Opinion
Civil Action 4:21-cv-0939-JD-TER
01-27-2023
MICHAEL E. WOLFE, #346590, Plaintiff, v. NFN SHEPARD, NFN MACK, NFN BRITHARP, NFN BROWN, NFN BROWN, NFN GUESS, NFN FOGLE, NFN PEASLEY, SARA HANSEN, and JAMIE RICE, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
I. INTRODUCTION
Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 alleging various violations of his constitutional rights while detained at Lieber Correctional Institution (LCI)/ Presently before the Court is Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment (ECF No. 67). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motion could result in the motion being granted and his claims dismissed. Plaintiff filed a Response (ECF No. 78) and additional attachments (ECF No. 79). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(e), DSC. This report and recommendation is entered for review by the district judge.
II. FACTS
Plaintiff asserts that when he arrived at LCI in May of 2019, he informed Defendant Guess that Plaintiff had a statewide gang hit on him and he was in fear of his life. Guess told him that no protective custody would be given and Plaintiff would be placed into the general population. Defendants Brown, Brown, Fogle, Peasly, and Hanson were present during this conversation as well. Plaintiff informed them in 2017 he was forced to be in general population and he was physically injured and had a lawsuit pending about that time. Plaintiff was placed on the phone with Defendant Shepard and the same was said. Defendant Mack then arrived, a defendant from the 2017 incident lawsuit. Mack said “we're going to show you that we don't take no losses here at Lieber, you wanna file a lawsuit, then this is what you are going to get.” Plaintiff alleges Britharp came to his cell taunting him “it's bad that that happened to you in 2017, ha ha” and Rice said “you should have never filed that lawsuit against us, look at you now.”
Plaintiff asserts that he was denied protective custody in retaliation for his 2017 lawsuit. He also asserts that he did not get all of his legal documents back and it was said “good luck with your lawsuit” with laughter. He asserts that he did not receive his orthotic shoe, and could not shower or exercise regularly. Plaintiff asserts his severe nerve injury was exacerbated and his ambulation hindered as a result of the loss of his orthotic shoe and lack of recreation. Plaintiff alleges mental injuries from constant cell time.
Plaintiff also alleges a failure to protect claim as a result of not being placed in protective custody. He asserts that he was forced to stay in his cell while unrestrained gang members came out of their cells and threatened Plaintiff with weapons even though Defendants knew that Plaintiff suffered injuries from a gang attack in 2017. Pl. Decl. (ECF No. 79, pp. 2-10); see also Cash Decl. (ECF No. 79, pp. 81-82); Goss Decl. (ECF No. 79, pp. 83-84); Constance Decl. (ECF No. 79, pp. 85-86); Crain Decl. (ECF No. 79, p. 87); McCoy Decl. (ECF No. 79, p. 88); Noe Decl. (ECF No. 79, pp. 89-90).
Plaintiff acknowledges that a year after the incidents in 2019 that he was transferred and placed on protective custody. For damages, Plaintiff seeks to remain on protective custody and money damages.
III. STANDARD OF REVIEW
Defendants style this motion as one to dismiss pursuant to Rule 12, or, in the alternative, for summary judgment pursuant to Rule 56. Because Defendants have attached exhibits to their motion, the undersigned will treat it as one for summary judgment. Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, arguing that Defendants violated his constitutional rights. Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). A legal action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). To be successful on a claim under § 1983, a plaintiff must establish two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The parties do not dispute that they were acting under color of state law in their individual capacities at all times relevant to this action.
A. Exhaustion of Administrative Remedies
Defendants argue that summary judgment is appropriate because Plaintiff failed to exhaust his administrative remedies. The Prison Litigation Reform Act (PLRA) requires that a prisoner exhaust the available administrative remedies before filing a 1983 action concerning conditions of his confinement. 42 U.S.C.1997e(a). In enacting the PLRA, Congress carved out an exception to the general rule that exhaustion of state remedies is not a prerequisite to filing a civil rights suit. The PLRA amended section 1997e so that it now provides, “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Id. § 1997e(a). Accordingly, before Plaintiff may proceed with his claims in this Court, he must first exhaust his administrative remedies. The United States Supreme Court has held that “Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures.” Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); see Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Jones v. Smith, 266 F.3d 399 (6th Cir.2001) (exhaustion required even though Plaintiff claimed futility); Larkin v. Galloway, 266 F.3 d 718 (7th Cir.2001) (exhaustion required even though Plaintiff claimed he was afraid); see also Claybrooks v. Newsome, 2001 WL 1089548 (4th Cir., September 18, 2001) (unpublished opinion) (applying Booth v. Churner to affirm district court's denial of relief to Plaintiff). A failure to exhaust all levels of administrative review is not “proper exhaustion” and will bar actions filed by inmates under any federal law, including § 1983. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006).
SCDC provides inmates with a procedure through which they may file grievances on issues related to their confinement, including actions of staff members toward an inmate. The grievance process is set forth in SCDC Policies/Procedures, “Inmate Grievance System,” and explained in the affidavit of the Chief of the Inmate Grievance Branch of the Office of General Counsel for SCDC. To summarize the process, generally, an inmate must first submit a Request to Staff Member Form (“RTSM”) or Automated Request to Staff Member (“ARTSM”). SCDC Policy No. GA-O 1.12 at § 13. Thereafter, the inmate must file a Step 1 Grievance Form (10-5), setting forth the issue grieved. Id. Inmates may then appeal an SCDC decision as to the Step 1 Grievance by filing a Step 2 Grievance Form (10-5A). Id. at §13.7. SCDC's response to a Step 2 Grievance is considered the final Department decision on an issue. Id.
Defendants argue that after receiving a response to the Step 2 Grievance form, an inmate must then submit an appeal with South Carolina's Administrative Law Court for a final ruling prior to filing suit in this court. SCDC's “Inmate Grievance System” policy includes § 13.9, which states
ADMINISTRATIVE LAW COURT: As part of the Department's final answer to a grievance, the inmate will be notified that any further appeal must be initiated within 30 days after receipt of the Department's final answer. This appeal must be contained on the South Carolina Administrative Law Court “Notice of Appeal” that will be attached to the Department's final answer and must be sent to the Administrative Law Court. Instructions regarding completion of the form, and information indicating where the form must be sent, will also be provided to the inmate.Courts within this district have frequently held that an SCDC inmate satisfies the PLRA's exhaustion requirement by completing SCDC's grievance procedure through the Step 2 grievance. See, e.g., Hair v. Parker, No. 2:21-CV-1710-TMC-MGB, 2022 WL 5434225, at *3 (D.S.C. July 26, 2022), report and recommendation adopted, No. 2:21-CV-1710-TMC, 2022 WL 4092437 (D.S.C. Sept. 7, 2022) (noting that “an inmate may appeal the Responsible Official's [Step 2] decision to an Administrative Law Court, but such action is not necessary for the purpose of exhausting administrative remedies”); Strickland v. Sanderson, No. CV 9:19-0247-BHH-BM, 2020 WL 7000978, at *5 (D.S.C. Apr. 28, 2020), report and recommendation adopted as modified, No. CV 9:19-247-BHH, 2020 WL 6281649 (D.S.C. Oct. 27, 2020) (collecting cases); Tudor v. Derrick, No. 8:18-cv-953-RMG, 2019 WL 1473138, at *2 (D.S.C. Apr. 3, 2019) (“Plaintiff here exhausted his administrative remedies by filing a Step 1 and Step 2 grievance.... Plaintiff[ ] was not required to appeal to South Carolina's Administrative Law Court to exhaust his administrative remedies.”); King v. McPherson, No. 0:15-CV-2358-RBH, 2017 WL 490111, at *4 (D.S.C. Feb. 6, 2017), affd, 690 Fed.Appx. 123 (4th Cir. 2017) (finding the plaintiff had fully exhausted his claims by filing a Step 2 grievance. In King, the court noted that exhaustion under § 1997e(a) is administrative only and that a prisoner who uses all administrative options that the state offers need not also pursue judicial review in state court. Id. (citing Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002), cert. denied, 537 U.S. 949, 123 S.Ct. 414, 154 L.Ed.2d 293 (2002); see also Johnson v. Ozmint, 567 F.Supp.2d 806, 820, n. 5 (D.S.C. 2008); Duncan v. Langestein, No. 07-268, 2008 WL 153975 at * 5 (D.S.C. Jan. 14, 2008); Charles v. Ozmint, No. 05-2187, 2006 WL 1341267 at * 4 n. 4 (D.S.C. May 15, 2006) (recognizing that completion of prison grievance procedure exhausts administrative remedies and that § 1997(a) does not require inmates to further appeal to Administrative Law Court.)); Ayre v. Currie, No. 05-3410, 2007 WL 3232177 at * 7 n. 5 (D.S.C. Oct. 31,2007); Lowry v. Davis, No. 06-509, 2006 WL 3759828 at * 2 (D.S.C. Dec. 18, 2006) (“It is not necessary for the inmate to file an appeal with the state ALJ Division for matters pertaining to prisoner's conditions of confinement.”); Majid v. Means, No. CV 0:19-1937-MGL-PJG, 2020 WL 4273821, at *3 (D.S.C. July 24, 2020), report and recommendation adopted, No. CV 0:19-01937-MGL, 2021 WL 1115910 (D.S.C. Mar. 24, 2021) (including language indicating that an appeal to the Administrative Law Court is necessary to exhaust, but subsequently concluding that the plaintiff exhausted one issue by filing Step 1 and Step 2 grievances); but see McFadden v. Westley, No. 0:12-CV-02392-JMC, 2014 WL 4104714, at *5 (D.S.C. Aug. 19, 2014), aff'd, 590 Fed.Appx. 285 (4th Cir. 2015) (holding that the Administrative Law Court is “unquestionably a part of the executive, not judicial, branch of state government. As such, it provides an administrative-not judicial-remedy. Thus, the Administrative Law Court is part of the available administrative remedies that an inmate must exhaust”). The undersigned agrees with the majority of judges in this District who hold that appeal to the Administrative Law Court is unnecessary to satisfy the PLRA's exhaustion requirement.
The record reflects that Plaintiff filed a Step 1 Grievance, Grievance No. 0491-19, on June 9, 2019, in which Plaintiff complains that he arrived at LCI on May 9, 2019, and requested to be placed in protective custody but was told no and was forced into a general population unit where he was housed until May 28, 2019. He asserts he was threatened by unrestrained gang members and, thus, “circumstantially forced to remain in my cell the whole time.” He also complains that one of his orthopedic shoes and a whole folder of legal documents were taken. Step 1 Grievance (ECF No. 67-3, p. 28). In his request for relief, he asks to be placed in statewide protective custody and “whatever relief the courts deem just and proper.” Id. At the time Plaintiff submitted the grievance, he had been transferred to Broad River Correctional Institution (BRCI), and the response indicated that Plaintiff's grievance would be forwarded to LCI for review.
It is not clear from the record how LCI responded to Plaintiff's Step 1 Grievance. However, Plaintiff filed a Step 2 Grievance form on January 4, 2020, in which he stated that the issues had not been resolved because he suffered “injuries” as a result of the SCDC employees' retaliation against him for filing a lawsuit. He stated that it would have been easy to place him in lock-up, which is what they should have done. Step 2 Grievance (ECF No. 67-3, p. 29). The “Responsible Official's Decision and Reason,” dated February 19, 2020, provides,
I have reviewed your concern. In our grievance you stated that you arrived at Lieber CI [and] were assigned to an unrestricted housing unit from May 9, 2019, through May 28, 2019. You further stated that you were threatened by gang members and forced to remain in your cell.... It is noted that you were transferred to Broad River CI on May 29, 2019, and to Kershaw CI on September 26, 2019, and you requested to be placed on Statewide Protective Custody. The Warden responded to your concern on SCDC Step 1 Inmate Grievance Form 10-5 dated December 23, 2019. Agency records indicated that on February 3, 2020, the Kershaw CI Institutional
Protective Custody Committee (IPCC) recommended that you be placed on Statewide Protective Custody. Central Classificaion approved the recommendation and you were transferred to McCormick Correctional Institution on February 4, 2020. It is noted that you are currently assigned to Statewide Protective Custody (PC).
Therefore, your grievance is resolved.Id.
Because Plaintiff filed a both a Step 1 and Step 2 grievance, the issues raised therein have been fully exhausted. This grievance includes claims that he was denied protective custody, threatened by gang members, and one orthopedic shoe and a folder of legal documents were taken from him. Though he does not specifically mention retaliation in his Step 1 grievance, he mentions that Defendant Mack is a Defendant in a current lawsuit for actions in 2017. Accordingly, these issues have been exhausted.
B. Failure to Protect
Plaintiff appears to assert claims for failure to protect, failure to provide due process, and retaliation. Defendants argue that Plaintiff fails to present evidence sufficient to show that he suffered any injuries as a result of Defendants' actions. Prison officials are required to fulfill “certain basic duties” including the duty to take “reasonable measures to guarantee the safety of the inmates.” Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). However, not every injury suffered by a prisoner translates into a constitutional violation. Farmer, 511 U.S. 825 at 833-34. To succeed on a claim for failure to protect, a prisoner must show: (1) “that he is incarcerated under conditions posing a substantial risk of serious harm” and (2) that prison officials exhibited deliberate indifference to his health or safety. Id. at 834. To meet the first prong, “a prisoner must allege a serious or significant physical or emotional injury resulting from the challenged conditions.” Id. However, “[t]he mere fear of an attack happening is insufficient to establish a failure to protect claim.” See Wright v. Harley, C/A No. 9:11-2839-RBH-BM, 2012 WL 1865685, *7 (D.S.C. April 24, 2012); Street v. Fair, 918 F.2d 269, 271-72 (1st Cir. 1990) (finding no constitutional violation where a prisoner complained generally of being afraid after a threat with no injury). There is no evidence in the record and Plaintiff does not allege that he ever suffered any harm as a result of the threats he received from the gang members in his unit. He does allege that he was forced to remain in his cell as a result of the threats and, as a result, was unable to exercise or shower, and suffered mental injuries as a result ofhis constant cell time. However, any injuries Plaintiff sustained as a result ofrefusing to leave his cell were self-imposed. Further, Plaintiff was only at LCI for approximately three weeks before being transferred to another institution. See, e.g., Davis v. Jividen, No. CV 3:22-00150, 2022 WL 17086701, at *10 (S.D. W.Va. Oct. 26, 2022), report and recommendation adopted, No. CV 3:22-0150, 2022 WL 17083400 (S.D. W.Va. Nov. 18, 2022) (holding that 6 - 8 weeks is not such a prolonged period as to constitute a significant and atypical hardship) (citing Wilkerson v. Goodwin, 774 F.3d 845, 855 (5th Cir. 2014)(citing cases)(“[T]he duration in segregated confinement that courts have found does not give rise to a liberty interest ranges up to two and one-half years.”)). Accordingly, Plaintiff's failure to protect claim is without merit.
C. Due Process
Plaintiff also appears to allege that Defendants violated his due process rights by failing to place him in protective custody as he requested. The Fourteenth Amendment's Due Process Clause provides that no person shall be deprived of “life, liberty, or property, without due process of law.” U.S. Const. Amend XIV. The first inquiry in any due process challenge is whether the plaintiff has been deprived of a protected interest in property or liberty that was accomplished by state action. Tigrett v. The Rector and Visitors of the Univ. of Va., 290 F.3d 620, 628 (4th Cir. 2002); Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988). “Unless there has been a ‘deprivation' by ‘state action,' the question of what process is required and whether any provided could be adequate in the particular factual context is irrelevant, for the constitutional right to ‘due process' is simply not implicated.” Stone, 855 F.2d at 172.
A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word “liberty,” see, e.g., Vitek v. Jones, 445 U.S. 480, 493-494, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (liberty interest in avoiding involuntary psychiatric treatment and transfer to mental institution), or it may arise from an expectation or interest created by state laws or policies, see, e.g., Wolff v. McDonnell, 418 U.S. 539, 556-558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (liberty interest in avoiding withdrawal of state-created system of good-time credits). In a prison context, a constitutionally protected liberty interest exists when a prison's actions may affect the duration of the prisoner's term of imprisonment. See Bd. of Pardons v. Allen, 482 U.S. 369, 381 (1987) (finding a state-created liberty interest in parole); Wolff, 418 U.S. at 557 (1974) (finding a state-created liberty interest in good conduct credits). Otherwise, such a liberty interest exists only when a prison policy imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”11 Sandin v. Conner, 515 U.S. 472, 484 (1995); see also Desper v. Clarke, 1 F.4th 236, 247 (4th Cir. 2021). Generally, prisoners do not have a constitutionally recognized liberty interest in a particular security classification or prison placement. Hewitt v. Helms, 459 U.S. 460, 468 (1983) (no constitutional right under the Due Process Clause to a particular security classification or prison placement). An inmate does not have a constitutional right to be confined in a particular location. See Olim v. Wakinekona, 461 U.S. 238 (1983); Meachum v. Fano, 427 U.S. 215 (1976). In Sandin v. Conner, 515 U.S. 472 (1995), the United States Supreme Court held that a change in the condition of a prisoner's confinement that does not exceed the scope of the original sentence gives rise to a federally-protected liberty interest only if it “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 483. Plaintiff has failed to show that Defendants' failure to place him in protective custody imposed an atypical and significant hardship on him in relation to the ordinary incidents of prison life. Therefore, this claim fails.
D. Retaliation
To state a claim of retaliation under § 1983, “a plaintiff ‘must allege that (1) [ ]he engaged in protected First Amendment activity, (2) the defendant[ ] took some action that adversely affected [his] First Amendment rights, and (3) there was a causal relationship between [his] protected activity and the defendant's] conduct.'” Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005)). An inmate must present more than conclusory accusations of retaliation, Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994), and must provide facts that show the exercise of his constitutional right was a substantial factor motivating the retaliation, see, e.g., Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996); Hughes v. Bledsoe, 48 F.3d 1376, 1387 n.11 (4th Cir. 1995).
It is well-established that the filing of a lawsuit is protected conduct that satisfies the first element. Booker v. S.C. Dep't of Corr., 855 F.3d 533, 541 (4th Cir. 2017). The second element may be satisfied if the plaintiff alleges facts showing that the defendant's action adversely affected his future exercise of his constitutional rights. Martin, 858 F.3d at 249. To do so, the plaintiff must demonstrate that the defendants' alleged retaliatory conduct caused more than de minimis inconvenience and that it “would likely deter a person of ordinary firmness from the exercise of First Amendment rights.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005). Plaintiff argues that Defendants declined to place him in protective custody, lost some of his legal materials, and denied him his orthotic shoe in retaliation for his 2017 lawsuit. However, as discussed above, Plaintiff fails to show that he suffered any injury as a result of not being placed in protective custody. Further, he fails to show anything more than a de minimis inconvenience as a result of being without his orthotic shoe for approximately three weeks or as a result of the lost legal materials. There is no evidence in the record that Plaintiff suffered any consequences in his 2017 lawsuit or any other legal action as a result of the missing legal materials. See Strickler v. Waters, 989 F.2d 1375, 1383 (4th Cir. 1993) (holding that vague and conclusory allegations about delays or inconveniences to inmate's legal work cannot support a denial of access claim). Further, although Plaintiff states in his declaration that his left foot, left leg, back and shoulder were permanently damaged as a result of the deprivation of his necessary handicapped accessories and exercise, Pl. Decl., the few medical records presented by Plaintiff do not indicate Plaintiff suffered any such problems as a result of not having the orthotic shoe. Because Plaintiff fails to show that he suffered anything more than a de minimis inconvenience as a result of his 2017 lawsuit, summary judgment is appropriate on Plaintiff's retaliation cause of action.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment (ECF No. 67) be granted pursuant to Rule 56 and this case be dismissed in its entirety.
The parties are directed to the important information on the following page.