Opinion
1:20-CV-00208-SPB
07-19-2023
SHAWN L. WILLIAMS, Plaintiff v. ROBIN NYBERG, WAGNER, PAUL ENNIS, DEPUTY SUPERINTENDENT; ROSCINSKI, CEVC; MICHAEL C. CLARK, SUPERINTENDENT; BRIAN FLINCHBAUGH, DEPUTY SUPERINTENDENT; LT. T. ANDERSON, MAJOR CHRISTOPHER M. MEURE, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT IN RE: ECF NOS. 116, 120
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
Defendants' motion for summary judgment (ECF No. 116) and the Plaintiff's cross-motion for summary judgment (ECF No. 120) have been referred to the undersigned for Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rules 72.1.3 and 72.1.4. For the reasons discussed below, it is respectfully recommended that the Defendants' motion be GRANTED and that the Plaintiff's motion be DENIED.
II. Factual and Procedural Background
A. Factual Background
The central facts of this case are not particularly complex. Plaintiff Shawn L. Williams worked as a janitor in the prison chapel. The chapel is very near to the prison library where Defendant Robin Nyberg worked as the librarian. On July 26, 2018, Williams filed Grievance No. 749448 against Nyberg in which he complained that Nyberg “tossed [his library call-out pass] at me in a very resentful manner.” ECF No. 119-3, p. 11. He also grieved that she gave him a “sinister grin.” Id. As part of his grievance, Williams wrote that Nyberg's actions could lead to a possible “physical assault” because “[i]t is obvious that Ms. Nyberg does not care about her own safety.” ECF No. 119-3, p. 12. Nyberg understood this language as a threat to her personal safety. ECF No. 119-10. ¶ 2. Williams' grievance was rejected because it was not presented in a “courteous manner.” ECF No. 119-3, p. 10. On August 2, 2018, Williams re-submitted the grievance, this time omitting his references to “physical assault” and Nyberg's personal safety. Id., p. 8.
Nyberg and other prison personnel complained that Williams would enter the library during his job shifts as chapel janitor and intimidate and bully Nyberg. See ECF No. 119-12. They asserted that Williams would make up excuses to enter and remain in the library and interact with Nyberg. Id. They further complained that when Williams was told to stop this conduct, he began spending an inordinate amount of time vacuuming immediately outside the library and staring at Nyberg through the library windows. Id. Corrections officers also reported that they noticed a pattern of Williams waiting near the library or staring into the library after cleaning the Chapel lobby area near the library. See ECF No. 119-5.
According to Nyberg, Williams' interactions with her after he submitted his initial grievance and for the remainder of that 2018 made her fearful for her personal safety. ECF No. 119-12, ¶ 6. Nyberg shared her concerns with Defendant Deputy Superintendent Paul Ennis, who found her concerns to be credible and legitimate. See id.; ECF No. 119-15, ¶ 3 (Ennis Declaration). Williams disagrees with this interpretation and asserts that his actions toward Nyberg throughout 2018 were “appropriate and constitutionally protected.” ECF No. 138, ¶ 10. Sometime during the week of December 1, 2018, Ennis suspended Williams from his chapel janitorial position. See ECF No. 124-1, ¶ 1 (Defendants' Response to Request for Admissions). Then, on December 12, 2018, Williams was placed in administrative custody and later transferred to another correctional institution. Id., ¶ 6; see also ECF No. 119-10, p. 1.
B. Procedural History
Williams' original complaint in this action was docketed on August 24, 2020. ECF No. 12. The Complaint asserted conspiracy, failure to protect, and retaliation claims against the Defendants in their individual and official capacities. Id. Defendants moved to dismiss the complaint on January 19, 2021. ECF No. 27. The Court denied the motion as moot upon Williams' filing of an Amended Complaint. ECF No. 46. Defendants moved to dismiss Williams' Amended Complaint (ECF No. 60); that motion was also denied as moot upon the filing of Williams' Second Amended Complaint. ECF No. 72. In response to Williams' Second Amended Complaint, Defendants moved to reactivate and reassert their prior motion to dismiss (ECF No. 74), and the Court granted that motion (ECF No. 75). The undersigned then submitted a Report and Recommendation (ECF No. 80), which recommended that Williams' Second Amended Complaint be dismissed in its entirety. This Court adopted in part and rejected in part the Report and Recommendation. See ECF No. 90. Consistent with the undersigned's recommendation, the Court dismissed Williams' official capacity and failure to protect claims. The Court held, however, that the Second Amended Complaint alleged facts sufficient to state a First Amendment retaliation claim against each of the Defendants. Id. The Court also recognized the Second Amended Complaint as stating a conspiracy claim against the Defendants. See id., p. 2.
Following discovery, the Defendants filed a motion for summary judgment, supporting brief, a concise statement of material facts, and an appendix of exhibits. See ECF Nos. 116, 117, 118, and 119. Williams then cross-moved for summary judgment. See ECF No. 120. With his motion, he submitted his own declaration, a statement of undisputed facts, and a brief in support. See ECF No. 121, 122, and 123. The Defendants filed a response in opposition to Williams' motion as well as a responsive concise statement of material facts. ECF Nos. 133, 134. Williams then filed another declaration (ECF No. 136) as well as brief in opposition to the Defendants' motion for summary judgment (ECF No. 137). Williams also filed an appendix (ECF No. 141) and a “concise statement of disputed factual issues” (ECF No. 143).
The cross-motions for summary judgment are ripe for disposition.
III. Standards of Decision
A. Motions for Summary Judgment
Federal Rule of Civil Procedure 56(a) requires the court to enter summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Under this standard “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A disputed fact is “material” if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of 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 257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether a genuine issue of material fact remains for trial, the court must view the record and all reasonable inferences to be drawn therefrom in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. Instead, once the movant satisfies its burden of identifying evidence that demonstrates the absence of a genuine issue of material fact, the nonmoving party must go beyond his pleadings with affidavits, depositions, answers to interrogatories or other record evidence to demonstrate specific material facts that give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Further, under Rule 56, a defendant may seek summary judgment by pointing to the absence of a genuine fact issue on one or more essential claim elements. The Rule mandates summary judgment if the plaintiff then fails to make a sufficient showing on each of those elements. When Rule 56 shifts the burden of production to the nonmoving party, “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. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
The court applies the foregoing standards no differently when reviewing cross-motions for summary judgment. Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008). “‘Cross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.'” Id. (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)). If review of cross-motions reveals no genuine issue of material fact, then judgment may be granted in favor of the party entitled to judgment in view of the law and undisputed facts. Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998) (citation omitted).
While a pro se complaint is to be construed liberally at the pleading stage of the case, a pro se plaintiff may not rely on unsupported allegations in his complaint to defeat a summary judgment motion. Simmons v. Gilmore, 2021 WL 1215773, at *8 (W.D. Pa. Mar. 31, 2021) (citing Miller v. McClure, 2020 WL 1049750, *6 (W.D. Pa. Mar. 4, 2020) and Anderson, 477 U.S. at 256 (“Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.”)). However, because Williams' Second Amended Complaint is verified, it is akin to an affidavit and, therefore, its factual allegations, to the extent based on his personal knowledge, are properly part of the summary judgment record. Jackson v. Armel, 2020 WL 2104748 at *5 (W.D. Pa. May 1, 2020). In contrast, allegations made without evidentiary support will be disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000); see also Schoch v. First Fid. Reincorporation, 912 F.2d 654, 657 (3d Cir. 1990) (“[U]nsupported allegations ... and pleadings are insufficient to repel summary judgment.”). Put simply, “[s]ummary judgment is essentially ‘put up or shut up' time for the non-moving party.” NVR Inc., v. Majestic Hills, LLC, 2023 WL 3043780, at *3 (W.D. Pa. Apr. 21, 2023) (quoting Berckeley Inv. Grp. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006)).
B. First Amendment Retaliation Claims
Williams' only remaining claims are his First Amendment retaliation and related conspiracy claims against the Defendants based on the termination of his employment as chapel janitor and his subsequent transfer to a different correctional institution. See ECF No. 90, p. 7. When analyzing such claims, the Court begins with the general proposition that inmates do not have a protected interest in prison employment, see James v. Quinlan, 866 F.2d 627, 629 (3d Cir.), cert. denied, 493 U.S. 870 (1989); Howard v. Coupe, 2023 WL 2207592 (3d Cir. Feb. 24, 2023), or assignment to a particular correctional institution. See Spellman v. Doe, 2023 WL 2666694, at *6 (M.D. Pa. Mar. 28, 2023) (citing Lawson v. Carter, 2016 WL 6694860, a *2 (M.D. Pa. Nov. 14, 2023) (finding it “well-established that prisoners have no inherent constitutional right to placement in any particular prison”). Nonetheless, a prisoner cannot be fired from or passed over for a job in retaliation for exercising a constitutional right. See Mack v. Warden Loretto FCI, 839 F.3d 286, 300 n.76 (3d Cir. 2016). Similarly, although a prisoner has no right to either seek or avoid a transfer to another institution, a transfer ed in response to the filing of a grievance or lawsuit may be unlawful retaliation. See, e.g., Small v. Kaufmann, 2022 WL 3036050, at *5 (M.D. Pa. Aug. 1, 2022) (citation omitted).
To survive a motion for summary judgment, a plaintiff asserting a retaliation claim in the prison context must produce evidence upon which a jury could reasonably find that (1) his conduct was constitutionally protected; (2) he suffered an 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 the adverse action. Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (citing Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001)). See also Baez v. Mooney, 2022 WL 1694108, at *4 (W.D. Pa. Mar. 17, 2022), report and recommendation adopted, 2022 WL 1689506 (W.D. Pa. May 26, 2022); Williams v. Clark, 2021 WL 6052121, at *9 (W.D. Pa. Dec. 20, 2021). Thus, to avoid summary judgment in this case, Williams must point to record evidence sufficient to support a finding that he engaged in constitutionally protected activity that was a “substantial or motivating factor” in the Defendants' decision to terminate his employment or transfer him to another institution. See id. He must identify relevant portions of the summary judgment record to establish a genuine issue of material fact as to each element of his claim. See Angle v. Carter, 2019 WL 981914, at *3 (W.D. Pa. Feb. 1, 2019); Waskiewicz v. PPL Services, Inc., 2012 WL 170693 at *4 (E.D. Pa. Jan. 19, 2012). If Williams sustains this initial burden, the burden shifts to Defendants to show that they would have engaged in the same disciplinary or other adverse action absent Williams' constitutionally protected activity. Rauser v. Horn, 241 F.3d 330, 333 (3rd Cir. 2001) (citations omitted).
Finally, if Defendants satisfy this burden, case law indicates that Williams may not challenge their decision as pretextual. See Holbrook v. Kingston, 2013 WL 504816, at *2 (W.D. Pa. Feb. 12, 2013), aff'd, 552 Fed.Appx. 125 (3d Cir. 2014). “[W]hile pretext is an available avenue to rebut a legitimate nondiscriminatory reason put forward by an employer-defendant defending against a retaliation claim in an employment setting, the Third Circuit has not recognized pretext in retaliation claims arising in a prison setting.” Id. (citing Carter v. McGrady, 292 F.3d 152 (3d Cir.2002) (noting that even if prison officials were motivated by retaliatory animus, there was sufficient evidence of plaintiff's misconduct offenses to conclude that the misconducts would have issued notwithstanding this animus). Precluding assertions of pretext to rebut prison officials' “same decision” defense is consistent with the Court's policy against undue entanglement in prison disciplinary matters. As this Court has repeatedly observed, “[b]ecause retaliation claims can be easily fabricated, district courts must view prisoners' retaliation claims with sufficient skepticism to avoid becoming entangled in every disciplinary action taken against a prisoner.” Carter v. Slater, 2021 WL 5605289, at *8 (W.D. Pa. Nov. 30, 2021) (quoting Miskovitch v. Hostoffer, 721 F.Supp.2d 389, 396 (W.D. Pa. 2010)).
Williams' retaliation claim is based in part on the loss of his prison job. Nevertheless, to avoid undue entanglement with prison disciplinary matters, courts have categorically rejected a prisoner's assertion of pretext in rebuttal to prison officials' “same decision” defense in retaliation cases. This rationale applies no less to Williams' retaliation claim based on loss of his prison job. Offering evidence of pretext in rebuttal to a defendant-employer's legitimate nondiscriminatory reason for an adverse employment action appears to be limited to employment discrimination, retaliation, and other civil rights claims in the non-prison context. See e.g., Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1096 (3d Cir. 1995).
With these legal standards as guidance, the Court will analyze whether the record includes evidence to support each element of Williams' retaliation claim against each remaining Defendant.
IV. Discussion and Analysis
A. Introduction
Both sides acknowledge that between 2015 and 2018, Williams filed over 100 grievances “against numerous staff members at SCI-Albion.” ECF No. 134, ¶ 4. The protected activity upon which Williams bases his claims in this case, however, is a grievance he filed after his interaction with Nyberg in the library on July 25, 2018. According to Williams' grievance, Nyberg “tossed [his library call-out pass] at [Williams] in a very resentful manner” and gave him a “sinister grin.” ECF No. 119-3, p. 11. As noted, after this grievance was initially rejected because of its thinly veiled threat against Nyberg, Williams resubmitted it without the threatening language. See ECF No. 119-3, p. 11. Williams maintains that this grievance led all Defendants to launch a retaliatory “campaign against him.” ECF No. 147, p.3.
Williams asserts a retaliation claim not only against Nyberg but, apparently, against each of the other Defendants, Ennis, Roscinski, Clark, Flinchbaugh, Anderson, and Meure. Williams also alleges that these defendants engaged in a broad conspiracy to retaliate claim against him “on behalf of Nyberg.” See ECF No. 137, p. 4. That is, Williams contends that the remaining defendants participated in a “grand retaliatory conspiracy” to terminate his employment and transfer him to another institution. See ECF No. 72, ¶¶ 95, 96. The individual retaliation claims will be discussed first, followed by the conspiracy claim.
B. Retaliation Claim Against Defendant Nyberg
Williams points to three acts of purported retaliation by Nyberg: her denial of law library access; her accusations that Williams was stalking her and was a “snitch”; and her refusal to obtain notary services as requested by Williams. He maintains that each of these actions was undertaken in retaliation for his having filed Grievance No. 749448 against her in July of 2018.
1. Access to Law Library
Williams claims Nyberg “delay[ed] her response to his September 4, 2018, DC-135A request for law library access” until September 11, 2018, in retaliation for his having filed Grievance 749448 on July 25, 2018, and so she could “unnecessarily approach the plaintiff” and “personally refuse his DC-135A request.” Id., p. 5. Williams acknowledges that Nyberg advised him that the one-week delay in his access to the law library was due to an emergency lockdown at the prison from August 29, 2018 until September 9, 2018. See ECF No. 119-4, p. 3.
Without question, the filing of a grievance is constitutionally protected activity. See, e.g., Laurensau v. Romarowics, 528 Fed.Appx. 136, 139 (3d Cir. 2013); Hall v. SCI Fayette, 2023 WL 2867862, at *9 (W.D. Pa. Apr. 10, 2023). And because prisoners must have “adequate, effective, and meaningful access to courts,” the denial of access to the law library may constitute an adverse action. Bounds v. Smith, 430 U.S. 817, 822 (1977) (holding that prisons must give convicted inmates access to law libraries or direct legal assistance). However, a prisoner has no “abstract, freestanding right to a law library.” Lewis v. Casey, 518 U.S. 343, 351 (1996). A prison official's delay or denial of law library access is an adverse action for purposes of a retaliation claim only if it resulted in some meaningful prejudice to the plaintiff. See, e.g., Georges v. McElroy, 2022 WL 1744645, at *3 (D.N.J. May 31, 2022). Therefore, denial of access to the law library on one occasion is considered too de minimus to constitute an adverse action unless that denial results in some demonstrable prejudice to the plaintiff. See Turner v. Johnson, 2020 WL 6323698, at *6 (D.N.J. Oct. 28, 2020) (citing Meeks v. Schofield, 625 Fed.Appx. 697, 701-02 (6th Cir. 2015). See also Gordon v. Bertsch, 2015 WL 10319307 at *10 (D.N.D. 2015) (finding the allegation that plaintiff was told on one occasion that he could not access the law library, without more, is not an objectively sufficiently adverse action to satisfy the second element of a claim for retaliation). Williams has not pointed to any evidence in the record demonstrating that the one-time, one-week delay in his access to the law library was anything other than an inconsequential inconvenience. Although he vaguely states that Nyberg's actions prevented him from filing “an appeal to a ‘right-to-know' deadline,” he fails to provide any meaningful information concerning the alleged “right-to-know” proceeding, including its specific subject, the identity of the court or tribunal in which it was pending, the date of the deadline he allegedly missed, or the impact, if any, on his rights or interests. See ECF No. 119-4, p. 5. Absent such evidence, a delay or denial of access to the prison law library cannot support the adverse action element of a retaliation claim. See Georges, 2022 WL 1744645, at *4 (no adverse action supported where “Plaintiff has not provided any information about the legal document he was attempting to save on June 24, 2021 (or any other), or any concrete injury suffered as the result of being unable to save his work before leaving the library at McElroy's directive”). Here, the record before the Court does not support that the short delay in Williams' access to the law library adversely affected Williams. Indeed, the record shows that this delay did not deter him from exercising his right to access the courts or other avenues of redress as evidenced by his continuing submission of grievances and the filing of this lawsuit. See, e.g., Id. (citing Monroe v. Phelps, 520 Fed.Appx. 67, 71 (3d Cir. 2013) (plaintiff was not “subject to adverse actions of the type that would deter a prisoner of ordinary firmness from exercising his constitutional rights” where plaintiff filed several grievances after the incident)). The absence of record evidence to support the adverse action element of his retaliation claim against Nyberg for delayed access to the prison law library is fatal to that claim.
Furthermore, even had Williams produced evidence to support the adverse action element of this claim, it would still fail because of the insufficiency of the evidence to support a causal connection between the filing of Grievance 749488 and the delay in his access to the law library. Williams must produce evidence to support a finding that his protected conduct “was a substantial or motivating factor in the decision to take that action.” Burton v. Giroux, 794 Fed.Appx. 196, 198 (3d Cir. 2019) (quoting Oliver v. Roquet, 858 F.3d 180, 190 (3d Cir. 2017) (quotation marks omitted)). Retaliatory motive can be inferred from either: (1) an unusually suggestive temporal proximity between the protected activity and the alleged retaliatory action; or (2) a pattern of antagonism coupled with timing that suggests a causal link. Id. (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)). See also Williams v. PA. Dep't of Corr., 2023 WL 2655406, at *14 (W.D. Pa. Feb. 2, 2023), report and recommendation adopted sub nom. Williams v. PA Dep't of Corr., 2023 WL 2652298 (W.D. Pa. Mar. 27, 2023). Here, Williams initially filed his grievance against Nyberg on July 25, 2018, and the delay and/or denial of library access did not occur until September 11, 2018, approximately six-weeks later. This lapse of time, absent other evidence of retaliatory motive, precludes a finding of causation. See Williams v. Pennsylvania Dep't of Corr., 2020 WL 5237606, at *16 (W.D. Pa. Aug. 14, 2020), report and recommendation adopted, 2020 WL 5231417 (W.D. Pa. Sept. 2, 2020). Indeed, the Court of Appeals for the Third Circuit has concluded that a period of roughly three weeks between the protected activity and the adverse action, without more, was not unduly suggestive of retaliatory motive. See Escanio v. United Parcel Serv., 538 Fed.Appx. 195, 200 (3d Cir. 2013). See also Williams, 2020 WL 583983, at *9 (noting that periods of seventeen days, three weeks, seven weeks, and between one and three months had each been deemed insufficient to establish causation) (citing Burt v. Lane, 2017 WL 4681807, at *9-10 (M.D. Pa. Apr. 4, 2017)).
Nor is there sufficient evidence to suggest that the delay in library access was otherwise motivated by retaliatory animus. The record reflects that Williams' request for library access was denied because the institution was on emergency lockdown from August 29, 2018, until September 9, 2018. See ECF No. 119-4, p. 3. And Williams himself acknowledged in a grievance that Nyberg told him of this: “she blamed her failure to honor my request on the 8/29/18 administrative lockdown.” Id., p. 5 (Grievance 757690). Finally, to the extent Williams may argue that a pattern of antagonism existed between he and Nyberg, the evidence remains insufficient to create a genuine issue of material fact. The time between any alleged antagonism remains too great to support causation, and it also appears from the record that any such antagonism was largely directed by Williams against Nyberg as evidenced by the pettiness of the matters raised in his Grievance No. 749448 and his initial inclusion of a threat to Nyberg's safety in that grievance.
Summary judgment should be granted on Williams' retaliation claim against Nyberg based on denial of law library access.
2. Nyberg Labeling Williams a “Snitch” and a “Stalker”
Williams filed another grievance against Nyberg complaining that she labeled him “a snitch to the general inmate population” because he had previously filed a grievance against her “which got the music banned from being played in the library.” See ECF No. 119-7, p. 4. This grievance is not part of the record. This omission is not fatal to Williams' retaliation claim, however, because the filing of this grievance is not the protected conduct upon which he bases his claim. Once again, Williams argues that the conduct he complained about in that grievance was retaliation for his having filed Grievance No. 749448. The record establishes, however, that Nyberg's complaints about Williams were not sufficiently adverse to support the adverse action element of his retaliation claim. Williams maintains that Nyberg “falsely accused [him] of stalking her” and “promot[ed] a rumor of [him] being a snitch.” ECF No. 72, ¶¶ 20. Regarding Nyberg's allegation of stalking, courts addressing similar claims have uniformly held that such conduct is not sufficiently serious to meet First Amendment retaliation standards. See, e.g., Bailey v. Wood, 2022 WL 17552749, at *5 (W.D. Pa. Dec. 9, 2022) (defendant's alleged false comments and innuendo were not adverse actions); Jackson v. O'Brien, 2021 WL 3174687, at *5 (W.D. Pa. July 27, 2021). As to Williams' assertion that Nyberg labeled him a “snitch,” it is important first to scrutinize precisely what he is talking about. Williams does not contend that Nyberg accused him of “snitching” on another inmate or inmates. That type of accusation is considered an adverse action because it can invite ostracism, harassment, or even violence against the subject inmate. See, e.g., Bracey v. Pa. Dep't of Corr., 2012 WL 750911, at *9 (W.D. Pa. Feb. 17, 2012). Here, Williams submits that another inmate, Maurice Abbey, told him that “Nyberg was extremely upset and out to get me because I filed a DC-ADM 804 grievance against her, which got the music banned from being played in the library.” ECF No. 142, ¶ 23. Abbey has submitted a declaration in which he confirms his conversation with Williams. See ECF No. 137-2, p. 16. Thus, the “snitching” underlying Williams' claim was his filing of a grievance against Nyberg.
Williams has also submitted the declaration of another inmate, Todd Ballard, who states that on October 3, 2018, he witnessed Nyberg become angry and threaten Williams, telling him to “remember what you started.” ECF No. 153-1, p.1. Nothing in this declaration, however, connects it to the incident in question. And even assuming his assertions to be true, such threats and verbal harassment do not constitute retaliation. See Burgos v. Canino, 358 Fed.Appx. 302, 307 (3d Cir. 2009); Cooper v. Sherman, 2019 WL 2408973, at *7 (M.D. Pa. June 7, 2019).
Unlike where a prison official accuses an inmate of “snitching” on other inmates, no threat of ostracism, harassment, or violence arises where the subject of the grievance, complaint, or other “snitching” is a prison official; accordingly, in this context, the prison official's acknowledgement of the grievance or complaint against her or him is not sufficiently adverse to satisfy the adverse action element of a retaliation claim. Jackson, 2021 WL 3174687, at *4 (noting that “while prisoners may be motivated to harm a fellow inmate who is or could be informing on them, that motivation for preserving inmate anonymity and solidarity does not exist when the inmate is accused of ‘snitching' to prison officials about …DOC staff who the inmates so often view as opposed to their interests”). Accord, Nunez v. Wetzel, 2023 WL 2385931, at *7 (M.D. Pa. Mar. 6, 2023) (citing Jackson). Here, Nyberg's alleged acknowledgement that Williams filed a grievance against her that resulted in her no longer being able to play music in the library is not akin to accusing an inmate of being a snitch against another inmate. And the record does not otherwise support a reasonable jury's finding that this conduct was sufficiently adverse to support a retaliation claim. Although Williams asserts in conclusory terms that Nyberg's blaming him “for the music being banned from being played in the library… put him in danger of being assaulted,” ECF No. 119-7, p. 4, the record is devoid of evidence that Nyberg's statement stoked significant animosity against him, let alone placed him at risk of assault.
In addition to the failure of proof on the “adverse action” element of his claim, it also fails because the record does not support a causal connection between his having filed Grievance No. 749448 against Nyberg and her alleged actions. Williams has not identified when she “falsely accused [him] of stalking her” and “promot[ed] a rumor of [him] being a snitch” or produced the grievance wherein he initially made this claim. Williams' failure to provide such basic evidence makes it impossible to determine whether the conduct was sufficiently proximate to support a finding of causation. As such, it constitutes a fundamental failure of proof on the essential element of causation and warrants the entry of summary judgment.
3. Notarization Request
Lastly, Williams contends that Nyberg retaliated against him by refusing to have an affidavit authored by inmate James Patterson notarized. See ECF No. 124-1, pp. 12-13. Williams wanted to submit Patterson's affidavit as evidence in another lawsuit. See Williams v. Clark, et al., Case No. 1:20-cv-208; ECF No. 111-3, p. 37. Williams did not file a grievance related to this incident but did make his request via a DC-135A “Request to Staff” form, the submission of which is constitutionally protected conduct. See Baez v. Mooney, 2022 WL 1694108, *4 (W.D. Pa. Mar. 17, 2022). Again, however, the record fails to support that Nyberg's refusal to notarize the affidavit constituted an adverse action. First, as Nyberg noted in her response on Williams' DC-135A form, notarization of an affidavit is not required for submission to the court; inclusion of statutorily specified attestation language is sufficient. See ECF No. 124-1, pp. 12-13. Thus, not only did Nyberg not act in a manner that could be considered adverse to Williams, but she provided him with accurate and helpful information. Indeed, Williams' characterization of her response as retaliatory appears to be a classic example of the adage that “no good deed goes unpunished.” And in any event, Williams successfully submitted Patterson's declaration to the Court as an exhibit in opposition to a motion for summary judgment filed in his other lawsuit. See Williams, Case No. 17-cv-000204 (Erie), ECF No. 111-3, p. 37.
See 28 U.S. Code § 1746 (unsworn declarations under penalty of perjury); Fed.R.Civ.P. 56(c)(4) (providing for the filing of an affidavit or unnotarized declaration); see also Newsome v. Teagarden, 2021 WL 1176102, *at 3 (W.D. Pa. Mar. 29, 2021) (citing Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985)).
The court takes judicial notice of “the authenticity and existence of the docket entries, orders, and opinions publicly available” on a court's docket. Pinson v. Coleman, No. CV 14-416, 2023 WL 2705234, at *19 n.6 (W.D. Pa. Mar. 30, 2023) (citing FCS Cap. LLC v. Thomas, 579 F.Supp.3d 635, 647 (E.D. Pa. 2022)).
In summary, each of Williams' retaliation claims against Nyberg suffers from a failure of proof on at least one essential element of the claim. Accordingly, Defendants' motion for summary judgment should be granted as to Nyberg.
C. Retaliation Claims Against Remaining Defendants
Williams also raises retaliation claims against Defendants Roscinski, Wagner, Flinchbaugh, Meure, Ennis, Clark, and Anderson. It is unclear from his allegations, however, whether he brings claims against these Defendants individually or collectively. In either case, Williams has failed to provide or otherwise identify evidence upon which a reasonable jury could find these remaining Defendants retaliated against him. Summary judgment should therefore be granted in favor of these Defendants.
1. Defendant Meure
The only evidence in the record concerning Meure is Williams' inclusion of two Initial Review Responses that Meure authored denying two of Williams' grievances. See ECF No. 124-1, pp. 19, 23. The record does not support a finding that Meure's denial of either of those grievances was an adverse action for purposes of a retaliation claim. As this Court has explained, “it is not at all clear that the rejection or denial of a grievance, or any similar action, constitutes an ‘adverse action' as required to state a retaliation claim.” Owens v. Coleman, 2014 WL 631631, at *5 (W.D. Pa. Feb. 18, 2014). This is because “the grievance process contains multiple levels of review, allowing an inmate to redress mistaken rejections or denials. Thus, the mere fact that a grievance has been rejected or denied would not seem to be that kind of conduct that would deter an inmate of ordinary firmness from pursuing the grievance process.” Id. (quoting Nifas v. Coleman, 2012 WL 707063 (W.D. Pa. Feb. 9, 2012)). Nothing in the record indicates that Williams was unable to utilize the various levels of the grievance process to address the matters raised in the two grievances that Meure initially denied. In fact, the record demonstrates that Williams was not deterred from utilizing the Department's grievance process. Accordingly, Defendants' motion for summary judgment should be granted as to the claims against Meure.
2. Defendant Anderson
The record also does not support a finding that Anderson took an adverse action against Williams. Williams contends that on August 6, 2018, Anderson destroyed a video surveillance recording from the library from July 25, 2018, the date of Williams' interaction with Nyberg. See ECF No. 137, p. 4. He further claims that Anderson “attempted to intimidate the plaintiff into withdrawing his (grievance) against Nyberg.” Id. Despite Williams' bald assertions to the contrary, the record includes no evidentiary support for these alleged actions. Williams cites no evidence in the record to support this claim and the Court's review of the record has disclosed none. Williams did not file a grievance against Anderson. And although his July 26, 2018, grievance against Nyberg mentions purported video recordings, nothing in the record supports that Anderson tampered or destroyed any recording. Williams offers nothing but his own unsupported speculation to support this allegation. His vague allegations of attempted intimidation are also insufficient to create a genuine issue of material fact or avoid summary judgment. See Celotex Corp., 477 U.S. at 324.
Accordingly, Defendants' motion for summary judgment should be granted as to Williams' claim against Anderson.
3. Defendant Wagner
In his declaration, Williams asserts that Wagner committed a series of adverse actions, all in retaliation for Williams' having filed the grievance against Nyberg on July 26, 2018. First, Williams states that on October 5, 2018, he was suspended from his janitorial job for two weeks because Wagner made false allegations against him. ECF No. 136, ¶ 18. Then, according to Williams, on October 17, 2018, he observed Wagner and another individual enter Chaplain DeCecco's office “to campaign for my job removal.” Id., ¶ 19. According to Williams, Wagner claimed that he was “stopping other inmates entering/exiting the library,” “passing/receiving paperwork,” and “entering the library during my scheduled work hours.” Id., ¶ 24. Williams next asserts that on November 29, 2018, he learned that Wagner had “falsely accused [him] of coming to work on my off day.” Id., ¶ 26. On December 4, 2018, DeCecco informed Williams that he was suspended from his job pending a review. Id., ¶ 29. Williams argues all the foregoing actions were retaliatory for his filing of the July 26, 2018, grievance against Nyberg. See, e.g., ECF No. 137, p. 7; See ECF No. 119-6, p. 11.
Williams' claim against Wagner fails because the record does not support the causation element of the claim. There is insufficient evidence to support a finding that any of Wagner's foregoing actions were motivated by Williams' grievance against Nyberg. First, Wagner's suspension of Williams from his job did not occur until more than ten weeks after Williams filed Grievance No. 749448 against Nyberg. Wagner's other adverse actions occurred even later. Thus, the timing of his actions is not suggestive of a retaliatory motive. Furthermore, the fact that Wagner was not the subject of Grievance No. 749448 further belies causation. Courts have repeatedly declined to find a causal connection “when the alleged perpetrator of the retaliatory activity [Wagner] was not the subject of the constitutionally protected activity [Nyberg].” Robinson v. Delbalso, 2023 WL 2760425, at *11 (M.D. Pa. Mar. 31, 2023) (citing Calloway v. Bauman, 2022 WL 4357468, at *9 (M.D. Pa. Sep. 20, 2022); Victor v. Lawler, 2010 WL 5014555, at *5 (M.D. Pa. Dec. 3, 2010), aff'd, 565 Fed.Appx. 126 (3d Cir. 2014); Evans v. Rozum, 2009 WL 5064490, at *22 (W.D. Pa. Dec. 17, 2009) (“There is no apparent reason why [the moving defendants] would want to retaliate against Plaintiff for filing a lawsuit against others.”); Royster v. Beard, 308 Fed.Appx. 576, 579 (3d Cir. 2009) (affirming summary judgment in favor of defendant on plaintiff's claim that he was retaliated against by a defendant who was not the target of his protected activity).
The status of Wagner and Nyberg as co-workers alone does not support causation. Williams has provided no evidence that causally connects Wagner's actions to his grievance against Nyberg. There is also no evidence to support that Wagner urged or prompted DeCecco to file a false misconduct report against Williams. Williams has not even included DeCecco's misconduct report against him as part of the record. Given these multiple failures of proof to support the causation element of Williams' claim against Wagner, Defendants' motion for summary judgment should be granted as to that claim.
4. Defendant Roscinski
Williams contends that Roscinski retaliated against him on August 16, 2018, when she denied him a pay raise because of his “past grievances and complaints.” ECF No. 137, p. 4. Williams does not identify the grievances or complaints that he asserts motivated Roscinski to deny him a pay raise, nor does he include any relevant grievances against Roscinski in the record. And although the denial of a pay increase could constitute an adverse action, see, e.g., Wilcox v. Martinez, 2019 WL 6130809, at *4 (D.N.J. Nov. 18, 2019), aff'd, 858 Fed.Appx. 477 (3d Cir. 2021), Williams points to no evidence to contradict Roscinski's declaration that her job responsibilities do not include generating pay raise requests for inmates. In any event, the record includes no evidence that Roscinski, in fact, denied Williams a pay raise. See ECF No. 119-11. Thus, even assuming his vague invocation of “past grievances and complaints” supports the protected conduct element of his claim against Roscinski, the claim nevertheless fails based on the absence of evidence to support that Roscinski took any adverse action against Williams based on that protected conduct. Accordingly, Defendants' motion for summary judgment should be granted as to the claim against Roscinski.
Grievance No. 776480 does reference Roscinski by name. See ECF No. 119-8. That grievance, however, is dated December 13, 2018, more than four months after she denied Williams a pay increase. As such, it could not have motivated Roscinski to deny Williams a raise on August 16, 2018.
6. Defendant Ennis
Williams claims Ennis took the following actions against him in retaliation for his having filed Grievance No. 749448 against Nyberg: 1) he confiscated the Patterson declaration or a related “request slip” after Williams complained that Nyberg refused to notarize the Patterson declaration; 2) he refused to tell Williams why he was suspended from his prison job; and 3) he initiated Williams' job suspension. See ECF Nos. 136-137. Williams' retaliation claim fails as to each of these asserted actions.
First, the record does not support that Ennis' confiscation of the Patterson declaration was sufficiently adverse to support a retaliation claim. As previously noted, Williams successfully submitted Patterson's declaration to the Court as an exhibit in opposition to a motion for summary judgment in his other lawsuit. See Williams v. Clark, et al., Case Number 20-cv-00208 (Erie), ECF No. 111-3, p. 37. Williams has not stated how long he was allegedly out of possession of the declaration or any other information upon which a reasonable jury could find that he was prejudiced by its temporary absence. Indeed, it is unclear from Williams' vaguely worded declaration that he was ever out of possession of the Patterson declaration. See ECF No. 136, ¶28. Given this, the confiscation of the declaration cannot be considered an adverse action and Williams' retaliation claim based on this action fails.
And even if the Court were to consider Ennis' actions adverse, Williams still has failed to point to any evidence of causation. According to Williams' declaration, on November 29, 2018, Ennis “snatched/strong-armed the Patterson Request Slip and refused to give it back until I stated my intention to file a DC-ADM 804 Grievance against both Ennis and Nyberg.” See ECF No. 136, ¶¶ 27-28. Williams filed Grievance No. 749448 against Nyberg on July 26, 2018, approximately four months prior to this alleged action. See ECF No. 119-3. Consequently, the timing of the action alone does not support causation. The Court of Appeals for the Third Circuit has held that even less time (three months) between the protected conduct and the adverse action, without more, is insufficient to maintain a retaliation claim. See Brown v. Waxford, 2022 WL 2759064, at *9 (M.D. Pa. July 14, 2022) (citing LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 233 (3d Cir. 2007) (“Although there is no bright line rule as to what constitutes unduly suggestive temporal proximity, a gap of three months between the protected activity and the adverse action, without more, cannot create an inference of causation to defeat summary judgment.”)).
Williams' remaining claim against Ennis relates to his removal from his prison janitorial job. He first contends that Ennis retaliated against him by failing to tell him the reasons he was suspended from his job and second, by initiating his ultimate employment suspension. As to Ennis' refusal to tell Williams why he was suspended from his job, a lack of such communication cannot be considered retaliatory. Assuming Williams' inquiry to Ennis was protected conduct, the failure to explain the reasons for the termination was not adverse. The adverse action was the suspension/termination itself, not Ennis' failure to explain the reasons behind it when questioned by Williams. And, in fact, during the official PRC meeting, the reasons for the termination were explained to Williams.
The record reflects that Williams was suspended from his prison job in December of 2018, and placed in a diversionary treatment unit. See ECF No. 119-10, pp. 1-2. Williams argues Ennis initiated his suspension in retaliation for his having filed Grievance No. 749448 against Nyberg in July of 2018. While termination of an inmate's prison employment clearly qualifies as an adverse action, see, e.g., Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017) (holding that the termination of prison employment constitutes adverse action for retaliation purposes), the record does not support a finding that Ennis' suspension of Williams' employment was caused or motivated by Williams' grievance against Nyberg. Although Williams alleges that “Defendant Ennis expressed his personal resentment and animus for the plaintiff and plaintiff's exercise of protected activity conduct,” ECF No. 137, p. 10, he has produced no evidence to support this conclusory allegation. Moreover, causation is further negated by both the timing of Williams' suspension and the fact that Ennis was not the subject of Grievance No. 749448. Williams submitted his grievance against Nyberg on July 26, 2018, and Ennis did not initiate Williams' suspension or termination until December of 2018. This five-month interval is not suggestive of retaliatory animus. See, e.g., Bomba v. Dep't of Corr., 2018 WL 7019254, at *11 (M.D. Pa. Sept. 4, 2018) (holding that a five-month interval fails to establish causation on the basis of temporal proximity because “[t]he adverse action must occur within days, not months, of the protected activity”), report and recommendation adopted in part, rejected in part on other grounds sub nom. Bomba v. Commonwealth of Pennsylvania Dep't of Corr., 2019 WL 177471 (M.D. Pa. Jan. 11, 2019). See also LeBoon, 503 F.3d at 233.
There is also no evidence from which a rational trier of fact could find a pattern of antagonism between Williams and Ennis. Although the record reflects that Williams was a prolific filer of grievances, only one grievance mentions Ennis by name, Grievance No. 776480. That grievance was filed after Williams lost his job and stated that Ennis was responsible for his job suspension “alone,” but that “all staff concurred.” ECF No. 119-8, p. 6. Williams' declaration describes his only interaction with Ennis concerning Nyberg as occurring on November 29, 2018, when he complained to him about Nyberg declining to notarize the Patterson declaration. See ECF No. 136, ¶ 27. Williams does not mention any other interaction with Ennis prior to this encounter. See generally, id. This level of interaction does not support a finding that a pattern of antagonism existed between Williams and Ennis.
Finally, even if Williams had produced evidence to support a prima facie retaliation claim against Ennis, the record establishes that Ennis would have taken the same action even in the absence of Williams' protected activity. See, e.g., Williams v. Folino, 664 Fed.Appx. 14, 148-49 (3d Cir. 2016) (citing Watson, 834 F.3d at 426)). As Defendants cogently argue, the penological necessity of separating Williams from Nyberg negates Williams' claim of retaliation. See ECF No. 117, p. 10. In his affidavit, Ennis states that Nyberg approached him and reported her concerns for her personal safety and her fear that Williams would “physically harm her.” ECF No. 119-15, ¶¶ 2-3. The legitimacy of Nyberg's concerns was supported by Williams' own words in his original version of Grievance 749448, wherein he stated that Nyberg's actions could lead to a possible “physical assault” because “[i]t is obvious that Ms. Nyberg does not care about her own safety.” ECF No. 119-3, p. 12. Ennis attests that Williams was removed from his position as the chapel janitor because of his “continued harassment of law librarian Robin Nyberg and concerns that he would physically harm her.” ECF No. 119-15, ¶ 3. He explains that the chapel's close proximity to the law library placed Williams in continuing contact with Nyberg. Id., ¶ 5. Ennis declares that Williams' removal from his job and his transfer to a different institution were undertaken out of concerns for staff safety and were “unrelated to any grievance or lawsuit” Williams may have filed. Id., ¶ 7. Nyberg's declaration backs this up. She stated she feared for her personal safety after Williams stated in his July 26, 2018, grievance that her actions “provoked possibly physical assault.” ECF No. 119-12, ¶ 2. She contended that Williams would spend an “inordinate amount of time vacuuming and staring at her through the library windows while he did so.” Id., ¶ 5. His conduct throughout 2018 made her afraid for her personal safety and in December of 2018, she discussed her fears with Ennis. Id., ¶ 6.
Williams does not specifically counter these declarations. In his declaration, he protests that he removed the threatening language from Grievance No. 749448 and resubmitted it after its initial rejection. See ECF No. 142, ¶ 6. He appears to argue that Nyberg could not have been afraid for her safety because he deleted the threatening language from his resubmitted grievance. But Nyberg confirmed in her declaration that she was made aware of threat. And other prison personnel clearly were aware of the threat. And, contrary to Williams' position, omission of the threatening language from his resubmitted grievance does not negate the penological concerns and implications it raised. Moreover, the record demonstrates that Williams continued to repeat this language even after resubmitting his grievance. Specifically, in a DC-135A request to staff he sent to Superintendent Clark on August 2, 2018, Williams repeats his statement that “… it is obvious that Ms. Nyberg does not care about her own safety.” ECF No. 124-1, p. 2. In fact, this DC-135A request to Clark threatens additional reprisals: “I will however make a very big deal of this matter and if you care somewhat about your staff here, you will start holding them accountable for their transgressions against inmates.” Id. Thus, Williams' own words establishes that as early as July 26, 2018, when he resubmitted Grievance No. 749448, and continuing thereafter, he was making threatening remarks concerning Nyberg and other prison officials.
Williams also argues that Ennis decided to remove him from his job placement and put him in administrative custody on December 12, 2018, but that Nyberg did not communicate her fears to Defendant Ennis until the next day, December 13, 2018. See ECF No. 124-1, p. 30, ¶ 17; ECF No. 118-12, p. 2, ¶ 6. He maintains that this represents evidence of retaliatory motive and creates a genuine issue of material fact as to causation. ECF No. 137, p. 9. But the record does not support his assertions. Ennis' declaration is uncontroverted. He states that Williams was removed from his job because of his “continued harassment of Nyberg and concerns that he would physically harm her.” ECF No. 119-15, p. 1, ¶ 2. And more importantly, Williams himself acknowledges that Ennis was aware of his interactions with Nyberg well before December 12, 2018. Furthermore, given Williams' inclusion of threatening language against Nyberg in a formal prison submission dating back to July 26, 2018, it is implausible that Deputy Superintendent Ennis would not have been aware of them before he suspended Williams from his employment in December of that year. Therefore, based on the insufficiency of the evidence to support a prima facie claim of retaliation against Ennis and, alternatively, Ennis' establishment of the “same decision” defense, Defendants' motion for summary judgment should be granted as to Williams' claim against Ennis.
6. Defendant Clark
The alleged retaliatory actions of Clark are less than clear. Williams contends that, along with Anderson, Clark destroyed video evidence of his interaction with Nyberg in July 2018. ECF No. 147, p. 4; ECF No. 142, ¶ ¶ 9. As discussed above, this allegation is without proper evidentiary support. As such, it fails to support a retaliation claim against Clark or Anderson. Williams also alleges that, in response to a DC-135A request, Clark told Williams that “you know why are you in the DTU Mr. Williams. Policy and common sense dictate that.” ECF No. 142, ¶ 43. Although the filing of a DC-135A form is protected conduct, and Williams' placement in the Diversionary Treatment Unit (“DTU”) could be considered an adverse action, Williams does not allege that he was placed in the DTU because he submitted the DC-135A form. Instead, he asserts that Clark's response was an adverse action. Clearly, it was not. It was simply an informational response to Williams' inquiry.
Finally, Williams claims that Clark and others transferred him to another correctional institution in retaliation for his having filed grievances against “SCI-Albion officials and staff.” ECF No, 119-9, p. 6. He notes that he was transferred on January 8, 2019. Id.; see also ECF No. 142, ¶ 46. Once again, Williams fails to identify evidence that any prior grievance or complaint caused or motivated the decision to transfer him to another institution. He has not identified the dates or substance of the “other grievances” relative to his transfer. Thus, the record provides no basis to support a finding that the timing of the decision suggests retaliatory motive. Furthermore the six month interval between Williams' submission of his grievance against Nyberg in July of 2018 and his transfer in January of 2019 suggests no retaliatory motive. See, e.g., Williams v. Correct Care Solutions, Inc., 2017 WL 3401456, at *9 (M.D. Pa. Aug. 8, 2017) (citing Thomas v. Town of Hammonston, 351 F.3d 108, 114 (3d Cir. 2003) (interval of six months between protected conduct and adverse action is insufficient to show a causal connection between the two events). And no other evidence in the record suggests a pattern of antagonism between Williams and Clark or otherwise supports a finding of causation. Accordingly, Defendants' motion for summary judgment should be granted as to Clark.
7. Defendant Flinchbaugh
The basis for Williams' retaliation claim against Flinchbaugh is similarly unclear. Williams contends that on October 12, 2018, he spoke to Flinchbaugh (and Ennis and Meure) about “the conspiracy to retaliate against the plaintiff.” ECF No. 72, ¶ 24. Flinchbaugh “rebuffed and rudely mocked” Williams. Id., ¶ 25. Williams asserts that Flinchbaugh referred to his filing grievances and noted Williams' filing of a 2017 lawsuit against SCI-Albion staff. Id., ¶ 26. Williams did not file a grievance against Flinchbaugh based on this October, 2018, interaction. He does not allege, let alone support, that Flinchbaugh took any adverse action against him. He cannot rely on Flinchbaugh unspecified rude and mocking comments to satisfy this element of his claim as such is insufficient to deter a reasonable person from engaging in protected conduct. See, e.g., Bailey, 2022 WL 17552749, at *5 (defendant's alleged false comments and innuendo were not adverse actions); Jackson, 2021 WL 3174687, at *5.
The record includes evidence that on December 18, 2018, Flinchbaugh, as a member of the PRC, reviewed Williams' placement in the DTU. ECF No. 119-10, p. 1. Williams was placed in that unit because of his “pending transfer.” Id. The PRC report notes that Williams was advised they were “looking into” transferring him because “of his obsessive nature with staff and thinking that everyone is out to get him.” Id. The PRC concluded that a transfer would be in Williams' “best interest.” Id. Flinchbaugh participated in further reviews on December 27, 2018 and January 2, 2019, but Williams refused to appear before the committee on both occasions. Id., pp. 2-3.
As the foregoing reflects, Williams has failed to put forth facts upon which a reasonable jury could conclude that he was engaged in protected activity. In a grievance he filed on December 13, 2018, Williams contended that his transfer was in retaliation for approaching a staff member “about my personal problems.” ECF No. 119-8, p. 6. He does not provide evidence as to when this occurred and with whom he spoke. Further, Williams did not file a grievance or take any other official action against Flinchbaugh until after he had been transferred. Thus, as concerns this Defendant, his grievance against Flinchbaugh could not have motivated his transfer. Given this, it necessarily follows that he also has failed to create a genuine issue of fact concerning the causation element of his claim against Flinchbaugh. Other than his own speculation, there is simply nothing in the record to suggest that Flinchbaugh transferred him to another prison with a retaliatory motive. Indeed, the record does not support that Flinchbaugh had the authority to transfer Williams. Instead, as the PRC reports state, “the ultimate decision will be made by OPM.” ECF No. 119-10, p. 1.
Williams also argues that Flinchbaugh's placing him in administrative custody on December 12, 2018 could not have been based on safety and security concerns because Nyberg did not communicate her fears to Ennis until the next day, December 13, 2018. See ECF No. 124-1, p. 30, ¶ 17; ECF No. 118-12, p. 2, ¶ 6. Again, he maintains that this discrepancy is evidence of retaliatory motive and creates a genuine issue of material fact as to causation. ECF No. 137, p. 9. Again, he is wrong. The record reflects that Flinchbaugh was aware of Williams' problems with staff, including Nyberg, no later than October 4, 2018. See ECF No. 119-5, pp. 8-9 (grievance in which Williams acknowledges that Nyberg discussed her difficulties with Williams with Flinchbaugh).
In summary, Williams has failed to identify evidence to support any of the three elements of his retaliation claim against Flinchbaugh. Accordingly, Defendants' motion for summary judgment also should be granted as to Flinchbaugh.
D. Williams' Conspiracy to Retaliate Claim
Finally, Williams maintains that Defendants, Ennis, Roscinski, Clark, Flinchbaugh, Anderson, and Meure participated in a “grand scheme” to retaliate against him because he filed and/or refiled his grievance against Nyberg in late July or early August of 2018. ECF No. 72, p. 3. To defeat summary judgment on a conspiracy to retaliate claim under § 1983, a plaintiff must prove that two or more persons acting under color of state law conspired to deprive him of a constitutional right. Williams v. Pa. Dep't of Corr., 2022 WL 1295796, at *7 (W.D. Pa. Apr. 5, 2022), report and recommendation adopted sub nom. Williams v. PA Dep't of Corr., 2022 WL 1488426 (W.D. Pa. May 11, 2022); Laurensau v. Romarowics, 528 Fed.Appx. 136, 140 (3d Cir. 2013). Here, Williams has failed to establish the existence of any underlying constitutional violation. Thus, his conspiracy claim fails as a matter of law. See, e.g., Talley v. Varner, 786 Fed.Appx. 326, 329 (3d Cir. Sep. 5, 2019) (holding that claims of conspiracy fail where there is no underling constitutional violation).
In addition to this fatal flaw in his claim, Williams has failed to point to evidence that the Defendants conspired to take any action against him. “[M]ere conclusory allegations of deprivations of constitutional rights are insufficient to state a conspiracy claim.” Tindell v. Beard, 351 Fed.Appx. 591, 594 (3d Cir. 2009). Rather, the plaintiff “must provide some factual basis to support the existence of the elements of a conspiracy: agreement and concerted action.” Capogrosso v. The Supreme Court of the State of New Jersey, 588 F.3d 180, 184-85 (3d Cir. 2009). “[B]are allegations of wrongdoing by [the] Defendant[s], without any substantiating proof of an unlawful agreement,” are “insufficient to state a conspiracy claim.” See Carey v. Johnson, 2008 WL 724101, at *10 (W.D. Pa. Mar. 17, 2008). Here, Williams has not pointed to evidence “particular to the moving defendants, demonstrating the actions of defendants committed in creating and furthering the conspiracy, including the times and places of meetings and the general role of each conspirator.” Brown v. Wetzel, 2019 WL 1331619, at *6 (W.D. Pa. Mar. 25, 2019) (quoting Robinson v. Corizon Health, Inc., 2016 WL 1274045, at *12 (E.D. Pa. Mar. 30, 2016)). Based on Williams' complete failure of proof on his conspiracy to retaliate claim, Defendants' motion for summary judgment should be granted in favor of all Defendants on that claim.
The District Court noted that Williams raised a claim that “some Defendants failed to prevent a conspiracy.” ECF No. 90, p. 2. Upon review, and to the extent such a claim can be inferred, it fails as a matter of law because no conspiracy has been demonstrated on this record. See, e.g., Adams v. Selhorst, 779 F.Supp.2d 378, 395 (D. Del. 2011) (“… because we have already found that Adams has not shown any evidence of conspiracy, her claim that defendant failed to prevent a conspiracy to violate her civil rights pursuant to 42 U.S.C. § 1986 must fail as well.”).
E. Williams' Cross Motion for Summary Judgment Should Be Denied.
Having determined that the record entitles Defendants to judgment as a matter of law on all claims asserted in Williams' Amended Complaint, it necessarily follows that Williams cross-motion for summary judgment must be denied and need not be separately addressed. See, e.g., Stone v. West River Group, 2022 WL 4472470 at *3 (M.D. Pa. Sep. 26, 2022).
V. Conclusion
For the foregoing reasons, it is recommended that the Defendants' motion for summary judgment be granted and that the Plaintiff's cross-motion be denied.
VI. Notice to Parties Concerning Objections
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 17 South Park Row, Erie, Pa. 16501. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.