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MCCRERY v. MARK

May 28, 1993

MICHAEL McCRERY
v.
DOMINIC MARK



The opinion of the court was delivered by: LOUIS H. POLLAK

 Plaintiff Michael McCrery, an inmate at S.C.I. Graterford, has filed a pro se complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges that the continued presence in his prison files of an erroneous 1990 psychological evaluation -- completed by defendant Dominic Mark, a corrections counselor at S.C.I. Graterford -- impinges upon a variety of plaintiff's liberty interests in violation of the Fourteenth Amendment. *fn1" Plaintiff seeks injunctive relief in the form of the expungement of the 1990 case review from his prison file and the insertion of a report into his file disclaiming the allegedly incorrect statements in the 1990 case review. Defendant has filed a motion for summary judgment.

 I. Facts

 When considering a summary judgment motion, the court must take as true the evidence of the non-movant and draw all justifiable inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). For purposes of this summary judgment motion, then, the facts of the case are as follows:

 In August of 1988, plaintiff was convicted of the first degree murder of his estranged wife and was sentenced to life in prison. On August 8, 1988 he was transferred to E.E.C.C. Graterford and he was soon admitted to the Mental Health Unit there for assessment and classification. On or about August 26, 1988, plaintiff received classification for S.C.I. Graterford.

 Defendant Mark has been a correctional counselor at S.C.I. Graterford since April 1989. Mark Aff. at P1. McCrery was one of the inmates assigned to Mark for monitoring. According to defendant, his responsibilities as a counselor involved preparing a prescriptive program plan about once a year, completing an annual case review, and attempting to contact the inmate at least once every six months. Id. at P3.

 At issue in plaintiff's complaint is the defendant's July 3, 1990 Annual Case Review ("ACR") of plaintiff. See Plaintiff's Ex. 13; Defendant Ex. H. The report, completed in plaintiff's absence since plaintiff refused to attend the scheduled meeting (Complaint at P4), states that defendant's "Areas of Concern" are plaintiff's "mental health," "assaultiveness," and "suicidal" tendencies. Id. The ACR further states:

 
1. McCrery continues to refuse to honor treatment passes.
 
2. Recommend Impulse Control Group.
 
3. Report any problem [to] counselor, Mental Health, or other appropriate staff member.
 
4. He has maintained a clear conduct record since reception.

 Id. In place of plaintiff's signature, defendant wrote "in absentia." Id. Defendant explains that he based plaintiff's July 3 ACR on defendant's prior contacts with plaintiff and on a review of earlier records and reports concerning plaintiff. See Mark Affidavit at P31; see also Plaintiff's Ex. 4.

 Plaintiff mailed his present complaint to the Clerk of the Court for the Eastern District of Pennsylvania on or about July 12, 1990 *fn2" -- nine days after the July 3 ACR was completed. In his complaint plaintiff contends that defendant's descriptions of plaintiff as assaultive, suicidal and in need of impulse control are "pejorative labels" that have no substantive basis. Complaint at PP5, 6, and 8. Plaintiff argues that his records do not support defendant's conclusions, particularly with regard to his supposed suicidal ideation. Plaintiff did not file a grievance with the prison officials regarding the allegedly false July 3 ACR. Cf. Defendant's Ex. L (copy of Administrative Directive: Commonwealth of Pennsylvania Bureau of Corrections Consolidated Inmate Grievance Review System).

 II. Discussion

 Plaintiff seeks two forms of injunctive relief: first, that defendant should enter into plaintiff's prison record a report disclaiming the false descriptions in the July 3 ACR; and second, that the July 3 ACR be expunged from the prison file. Complaint at PP D, E. I will address each of these in turn.

 A. A Disclaimer

 From this court's view, plaintiff has already received the equivalent of a disclaimer. While his prison file does not contain a report or letter specifically deeming the statements in the July 3 ACR false, there are two psychological examinations of plaintiff completed since the challenged ACR, both calling into question its reliability. These examinations both disclose that the July 3 ACR was based on a review of plaintiff's records, not on a personal examination. Moreover, both observe that plaintiff is not currently exhibiting ...


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