Tillery v. Wetzel, 3:16-CV-0235

MAJOR GEORGE TILLERY, Plaintiff, v. JOHN WETZEL, et al., Defendants.

NO. 3:16-CV-0235

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

February 7, 2019

(JUDGE CAPUTO)

MEMORANDUM

Presently before me is the Motion for Summary Judgment (Doc. 40) filed by Defendants Michael Damore, Sean Downs, and Sharon Luquis (collectively, "Defendants"). Two First Amendment claims remain in this pro se civil rights action commenced by Plaintiff Major George Tillery: (1) retaliatory removal from his prison job; and (2) retaliatory misconduct. The motion for summary judgment will be granted in part and denied in part. Because Tillery failed to exhaust his administrative remedies as to his demand for compensatory and punitive damages related to his retaliatory termination claim, his request for compensatory and punitive damages with respect to that claim will be dismissed without prejudice. But, the remainder of Defendants' motion will be denied because Tillery otherwise exhausted his claims, he is able to establish a prima facie case as to both his retaliatory removal and retaliatory misconduct claims, and Defendants have not presented a sufficient quantum of evidence to obtain summary judgment as to either claim on their same decision defense.

I. Background

The facts are derived from Defendants' Statement of Facts and supporting exhibits, (see Docs. 42-43 "Defs.' SMF", generally), as well as Plaintiff's Counter-Statement of Facts and supporting exhibits. (See Doc. 46, "Pl.'s SMF", generally). Plaintiff Major George Tillery ("Tillery") is an inmate currently incarcerated with the Pennsylvania Department of Corrections ("DOC") at the State Correctional Institution at Frackville ("SCI-Frackville"). (See Defs.' SMF, ¶ 1; Pl.'s SMF, ¶ 1). Michael Damore ("Damore") was a Major at SCI-Mahanoy, Sean Downs ("Downs") was a Security Captain at SCI-Frackville, and Sharon Luquis ("Luquis") was a Hearing Examiner. (See Defs.' SMF, ¶¶ 34,54, 63; Pl.'s SMF, ¶¶ 34, 54, 63). Tillery's claims pertain to events that occurred during his incarceration at SCI-Mahanoy and SCI-Frackville in 2014 and 2015. (See Defs.' SMF, ¶ 3; Pl.'s SMF, ¶ 3).

From November 2014 to February 25, 2015, Tillery was a Certified Peer Specialist ("CPS") at SCI-Mahanoy. (See Defs.' SMF, ¶¶ 36-37; Pl.'s SMF, ¶ 36-37). According to Christine Griffin ("Griffin"), a Unit Manager at SCI-Mahanoy, she was informed by several officers that Tillery never worked as a CPS, that mental health roster inmates informed her that Tillery was not responsive to their concerns, and one inmate told her that Tillery was attempting to extort him. (See Def.'s SMF, Ex. "O", ¶¶ 1, 3, 5-6). Griffin also states that she had a counseling session with Tillery to reinforce the expectations of the CPS position. (See id. at ¶ 7). Tillery disputes that he intimated, harassed, or extorted any inmates and was not doing his job, noting that all progress and block reports he received were satisfactory. (See Pl.'s SMF, Ex. "A", 5). Tillery also denies that he had a counseling session with Griffin. (See id.). Rather, Tillery explains that on February 18, 2015, he had a conversation with Griffin where she threatened him with being designated a "Muslim combatant" if he kept filing grievances. (See id. at Ex. "A", 4). Later that day, there was an "investigative search" of his cell. (See id.). Another search of Tillery's cell occurred on February 25, 2015. (See id.).

On February 25, 2015, Tillery was removed from his job as a CPS by Damore. (See Defs.' SMF, ¶ 47, Pl.'s SMF, ¶ 47). Tillery was informed that he was removed from his position only after he was moved cellblocks by Damore, who stated that the move was to give Tillery a "new start." (See Pl.'s SMF, Ex. "A", 5). Damore declares that Tillery was removed from his position based on negative behavior towards otherinmates and that the removal had nothing to do with Tillery's filing of grievances or advocacy for other inmates. (See Defs.' SMF, Ex. "L", ¶¶ 11-12). According to Damore and Griffin, even after Tillery was moved cellblocks, he continued to harass some inmates, but Tillery disputes this allegation. (See Defs.' SMF, ¶ 49; Pl.'s SMF, ¶ 49).

Tillery filed grievance number 555752 concerning his removal from his CPS position. (See Defs.' SMF, ¶ 19; Pl.'s SMF, ¶ 19; see also Defs.' SMF, Ex. "B"). There is no dispute that this grievance was appealed to final review. (See Defs.' SMF, ¶ 18; Pl.'s SMF, ¶ 18).

On April 8, 2015, Tillery was transferred from SCI-Mahanoy to SCI-Frackville. (See Defs.' SMF, ¶ 51; Pl.'s SMF, ¶ 51). While Defendants state that the swap was due to Tillery's disruptive behavior, Tillery counters that he was informed at the time that it was simply an "administrative swap." (Id.).¹ Tillery also notes that the transfer was out of the ordinary in that it occurred early that morning and he was not given any prior notice or the opportunity to pack his personal belongings and legal papers. (See Pl.'s SMF, ¶ 51).

On April 30, 2015, Downs reviewed mail addressed to Tillery. (See Defs.' SMF, Ex. "M"). A statement prepared by Downs indicates that a suspicious substance was observed under the postage stamp. (See id.). The substance tested positive for suboxone. (See id.). Down's statement further explains:

It has been standard procedure for us to test substances. When met with positive results, we place the inmate in RHU, issue a misconduct, have the inmate provide a urine sample for testing and place the evidence in evidence locker.

(Id.). Downs issued misconduct number B723372 and placed Tillery in the restricted housing unit ("RHU"). (See Defs.' SMF, ¶ 59; Pl's SMF, ¶ 59). Tillery was chargedwith Class I #22 (possession or use of a dangerous or controlled substance) and Class I #40 (unauthorized use of the mail or telephone) misconducts. (See Defs.' SMF, Ex. "I", 1).

Tillery proceeded to a hearing on the misconduct before Luquis, where he was found guilty. (See Defs.' SMF, ¶ 63; Pl.'s SMF, ¶ 63). According to Tillery, Luquis stated that she found him guilty, she did not need any proof, and she sanctioned him to 180 days in the RHU. (See Defs.' SMF, ¶ 66; Pl.'s SMF, ¶ 66).

In Luquis' disciplinary hearing report, she notes, inter alia, that Tillery pled not guilty and stated: "Anybody could have sent me that stuff, it was a set up." (Defs.' SMF, Ex. "I"). Luquis found "Downs' written report more credible then Mr. Tillery's denial of charges #22 & #40." (Id.). Luquis specifically indicated that Downs' report established by a preponderance of the evidence that a letter addressed to Tillery was inspected, a substance was removed from under the stamp, and it tested positive for suboxone. (See id.). Thus, she concluded that Tillery was guilty and he was sanctioned with 180 days in the RHU. (See id.).

Tillery submitted a misconduct hearing appeal on May 7, 2015 on the grounds that the punishment was disproportionate to the offense and that the evidence was insufficient to support the decision. (See id.). Therein, Tillery referred to the misconduct as a "cold blooded set up", explaining that "[t]he reason I know this institution is out to get me is the so call[ed] incident happened on 4.30.15 and I got a misconduct on 4.30.15 without any investigation & there is no evidence that I told, order[ed], or ask[ed] anyone to mail anything to do with drugs." (Id.).

The Program Review Committee upheld Luquis' verdict, reasoning:

Considering the type of substance and the fact that the substance was concealed in a manner that a visual inspection alone would not have detected it's presence; it is apparent that you were aware of the delivery system of the contraband and willing to facilitate its delivery into the facility.

Taking into consideration the severity of the misconduct, coupled by the fact that the safety and security of the facility could have been compromised, Your sanction of 180 daysDC status is in accordance with policy and appropriate.

[ ] You have presented no compelling argument or relevant new facts to support any modification of the HEX's finding or sanction.

(Id.).

Tillery appealed the Program Review Committee's decision to SCI-Frackville's Superintendent Brenda Tritt ("Tritt"). (See id.). He reiterated his position that he was "set up." Tritt denied the appeal, stating that she was "inclined to agree with the stance of first level and am going to sustain their decision. Pursuant to DC-ADM 801, you present no compelling argument to support any modifications." (Id.).

Tillery then filed a final appeal to the Office of the Chief Counsel. (See id.). The response to that appeal provided:

In your appeal you raise no specific issue(s), but instead repeat your version of the events to support your claim of innocence. This, of course, is the same version the Hearing Examiner rejected in finding you guilty of misconduct.

An appeal is a review for error. It is not an opportunity to receive a new hearing on the merits. Findings of fact are made by the Hearing Examiner. On appeal, it is not the function of this Office to second-guess the Examiner, but only to determine whether the findings are clearly documented in the record. In your case, the findings made by the Examiner are amply supported by evidence presented at your hearing. Whether this Office might reach a different result given the same evidence is not the issue. It is sufficient that the Examiner's findings are supported by ample evidence to prevent this Office from altering those findings on appeal.

For the above-stated reasons, I conclude that the issues raised for appeal do not, as a matter of law, require any further action on this misconduct. Your appeal must, therefore, be denied.

(Id.).

While Tillery's appeals of that misconduct were pending, his counsel sent correspondence to DOC Secretary John Wetzel disputing the validity of the facts underlying those charges. (See Pl.'s SMF, Ex. "R", generally). In particular, Tillery's counsel provided a declaration from Abdul H. Jamal, who...