Molina v. Rivello et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MIGUEL MOLINA, 	: 	Civil No. 3:23-cv-01111
:
Plaintiff, 	: 	(Chief Judge Brann)
:
v. 	: 	(Magistrate Judge Carlson)
:
J. RIVELLO, et al., 	:
:
Defendants. 	:
REPORT AND RECOMMENDATION
I. 	Introduction and Procedural History
The instant case can best be summarized in the iconic words of English singer-
songwriter and guitarist Dave Mason: “There ain’t no good guy, there ain’t no bad
guy; There’s only you and me and we just disagree.”1 This prisoner civil rights case
alleges that corrections officers at State Correctional Institution (SCI) Huntingdon
engaged in a series of retaliatory conduct against the plaintiff, Miguel Molina, for
exercising his First Amendment right to sue. The plaintiff is a skilled and prolific
pro se litigant, who throughout his incarceration has pursued civil rights claims
against corrections officials both through the prison grievance system and the district
courts. See Molina v. Kauffman, et al., No. 4:21-CV-00038, 2023 WL 8281695
1 Dave Mason, We Just Disagree (Sony/ATV Music Publishing 1977).
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(M.D. Pa. Nov. 30, 2023); (Doc. 50-4). Molina’s litigious disposition forms the basis
of his complaint in which Molina alleges the defendants retaliated against him for
filing a civil rights lawsuit and grievances in which they, or their relatives, were
named.
This Court previously found that the well-pleaded facts in Molina’s complaint
sufficiently alleged that each of the six named defendants had engaged in retaliatory
conduct against Molina which violated his First Amendment right to pursue these
civil rights claims. (Docs. 9, 10). On February 4, 2024, this case was referred to the
undersigned for pretrial management. On April 11, 2024, the defendants filed a
motion for summary judgment and the parties fully briefed the issues. (Docs. 24, 25,
26, 36, 37, 40).
Meanwhile, this Court, Brann, C. J., issued a ruling in another case, Johnson
v. Davis, which considered the applicability of the PLRA to cases, like the instant
case, that were originally filed in state court but removed by the defendants to federal
court. No. 3:23-CV-00762, 2024 WL 3034591, at *1 (M.D. Pa. June 17, 2024),
reconsideration denied, No. 4:23-CV-00762, 2024 WL 4875420 (M.D. Pa. Aug. 9,
2024). In Johnson, the Court concluded that the PLRA’s limitation on compensatory
damages in § 1997e(e) did not apply and questioned the applicability of other
sections of the PLRA, including § 1997e(a) requiring exhaustion of administrative
remedies, in such cases. Id. Thus, upon noting in our review of the defendants’
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motion for summary judgment that the defendants relied upon these sections of the
PLRA in arguing Molina was barred from pursuing some of his claims in federal
court, we granted the defendants an opportunity to withdraw their motion for
summary judgment without prejudice to the defendants filing a renewed motion
accompanied by briefing that addressed the concerns previously identified by the
district court in Johnson. (Doc. 44). The defendants withdrew their motion, (Docs.
45, 46), and submitted a second motion for summary judgment on March 24, 2025,
which is now the operative pleading in this case and has been fully briefed. (Docs.
49, 50, 51, 61, 62, 65).
At this juncture, notwithstanding the Court’s prior holding that Molina’s
complaint sufficiently stated claims of First Amendment retaliation against these six
defendants, we have been tasked with reviewing Molina’s claims from a new lens,
which asks whether the undisputed material facts as a matter of law rebut the
allegations of retaliation in his complaint. Further, we are called upon to assess
whether the PLRA’s exhaustion requirement bars any of these claims. While prior
to the Court’s holding in Johnson, we may have concluded that the claims against
many of these defendants were unexhausted and procedurally defaulted, given Chief
Judge Brann’s analysis which casts doubt upon the applicability of § 1997e(a) to
cases removed from state court, as explained below, our reading of Johnson is that
Molina was not required to exhaust his administrative remedies prior to bringing
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these claims.2 Moreover, Molina may pursue compensatory damages in this case that
was removed from state court since Johnson explicitly rejected the applicability of
the PLRA’s limitation on compensatory damages in § 1997e(e) in cases removed
from state court.
Nonetheless, even setting aside the procedural obstacles eliminated by
Johnson, several of the plaintiff’s claims are meritless. Accordingly, we recommend
the defendants’ motion for summary judgment be granted in part and denied in
narrow part only with regard to Molina’s claims that he was housed in the RHU and
transferred to another prison in retaliation for his complaints.
II. 	Statement of Facts and of the Case
Molina’s complaint and the supporting record reveal the following essential
facts: Molina was an inmate at SCI Huntingdon from March 2019 to June 2022.
(Doc. 50, ⁋ 1). 	In December of 2020, Molina filed a civil rights complaint
challenging the constitutionality of his conditions of confinement which also named
Defendants Spyker, Ralston, and Rivello, among other defendants not named in the
instant case. Molina v. Kauffman, et al., No. 4:21-CV-00038, 2023 WL 8281695
(M.D. Pa. Nov. 30, 2023). Prior to the incidents alleged in the instant complaint,
Molina had last filed a grievance on August 12, 2021, regarding “problems with
2 Of course, if we have erred in our understanding of the holding in Johnson, the
district court is uniquely well-suited to place its own prior decision in the proper
legal and factual context.
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staff-officers.” (Doc. 50-4, at 4). In his complaint, Molina alleges that, since the
filing of the civil rights lawsuit and other grievances, he began experiencing
hardships at SCI Huntingdon as a form of retaliation. Specifically, he alleges that
the defendant corrections officials, Rivello, Ralston, Walters, Spyker, Little, and
Kohler conspired and agreed to issue false misconduct reports as a pretext to confine
him in the RHU for retaliatory reasons. (Doc. 1-1, ⁋⁋ 14, 16).
Molina also alleges that Defendants Ralston and Little placed him in
contaminated cells in retaliation for his grievances against them. The first alleged
incident of retaliation occurred on January 26, 2022, when Molina alleges he was
removed from a freshly painted cell, per Defendant Ralston’s request, and placed in
a cell contaminated with mold, rust, asbestos, and corrosion. (Id., ⁋ 16; Doc. 50-3,
at 10). He filed a grievance 967468 on February 8, 2022, which alleges Ralston
placed him in the cell despite his knowledge that it was polluted with “mold,
asbestos, the paint is bubbled up, separates from the ceiling and flake away causing
an unknown white powder to fall from the ceiling and onto Complainant’s bed, food,
sink, and floor.” (Doc. 50-3, at 10-11). He also alleged in his grievance that being
forced to inhale the unknown substance caused his nose to bleed and respiratory
problems, and noted other problems with the cell including a rusty sink and toilet
area and a hole under the toilet where pests could enter. (Id.) His grievance
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acknowledged that housing unit officers claimed to have submitted a work order but
that no work had been completed at that point. (Id.)
Grievance 967468 was denied on February 22, 2022, stating that there is no
asbestos in the institution, that maintenance was working on scraping and painting
cells but had been limited due to Covid restrictions which had only recently been
lessened, that it was mildew, not mold, in his cell and that he was responsible for
cleaning it, and that he had made statements to another corrections officer that he
did not wish to move cells. (Doc. 50-3, at 7). The response also stated that he had
been seen by medical regarding his nose bleeds, which he reported having daily since
2019, 	and 	was 	prescribed 	allergy 	medication. 	(Id.) 	On 	February 	23, 	2022,
maintenance came to inspect Molina’s cell and he was moved to Cell 171 the same
day. (Id., at 5). Nonetheless, Molina appealed grievance 967468 through all levels,
requesting damages for his twenty-eight-day stay in a “toxic” cell, and received a
final appeal decision from the Secretary’s Office of Inmate Grievances & Appeals
(SOIGA) on May 16, 2022, confirming that his cell was, at no point, toxic, and that
he had been moved to a new cell. (Id., at 2).
Although he requested to be moved from Cell 156, and the grievance
responses indicate he was moved to a new cell so that maintenance could address
the condition of Cell 156, Molina alleges that his move to Cell 171 on February 23,
2022, was also retaliatory. His complaint alleges that, after he filed grievance
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967468, Defendant Little placed him in Cell 171 knowing that the toilet was unstable
and leaked foul water contaminated with human feces and urine, “causing noxious
odors.” (Doc. 1-1, ⁋ 17). Molina testified that, on March 7, 2022, he complained to
Defendant Ralston about the condition of his cell who told him that as long as he
had a lawsuit against him, he would never be housed in a decent cell and that until
he withdrew the grievance and took his name out of the lawsuit he would stay in cell
171. (Doc. 50-9, at 30-31). Molina filed grievance 974063 on March 28th , 2022,
complaining that Defendants Ralston and Little, among other prison officials,
continually housed him in unsanitary conditions including keeping him in the cell
with the broken toilet, in retaliation for him filing grievances and civil rights
complaints. (Doc. 61-5). Molina testified that after filing grievance 974063 he spoke
to Little on March 29th requesting to be moved out of cell 171 at which time Little
stated, “You just filed a grievance against me and now you’re asking me to move
you to another cell? If you don’t withdraw, I’ll make sure that your next move will
be in the RHU.” (Doc. 50-9, at 36). On March 14, 2022, a work order was submitted
to fix the toilet and, on April 1, 2022, the maintenance staff repaired it. (Doc. 50, ⁋
30; Doc. 62, ⁋ 30). Molina withdrew grievance 974063 on May 2, 2022, because his
grievance had been fully addressed with the cell toilet being repaired and would be
afforded a cell moved to the low side of BA-Block upon his release from the RHU.
(Doc. 61-5).
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Meanwhile, on April 5, 2022, non-party corrections officer, Lt. Eberling,
issued a report, D368930, indicating that Molina was under investigation for
violating facility rules and recommended he be placed on administrative custody
pending the disposition of the investigation. (Doc. 50-6). Molina was interviewed
by the Program Review Committee (PRC) the next day which continued his
administrative custody status pending a security report and recommended another
review on April 13, 2022. (Id.) Molina alleges that it was, in fact, Defendant Little
who initiated the report which sent him to the RHU. (Doc. 62, ⁋ 50). He testified that
Lt. Eberling and another corrections officer told him that they were investigating
him after Defendant Little filed a fabricated report that Molina was circulating a
petition to have him removed from the housing unit. (Doc. 50-9, at 39-40). The
security report issued on April 11 th , 2022, states that, on April 5, 2022, they received
“multiple reports” which indicated that six inmates from BA Unit were circulating
the petition. (Doc. 50-7, at 2). Molina was one of several inmates placed in the RHU
during the investigation of the alleged petition. (Id., at 4).
Molina then alleges that, on April 6, 2022, Defendant Rivello stopped by his
cell in the RHU and stated, “I hate inmates that likes to file lawsuits . . . if you
withdraw your lawsuit and grievances I’ll release you to general population, but if
you refuse to comply, I’ll keep you in the (RHU) for as long as I can and then transfer
you far away from your region.” (Doc. 1-1, ⁋ 22). Inmate Anthony Shamberger, who
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was housed near Molina’s RHU cell, attested to witnessing Rivello make these
statements to Molina. (Doc. 61-4). On April 11 th Molina was interviewed again by
Eberling and Grassmyer and Molina alleges he told them Little’s allegations were
fabricated out of retaliation for filing grievance # 974063 against him and others.
(Doc. 1-1, ⁋ 23). He denied participation in the petition, stating that is “rookie shit.”
(Doc. 50-7, at 3).
According to Molina, he withdrew grievance 974063 after he was offered a
cell in general population. (Doc. 1-1, ⁋⁋ 25-26). He then alleges that Defendant
Walters, whose father was named in Molina’s civil rights lawsuit, stopped by his cell
on May 2, 2022, and threatened, “If you don’t withdraw, I’ll make sure when you
see the Program Review Committee (PRC), you get denied release to population,
and I’ll make sure you get transferred.” (Id., ⁋ 27). Inmate Shamberger also attested
to witnessing Walters attempt to persuade Molina to withdraw the lawsuit in
exchange for being returned to general population. (Doc. 61-4). Molina alleges
Walters then issued a false and fabricated report that he was suspected of being
involved in or the instigator of a disturbance, extending his time in the RHU and
requestion a transfer. (Doc. 1-1, ⁋ 28). Although the plaintiff alleges this report was
fabricated and retaliatory, he did not file any grievance against Defendant Walters,
nor was Walters named in his previous civil rights lawsuit. (Doc. 50, ⁋⁋ 68-70, 76).
The security report issued following the investigation recommended that Molina
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continue on administrative custody and be processed for Separation Transfer for his
involvement in propagating a petition. (Doc. 50-7, at 4). Molina maintains that the
investigation determined the petition did not exist and no evidence was found linking
him to a violation of facility rules, but the defendants decided to keep him on
administrative custody because he refused to withdraw his grievances or lawsuit.
(Doc. 1-1, ⁋ 24).
An administrative hearing was conducted on May 4, 2022. (Doc. 50, ⁋ 78).
Molina testified that, at the hearing, Defendants Spyker and Kohler stated that they
were tired of the plaintiff’s grievances and lawsuits and that they support Defendant
Walters’ report requesting for him to be continued in administrative custody pending
separation transfer. (Doc. 1-1, ⁋ 30; Doc. 50-9, at 77-78). Official documentation of
the hearing notes that PRC informed Molina that he would be continued in
administrative custody pending separation transfer stating, “the inmate is suspected
of being involved in or is suspected of being the instigator of a disturbance.” (Doc.
50-8). The document lists the names of the PRC as Defendant Spyker, Defendant
Kohler, and a non-party corrections officer. (Id.) Molina appealed his continued
administrative custody placement and the decision to transfer him to another
institution and challenged the report alleging his involvement in the petition
circulation. (Doc. 61-2). His appeal named Jill Spyker “along with other members
of the Program Review Committee.” (Id.) His appeal was denied by the PRC and
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Superintendent and the Office of the Chief Hearing Examiner denied appeal to final
review. (Id.)
Molina filed a civil rights complaint in the Huntingdon Count Court of
Common Pleas in June 2022 and the defendants removed the action to this Court on
July 5, 2023. (Doc. 1). On April 11, 2024, the defendants filed a motion for summary
judgment and the parties fully briefed the issues. (Docs. 24, 25, 26, 36, 37, 40).
After the issuance of the Court’s opinion in Johnson v. Davis, which
concluded certain sections of the PLRA did not apply to cases removed from state
court, we granted the defendants an opportunity to withdraw their motion for
summary judgment without prejudice to the defendants filing a renewed motion
accompanied by briefing that addressed the concerns previously identified by the
district court in Johnson. (Doc. 44). The defendants withdrew their motion, (Docs.
45, 46), and submitted a second motion for summary judgment on March 24, 2025,
which is now the operative pleading in this case and has been fully briefed. (Docs.
49, 50, 51, 61, 62, 65). After consideration, we recommend that the Court grant
summary judgment with regard to the plaintiffs’ conspiracy claim. We further
recommend that the Court grant summary judgment as to Molina’s retaliation claims
except his claim of retaliation for his extended placement in the RHU and facility
transfer.
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III. 	Discussion
A. Motion for Summary Judgment – Standard of Review
The defendants have moved for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure, which provides that 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 of law. Fed. R. Civ. P. 56(a).
Through summary adjudication, a court is empowered to dispose of those claims that
do not present a “genuine dispute as to any material fact,” Fed. R. Civ. P. 56(a), and
for which a trial would be “an empty and unnecessary formality.” Univac Dental Co.
v. Dentsply Int’l, Inc., 702 F.Supp.2d 465, 468 (M.D. Pa. 2010). The substantive law
identifies which facts are material, and “[o]nly disputes over facts that might affect
the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute about a material fact is genuine only if there is a sufficient evidentiary basis
that would allow a reasonable fact finder to return a verdict for the non-moving party.
Id., at 248-49.
The moving party has the initial burden of identifying evidence that it believes
shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec.
& Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown
that there is an absence of evidence to support the non-moving party’s claims, “the
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non-moving party must rebut the motion with facts in the record and cannot rest
solely on assertions made in the pleadings, legal memoranda, or oral argument.”
Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails
to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden at trial,” summary
judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also
appropriate if the non-moving party provides merely colorable, conclusory, or
speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla
of evidence supporting the non-moving party and more than some metaphysical
doubt as to the material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the
Court must “consider all evidence in the light most favorable to the party opposing
the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing
to disputed material issues of fact must show by competent evidence that such factual
disputes exist. Further, “only evidence which is admissible at trial may be considered
in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers
Ins. Co., 928 F. Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne
cannot create an issue of fact merely by . . . denying averments . . . without producing
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any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 F. App’x
896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary
judgment is made and supported . . ., an adverse party may not rest upon mere
allegations or denial.” Fireman’s Ins. Co. of Newark New Jersey v. DuFresne, 676
F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697
F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue
of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is
also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969).
Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon
bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338,
341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Finally, it is emphatically not the province of the court to weigh evidence or
assess credibility when passing upon a motion for summary judgment. Rather, in
adjudicating the motion, the court must view the evidence presented in the light most
favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable
inferences in the light most favorable to the non-moving party. Big Apple BMW,
Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where
the non-moving party’s evidence contradicts the movant’s, then the non-movant’s
must be taken as true. Id. Additionally, the court is not to decide whether the
evidence unquestionably favors one side or the other, or to make credibility
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determinations, but instead must decide whether a fair-minded jury could return a
verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see
also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third
Circuit has instructed that:
To raise a genuine issue of material fact . . . the opponent need not
match, item for item, each piece of evidence proffered by the movant.
In practical terms, if the opponent has exceeded the “mere scintilla”
threshold and has offered a genuine issue of material fact, then the court
cannot credit the movant’s version of events against the opponent, even
if the quantity of the movant’s evidence far outweighs that of its
opponent. It thus remains the province of the fact finder to ascertain the
believability and weight of the evidence.
Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal
quotation marks omitted); NAACP v. North Hudson Reg’l Fire & Rescue, 665 F.3d
464, 476 (3d Cir. 2011). It is against this legal backdrop that we review the
defendants’ motion in this case.
A. The Defendants’ Motion for Summary Judgment Should be Granted
in Part and Denied in Part.
As we have noted, Molina asserts claims of retaliation and conspiracy
stemming from allegations of two adverse cell transfers, two fabricated misconduct
reports, his confinement in administrative custody, and ultimately his separation
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transfer from SCI Huntingdon. As we will discuss below, we agree that the
conspiracy claim should be dismissed as to all defendants. However, questions of
fact remain as to the retaliation claim for his confinement in administrative custody
and facility transfer.
1. Under this Court’s Ruling in Johnson v. Davis, the PLRA Does
Not Apply to This Removal Case.
This is the second motion for summary judgment filed by the defendants. In
reviewing their original motion for summary judgment, we noted that the defendants
relied upon portions of the Prison Litigation Reform Act (“PLRA”), in arguing both
that many of Molina’s claims were unexhausted and that he was barred from seeking
compensatory damages for purely psychological injuries. But a recent ruling from
this Court has called into question the applicability of the PLRA to the instant case.
At the outset, Molina requests compensatory and punitive damages as well as
litigation costs and such other relief the Court may deem appropriate. With regard
to his request for compensatory damages, the defendants argue that the PLRA bars
recovery for compensatory damages for purely mental and emotional injury. Indeed,
the plaintiff alleges that his prolonged placement in the RHU caused him to
experience sleep deprivation, mental and emotional distress which have led to fear
and anxiety, clinical depression, and exacerbation of his bipolar disorder. (Doc. 1-1,
⁋⁋ 36-38).
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The Prison Litigation Reform Act, 42 U.S.C. § 1997 (“PLRA”) would seem
to bar such claims for purely emotional distress damages in the absence of any
physical injury. Rather:
The PLRA states that “[n]o Federal civil action may be brought by a
prisoner confined in a jail, prison, or other correctional facility, for
mental or emotional injury suffered while in custody without a prior
showing of physical injury.” 42 U.S.C. § 1997e(e); see also Mitchell v.
Horn, 318 F.3d 523, 533 (3d Cir. 2003). . . . Accordingly, [where an
inmate-plaintiff claims damages for emotional or mental injury] §
1997e(e) bars him from recovering compensatory damages on his
federal claims. See Herman v. Holiday, 238 F.3d 660, 666 (5th Cir.
2001) (holding that § 1997e(e) barred damages claims based on
emotional distress stemming from fear of asbestos exposure); Davis v.
Dist. of Columbia, 158 F.3d 1342, 1349 (D.C. Cir. 1998) (holding that
§ 	1997e(e) 	barred 	claims 	for 	emotional 	injury 	despite 	physical
manifestations of weight loss, appetite loss, and insomnia).
Michel v. Levinson, 437 Fed.Appx. 160, 163–64 (3d Cir. 2011). This clear bar on
compensatory damages for purely mental and emotional harm where no physical
injury is shown has been repeatedly applied by this Court to First Amendment cases
like Molina’s. Cooper v. Garman, No. 1:19-CV-02227, 2024 WL 4043505, at *7
(M.D. Pa. Sept. 4, 2024); Scott v. Kauffman, No. 3:19-CV-00695, 2023 WL
5004047, at *12 (M.D. Pa. Aug. 4, 2023); Freedland v. Mattingly, No. 1:20-CV-
00081, 2021 WL 1017253, at *7 (M.D. Pa. Mar. 17, 2021); Brooks v. Smith, No.
3:CV-04-2680, 2007 WL 3275266, at *15 (M.D. Pa. Nov. 6, 2007).
Notwithstanding the PLRA’s clear bar on compensatory damages absent
physical harm, the district court recently held that this section of the PLRA does not
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apply to cases removed from state court. Indeed, in Johnson v. Davis, Chief Judge
Brann expressly and unequivocally stated that, “this Court holds that Section
1997e(e)’s limitation on recovery does not apply to actions removed from state
court.” 2024 WL 3034591, at *9. This holding applies equally to Molina’s case,
which was originally filed by plaintiff in the Court of Common Pleas of Huntington
County, Pennsylvania and removed by the defendants to federal court in July 2023.
(Doc. 1). The district court considered Johnson to be a case of first impression in our
district since “no case within this Circuit appears to have directly analyzed this
issue,” but ultimately concluded based upon the plain language of the statute,
persuasive authority from other circuits, and the Third Circuit’s guidance on other
parallel issues, that the PLRA’s limitation on recovery of compensatory damages
absent a showing of physical harm does not apply to removal cases such as the
instant case. 2024 WL 3034591.
We granted the defendants leave to withdraw their original motion for
summary judgment and amend their briefing to address the Court’s holding in
Johnson. Unsurprisingly, given the unquestionable applicability of Johnson to the
instant case, and the unequivocal holding that § 1997e(e) does not apply here, the
defendants argue that the Court’s holding in Johnson was error. Nonetheless, since
we write this recommendation for the court which issued the decision in Johnson,
this would not be the appropriate avenue to argue that Johnson was decided in error.
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Therefore, we decline the defendants’ offer to recommend the court overturn its own
recent precedent in favor of an outcome that better suits the defendants in this case.
Instead, since the defendants do not attempt to distinguish Johnson from the instant
case, nor could they, we are constrained to apply the Court’s explicit holding to this
case which was removed from state court. Accordingly, we recommend the district
court follow its own recent precedent and allow Molina to seek compensatory
damages for his surviving claims.
As to the exhaustion requirement of the PLRA, while the district court’s
holding in Johnson is less explicit on this score, the case’s dicta implies that the
holding would apply equally to § 1997e(a) of the act, which requires a prisoner to
pursue all avenues of relief available within a prison's grievance system before
bringing a federal civil rights action concerning prison conditions. 42 U.S.C. §
1997e(a); Booth v. Churner, 206 F.3d 289, 291 (3d Cir. 2000). Our reading of
Johnson supports this conclusion. The defendants argue that the plain language of §
1997e(a) qualifies the nature of the action, not where the action is brought. (Doc.
51, at 13). Thus, the defendants argue that the exhaustion requirements apply to
prison condition claims brought in both federal and state courts.3 But, in Johnson,
3 Notably, the plaintiff also argues that the PLRA’s exhaustion requirement should
apply in his case since “[t]his Court’s decision in Johnson simply does not support
such a position and Mr. Molina does not contest that he is required to exhaust his
administrative remedies under the circumstances of the instant case.” (Doc. 61, at
21). While we are not persuaded by Molina’s view on this issue, we note the irony
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20
the district court concluded that Congress’s use of the work “brought” in the PLRA
has significance which, in fact, undermines its applicability to cases removed from
state court. As the Court stated:
In Brown v. Sage, the Third Circuit, sitting en banc, looked beyond
Black's Law Dictionary when further interpreting the PLRA's “three-
strikes 	rule,” 	finding 	“brought 	an 	action” 	to 	be 	broader 	than
“commencing an action” because of Section 1915(g)’s purpose and the
PLRA's structure. The Sage court held that a prisoner has “ ‘brought an
action’ when he tenders or submits his complaint to the court,” even if
that complaint is rejected without being filed and the action is never “
‘commenced.’ ” The unanimous en banc panel's discussion of the term
“brought” 	in 	the 	PLRA 	is 	instructive 	when 	considering 	Section
1997e(e):
Our reasoning is bolstered by the statute's specific use of
the word “brought,” as opposed to “commenced” or
“filed.” The verb “brought” – whose subject in § 1915(g)
is “the prisoner” – “properly focuses attention on what the
prisoner-plaintiff does.” Vaden v. Summerhill, 449 F.3d
1047, 1050 (9th Cir. 2006). And what the prisoner-
plaintiff does is tender or submit a complaint and request
to proceed [in forma pauperis]. By contrast, “filing” and
“commencement” involve court action.
The Third Circuit—alongside the Fifth, Seventh, Ninth, Tenth, and
Eleventh Circuits—has therefore concluded that a prisoner cannot incur
a strike under Section 1915(g) if he files his action in state court and
the Government chooses to remove that suit to Federal court, because
he never “brought” his action in federal court.
. . .
This construction is also consistent with Third Circuit precedent
concerning Section 1997e(a). Like Section 1997e(e), Section 1997e(a)
in his disagreement since, as discussed below, several of his claims are unexhausted
under the PLRA standard.
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21
sets out a filtering requirement—here, exhaustion of administrative
remedies—which applies to actions “brought ... by a prisoner confined
in any jail, prison, or other correctional facility.” In Ghana v. Holland,
the Third Circuit held that Section 1997e(a) did not apply retroactively
and noted that “§ 1997e(a) does not use language – such as ‘no action
shall be maintained’ – that might plausibly be interpreted to apply to
pending cases.”
Johnson v. Davis, No. 3:23-CV-00762, 2024 WL 3034591, at *6. Thus, while the
Court was considering only the applicability of § 1997e(e) to removal cases and did
not issue a precise holding as to § 1997e(a), our reading of the Court’s opinion
supports the view that it would apply its reasoning equally to § 1997e(a), following
the Third Circuit’s differentiation in Ghana between an action “brought” and one
that is “maintained.” Thus, since Molina brought his action in state court, not federal
court, we believe the Court would refrain from applying the exhaustion requirement
of § 1997e(a) to this removal case as well.4
While we believe the district court intended not to apply the PLRA to cases
removed from state court, if the court finds the PLRA’s exhaustion requirement does
apply to Molina’s case, it is worth noting that several of his claims are unexhausted
and procedurally defaulted.5 On this score, under the PLRA, the “exhaustion
4 Of course, the district court is well positioned to further expound upon its view of
this issue in considering this Report and Recommendation.
5 In the end, whether exhausted or not, most of Molina’s claims fail on the merits for
reasons which are intertwined with the exhaustion analysis. Namely: most of the
complaints in his grievances were fully addressed and the conditions about which he
complained remedied.
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22
requirement applies to all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether they allege excessive
force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The
exhaustion requirement is mandatory. Williams v. Beard, 482 F.3d 637, 639 (3d Cir.
2007); see also Booth v. Churner, 532 U.S. 731, 741 (2001) (holding that the
exhaustion requirement of the PLRA applies to grievance procedures “regardless of
the relief offered through administrative procedures”); Nyhuis v. Reno, 204 F.3d 65,
67 (3d Cir. 2000) (same). Moreover, “it is beyond the power of [any] court ... to
excuse compliance with the exhaustion requirement.” Nyhuis, 204 F.3d at 73
(quoting Beeson v. Fishkill Corr. Facility, 28 F. Supp. 2d 884, 894-95 (S.D.N.Y.
1998)).
To 	exhaust 	administrative 	remedies, 	an 	inmate 	must 	comply 	with 	all
applicable grievance procedures and rules. Spruill v. Gillis, 372 F.3d 218, 231 (3d
Cir. 2004). The PLRA requires not only technical exhaustion of administrative
remedies, but also substantial compliance with procedural requirements. Id. at 227-
32; see also Nyhuis, 204 F.3d at 77-78. A procedural default by the prisoner bars the
prisoner from bringing a claim in federal court unless equitable considerations
warrant review of the claim. Spruill, 372 F.3d at 227-32; see also Camp v. Brennan,
219 F.3d 279 (3d Cir. 2000).
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An inmate's failure to comply with the exhaustion requirement prescribed by
the PLRA is an affirmative defense, Jones v. Bock, 549 U.S. 199, 216 (2007), and
the burden of proving a failure to exhaust rests with the defendants. Brown v. Croak,
312 F.3d 109, 111 (3d Cir. 2002). The Pennsylvania Department of Corrections
Inmate Grievance Policy provides for a three-step process that provides inmates with
a means of seeking review of problems that may arise during the course of
confinement. Pursuant to DC-ADM 804, after an attempt to resolve problems
informally, an inmate may submit a written grievance to the institution's Grievance
Coordinator for initial review. This must occur within 15 days after the events upon
which 	the 	claims 	are 	based. 	“The 	text 	of 	the 	grievance 	must 	be 	legible,
understandable, and presented in a courteous manner. The inmate must include a
statement of the facts relevant to the claim. The statement of facts shall include the
date, approximate time and location of the event(s) that gave rise to the grievance.
The inmate shall identify individuals directly involved in the event(s).” DC-ADM
804, § 1(A)(11).6
Within 15 days of an adverse decision by the Grievance Coordinator, an
inmate may appeal to the Facility Manager of the institution. Thereafter, within 15
6 We note that DC ADM 804 does not apply to Molina’s appeal of “Administrative
Custody Procedures,” including the Program Review Committee’s decision to
transfer him from SCI Huntingdon (referenced as DC-141, Part 1, D519737). We
address the exhaustion of this claim separately below.
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24
days of an adverse decision by the Facility Manager, the inmate may file a final
appeal to the Secretary's Office of Inmate Grievances and Appeals. An appeal to
final review cannot be completed unless an inmate complies with all established
procedures. Thus, an inmate must exhaust all three levels of review and comply with
all procedural requirements of the grievance review process in order to fully exhaust
an issue. See Booth, 206 F.3d at 293 n.2 (outlining Pennsylvania's grievance review
process); Ingram v. SCI Camp Hill, 448 F. App'x 275, 279 (3d Cir. 2011) (same).
Molina’s complaint alleges the defendants retaliated against him for filing
grievances and civil rights lawsuits by engaging in a series of adverse actions
intended to deter him from proceeding with these claims. With regard to the steps
Molina took to remedy these alleged retaliatory acts at the administrative level, he
filed three grievances and an appeal during the relevant time period. We first note
that Molina has wholly failed to name Defendant Walters in any grievance or appeal
filed at the administrative level. Moreover, while he named Defendant Rivello in a
rejected grievance, he did not name him in his properly exhausted appeal.7 On this
score, the Third Circuit has held that:
7 Molina’s third grievance, grievance 975622, named Superintendent Rivello,
Deputy Kohler, Security Lt. Eberling, Grassmyer, and Sgt. Little and stated that they
conspired to issue false misconduct reports as a pretext to confine him to the RHU
based on his efforts to exercise his constitutional rights to file grievances and civil
rights complaints. (Doc. 61-3). However, this grievance was rejected because issues
of administrative custody cannot be addressed via the DC-ADM 804 grievance
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As for the failure to [ ] identify named defendants on the grievance
form, . . . to the extent the identity of a defendant was “a fact relevant
to the claim,” . . . in the absence of any justifiable excuse, a[n] inmate's
failure to properly identify a defendant constituted a failure to properly
exhaust his administrative remedies under the PLRA.
Williams v. Pennsylvania Dep't of Corrections, 146 F. App'x 554, 557 (3d Cir.
2005). Thus, “it is clear, regardless of the purpose of the requirement, that Spruill
requires the prisoner-grievant-plaintiff to name in the grievance those he eventually
sues, upon pain of procedural default.” Hemingway v. Ellers, Civ. No. 07-1764,
2008 WL 3540526, *11 (M.D. Pa. Aug. 12, 2008) (citing Spruill v. Gillis, 372 F.3d
218, 230 (3d Cir. 2004)). Here, we see no excuse why, if the plaintiff argues the
defendants should have been on notice of each of the defendants implicated in the
conspiracy to retaliate against him, and he bases his claims upon statements made
directly to him by Defendants Walters and Rivello, he should be excused from first
bringing his claims against these defendants at the administrative level as required
by the PLRA. Accordingly, should the Court apply the exhaustion requirements
process but rather must be addressed through the DC-ADM 802 process. (Id.) Thus,
this grievance is procedurally defaulted since Molina did not follow the appropriate
procedures and his grievance was not addressed on the merits. See Woodford v. Ngo,
548 U.S. 81, 90 (2006) (Proper exhaustion “means using all steps that the agency
holds out and doing so properly (so that the agency addresses the issues on the
merits.)”). Significantly, when Molina followed the proper procedures and appealed
this decision through DC-ADM 802, he did not name Defendant Rivello. We address
Molina’s proper appeal of his administrative custody under DC-802 below.
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26
under the PLRA, we recommend it find Molina’s claims against Defendants Walters
and Rivello are unexhausted.
Molina also alleges in his complaint that, in retaliation for his grievances and
lawsuit, Defendant Little initiated a fabricated misconduct against him which
ultimately resulted in him being placed in the Restricted Housing Unit (RHU), (Doc.
1-1, ⁋ 21), and Defendant Walters also issued a fabricated report recommending his
time in the RHU be extended and that he be transferred to another prison. (Id., ⁋ 28).
The 	only 	grievance 	which 	contains 	these 	allegations 	was 	grievance 	975622
challenging 	his 	administrative 	custody, 	which 	the 	Court 	should 	consider
procedurally 	defaulted 	since 	it 	was 	rejected 	because 	he 	used 	the 	improper
procedures. Moreover, Little was not ultimately named in the proper appeal of his
administrative custody. (Doc. 61-2). Walter was not named in any grievance or
appeal with regard to a fabricated misconduct or challenging his initial placement in
administrative custody. (Doc. 50, ⁋⁋ 68, 70). Accordingly, should the Court apply
the exhaustion requirements of the PLRA, we recommend it find these claims are
unexhausted and procedurally defaulted.8
8 Moreover, as noted in the above factual summary, it appears the recommendation
that Molina be placed in administrative custody was issued by a non-party
corrections officer. (Doc. 50-8).
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27
The defendants also argue that Molina has procedurally defaulted on his claim
alleging a retaliatory transfer by Defendant Little to cell 171, which he alleges had
an unstable toilet that leaked contaminated water with human feces and urine
“causing noxious odors.” (Doc. 1-1, ⁋ 17). He also implicates Defendant Ralston in
this claim, stating that he requested to be moved to a decent cell, but Ralston stated
that as long as he had a civil suit against him, he would never be housed in a decent
cell. (Id., ⁋ 18). Molina’s grievance 974063 complains of his placement in cell 171
on March 28, 2022, naming Defendant Ralston and Defendant Little, along with
three other non-defendant corrections officers. (Doc. 61-5). However, the defendants
argue that Molina failed to fully exhaust this claim because it was withdrawn after
his cell toilet was repaired by maintenance on April 1, 2022.9 (See Doc. 61-5).
For his part, Molina argues that exhaustion was excused since he received a
favorable decision to his grievance; his cell toilet was repaired and it was agreed he
would be moved to a new cell upon his release from RHU, and thus he was not
required to appeal his grievance further. He also argues that he initially refused to
9 To the extent that the defendants also argue in their reply brief that Molina’s claim
is procedurally defaulted against Defendants Ralston and Little because he did not
allege in the grievance that his placement in cell 171 was retaliatory, this argument
fails since his grievance does, in fact, state, “[Defendants Ralston and Little]
continue to disregard the unsanitary and denigrating environmental conditions . . .
without any legitimate penological or security interest other than retaliation for filing
Grievances and Civil rights Complaint, in which Ralston is a Defendant.” (Doc. 61-
5, at 2).
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28
withdraw grievance 974063 until Defendant Little fabricated a report against him to
have him sent to the RHU and Defendant Rivello and another non-defendant
corrections officer conditioned his release from the RHU upon him withdrawing this
grievance. 	He 	states 	that 	these 	corrections 	officers 	later 	“reneged” 	on 	their
agreement to release him to general population after he signed the grievance
withdrawal form. (Doc. 61, at 21-22).
Thus, Molina essentially argues that both the favorable grievance outcome
and threats from the defendants made complete exhaustion of his administrative
remedies unavailable. In the past, the Court has applied the following benchmarks
in determining whether administrative remedies were effectively unavailable to a
prisoner, thus excusing the exhaustion requirement:
Where “an administrative remedy, although officially on the books,” is
“not capable of use to obtain relief,” it is unavailable. Rinaldi, 904 F.3d
at 266–67. The Supreme Court has identified three circumstances
where administrative remedies may be unavailable to a prisoner. First,
“an administrative remedy procedure is unavailable when (despite what
regulations or guidance materials may promise) it operates as a simple
dead end–with officers unable or consistently unwilling to provide any
relief to aggrieved inmates.” Ross, 136 S.Ct. at 1858. “Next, an
administrative scheme might be so opaque that it becomes, practically
speaking, incapable of use.” Id. Third, administrative remedies are
unavailable where “prison administrators thwart inmates from taking
advantage 	of 	a 	grievance 	process 	through 	machination,
misrepresentation, or intimidation.” Id. at 1860.
Similarly, the Third Circuit Court of Appeals has found an inmate's
administrative remedy “unavailable” where prison officials provide
“misleading or deceptive [filing] instructions,” see Hardy, 959 F.3d at
587, and when they fail to “timely (by its own procedural rules) respond
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29
to his grievance and then repeatedly ignored his follow-up requests for
a decision on his claim.” Robinson v. Sup't Rockview SCI, 831 F.3d
148, 154 (3d Cir. 2016) (state prison's administrative remedy process
which did not contemplate an appeal from a non-decision thwarted the
inmate's advancement of his claim through the appeal process); see also
Shifflett v. Korszniak, 934 F.3d 356, 367 (3d Cir. 2019) (“[W]e hold
that [the PLRA] requires strict compliance by prison officials with their
own policies.”). Further, where prison officials deter an inmate from
pursuing an administrative remedy by making “serious threats of
substantial retaliation ... and bodily harm,” the administrative remedy
process is not “available.” Rinaldi, 904 F.3d at 267.
Pollard v. Ferguson, No. 3:18-CV-01381, 2021 WL 674243, at *5 (M.D. Pa. Feb.
22, 2021)(footnote omitted).
At the outset, we note that , “[t]he Court of Appeals for the Third Circuit has
recognized that ‘[t]here is no futility exception’ to the exhaustion requirement.”
Weedon v. Adams, No. 3:CV-15-1990, 2018 WL 661551, at *3 (M.D. Pa. Feb. 1,
2018) (quoting Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002)). Indeed, this
Court applied this principle in Pollard, where the plaintiff argued that he was not
obligated to pursue his grievance to the third and final step of the grievance process
because he obtained a favorable resolution to his grievance. 2021 WL 674243 at *4.
This Court rejected the plaintiff’s “favorable outcome” allegation as an excuse for
proper exhaustion, citing the Third Circuit’s instruction that “courts may not
consider the adequacy or futility of the administrative remedies to excuse proper
exhaustion. Id. (citing DeHart v. Horn, 390 F.3d 262, 273 (3d Cir. 2004) (holding
“Section 1997e(a) makes exhaustion of prison administrative remedies mandatory
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30
regardless of the efficacy of the grievance process”)). On the other hand, the plaintiff
points us to other circuits that have construed a favorable grievance resolution to
indicate that “no further relief was ‘available.’” Brown v. Valoff, 422 F.3d 926, 938
(9th Cir. 2005). See also Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir. 2004);
Dixon v. Page, 291 F.3d 485, 490 (7 th Cir. 2002) (“requiring a prisoner who has won
his grievance in principle to file another grievance to win in fact . . . [could produce]
some never-ending cycle of grievances”).
Despite 	these 	competing 	arguments 	regarding 	whether 	the 	favorable
termination of a grievance makes further exhaustion unavailable, we note that
Molina’s grievance terminated not by a favorable determination by the grievance
officer, but rather because Molina willingly withdrew the grievance, which we have
recognized means he “did not fully and properly grieve this incident.” Leaphart v.
Campbell, No. 1:21-CV-1293, 2023 WL 3851980, at *8 (M.D. Pa. June 6, 2023).
Thus, Molina’s apparent view that, through no act of his own, the pursuit of these
grievances became unavailable after a favorable determination is dubious.
Nonetheless, Molina argues in the alternative that he withdrew grievance
974063 due to threats from the defendants to send him to the RHU. It is true that,
“[c]ourts have invariably held that affirmative misconduct by prison officials-
designed 	to 	impede 	or 	prevent 	an 	inmate's 	attempts 	to 	exhaust-may 	render
administrative remedies unavailable.” Banks v. One or More Unknown Named
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Confidential Informants of Fed. Prison Camp Canaan, No. 1:06-CV-1127, 2008 WL
2563355, at *5 (M.D. Pa. June 24, 2008) (citing Todd v. Benning, 173 F. App’x 980,
982-83 (3d Cir. 2006)). Indeed, the type of misconduct that could excuse exhaustion
could encompass “threatening a prisoner in an attempt to thwart the prisoner’s
attempts to exhaust.” Id. (citing Harcum v. Shaffer, No. 06-5326, 2007 WL 4167161,
at *5 (E.D. Pa. Nov. 21, 2007) (finding administrative remedies unavailable where
prison 	officials 	threatened 	plaintiff with 	“opposition 	to his 	future prerelease
application, parole, or outside work detail if he did not withdraw his grievance”)).
And, while the Third Circuit has rejected “general fear of retaliation as a basis for
excusing a prisoner’s failure to exhaust,” Pena-Ruiz v. Solorzano, 281 Fed. Appx.
110, 113 (3d Cir. 2008), it has recognized that “administrative remedies are not
‘available’ under the PLRA where a prison official inhibits an inmate from resorting
to them through serious threats of retaliation and bodily harm.” Rinaldi v. United
States, 904 F.3d 257, 267 (3d Cir. 2018). In Rinaldi, the Third Circuit adopted the
Eleventh Circuit’s test from Turner v. Burnside, 541 F.3d 1077 (11 th Cir. 2008) to
establish unavailability based on “intimidation,” which requires:
To defeat a failure-to-exhaust defense, an inmate must show (1) that the
threat was sufficiently serious that it would deter a reasonable inmate
of ordinary firmness and fortitude from lodging a grievance and (2) that
the threat actually did deter this particular inmate.
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Id. at 269. In Rinaldi, the court of appeals found that housing a prisoner with a
cellmate they knew threatened to kill him was sufficient that “a reasonable inmate
of ordinary firmness and fortitude” would be “deter[red] ... from lodging a grievance
or pursuing the part of the grievance process that the inmate failed to exhaust.” Id.
(quoting Turner v. Burnside, 541 F.3d 1077, 1084-85 (11 th Cir. 2008)). In creating
this two-pronged test, the Eleventh Circuit also explicitly rejected the argument that
threats of retaliation that do not raise the specter of physical abuse cannot make a
remedy unavailable. Indeed, in Turner, the court contemplated whether a remedy
was unavailable to the plaintiff by threats to transfer the inmate to a prison far away
from his family. Id. at 1084.
Here, Molina alleges he withdrew his grievance because Defendant Little had
him placed in the RHU based upon a retaliatory falsified misconduct and Defendant
Rivello essentially threatened to keep him in the RHU if he did not withdraw it.
Viewing the evidence in a light most favorable to Molina, as we are required to do
at this stage, in our view, while not a threat of physical harm, this type of threat could
be in line with the threats contemplated in Turner and Rinaldo such to satisfy the
objective prong of the test. However, even conceding that this type of threat could
excuse Molina’s failure to exhaust this grievance, Molina’s claim falters at step two,
where he must show that he was actually deterred by these threats since it appears
he withdrew his grievance after it was fully addressed, with his toilet being repaired
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33
by maintenance on April 1, 2022 and him being afforded a new cell upon his release
from RHU, a fact that Molina does not contest. (Doc. 61-5). As discussed below, not
only does the undisputed fact that the prison fully addressed the substance of
Molina’s grievance 974063 belie his assertion that he withdrew his grievance based
upon threats from the defendants, but it also undermines his claim that his transfer
to cell 171 was retaliatory, since prison officials seemingly responded to his
complaints regarding the condition of his cell. Accordingly, should the Court apply
the PCRA exhaustion requirement, we recommend the Court find this claim against
Defendant Little procedurally defaulted.
2. Molina’s Claims of Retaliation Based Upon His Cell Moves Fail, But
A Dispute of Material Fact Exists as to Molina’s Retaliation Claim
Based Upon His Facility Transfer and Extended RHU Placement.
Molina’s claims are essentially based upon three distinct retaliatory acts he
alleges the defendants committed. Two of these acts relate to his transfer to cells
which he alleges were contaminated and unfit for habitation in retaliation for filing
lawsuits and grievances against the defendants. The other retaliatory act was the
decision by the PRC board to transfer Molina to another prison and continue his
administrative custody pending separation transfer. For the reasons discussed below,
we conclude that Molina has adequately pleaded a retaliation claim for his transfer
to a new facility and extended stay in the RHU. However, we conclude that Molina
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34
has not adequately pleaded a retaliation claim with respect to any of the other
defendants.
A. Molina’s 	Claims 	of Retaliation 	Based 	Upon 	His 	Cell 	Moves 	Are
Meritless.
In his complaint, Molina alleges that since filing his grievances and civil rights
class action suit, he began experiencing various hardships in the form of retaliation
by the corrections officers at SCI Huntingdon, beginning with Defendant Ralston
requesting he be moved from a “freshly painted cell,” to cell 156, which he alleges
was contaminated with mold, rust, asbestos, and corrosion. (Doc. 1-1, ⁋ 16). He then
alleges that, after he filed grievance 967468 complaining of the conditions of cell
156, Defendant Little removed him out of cell 156 and placed him in cell 171
knowing that the toilet was unstable and leaked foul water contaminated with human
feces and urine “causing noxious odors.” (Id., ⁋ 17). As discussed above, with regard
to his move to cell 171, he withdrew his grievance and therefore procedurally
defaulted on this claim. With regard to his move to cell 156, we find no jury could
find in Molina’s favor based upon the undisputed facts in the record.
To ultimately succeed on this retaliation claim, Molina must prove that he: (1)
engaged in a protected activity; (2) that the government took action against the
plaintiff at the time of or after the protected action; (3) that the protected activity
caused the government to take the action that harmed the plaintiff. Anderson v.
Davila, 125 F.3d 148, 148, 161 (3d Cir. 1977). Thus, “[t]he threshold requirement is
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35
that the plaintiff identify the protected activity that allegedly spurred the retaliation.”
Eichenlaub v. Township of Indiana, 385 F.3d 274, 282 (3d Cir. 2004). More
specifically, a prisoner claiming that prison officials have retaliated against him for
exercising his constitutional rights must first prove the following three elements: (1)
the conduct in which he engaged was constitutionally protected; (2) he suffered
adverse action at the hands of prison officials; and (3) his constitutionally protected
conduct was a substantial motivating factor in the defendants' conduct. Carter v.
McGrady, 292 F.3d 152, 158 (3d Cir. 2002). With respect to the obligation to
demonstrate that he suffered an adverse action, a plaintiff must demonstrate that he
suffered action that “was sufficient to deter a person of ordinary firmness from
exercising his rights.” Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000).
Examples of adverse actions that have, in certain cases, been found to support a
retaliation claim include filing false misconduct reports, Mitchell v. Horn, 318 F.3d
523, 530 (3d Cir. 2003), transferring a prisoner to another prison, Rauser v.
Horn, 241 F.3d 330, 333–34 (3d Cir. 2001), and placing a prisoner in administrative
custody, Allah, 229 F.3d at 225.
Turning to the cell transfer claim against Defendant Ralston, Molina alleges
that, on January 26, 2022, at Defendant Ralston’s request, he was moved out of a
freshly painted cell and placed in a cell contaminated with mold, rust, asbestos, and
corrosion (cell 156). (Doc. 1-1, ⁋ 16). With respect to this claim, Molina filed
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36
grievance 967468 on February 8, 2022, naming Defendant Ralston and two other
corrections officers who are not parties to this suit. (Doc. 25-3). The record reflects,
and the defendants do not contest, that Molina appealed this grievance through all
three levels of review and thus has exhausted this claim as to Defendant Ralston.
Molina remained in cell 156 for twenty-eight days, until February 23, 2022. (Doc.
25, ⁋ 10).
The Court previously found at the motion to dismiss stage that Molina had
pleaded a prima facie case of retaliation against each defendant, stating that Molina
engaged in constitutionally protected activity by filing his lawsuit and prison
grievances, see Allah v. Al-Hafeez, 208 F. Supp. 2d 520, 535 (E.D. Pa. 2002);
finding that being placed in undesirable cells has been recognized as an adverse
action in the context of a prison retaliation claim, see Murray v. Wetzel, No. 3:CV-
17-491, 2018 WL 894610, at *7 (M.D. Pa. Feb. 14, 2018); and finding that
statements allegedly made by the defendants threatening and harassing him for filing
lawsuits and grievances formed the requisite causal connection to demonstrate a
claim of retaliation. See Jackson v. Mason, No. 1:22-CV-00845, 2023 WL 3727251,
at *9 (M.D. Pa. May 30, 2023) (finding the third requirement of a retaliation claim
was satisfied for the purpose of a motion to dismiss because conversations between
the plaintiff-inmate and defendants “raise[d] a plausible inference of retaliatory
motive”). (Doc. 9, at 7-9).
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At this stage, the plaintiff must now provide evidence to support these claims,
since “a party resisting a [Rule 56] motion cannot expect to rely merely upon bare
assertions, conclusory allegations or suspicions,” Gans, 762 F.2d at 341, and that
“only evidence which is admissible at trial may be considered in ruling on a motion
for summary judgment.” Countryside Oil Co., Inc., 928 F. Supp. at 482. The
plaintiff’s sole allegation with regard to his placement in cell 156 is that, “since the
filing of his grievances and civil rights class action suit [the plaintiff] began
experiencing various hardships while confined in general population as a form of
retaliation, such as removed out of a freshly painted cell, per Defendant Ralston’s
request and placed in cells contaminated with mold, rust, asbestos, and corrosion.”
(Doc. 1-1, ⁋ 16). The defendants allege that the plaintiff has now failed to provide
any admissible evidence showing Defendant Ralston’s personal involvement in his
placement in cell 156. They also argue that he cannot establish via competent,
admissible evidence that cell conditions existed to support a finding that he was
subject to an adverse action, and that he cannot prove that his transfer to cell 156
was substantially caused or motivated by his filing grievances and a lawsuit against
Defendant Ralston.
In our view, the relevant evidence Molina relies upon, including his deposition
testimony stating that he had informed Defendant Ralston of the conditions of his
cell but he refused to take any action until he submitted a grievance, (Doc. 50-9, at
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27-30), and an email seemingly indicating Defendant Ralston was at least aware of
Molina’s complaints about his cell, (Doc. 50-5) (Regarding the work orders for cell
156, “You would have to check with Ralston to see if and when it was dead-lined”),
sufficiently creates a question of fact regarding whether Defendant Ralston had
personal involvement in his cell placement. However, we agree with the defendants
that this evidence also defeats Molina’s claims that this cell placement was
retaliatory, since it shows not only that the conditions of his cell were not as severe
as he alleged but also that his grievance was promptly and favorably addressed, and
he was moved to another cell. Moreover, he has not pointed to any evidence
demonstrating a retaliatory motive for this cell placement by Defendant Ralson.
At the outset, the defendants point out that, despite the plaintiff’s bare
assertions that cell 156 was contaminated with mold, rust, asbestos, and corrosion,
the initial grievance response confirmed there was no asbestos in the prison facility,
that the prison denied it was mold but stated it was rather mildew in his cell which
he was responsible for cleaning,10 and that the maintenance department was actively
fulfilling work orders to scrape and repaint cells, but their efforts were restricted and
slowed due to the COVID-19 pandemic. (Doc. 50-3). Moreover, Molina claimed
that the conditions of cell 156 caused his nose to bleed and respiratory problems, but
10 In his appeal of this grievance, Molina seemingly conceded this fact, changing his
wording to acknowledge that it was, in fact, mildew and not mold in his cell. (See
Doc. 50-3, at 6).
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the grievance response also indicates he had been seen by medical, where he stated
he had nose bleeds daily since 2019, and he was prescribed allergy medication. (Doc.
50-3, at 7). In our view, while the Court previously found, in denying the defendants’
motion to dismiss, that, in general, being placed in undesirable cells has been
recognized as an adverse action in the context of a prison retaliation claim, see
Murray v. Wetzel, No. 3:CV-17-491, 2018 WL 894610, at *7 (M.D. Pa. Feb. 14,
2018), the evidence now showing that Molina was placed in a cell for 28 days which
had mildew, which he was responsible for cleaning, and chipping paint, which
maintenance was actively working to remedy based upon a work order, simply does
not rise to the level of an action “sufficient to deter a person of ordinary firmness
from exercising his rights.” Allah, 229 F.3d at 225. See Owens v. Coleman, 629 F.
App’x 163, 167 (3d Cir. 2015) (“[The plaintiff’s] mere assertion that Appellees
retaliated against him by placing him in a cell with a faulty shower does not meet
these [First Amendment retaliation] elements”); Griffin v. Malisko, No. 1:18-CV-
01155, 	2018 	WL 	5437743, 	at 	*3 	(M.D. 	Pa. 	Oct. 	29, 	2018) 	(“Temporary
inconveniences [ ] do not meet [the adverse action] standard”).
More importantly, the undisputed fact that Molina’s complaints regarding
both the condition of cell 156 and 171 were fully addressed by the prison belies any
claim that he was placed in these cells for retaliatory reasons. This goes toward the
third essential element to a retaliation claim—is there a causal link between the
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exercise 	of 	a 	constitutional 	right 	and 	the 	adverse 	action 	taken 	against 	the
prisoner. Rauser, 241 F.3d at 333–34. To establish this third, and crucial, component
to a constitutional retaliation claim, causation, Molina must allege facts which make
an exacting showing. In this setting:
To establish the requisite causal connection a plaintiff usually 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. See Krouse v. American Sterilizer Co., 126 F.3d 494, 503–04 (3d
Cir. 1997); Woodson v. Scott Paper Co., 109 F.3d 913, 920–21 (3d Cir.
1997). In the absence of that proof the plaintiff must show that from the
“evidence gleaned from the record as a whole” the trier of the fact
should infer causation. Farrell v. Planters Lifesavers Co., 206 F.3d 271,
281 (3d Cir. 2000).
Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). In the
instant case, however, Molina has alleged neither the requisite temporal proximity
alone with regard to this claim, nor a combination of temporal proximity and a
pattern of antagonism.
At the outset, we note that it seems counterintuitive that Defendant Rivello
would on one hand place Molina in a cell with chipping paint to retaliate for Molina
filing a lawsuit and grievances against him, but then, undisputedly, take steps to
address the very conditions which Molina alleges made his cell placement adverse.
Moreover, with regard to the claim that Ralston’s request that he be placed in cell
156, Molina alleges only in a vague and conclusory manner that Ralston’s action
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41
was in retaliation for his filing of grievances and a class action lawsuit. (Doc. 1-1, ⁋
16). And a review of his deposition, which he points to as evidence to support this
claim, seems to only demonstrate that Ralston requested his move to cell 156, that
he spoke with Ralston on March 7 th and informed him of the conditions of his cell
and he took no action, and that maintenance moved him to cell 171 after he filed a
grievance. (Doc. 50-9, at 27-30). As the defendants point out, standing alone, the
temporal proximity of his move to cell 156 to the filing of his lawsuit (one year
prior), (Doc. 50, ⁋⁋ 20-22), or grievances (five and a half months prior), (Doc. 50, ⁋
23), is not indicative of causation, since:
For temporal proximity alone to establish causation, the “timing of the
alleged retaliatory action must be ‘unusually suggestive’ of retaliatory
motive before a causal link will be inferred.” Marasco, 318 F.3d at
512 (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir.
1997)) ... [T]he Third Circuit Court of Appeals has suggested that a
temporal 	proximity 	of 	two 	days 	is 	sufficient 	to 	establish
causation, see Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 &
n. 5 (3d Cir. 2000), whereas a temporal proximity of ten days is
sufficient to establish causation only when accompanied by other
evidence 	of 	... 	wrongdoing, 	Shellenberger 	v. 	Summit 	Bancorp,
Inc., 318 	F.3d 	183, 	189 	(3d 	Cir. 	2003). 	This 	suggests 	that
the temporal proximity must be measured in days, rather than in weeks
or months, to suggest causation without corroborative evidence.
Conklin v. Warrington Tp., No. 06–2245, 2009 WL 1227950, *3 (M.D. Pa. April
30, 2009). And, beyond the conclusory allegations in the complaint, Molina has
presented no corroborative evidence of any pattern of antagonism on the part of
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Defendant Rivello that would establish causation. Accordingly, we recommend
summary judgment be granted as to this claim against Defendant Rivello.
Further, even setting aside Molina’s failure to exhaust his claim against
Defendant Little regarding his move to cell 171, we similarly find that that fact that
his complaints about the condition of his cell were fully addressed undermines his
allegation that the defendants were engaged in some sort of ongoing retaliation by
keeping him in an uncomfortable cell. Moreover, with regard to his transfer to cell
171, there is ample evidence that he was transferred to this cell for legitimate
penological reasons. On this score, in the prison context, even if Molina has
demonstrated a prima facie case of retaliation, the prison officials may rebut the
retaliation claim by showing that there were legitimate penological reasons for their
conduct. Bramble v. Wetzel, No. 4:20-CV-2394, 2022 WL 55021, at *5 (M.D. Pa.
Jan. 5, 2022) (citing Rauser v. Horn, 241 F. 3d 330, 333-34 (3d Cir. 2001); Nifas v.
Beard, 374 F. App’x 241, 244 (3d Cir. 2010)). Here, the responses to Molina’s
grievance 967468 indicate that, on February 23, 2022, he was move to cell 171 so
that cell 156, where he was previously housed, could be painted and scraped per the
work orders initiated after Molina complained of the conditions of cell 156. (Doc.
25, ⁋ 24; Doc. 25-3). Accordingly, we recommend summary judgment be granted as
to this claim against Defendant Little.
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B. Molina’s 	Retaliation 	Claims 	Based 	Upon 	His 	Confinement 	to
Administrative Custody and Transfer from SCI Huntingdon Raise Issues
of Material Fact.
Although Molina’s retaliation claims based upon his cell transfers and
allegedly fabricated misconduct reports are plagued by evidentiary inconsistencies
and gaps in administrative exhaustion, his claims relating to his transfer from SCI
Huntington to SCI Forest and confinement to administrative custody follow a much
clearer path supported by more than a “mere scintilla,” Anderson, 477 U.S. at 252,
of evidence which creates questions of fact which cannot be resolved by the Court.
This retaliation claim involves Defendants Rivello, Little, Walters, Spyker,
and Kohler. However, at the outset, it appears Molina only exhausted his claims
against Spyker and Kohler. He initially attempted to file a grievance pursuant to DC-
ADM 804 with regard to the PRC decision, but Facility Manager Rivello informed
him that issues pertaining to DC-ADM 802 (Administrative Custody Procedures)
will not be addressed via the grievance process, since DC-ADM 802 contains its
own appeal procedure. (Doc. 61-3). DC-ADM 802 provides:
An inmate may appeal the decision of the PRC concerning his/her
initial confinement in AC to the Facility Manager/designee within two
work days of the completion of the hearing, and may appeal the initial
decision of the Facility Manager/designee to the Office of the Chief
Hearing Examiner within seven calendar days of the receipt of the
Facility Manager's/designee's decision.
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Eley v. Brittain, No. 1:21-CV-02184, 2023 WL 2142969, at *5 (M.D. Pa. Feb. 21,
2023) (quoting DC-ADM 802 § 2(C) (Nov. 14, 2016)) (internal quotations omitted).
In their statement of facts, the defendants state that “plaintiff did not file a
grievance 	against 	Defendants 	Spyker 	and 	Kohler 	or 	appeal 	their 	decision.
Accordingly, plaintiff failed to exhaust his administrative remedies.” (Doc. 50, ⁋ 84).
However, the record shows Molina did, in fact, appeal the decision both to the
Facility Manager and the Chief Hearing Examiner, as outlined in DC-ADM 802.
(Doc. 61-2). Considering the record showing Molina did exhaust his appeals
regarding the decision of the PRC to transfer him, naming Spyker and the “PRC
Board,” which includes Kohler, (see Doc. 50-8), should the Court apply the
exhaustion requirement to Molina’s claims, we recommend the Court conclude that
the 	claims 	against 	defendants 	Spyker 	and 	Kohler 	have 	met 	the 	exhaustion
requirement. However, as previously noted, while Defendants Rivello and Little
were named in his rejected grievance, none of the remaining defendants were named
in his appeal of the PRC decision and therefore the claims against these defendants
would be procedurally defaulted.
Despite issues with exhaustion with regard to some of the named defendants,
we find the plaintiff has shown that there are disputed questions of fact with regard
to the merits of this retaliation claim. Indeed, while the evidence bore out gaps in the
retaliatory 	motive supporting 	any 	of his 	exhausted 	claims 	against 	the 	other
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defendants, and relied only upon a tenuous temporal proximity to the lawsuit and
grievances, here, Molina presents corroborative evidence, in the form of his own
sworn testimony, that Spyker and Kohler both explicitly told him they were
transferring him because they were tired of his grievances and lawsuits. (Doc. 1-1, ⁋
30; Doc. 50-9, at 77-78). Moreover, he has offered his own testimony, and an
affidavit of Anthony Shamberger, stating that Rivello told him that if he did not
withdraw the lawsuit and grievances he would keep in in the RHU for as long as he
could and then transfer him away from the region. (Doc. 1-1, ⁋ 22; Doc. 50-9, at 44;
Doc. 61-4). Molina’s sworn testimony, corroborated by the affidavit of Anthony
Shamberger, also alleges that Defendant Walters made similar threats, stating that if
he did not withdraw the lawsuit against his father, Scott Walters, he would make
sure the PRC denied his release to general population and have him transferred.
(Doc. 50-9, at 61-62; Doc. 61-4). Finally, Molina testified that Defendant Little
stated if he did not withdraw his grievance against him he would make sure his next
move would be to the RHU and that Little made good on that promise by fabricating
the report that Molina was involved in circulating the petition. (Doc. 50-9, at 36, 40-
41). Thus, although the temporally proximity to the initiation of his civil rights
lawsuit, which names Spyker, Rivello, and S. Walters, and grievances alone may not
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support a causal connection,11 this coupled with Molina’s allegations that these
defendants explicitly told him their motive was retaliatory, supported by his
deposition testimony, at least creates a question of fact, since evidence of statements
allegedly made by the defendants regarding their retaliatory motives can form the
requisite causal connection to demonstrate a claim of retaliation at the summary
judgment stage. See Jackson v. O'Brien, No. 1:18-CV-00032-RAL, 2021 WL
982739, at *10 (W.D. Pa. Mar. 16, 2021), on reconsideration in part, No. 1:18-CV-
00032-RAL, 2021 WL 3174687 (W.D. Pa. July 27, 2021) (The evidence [an
affidavit by the plaintiff] that [the defendant] both made statements indicating a
retaliatory motive and acted on them is enough for the claim against him to survive
summary judgment). The first two elements of Molina’s retaliation claim are also
met here, since the Court previously acknowledged, and the defendants do not
contest, that Molina engaged in constitutionally protected activity by filing his
lawsuit and prison grievances, see Allah v. Al-Hafeez, 208 F. Supp. 2d 520, 535
(E.D. Pa. 2002); and “confinement in administrative custody and transfer to another
facility could constitute adverse actions for purposes of a retaliation claim.” Lindsay
11 We also note that the case against Spyker and other SCI Huntingdon officials was
being actively litigated at the time of the alleged retaliatory act. Molina v. Kauffman,
et al., No. 4:21-CV-00038, 2023 WL 8281695 (M.D. Pa. Nov. 30, 2023). Thus,
although the defendants argue the initiation of the case, some one year prior to the
PRC decision, was too temporally remote to prove retaliatory motive, we find it
plausible that the defendants could have retaliatory animus against the plaintiff based
upon the ongoing litigation at the time of the PRC decision.
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v. Chesney, 179 F. App'x 867, 869 (3d Cir. 2006); see also Rauser v. Horn, 241 F.3d
330, 333 (3d Cir. 2001).
Moreover, although the defendants attempt to rebut Molina’s prima facie case
of retaliation by alleging they had a legitimate penological reason for his transfer, in
that he was accused of circulating a petition to get Defendant Little removed from
his housing block, if a jury were to believe Molina’s testimony about the retaliatory
statements 	made 	by 	the 	defendants, 	they 	could 	still 	conclude 	that 	“his
constitutionally protected conduct was a substantial or motivating factor in the
decision to discipline him.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (citing
Mount Healthy Bd. Of Ed. V. Doyle, 429 U.S. 274, 287 (1977)) (internal quotations
omitted). Although the defendants have presented the Security Office memo and
PRC decision, the memo detailing precisely what Molina was being investigated for
and what the investigation uncovered is unclear12 and the PRC decision to transfer
Molina states only that he was “suspected of being involved in, or is suspected of
12 The memo begins by stating first that the Security Office received an allegation
regarding “a list of unknown demands” being circulated by unknown inmates on
April 4, 2022. It later states that, on April 14, 2022, an “influential inmate” alerted
staff that he had knowledge of a possible “riot” situation, which was later found to
be inaccurate. But it states that “at approximately the same time” staff were alerted
to 	the 	potential 	“petition” 	and, 	on 	April 	15, 	2022 	Molina 	was 	placed 	in
administrative custody to determine if he was involved. The PRC decision, DC-141
Part III, D368930, attaches the referral by Lt. Eberling recommending Molina be
placed on administrative custody for being “under investigation for violation of
facility rules,” dated April 5, 2022, the date Molina alleges he was actually moved
to the RHU. (Doc. 25-6).
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being the instigator, of a disturbance.” (Doc. 50-7). The vague and enigmatic nature
of the investigation report and subsequent PRC decision lends itself to interpretation
regarding whether the reason proffered by the defendants for the transfer was indeed
legitimate, especially in light of the other contemporaneous evidence and statements
detailed by Molina. Indeed, Molina maintains that the investigation revealed the
alleged subject of the disturbance, a petition to transfer Defendant Little from his
housing unit, never existed, and the investigation turned up no evidence linking him
to any violation of facility rules. (Doc. 50-9, at 50-51). Ultimately, the viability of
these claims relies upon credibility determinations that are reserved for finders of
fact and outside the scope of summary judgment.
In our view, although the Third Circuit has explained that “once 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,”
Rauser, 241 F.3d at 334 (emphasis added), they have made clear that we are to apply
a balancing test, and that the defendants must overcome their burden of proving “by
a preponderance of the evidence that [they] would have taken the same disciplinary
action even in the absence of the protected activity.” Id. Given the factual evidence
as presented by the parties, the defendants simply have not met this burden at this
juncture. Accordingly, we find the plaintiff has created a question of fact regarding
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49
whether 	Molina’s 	confinement 	in 	the 	RHU 	and 	ultimate 	transfer 	from 	SCI
Huntingdon to SCI Forest was retaliatory and recommend the motion for summary
judgment as to this claim be denied.13
3. Any Conspiracy Claim Alleged By Molina Fails.
Finally, in his complaint, Molina asserts in a conclusory fashion without
supporting factual detail that the defendants engaged in a conspiracy, via e-mail and
telephonic communications to issue false DC-141, Part I (other) reports as a pretext
to confine him in the RHU for retaliatory reasons. (Doc. 1-1, ⁋ 14). In this regard,
we have previously noted:
[I]n 	order 	to 	plead 	a 	civil 	rights 	action 	based 	upon 	a 	claim
of conspiracy, a plaintiff must plead allegations that are:
supported 	by 	facts 	bearing 	out 	the 	existence 	of
the conspiracy and indicating its broad objectives and the
role each defendant allegedly played in carrying out those
objectives. Bare conclusory allegations of “conspiracy” or
“concerted action” will not suffice to allege a conspiracy.
The plaintiff must expressly allege an agreement or make
averments of communication, consultation, cooperation,
or command from which such an agreement can be
inferred.
Flanagan 	v. 	Shively,783 	F. 	Supp. 	922, 	928 	(M.D. 	Pa. 	1992).
Furthermore, when pleading a conspiracy claim, a plaintiff cannot rely
13 In the interest of clarity, should the Court apply the exhaustion requirement to this
case, this claim would only survive as to Defendants Kohler and Spyker. If
exhaustion should not apply, a question of fact exists as to this claim with regard to
Defendants Rivello, Walters, Little, Kohler, and Spyker.
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upon subjective suspicion and speculation. Young v. Kann, 926 F.2d
1396, 1405 n.16 (3d Cir. 1991). Quite the contrary, “to properly plead
an unconstitutional conspiracy, a plaintiff must assert facts from which
a conspiratorial agreement can be inferred. D.R. v. Middle Bucks Area
Vocational Tech. Sch., 972 F.2d 1364, 1377 (3d Cir.1992); see also
Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d Cir. 2008)
(stating that a conspiracy requires a ‘meeting of the minds') (further
citation omitted). This holding remains good law following Twombly
and Iqbal, which, in the conspiracy context, require ‘enough factual
matter (taken as true) to suggest that an agreement was made,’ in other
words, ‘plausible grounds to infer an agreement.’ Twombly, 550 U.S.
at 556, 127 S. Ct. 1955, 167 L.Ed.2d 929.” Great W. Mining & Mineral
Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir.2010) cert.
denied, ––– U.S. ––––, 131 S. Ct. 1798, 179 L.Ed.2d 655 (U.S.2011).
We are mindful of these pleading requirements, which are considered
together with the standards of pleading applicable to all civil actions in
federal court as defined in Twombly and Iqbal, supra.
Victor v. Huber, No. 3:12–CV–282, 2012 WL 7463723, at *14 (M.D. Pa. Nov.29,
2012) report and recommendation adopted sub nom. Victor v. Hubbard, No. 3:12–
CV–00282, 2013 WL 704654 (M.D. Pa. Feb.26, 2013).
Here, Molina has provided no evidence of communication amongst the parties
or any other evidence, beyond the discrete alleged statements of the individual
defendants to the plaintiff directly, from which a jury could infer an agreement. In
the absence of other evidence, Molina’s conspiracy claim amounts to little more than
labels and conclusions, and as such, fails as a matter of law. With respect to all of
the defendants, the conspiracy allegations are simply insufficient to show that
these “persons combined or agreed with intent to do an unlawful act or to do an
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51
otherwise lawful act by unlawful means.” Grose v. Procter & Gamble Paper Prod.,
866 A.2d 437, 440–41 (Pa Super. 2005). Therefore, we recommend that the
defendants’ motion for summary judgment be granted with respect to this claim.
IV. 	Recommendation
For the foregoing reasons, IT IS RECOMMENDED THAT the defendants’
motion to for summary judgment, (Doc. 49), be GRANTED IN PART AND
DENIED IN PART as follows:
1. The motion should be GRANTED with respect to the conspiracy claim as
to all defendants.
2. The motion should be DENIED with respect to the retaliation claim
relating to the plaintiff’s RHU confinement and facility transfer but
GRANTED with regard to his allegedly retaliatory cell transfers.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings,
recommendations or report addressing a motion or matter described in
28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the
disposition of a prisoner case or a habeas corpus petition within
fourteen (14) days after being served with a copy thereof. Such party
shall file with the clerk of court, and serve on the magistrate judge and
all parties, written objections which shall specifically identify the
portions of the proposed findings, recommendations or report to which
objection is made and the basis for such objections. The briefing
requirements set forth in Local Rule 72.2 shall apply. A judge shall
make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is
made and may accept, reject, or modify, in whole or in part, the findings
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or 	recommendations 	made 	by 	the 	magistrate 	judge. 	The 	judge,
however, need conduct a new hearing only in his or her discretion or
where required by law, and may consider the record developed before
the magistrate judge, making his or her own determination on the basis
of that record. The judge may also receive further evidence, recall
witnesses, 	or 	recommit 	the 	matter 	to 	the 	magistrate 	judge 	with
instructions.
Submitted this 12 th day of January 2026.
S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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