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Case 1:09-cv-00956-LPS Document 45 Filed 07/31/13 Page 1 of 8 PageID #: 142

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

ALBERT

BROWN,

Plaintiff,

v.

: Civ. No. 09-956-LPS

WARDEN PERRY PHELPS, et ai.,

Defendants.

Albert Lee Brown, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.

Joseph Clement Handlon, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendants.

MEMORANDUM OPINION

July 30,2013
Wilmington, Delaware

Case 1:09-cv-00956-LPS Document 45 Filed 07/31/13 Page 2 of 8 PageID #: 143

I.

INTRODUCTION


Plaintiff Albert Lee Brown ("Plaintiff'), an inmate at the James T. Vaughn Correctional

Center ("VCC") in Smyrna, Delaware, filed this action on December 14, 2009, alleging

constitutional violations pursuant to 42 U.S.c. § 1983. 1 Presently before the Court is

Defendants' motion for summary judgment (D.1. 35).2 For the reasons that follow, the Court will

grant the motion.

II.

BACKGROUND

In his Complaint (D.1. 2), Plaintiff alleges that he reached an out-of-court settlement in a

civil case he filed in the Delaware Superior Court in and for New Castle County ("Superior

Court"). Plaintiff claims that as a result of the lawsuit, he was subjected to retaliation, verbal

abuse by Defendant CIO James Dempsey ("Dempsey"), and termination from his employment in

the VCC kitchen. Plaintiff worked in the VCC kitchen for many years but, after the settlement,

he was cited, found guilty of numerous rule infractions, and his appeal was denied. Plaintiff

alleges that Defendant Lt. C. Morris ("Morris") was aware of the ongoing harassment and the

insensitive treatment that was directed towards him upon his return to work. On December 29,

2008, Morris told Plaintiff not to return to work until the disciplinary action was resolved. 3

IWhen bringing a § 1983 claim, a plaintiff must allege that some person has deprived him

of a federal right, and that the person who caused the deprivation acted under color of state law.
See West v. Atkins, 487 U.S. 42, 48 (1988).

2Defendants Commissioner Carl Danberg and Nikita Harmon have been dismissed. (See

D.1. 6, 7, 28)

3The Complaint refers to 2009, but exhibits submitted to the Court indicate that the events

took place in 2008. (See D.1. 35 Ex. A)

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Plaintiff alleges that Defendants Warden Perry Phelps ("Phelps") and Christopher Senato

("Senato") failed to respond to his complaints. (See D.L 2)

Dempsey, a correctional corporal at the VCC, was supervising inmates in the chow hall at

the VCC on December 26,2008. On that date, he cited Plaintiff for disrespect. At the time he

cited Plaintiff, Dempsey did not know that Plaintiff had a prior lawsuit. Dempsey denies

verbally abusing Plaintiff or taking any retaliatory action against him as a result of a prior

lawsuit. (See D.l. 35 Ex. B at,-r,-r 1,3-4)

During the relevant time period, Senato was the correctional food service director at the

VCC. He states that Plaintiff was terminated from his kitchen job due to the nature of a prison

violation wherein Plaintiff was found guilty of disrespecting an officer, a guilty finding that was

affirmed on appeal. 4 He states the decision to terminate Plaintiff had nothing to do with any

previous lawsuit filed by Plaintiff. (See D.l. 35 Ex. A Senato Aff. at ,-r,-r 1, 3)

Defendants filed their motion for summary judgment on September 14,2012. They seek

summary judgment on the grounds that there is no evidence of unconstitutional retaliation and

the claims raised against Phelps, Senato, and Morris are improperly based upon their roles as

supervisors. (D.I.35) Plaintiff did not timely file an opposition but, on November 30,2012,

filed a motion for leave to do so (D.I. 37). The Court granted the motion and gave Plaintiff

twenty-one days from May 21, 2013 to file his opposition (D.I. 40). Plaintiff misplaced his copy

of the motion for summary judgment and, on May 29,2013, the Clerk of Court received a request

from Plaintiff to provide him a copy of the pending motion. (See DJ. 41) On the same day,

4The infraction occurred on December 26, 2008 while Plaintiff was working in the chow

hall. (D.I. 35 Ex. A)

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Defendants served Plaintiff with another copy of the pending motion. (See D.L 43) Nonetheless,

Plaintiff failed to file an opposition to the motion for summary judgment.

III.

LEGAL STANDARDS

"The court shall grant 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 oflaw." Fed. R.

Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine

issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

586 n.l 0 (1986). An assertion that a fact cannot be - or, alternatively, is - genuinely disputed

must be supported either by citing to "particular parts of materials in the record, including

depositions, documents, electronically stored infonnation, affidavits or declarations, stipulations

(including those made for the purposes of the motion only), admissions, interrogatory answers, or

other materials," or by "showing that the materials cited do not establish the absence or presence

of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the

fact." Fed. R. Civ. P. 56(c)(l)(A) & (B). If the moving party has carried its burden, the

nonmovant must then "come forward with specific facts showing that there is a genuine issue for

trial." Matsushita, 475 U.S. at 587 (internal quotation marks omitted). The Court will "draw all

reasonable inferences in favor of the nonmoving party, and it may not make credibility

detenninations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 150 (2000). The Court will not grant the entry of summary judgment without considering

the merits of Defendants' unopposed motion. See Stackhouse v. Mazurkiewicz, 951 F.2d 29,30

(3d Cir. 1991) (holding that district court should not have granted summary judgment solely on

basis that motion for summary judgment was not opposed).

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IV.

DISCUSSION

A.

Retaliation

Section 1983 imposes liability for retaliatory conduct by prison officials if the conduct

was motivated "in substantial part by a desire to punish [the] individual for the exercise of a

constitutional right," Allah v. Seiverling, 229 F.3d 220, 224 (3d Cir. 2000) (internal quotation

marks omitted), such as filing lawsuits and grievances related to incarceration. See Mitchell v.

Horn, 318 F.3d 523, 530 (3d Cir. 2003). For Plaintiff to prevail, he must prove that: (1) the

conduct leading to the alleged retaliation was constitutionally protected; (2) he suffered an

adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional

rights; and (3) his protected conduct was a substantial or motivating factor in the decision to

discipline him. See Alexander v. Fritch, 396 App'x 867,871 (3d Cir. Oct. 5,2010). "[P]rison

officials may still prevail by proving that they would have made the same decision absent the

protected conduct for reasons reasonably related to a legitimate penological interest." Rauser v.

Horn, 241 F.3d 330, 334 (3d Cir. 2001).

A prisoner's ability to file lawsuits against prison officials is a protected activity for

purposes of a retaliation claim. See Burgos v. Canino, 358 F. App'x 302,306 (3d Cir. Dec. 23,

2009). The Complaint alleges that retaliation occurred as a result of Plaintiff filing and reaching

an out-of-court settlement in a lawsuit filed in the Superior Court, Albert Brown v. C/O Mique

Rivera, Civ. A. No. 07E-08-107-RRC. Thus, Plaintiff has alleged the first element of a

retaliation claim. The second element requires a prisoner to show that he suffered some "adverse

action" at the hands of the prison officials. A plaintiff can satisfy the second requirement by

demonstrating that the "adverse" action "was sufficient to deter a person of ordinary firmness

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from exercising his [constitutional] rights." Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir.

2000). Here, Plaintiff alleges that he has was cited for rule infractions, subjected to verbal abuse,

and terminated from his prison job as a result of the Superior Court lawsuit. The third factor

requires that there be a causal link between the exercise of the constitutional right and the

adverse action taken against the prisoner.5 Rauser, 241 F.3d at 333-34. "[O]nce a prisoner

demonstrates that his exercise of a constitutional right was a substantial or motivating factor in

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

made the same decision absent the protected conduct for reasons reasonably related to a

legitimate penological interest." Id. at 334.

To establish the elements of a retaliation claim, a plaintiff must come forward with more

than "general attacks" upon the defendant's motivations and must produce "affirmative

evidence" of retaliation from which a jury could find that the plaintiff had carried his burden of

proving the requisite motive. Crawford-EI v. Britton, 523 U.S. 574, 600 (1998) (internal

citations omitted). When analyzing a retaliation claim, courts consider that the task of prison

administrators and staff is difficult, and that the decisions of prison officials require deference,

particularly where prison security is concerned. Rauser, 241 F.3d at 334.

Here, Plaintiff alleges that the Superior Court lawsuit was the impetus for retaliation.

However, there is no evidence before the Court other than Plaintiffs bare allegations regarding

5A causal link may be established by evidence of a temporal proximity between the
prisoner's protected activity and the defendant's adverse action; however, the timing of the
alleged retaliatory action must be suggestive of retaliatory motive. See Lauren W ex rei. Jean W
v. Dejlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (stating, to show causal connection, plaintiff
must prove "either (1) an unusually suggestive temporal proximity between the protected activity
and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to
establish a causal link").

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the lawsuit. It is unknown when the lawsuit was filed, the claims raised, or when it was settled.

In addition, there is no evidence even of temporal proximity between the alleged protected

conduct and the alleged retaliatory action.

Regardless, Plaintiff alleges that the lawsuit was the cause for his kitchen employment

termination. Certainly the threat of losing a prison job could deter a similarly situated individual

of ordinary firmness from exercising his or her constitutional rights. Again, however, Plaintiff

failed to produced any evidence that the termination of his employment was the result of the

Superior Court lawsuit or motivated by retaliatory animus. The undisputed evidence of record is

that Plaintiff was terminated from his kitchen employment as a result ofa guilty finding of

disorderly conduct. Further, Plaintiff failed to produce any other evidence of retaliatory conduct.

Notably, Dempsey, whom Plaintiff alleges is the principal antagonist, states that he was unaware

that Plaintiff had a prior lawsuit and that he took no retaliatory action against Plaintiff.

Dempsey's statement is not refuted.

For the above reasons, the Court finds that Plaintiff has failed to meet his burden of

meeting the required elements for retaliation. Therefore, the Court will grant Defendants' motion

for summary judgment.

B.

Respondeat Superior

Defendants Phelps, Senato, and Morris also seek summary judgment on the grounds that

the claims against them appear to based upon their roles as supervisors. Phelps is the warden at

the VCC, Senato is the food service director at the VCC, and Morris is the lieutenant assigned to

the day shift in the kitchen at the VCC.

A § 1983 claim cannot be premised upon a theory of respondeat superior. In order to

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establish liability for deprivation of a constitutional right, a party must show personal

involvement by each defendant. See Brito v. United States Dep't ofJustice, 392 F. App'x 11, 14

(3d Cir. Aug. 18, 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). The record lacks any evidence of

involvement by Phelps, Senato, and Morris, beyond mere allegations oftheir supervisory

positions. Therefore, summary judgment will be granted on their behalf.

V.

CONCLUSION

For the above reasons, the Court will grant Defendants' motion for summary judgment

(D.1. 35).

An appropriate Order follows.

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