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VINES v. HOWARD

October 5, 1987

Joseph Vines
v.
Edward Howard, Sr., et al.



The opinion of the court was delivered by: NEWCOMER

 Newcomer, J.

 This action is predicated on 42 U.S.C. § 1983. Plaintiff, an inmate at Graterford Prison, is proceeding pro se. Plaintiff claims that the kinship between a correctional officer and the hearing examiner who conducted a disciplinary hearing violated plaintiff's due process rights. Presently before this court is plaintiff's motion for summary judgment pursuant to Fed.R.Civ.P. 56 and defendants' response. For the reasons set forth below, the motion is granted in part and denied in part.

 I. BACKGROUND AND PROCEDURAL HISTORY

 Plaintiff, an inmate at the State Correctional Institution at Graterford, filed this lawsuit asserting causes of action under 42 U.S.C. §§ 1983, 1985, and 1986. I will construe the complaint to name the defendants in their official and individual capacities. The original defendants were Hearing Examiner Edward Howard, Sr. ("Howard, Sr."), Captain Clark, Correctional Officer Edward Howard, Jr. ("Howard, Jr."), Correctional Officer Judge, and Correctional Officer Telipiski. Plaintiff's Complaint at paras. 5-9. Each of the defendants was an official at Graterford at the time of the complaint. Id.

 Plaintiff also had asserted that his due process rights were violated when he was issued a second misconduct charge. Id. at P 17. This misconduct concerned an incident involving plaintiff and several correctional officers during which comments and jests were exchanged. Id. at P 17.

 In an earlier memorandum opinion, this court dismissed plaintiff's claims under 42 U.S.C. §§ 1985 and 1986 as frivolous pursuant to 28 U.S.C. § 1915(d). Vines v. Howard, 658 F. Supp. 34 (E.D.Pa. 1987). This court also dismissed the claims against defendants Clark, Judge, Telipiski and Howard, Sr. relating to the second misconduct. Id. at 36-37. I permitted plaintiff to proceed with his claim under 42 U.S.C. § 1983 relating to the first misconduct and the disciplinary hearing adjudicated by Howard, Sr. Id. at 36-37.

 With respect to the first misconduct charge and the subsequent disciplinary hearing, plaintiff has now filed a motion for summary judgment based on the absence of any issue of material fact. This motion and plaintiff's reply focus on defendant Howard, Sr.'s adjudication, not defendant Howard, Jr.'s initiation of the misconduct charge. Plaintiff claims that he is entitled to judgment as a matter of law. Plaintiff's Motion for Summary Judgment at 2. In their response, defendants contest plaintiff's motion on the grounds that some of defendants' actions were in good faith pursuant to and in reliance upon valid state laws and regulations and that none of plaintiff's constitutional rights were violated. See Defendants' Response to Motion for Summary Judgment at para. 5. More specifically, defendants submit that their actions complied with Bureau of Correction Administrative Directives. Id. at P 6.

 II. APPROPRIATE LEGAL STANDARD

 A trial court may enter summary judgment if, after a review of the record, there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Bank of America Nat. Trust and Sav. Ass'n v. Hotel Rittenhouse Associates, 595 F. Supp. 800 (E.D.Pa. 1984). Where no reasonable resolution of the conflicting evidence and inferences therefrom could result in a judgment for the nonmoving party, the moving party is entitled to summary judgment. Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 883 (3d Cir.), cert. denied, 454 U.S. 893, 70 L. Ed. 2d 208, 102 S. Ct. 390 (1981).

 The moving party must initially show an absence of a genuine issue concerning any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The moving party's burden may be discharged by "showing" -- that is, by pointing out to the trial court -- that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 275, 106 S. Ct. 2548 (1986). Fed.R.Civ.P. 56 mandates the entry of summary judgment where the nonmoving party fails to show that a genuine issue does exist with respect to an element for which the nonmoving party will bear the burden of proof at the trial. Celotex, 91 L. Ed. 2d at 273. Wisniewski v. Johns-Manville Corp., 812 F.2d 81 (3d Cir. 1987). Rule 56 permits the nonmoving party to oppose a summary judgment motion by depositions, answers to interrogatories, admissions on file, or affidavits, but not by the pleadings alone. Celotex, 91 L. Ed. 2d at 275.

 III. THE PARTIES' ARGUMENTS

 Plaintiff argues that the disciplinary hearing and subsequent penalty imposed violated plaintiff's due process rights because Howard, Sr. adjudicated the disciplinary hearing where the misconduct charge was initiated by his son and where his son testified about material facts. As a result of the consanguinity, plaintiff asserts that the objectivity of the misconduct hearing was tainted. Plaintiff's Complaint at para. 14; Plaintiff's Memorandum of Law at 5 (attached to the "Traverse"); Plaintiff's Reply Memorandum at 2-4.

 Defendants, in reply, submit that plaintiff's misconduct hearing was impartial and that no impropriety existed. See Defendants' Response to Motion for Summary Judgment at para. 5. Defendants claim that Howard, Sr., convened the hearing on the morning of February 19, 1986, but was forced to discontinue the hearing until Howard, Jr. came on duty so that he could testify. Id. Upon reconvening, Howard, Jr. positively identified plaintiff and indicated that he was the only inmate to refuse to comply with strip search procedures on February 17, 1986. Id. Hearing Examiner Howard, Sr. then found that plaintiff had violated the search procedures. Based on the identification by his son and his determination that plaintiff violated the procedures, Howard, Sr. suspended plaintiff's visiting privileges for two weeks. Id. Defendants noted that, although the Bureau of Correction employs several hearing examiners, Howard, Sr. is the only hearing examiner presently assigned to Graterford. Id. Defendant Howard, Sr. also pointed to various Bureau of Correction regulations concerning disciplinary proceedings, BC-ADM 801, inmate visits, BC-ADM 812, and searches of inmate and cells, BC-ADM 203, and argue that their conduct comported with such regulations. See Exhibits C, D, E attached to Defendants' Response.

 Defendants' response does not contravene any of the material allegations contained in plaintiff's complaint. Defendants did outline additional events surrounding the misconduct hearing, but these additional submissions concern various institutional regulations and the testimony at the disciplinary hearing. Defendants, however, do not dispute that Howard, Sr. and Howard, Jr. are father and son and concede that the kinship "gives the appearance of impropriety." Defendants' Response at para. 6. This case presents the following questions: (1) whether the defendants can be held liable under 42 U.S.C. § 1983 in either their individual or official capacities, (2) whether the misconduct hearing violated due process standards, and (3) whether or not the good faith defense attaches to defendants' actions.

 IV. LIABILITY

 I have construed plaintiff's pro se complaint to name the defendants in both their individual and official capacities. The court will examine the distinctions that exist between individual and official liability and the type ...


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