rights under the fifth and eighth amendments by housing him in a cell with a cellmate who, like plaintiff, is a chronic carrier of the Hepatitis B virus and by housing plaintiff on a floor of the facility on which "mental medical patients, AIDS Virus victims, and practicing homosexuals" reside. See id.
On August 22, 1988, defendants filed a motion to dismiss or, in the alternative, for summary judgment, see document 15 of record, and a motion for a protective order staying discovery pending resolution of their dispositive motions. See document 16 of record. On September 1, 1988, plaintiff filed opposition to defendants' dispositive motion, see document 20 of record, opposition to defendants' motion for a protective order staying discovery, see document 19 of record, and a motion to supplement his complaint pursuant to Fed.R.Civ.P. 15(d). See document 21 of record.
By Order of this court dated September 16, 1988, plaintiff's request for additional time to file a more appropriate response in opposition to defendants' dispositive motion was granted. See document 26 of record. Plaintiff filed his response on October 7, 1988. See document 29 of record.
Defendants responded to plaintiff's motion to supplement his complaint pursuant to Fed.R.Civ.P. 15(d) on September 22, 1988. See document 38 of record. The time for the parties to file replies to the opposition to their respective motions has passed without further submission. Thus, these motions are now ripe for disposition.
I. Plaintiff's Motion To Supplement His Complaint
An application for leave to file a supplemental pleading, like an application for leave to amend a complaint, is addressed to the sound discretion of the trial court. Bates v. Western Electric, 420 F. Supp. 521, 525 (E.D.Pa. 1976). Factors to be considered by the court include the promotion of a justicable disposition of the case, the delay or inconvenience the allowance of such a pleading will cause, and the prejudice to the rights of the parties to the action. Id., See also Wright and Miller, Federal Practice and Procedure § 1509 at 542-43. Additionally, a court may deny leave to file a supplemental pleading where that pleading relates only indirectly, if at all, to the original complaint and the alleged cause of action arose out an entirely unrelated set of facts and related to a defendant not implicated in the original complaint. Singleton v. Hoester, 505 F. Supp. 54, 57 (E.D. Mo. 1980); Brown v. Consolidated Fisheries Co., 17 F.R.D. 86, 87 (D. DEL. 1954).
In the present case, plaintiff seeks to supplement the original complaint by adding three new defendants to the action. Plaintiff bases his claim against these defendants upon an allegation that the three denied him due process by remanding him to administrative custody. See documents 21 and 23 of record. The alleged deprivation occurred on August 12, 1988, almost five months after the original complaint was filed. In addition, only one of the original defendants' names, Leroy R. Blanks, appears in plaintiff's motion and only in the form of a vague allegation that defendant Blanks has promoted "a continual flow of willful civil and constitutional violations." See documents 21 of record.
Defendants argue that to allow plaintiff to amend his complaint would deprive the three defendants named in the original complaint of the right to a prompt disposition of the case. See document 18 of record. The alleged deprivation of due process contained in the supplemental complaint, defendants contend, can more easily be resolved in a separate law suit. Id.
After careful consideration of the factors outlined above, the court has decided to deny plaintiff's motion to supplement his complaint. This denial is based upon the court's view that allowing plaintiff to add this supplemental pleading to the instant action would do nothing to promote a justicable disposition of the case and would cause undue delay to the original defendants in the prompt resolution of this action. In light of the fact that plaintiff's supplemental pleading names new defendants and is based upon unrelated facts, its incorporation into the present action would not be appropriate. The court will therefore deny plaintiff's motion to supplement his complaint.
II. Defendants' Summary Judgment Motion
Rule 12(c) of the Federal Rules of Civil Procedure provides, in part:
If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . .
Fed.R.Civ.P. 12(c). Defendants motion in the instant case was one for dismissal pursuant to Rule 12, or, in the alternative, for summary judgment. See document 15 of record. Affidavits and exhibits were submitted to the court along with defendants' motion. Id. Similarly, plaintiff submitted affidavits and exhibits with his response. See document 29 of record. The court has consulted these materials in reaching its decision. The court will therefore treat defendants' motion as a summary judgment motion and will not address defendants' arguments that the action should be dismissed under Rule 12.
A court may only grant summary judgment where no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). A genuine issue exists only if the evidence is such that a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If, however, the evidence is "merely colorable" or is "not significantly probative" summary judgment may be granted. Id. at 249-50.
A fact is material if it might affect the outcome of the suit under the governing law. Id. at 248. "Factual disputes that are irrelevant or unnecessary will not be counted." Id. (citing 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2725, at pp. 93-95 (1983)).
In the present case, it is undisputed that plaintiff has been diagnosed by the prison medical staff as being a chronic carrier of the Hepatitis B virus. Moreover, the parties agree that plaintiff has been placed in a cell with another inmate deemed by the medical staff to be "medically compatible" with plaintiff. Finally, the parties do not dispute that plaintiff is housed in a portion of the prison in which other inmates who must be kept separate from the general population for medical reasons reside. See documents 1, 18, 20, 22, and 29 of record.
Plaintiff contends that his fifth amendment right to due process of law and his eighth amendment right to be free from cruel and unusual punishment have been violated by the conditions of confinement to which he was subjected by the defendants. The court will discuss each of these contentions separately.
A. Fifth Amendment Claim
A liberty interest protected by the due process clause of the fifth amendment may arise from two sources -- the due process clause itself and the laws of the United States. Cf. Hewitt v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983); Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). In the present case, plaintiff alleges that a liberty interest in being confined in a single cell arises from a provision of the Program Statement of the United States Bureau of Prisons (B.O.P. Program Statement).
Prison regulations which set out procedural standards in mandatory language have been held to create a liberty interest protected by the due process clause. Hewitt, 459 U.S. at 471-72; Drayton v. Robinson, 719 F.2d 1214 (3d Cir. 1983). Conversely, no protectable liberty interest is created by a regulation which accords prison officials "unfettered discretion." Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 466, 69 L. Ed. 2d 158, 101 S. Ct. 2460 (1981).
Whether the regulation is intended to limit the decision-making of prison officials or merely sets forth procedural guidelines for exercise of authority, depends in large part upon the language of the regulation at issue and the nature of the predicates if any. Use of explicitly mandatory language coupled with specific substantive predicates demands a conclusion that the particular regulation has created a protected liberty interest. Hewitt, 459 U.S. at 472.
The provision of the B.O.P. Program Statement upon which plaintiff relies in the instant case deals with housing of inmates who have been diagnosed as chronic carriers of the Heptitis B virus. With relation to such inmates it provides, in pertinent part:
Single cell or room housing with private toilet facilities shall be assigned, if possible.