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
: Civ. No. 09-956-LPS
WARDEN PERRY PHELPS, et ai.,
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.
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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.
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.
"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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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.
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.
For the above reasons, the Court will grant Defendants' motion for summary judgment
An appropriate Order follows.