was subsequently transferred to SCI-Benner Township on or about January 14, 2020, where he is presently confined. ¶ 29.)
C. Standard of Review
Summary judgment is appropriate when the moving party establishes “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 genuine issue of material fact is one that could affect the outcome of litigation. Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). However, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” N.A.A.C.P. v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The initial burden is on the moving party to adduce evidence illustrating a lack of genuine triable issues. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). Once the moving party satisfies its burden, the non-moving party must present sufficient evidence of a genuine issue of material fact that precludes summary judgment. Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587). When considering the parties' arguments, the court is required to view all facts and draw all inferences in the light most favorable to the non-moving party. Id. (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The benefit of the doubt will be given to allegations of the non-moving party when in conflict with the moving party's claims. Bialko v. Quaker Oats Co., 434 Fed.Appx. 139, 141 n.4 (3d Cir. 2011) (citing Valhal Corp. v. Sullivan Assocs., 44 F.3d 195, 200 (3d Cir. 1995)).
Nonetheless, a well-supported motion for summary judgment will not be defeated where the non-moving party merely reasserts factual allegations contained in the pleadings. Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010) (citing Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989)). The non-moving party must resort to affidavits, depositions, admissions, and/or interrogatories to demonstrate the existence of a genuine issue. Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 773 (3d Cir. 2013) (citing Celotex Corp., 477 U.S. at 324).
“[P]ro se litigants are held to a lesser pleading standard than other parties.” Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008). “A document filed pro se is to be liberally construed and . . . must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citation and quotation marks omitted); see also Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011) (“The obligation to liberally construe a pro se litigant's pleadings is well-established.”).
D. Discussion
Reyes has brought claims under 42 U.S.C. § 1983, asserting that Defendants have violated his First, Eighth, and Fourteenth Amendment rights.
Section 1983 provides a private citizen with the right to bring an action against any person who under color of state law deprives him of a right or privilege secured by the Constitution of the United States. 42 U.S.C. § 1983. This statute does not create substantive rights but instead “provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws.” Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Therefore a § 1983 plaintiff “must establish that []he was deprived of a federal constitutional or statutory right by a state actor.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009).
Defendants base their claim that they are entitled to judgment as a matter of law on a number of grounds. Each of their arguments will be addressed in turn.
Because Defendants do not dispute that they acted under color of state law, the Court's analysis focuses on whether they deprived Reyes of his constitutional rights.
1. Certain Defendants lack personal involvement in the alleged wrongs
Defendants assert that certain defendants named in this lawsuit are entitled to summary judgment because they lack personal involvement in the alleged violations of Reyes' constitutional rights. Under § 1983, a defendant must be shown to have had personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Although personal involvement can be shown through allegations of personal direction, or of actual knowledge and acquiescence, such allegations must be made with appropriate particularity. Id.
There are thirteen defendants named in the caption of the Amended Complaint: Lisa Durand, Mr. Perry, Mr. Erickson, Scott Riddle, Lt Reber, Lt Dickey, Ms. Skillman, Lt. Woods, Capt. Saley, Lt. Stanley, Mr. Byers, Mark Capozza, and Trooper Mr. Davy. While not identified in the caption, an additional three defendants are named in the body of the Amended Complaint: L. Reeher; Michael D. Overmeyer; and Carter. (Am. Compl. at 2-3.) Of these sixteen defendants, Reyes has made no allegations of wrongdoing in the Amended Complaint or in his opposition to the motion for summary judgment against Lisa Durand, Mr. Perry, Mr. S. Erickson, Scott Riddle, Capt. Saley, Lt. Stanley, Mr. Byers, Mark Capozza, L. Reeher, Michael D. Overmeyer and Carter.As Reyes has failed to demonstrate that there is any factual or legal basis for liability as to these parties, they are entitled to judgment as a matter of law.
While Reyes alleges in Paragraph 17 of the Amended Complaint that Defendant Carter told him on January 1, 2017, that there was nothing he could do after Reyes reported that all of his personal property had been taken from his cell, he does not assert any claims against Carter other than in his “Claim for Relief.” See Amended Complaint, Statement of Claim, V(C), ¶¶ 50-53 and Claim for Relief. Further, the Amended Complaint alleges that Defendant Carter works at SCI Forest; however, the incident alleged in paragraph 17 took place at SCI Graterford. At any rate, even if the Claim for Relief is construed as the assertion of a claim against Defendant Carter for events occurring on January 1, 2017, any claim would be time-barred as discussed herein.
The only allegation that Reyes has made with respect to Trooper Davy is that he received a letter from Reyes after the stabbing at SCI Forest. The record reflects that Reyes wished to press charges against the inmate who stabbed him. (ECF No. 122-23 at 5.) Even assuming that Reyes sent a letter to Trooper Davy for this reason and, further, assuming that Trooper Davy did not take any action against the assailant, Reyes cannot establish a viable § 1983 claim against Trooper Davy because “there is no constitutional right to the investigation or prosecution of another.” Sanders v. Downs, 420 Fed.Appx. 175, 180 (3d Cir. 2011) (citations omitted). Thus, Reyes has failed to create a genuine issue of material fact regarding any personal involvement by Trooper Davy in the alleged violations of Reyes' constitutional rights. Therefore, Trooper Davy is also entitled to judgment as a matter of law.
Defendants also argue that Reyes has not established any personal involvement by Lt. Woods. However, by the time that Reyes was transferred to SCI Fayette, he had already been attacked by a gang member at SCI Forest and was placed in the RHU. Reyes spoke to Lt. Woods and requested protection from the gangs but asserts in his sworn Amended Complaint that Lt. Woods told Reyes that he would be moved from the RHU to a general population unit. These allegations sufficiently establish, at a minimum, that Lt. Woods had some personal involvement with respect to Reyes' Eighth Amendment failure to protect claim.
Accordingly, Defendants Lisa Durand, Mr. Perry, Mr. S. Erickson, Scott Riddle, Capt. Saley, Lt. Stanley, Mr. Byers, Mark Capozza, Trooper Davy, L. Reeher, Michael D. Overmeyer, and Carter are entitled to judgment in their favor as a matter of law.
2. Impact of the Statute of Limitations on Reyes' Claims
Defendants also contend that some of Reyes' claims are barred by the relevant statute of limitations. “The length of the statute of limitations for a § 1983 claim is governed by the personal injury tort law of the state where the cause of action arose.” Kach, 589 F.3d at 634 (citing Wallace v. Kato, 549 U.S. 384, 387 (2007)). The applicable statute of limitations in Pennsylvania, where the causes of action arose, is two years. Id. (citing 42 Pa. C.S. § 5524(2)). This lawsuit was commenced, at the earliest, on February 4, 2019, which is the date Reyes signed his initial complaint. (ECF No. 3.) Therefore, any claims that are solely based on events that occurred before February 5, 2017 are time-barred.
According to Reyes, he had multiple interactions with Lt. Reber at SCI Graterford between June 2016 and March 2017, when he was transferred to SCI Forest. He does not identify the actions of any other named defendant while he was incarcerated at SCI Graterford. The only events that are alleged to have occurred at SCI Graterford after February 5, 2017 are Reyes' interactions with Lt. Reber in March 2017. Reyes' claim against Lt. Reber based upon events alleged to have occurred in March 2017 are discussed below.
3. Reyes' Fourteenth Amendment Claim
Reyes claims that “by acting with deliberate indifference towards [his] personal health and safety, ” Defendants have violated his Eighth and Fourteenth Amendment rights. (Am. Compl. at 4.) Defendants contend that they are entitled to summary judgment with respect to Reyes' Fourteenth Amendment claim as it is based upon the same facts that form the basis for his Eighth Amendment claim., and therefore, is duplicative of the Eighth Amendment claim.
It is well established that “if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843 (1998); See Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 260-61 (3d Cir. 2010) (Adopting the “more-specific-provision rule” and applying it in a precedential opinion).
Here, the gravamen of the Amended Complaint is that Defendants failed to protect Reyes from gang members despite his repeated requests for intervention. Because “[a] prison official's deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment, ” Farmer v. Brennan, 511 U.S. 825, 828 (1994), Reyes' allegations fit squarely within the Eighth Amendment's prohibition on cruel and unusual punishment. Although Reyes does not explain the basis for his Fourteenth Amendment claim, the more specific provision rule forecloses any substantive due process claim “regarding deliberate indifference to his right to bodily integrity.” Betts, 621 F.3d at 261 n.10.
Because Reyes' claims must be analyzed under the standard of the Eighth Amendment, judgment as a matter of law should be entered in favor of all Defendants with respect to the Fourteenth Amendment claim.
If Reyes was a pretrial detainee, his failure to protect claim would be analyzed “under the Due Process Clause of the Fourteenth Amendment, as opposed to the Eighth Amendment.” Paulino v. Burlington Cty. Jail, 438 Fed.Appx. 106, 109 (3d Cir. 2011) (citing Bell v. Wolfish, 441 U.S. 520, 535-36 (1979)).
4. Reyes' Eighth Amendment Claims
Defendants contend that Lt. Reber, Lt. Dickey, and Counselor Skillman are entitled to summary judgment on Reyes' Eighth Amendment claim because they did not act with deliberate indifference to Reyes' health and safety.
The Third Circuit has explained that because “[b]eing violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society, ” Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012) (quoting Farmer, 511 U.S. at 834), “the Eighth Amendment's Cruel and Unusual Punishments Clause imposes on prison officials ‘a duty to protect prisoners from violence at the hands of other prisoners.'” Id. (quoting Farmer, 511 U.S. at 833). Therefore, [a] prison official's deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer, 511 U.S. at 828.
In order for a plaintiff to show that a prison official was deliberately indifferent, the plaintiff must show both “that the official was subjectively aware of the risk, ” id., and that the official “recklessly disregarded] that risk.” Id. at 836. Additionally, “prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Id. at 844.
a. Lt. Reber
Because any claims based on events that occurred before February 5, 2017 are time-barred, the starting point of the Court's analysis is Reyes' interactions with Lt. Reber at SCI Graterford after that date. In March 2017, Reyes told Lt. Reber about the threats, extortion, and the theft of his personal property by the gang members. Lt. Reber requested proof of payments to verify the extortion claim and placed Reyes in the RHU. A week later, Reyes was transferred to SCI Forest. Thus, it is uncontroverted that when Lt. Reber became aware the risk to Reyes' safety, he did not disregard that risk. Rather, he undertook an investigation, moved Reyes into protective custody, and kept him there until Reyes was transferred to a different facility.
As such, there are no genuine issues of material fact that would preclude judgment as a matter of law in favor of Lt. Reber. Simply put, there is no evidence that Lt. Reber acted with deliberate indifference to a substantial risk of serious harm; therefore, he is entitled to judgment in his favor on Reyes' Eighth Amendment claim.
b. Lt. Dickey
Reyes informed Lt. Dickey of his concerns regarding the gangs and the threats he had received as soon as he arrived at SCI Forest in March 2017. Yet, Reyes was placed in a general population unit with a cellmate who belonged to one of the gangs. When Reyes requested to be separated from inmates belonging to the gangs, Lt. Dickey told him that there was nothing that could be done. Based on these facts, which must be accepted as true, Lt. Dickey was aware of the risk to Reyes' safety because Reyes had articulated that risk to him but took no action.
In seeking summary judgment, Lt. Dickey contends that he could not have been deliberately indifferent to Reyes' safety because Reyes did not identify any specific inmates that had threatened him. But the law is clear that a prison official cannot escape liability for deliberate indifference by arguing that “while he was aware of an obvious, substantial risk to inmate safety, he did not know that the complainant was especially likely to be assaulted by the specific prisoner who eventually committed the assault.” Farmer, 511 U.S. at 843. Indeed, the relevant inquiry “is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial risk of serious damage to his future health . . . and it does not matter whether the risk comes from a single source or multiple sources . . . .” Id.
The record reflects some evidence that Lt. Dickey knew of the risk that Reyes faced from gang members but failed to take any action. Therefore, he is not entitled to judgment in his favor with respect to Reyes' Eighth Amendment claim against him.
c. Ms. Skillman
After Lt. Dickey failed to take any action regarding Reyes' request for protection from the gang members, Reyes had a cellmate who was belonged to one of the gangs. When his cellmate began extorting and threatening him, Reyes sought help from Ms. Skillman but she refused to take any action. (Id. ¶¶ 5, 28.) In seeking summary judgment, Ms. Skillman relies on the same arguments advanced by Lt. Dickey, which the Court has already rejected. Therefore, Defendants' motion for summary judgment regarding Reyes' Eighth Amendment claim against Ms. Skillman should be denied.
d. Lt. Woods
Although Defendants do not raise the “absence of deliberate indifference” argument with respect to Lt. Woods, the same rationale applies. The record reflects that by the time Reyes was transferred to SCI Fayette, he had already been attacked by a gang member at SCI Forest and was placed in the RHU. Reyes spoke to Lt. Woods and requested protection from the gangs. Just like Lt. Dickey and Ms. Skillman, there is record evidence that Lt. Woods had knowledge of the risk that Reyes faced from gang members but failed to take any action to protect him. Indeed, instead of keeping Reyes in the RHU under protective custody, he told Reyes that he would be moved to a general population unit. Accordingly, Reyes' Eighth Amendment claim against Lt. Woods should survive summary judgment.
5. Reyes' First Amendment Claim
Reyes has also asserted a First Amendment claim against Ms. Skillman. Defendants contend that there is no evidence to support such a claim.
According to Defendants, Reyes has alleged that Defendants retaliated against him for attempting to use the prison grievance system. The Amended Complaint does not contain any such allegations. Additionally, in opposing summary judgment on this claim, Reyes inappropriately relies on events that allegedly occurred after he filed the Amended Complaint. This analysis is limited to the facts alleged in the Amended Complaint on which Reyes based his claims.
It is well established that “[r]etaliating against a prisoner for the exercise of his constitutional rights is unconstitutional, ” Bistrian, 696 F.3d at 376, and “as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006). A prisoner alleging First Amendment retaliation “must show (1) constitutionally protected conduct, (2) an adverse action taken by prison officials sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the exercise of his constitutional rights and the adverse action taken against him.” Mack v. Warden Loretto FCI, 839 F.3d 286, 297 (3d Cir. 2016) (quoting Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)).
Here, the record reflects that all three elements of a First Amendment retaliation claim are satisfied. After Ms. Skillman refused to take any action to protect Reyes from the gang members, Reyes told her that he was going to contact his family and lawyer. The next day, Ms. Skillman told Reyes that all of his means of communication to his family and friends had been terminated.
With respect to the first element, the Third Circuit has explained that the First Amendment's “Free Speech Clause and the Petition Clause protect . . . both expression generally and expression directed towards the government for the specific purpose of asking it to right a wrong.” Mack, 839 F.3d at 297 (citing Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 388 (2011)). By telling Ms. Skillman that he was going to contact his family and lawyer about her alleged refusal to protect him, Reyes engaged in a protected activity, i.e., personal expression. Second, termination of Reyes' communications with his family and friends was undoubtedly an adverse action because it constrained his efforts to complain to the outside world. Finally, the causal link between the first two elements is satisfied because the adverse action was conducted a day after Reyes engaged in the protected activity.
Defendants' submissions do not address or refute Reyes' sworn assertions that Ms. Skillman took adverse actions when he told her that he was going to contact others about her failure to protect him from gang members. Accordingly, because the facts of record provide sufficient support for his claim, Ms. Skillman is not entitled to summary judgment on the First Amendment retaliation claim.
E. Conclusion
Based on the foregoing, it respectfully recommended that Defendants' motion for summary judgment (ECF No. 106), be granted in part and denied in part. Summary judgment should be granted in favor of Defendants Lisa Durand, Mr. Perry, Mr. S. Erickson, Scott Riddle, Capt. Saley, Lt. Stanley, Mr. Byers, Mark Capozza, Trooper Davy, L. Reeher, Michael D. Overmeyer, Carter, and Lt. Reber. In addition, Defendants Lt. Dickey, Lt. Woods, and Ms. Skillman are entitled to judgment as a matter of law with respect to Reyes' Fourteenth Amendment claim. Defendants' motion as to Reyes' Eighth Amendment claims against Defendants Lt. Dickey, Lt. Woods, and Ms. Skillman as well as his First Amendment claim against Defendant Ms. Skillman should be denied.
F. Notice
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by February 22, 2021. Any party opposing the objections shall file a response by March 8, 2021. Failure to file timely objections will waive the right of appeal.