IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ERIE DIVISION

1:22-cv-00091-SPB-RAL JOHN BUTLER, ) SUSAN PARADISE BAXTER Plaintiff ) United States District Judge v. RICHARD A. LANZILLO ) Chief United States Magistrate Judge SERGEANT PIERSON, et al, ) ) Amended Report and Recommendation on Defendants ) Defendants’ Motion for Summary ) Judgment ECF No. 59

MAGISTRATE JUDGE’S AMENDED REPORT AND RECOMMENDATION

I. Recommendation It is respectfully recommended that Defendants’ motion for summary judgment [ECF No. 59] be granted. If. Report A. Introduction Plaintiff John Butler, an inmate formerly incarcerated at the State Correctional Institution at Albion (SCI-Albion), initiated this civil rights action pursuant to 42 U.S.C. § 1983 on March 14, 2022.! ECF No. 1. In his Complaint, Butler alleges that prison officials violated his First and Eighth Amendment rights by engaging in unlawful retaliation and subjecting him to cruel and unusual conditions of confinement. See ECF No. 10. As Defendants, Butler has named

1 Butler has since been transferred to SCI-Houtzdale.

]

several officials and employees at SCI-Albion including Sergeant Heider, Sergeant Pierson, Sergeant Wade, Lieutenant Johnson, Officer Bly, Ryan Szelewski, and Zachary Moslak. Jd. Presently pending is Defendants’ Motion for Summary Judgment. ECF No. 59. Defendants’ motion is supported by a Concise Statement of Material Facts, a supporting Brief, and Appendix of Exhibits. ECF Nos. 60-62. Butler has filed a Responsive Concise Statement of Material Facts and a Brief in Opposition to Defendants’ motion. ECF Nos. 75-77. The motion is ripe for disposition.’ B. Factual Background Before summarizing the factual record, the Court notes that the Concise Statement of Material Facts offered in support of Defendants’ motion contains only two facts: that Defendant Pierson “was ordered by Mr. Suesser to move Plaintiff from one cell to another on August 4, 2020,” and that Butler appealed a particular misconduct to final review. ECF No. 61 f[ 1-2. In their supporting brief, Defendants explain that their primary contention is that “they are entitled to judgment as a matter of law based primarily on the allegations in the Complaint” and, therefore, their statement of facts “is brief and does not contain a full recitation of every relevant fact at issue in this case.” ECF No. 60 at p. 1 n. 1. Butler responded by filing a Responsive Concise Statement that contained numerous additional material facts that he believed were “at issue [and were] necessary for the Court to determine the motion for summary judgment.” ECF No. 75; LCvR 56.C.^[1].c. Because Defendants failed to respond to the additional material facts set forth in Butler’s responsive statement, each of these facts must be deemed admitted. See LCvR 56.E. Accordingly, the following factual recitation is derived primarily from Butler’s sworn

2 This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b).

declaration and the well-supported factual allegations set forth in his Responsive Concise Statement. See ECF Nos. 75-76. According to Butler, on January 31, 2020, he “assisted fellow inmate Taylor Coleman with filing an Inmate Grievance against Defendant Heider.” ECF No. 10 38. Heider later learned that Butler had assisted Coleman with the grievance. ECF No. 76 5. Several months later, on July 28, 2020, Butler pressed the call button in his cell and asked if he could take a shower. Jd. { 1. Heider responded over the intercom by stating: “No! And whenever I am working you are not coming out for anything! Showers, phone calls, kiosk, work, nothing!” Jd. { 2. Butler perceived Heider’s response as “in retaliation to the plaintiff helping a fellow inmate, Taylor Coleman, file a grievance against Defendant Heider.” Id. 3. Shortly thereafter, Butler notified Unit Manager Santos, a non-Defendant, “of the fact that Defendant Heider denied him a shower, work, kiosk, and phone call.” Jd. 46. After

speaking with Heider, Santos informed Butler that he could come out for showers, phone calls, and kiosk, but not to come out for work when Heider was there. /d. ]8. Butler agreed to this plan. Id. Despite Santos’ assurance, Heider denied Butler additional opportunities to shower or

use the phone or kiosk on several occasions between July 29, 2020, and August 1, 2020. Jd. 9. When Butler objected, Heider allegedly stated: “I don’t give a fuck who you tell! You got the right one now mother fucker! I’m not hiding in the bubble, I’ll come out there and punch you in the mouth in the middle of the dayroom!” Jd. § 10. Butler perceived this threat to be “in

response to the Plaintiff reporting [Heider] to Mr. Santos three days prior.” /d. § 11. On August 3, 2020, another defendant, Sergeant Pierson, denied Butler a shower. Ia.4§ 12. The following day, Pierson told Butler to pack up his property to move to an adjacent cell. Id. § 13. When Butler questioned the move, Pierson told him that he had been given an “H-

code,” a designation normally reserved for inmates who had previously attempted to escape. Id. 4 15; ECF No. 10 § 12. Pierson then approached Butler with clenched fists and verbally threatened him. ECF No. 76 §§ 16-18. Pierson later filed a misconduct report against Butler for refusing the order to move cells. ECF No. 77-4 at 2. Butler contends that Pierson took these steps to “continue[] Defendant Heider’s retaliatory animus.” ECF No. 76 { 12. On August 6, 2020, Butler attended a hearing on the misconduct issued by Pierson. Id. J 23. Although Butler insists that he entered a plea of “not guilty,” Defendant Szelewski recorded his plea as “guilty.” Jd. 924. Butler maintains that Szelewski intentionally misrepresented his plea to “cover up” Pierson’s “falsified” misconduct report. Jd. 29. Butler was ultimately sentenced to fifteen days in the Restricted Housing Unit (RHU) for refusing to obey Pierson’s order. ECF No. 77-4 at 4. When Butler appealed, Defendant Moslak, the Chief Hearing Officer for the DOC, denied his appeal as part of a continued effort to “cover up” for Pierson and Szelewski’s wrongdoing. ECF No. 76 ¥ 15. At some point during his confinement in the RHU, Defendants Wade and Bly conducted an inventory of Butler’s possessions. Jd. {J 32-33. Butler later noticed that his gray New Balance sneakers, a pair of brown sweat shorts, and some legal documents and other personal items were missing. Jd. 32. Despite filing a grievance, Butler avers that he never got his property back.? Id. § 34. Bly later told him that if he ever came back to the RHU he would

3 Although Butler does not mention the Fourteenth Amendment anywhere in his filings, there is a remote chance that he may have intended to assert a due process claim based on his missing property. To the extent that this is the case, the United States Supreme Court has held that “a claim cannot be stated under § 1983 for the deprivation of personal property, whether negligent or intentional, if a sufficient post-deprivation remedy for the loss exists.” Wongus v. Correctional Emergency Response Team, 389 F.Supp.3d 294, 301 (E.D. Pa. July 19, 2019) (citing Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). The DOC’s grievance procedure — which Butler utilized — has been held to satisfy this standard. Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 422 (3d Cir. 2000) (holding that prison’s grievance program and internal review provide an adequate post-deprivation remedy to satisfy due process).

“split [his] fucking head open!” Jd. § 43. Butler avers that these events collectively give rise to an inference “from which retaliation may be plausibly inferred.” ECF No. 77 at 27. C. Standard of Review 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).

D. Analysis As to Pierson, the Court again notes the challenge in demonstrating a causal connection between protected activity directed at one individual — here, Heider — and alleged retaliation by another. Williams, 2023 WL 4628378, at *9 (“[T]here is no apparent reason why [the moving defendants] would want to retaliate against Plaintiff for filing a lawsuit against others.”) (quoting Evans, 2009 WL 5064490, at[*22] ); Royster, 308 Fed. Appx. at 579. Butler’s unsupported averment that Pierson was “continue[ing] Defendant Heider’s retaliatory animus” is insufficient to close this gap. See ECF No. 76 4 12. Moreover, while a retaliatory cell transfer may suffice to establish an adverse action, it appears that the transfer was ordered by an individual named Suesser rather than Pierson.° c. Conditions of confinement Although Butler’s Complaint invokes the Eighth Amendment, he focused his factual averments and legal arguments entirely on his retaliation claim. In moving for summary judgment, Defendants construed Butler’s Complaint as alleging that the temporary denial of showers, phone, kiosk, and work privileges, as well as his brief confinement in the RHU, amounted to cruel and unusual conditions of confinement. See ECF No. 60 at pp. 9-10. Butler did not respond to that portion of Defendants’ motion, passing up the opportunity to clarify the nature of his Eighth Amendment claim or point to evidence in the record to support it. Given this omission, it appears likely that Butler never intended to assert an Eighth Amendment claim or has elected to abandon that theory of liability. See, e.g., Tambasco v. United States Dept. of Army, 2018 WL 1203466, at *2 (M.D. Pa. Mar. 8, 2018) (dismissing claims as unopposed when the plaintiff failed to respond to arguments made by the defendants in support of a dispositive

6 Butler makes much of a misunderstanding stemming from an initial identification of that person as “Sever” rather than “Suesser.” See ECF No. 62-1 § 2, 5-6. Either way, there is nothing in the record to dispute that Pierson was carrying out an order from another individual when he ordered Butler to move cells. ll

motion); Berckeley Inv. Group, Ltd. V. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006) (noting that summary judgment “is essentially ‘put up or shut up’ tie for the non-moving party”). In any event, the Court has independently reviewed the record and failed to locate any evidence that Defendants subjected Butler to unlawful conditions of confinement. The relevant Eighth Amendment inquiry is whether the alleged deprivation was “sufficiently serious” to deprive the inmate of the “minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 USS. 825, 834 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Courts have consistently held that temporary denials of shower and phone privileges do not run afoul of this standard. Barndt v. Wenerowicz, 698 Fed. Appx. 673, 677 (3d Cir. 2017) (“[T]he District Court correctly determined that the denial of showers for [twenty-eight days] does not rise to the level of a constitutional violation.”); Fortune v. Hamberger, 379 Fed. Appx. 116, 122 (3d Cir. 2010) (denial of shower and exercise for fifteen days was not sufficiently serious to violate the Eighth Amendment). The same is true of false misconduct charges and limited stays in restrictive custody. Freeman v. Miller, 615 Fed. Appx. 72, 77 (3d Cir. 2015) (placement in restricted housing for seven days without “a desk, seat, showers, a mattress, soap, recreation, mail, and toilet paper” did not violate the Eighth Amendment); Booth v. Pence, 354 F. Supp. 2d 553, 558— 59 (E.D. Pa. 2005) (“[F]alse misconduct charges are not ‘sufficiently serious’ that they result ‘in the denial of the minimal civilized measure of life’s necessities.’”) (quoting Farmer, 511 U.S. at 832). In short, none of the conditions imposed upon Butler violated his constitutional right to be free of cruel and unusual punishment and, accordingly, Defendants are entitled to summary judgment.

III. Conclusion For the foregoing reasons, it is respectfully recommended that Defendants’ motion for summary judgment [ECF No. 59] be granted. Judgement should be entered in favor of Defendants and against Plaintiff as to all claims. IV. Notice In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the obj ections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007). DATED this 20th day of August, 2024. mx B

RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE