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May 31, 2000


The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.


Plaintiff Derrick Bey, a prisoner currently incarcerated at the State Correctional Institution at Greene ("Greene") and formerly incarcerated at the State Correctional Institution at Graterford ("Graterford"), filed a counseled civil rights action pursuant to 42 U.S.C. § 1983 against various defendants. The named defendants include the Pennsylvania Department of Corrections ("DOC"),*fn1 the Program Review Committee at Greene ("Greene PRC"), the Program Review Committee at Graterford ("Graterford PRC"),*fn2 DOC Secretary Martin Horn, Graterford Superintendent Donald Vaughn, Greene's former Superintendent Benjamin Varner, and the following Graterford officers: Captain Dennis Brumfield, Captain Gerald Matalavage, Sergeant Johnny L. Thomas, Corrections Officer Carlisle Martin, and Corrections Officer William Newton (collectively "defendants").*fn3 In his complaint, plaintiff alleges that defendants violated his First Amendment right "to freedom and speech and assembly," his Sixth Amendment right to assistance of counsel, his Eighth Amendment right to be free from cruel and unusual punishment, and his Fourteenth Amendment right to due process of law.

Presently before the court is defendants' motion for summary judgment to which plaintiff has responded. For the foregoing reasons, the court will grant the motion except as to plaintiff's Eighth Amendment claims asserting excessive force against defendants Thomas, Martin, and Newton in their individual capacities.


On October 15, 1996, while incarcerated at Graterford, defendant Thomas issued Misconduct No. 901639 ("Misconduct One")*fn5 to plaintiff after plaintiff refused to obey an order, used the phone without authorization, and was present in an unauthorized area. See Defs.' Mot. for Summ.J. [hereinafter Defs.' Mot.], Ex. D-2. After a hearing, the hearing examiner found plaintiff violated all three rules and sanctioned him to thirty days of cell restriction.*fn6

On October 31, 1996, plaintiff contends that he engaged in a verbal argument with defendant Thomas.*fn7 Plaintiff asserts that as he began to walk away from defendant Thomas and back to his cell, defendant Thomas cursed at him and, without provocation, hit him several times in his upper body and face, knocking plaintiff to the ground.*fn8 A fistfight between plaintiff and defendant Thomas ensued. During the scuffle, plaintiff knocked down, sat on top of, and threw punches at defendant Thomas.*fn9 Several other corrections officers, including defendants Brumfield, Martin, and Newton, who were at or near the scene of the fight, came to defendant Thomas' aid. According to plaintiff, the other corrections officers defendants pulled him from defendant Thomas, "slammed" him face first against a nearby concrete wall, struck him several times in his back and neck, handcuffed, and removed him from the area.*fn10 A large number of prisoners were present on the cell block both during the fight between plaintiff and defendant Thomas and when the other officers came to defendant Thomas' aid.

After the incident, plaintiff was treated for approximately seven scratches and abrasions on his upper body and given a cervical collar for his neck.*fn11 In turn, defendant Thomas was treated for a swollen right eye, a right cheek bone injury, a cut lip, an injured left shoulder, and abrasions on his forehead, and as a result, missed three days of work. In his capacity as Shift Commander for Graterford on October 31, 1996, defendant Brumfield investigated the incident, reviewed various incident reports,*fn12 and thereafter submitted a Report of Extraordinary Occurrence for review by Superintendent Vaughn and a memorandum to Graterford's Deputy Superintendent for Internal Security.

As a result of the October 31, 1996 incident, plaintiff received Misconduct No. 609603 ("Misconduct Two"). After a two-day hearing, the hearing examiner found plaintiff guilty of assault as charged in Misconduct Two, sanctioned him to ninety days of disciplinary custody in the Restricted Housing Unit ("RHU"), i.e., from October 31, 1996 to January 29, 1997, and assessed his inmate account in an amount equal to that incurred for Thomas' medical expenses. Plaintiff appealed the hearing examiner's decision to the Graterford PRC, which sustained the decision. Plaintiff then appealed the misconduct to Superintendent Vaughn, who also affirmed the finding of guilty for the misconduct. Plaintiff submitted a final appeal of the decision regarding Misconduct Two to the Central Office Review Committee ("CORC"), which dismissed plaintiff's appeal.

While plaintiff's appeal was pending, plaintiff received two additional misconducts for improper behavior. On December 6, 1996, plaintiff received Misconduct No. 863522 ("Misconduct Three") for assaulting Corrections Officer P.H. Bisbee, refusing to obey an order, and using abusive language. As a result, plaintiff was sanctioned to ninety days disciplinary custody in the RHU, to run consecutively from the discipline given for assaulting defendant Thomas, i.e., from January 29, 1997 to March 29, 1997.*fn13 On March 8, 1997, plaintiff received yet another misconduct, Misconduct No. 911783 ("Misconduct Four"), for refusing to obey an order issued by Corrections Officer Cerreta. This time, after a hearing, the hearing examiner sanctioned plaintiff to sixty days disciplinary custody, running from March 29, 1997 through May 28, 1997. In accordance with DOC policy, the Graterford PRC reviewed plaintiff's status every thirty days. As a result of these various misconducts (Misconducts One through Four), plaintiff remained in disciplinary custody from October 31, 1996 until May 7, 1997.

On May 7, 1997, plaintiff was transferred to Greene. The transfer occurred with the approval of defendant Vaughn and pursuant to prison policy requiring the transfer of any inmate who is involved in an altercation with a staff member. At Greene, plaintiff was immediately placed in administrative custody.*fn14 Two days after plaintiff arrived at Greene, the Greene PRC held a hearing to consider plaintiff's administrative custody status. This hearing was held "in absentia" because plaintiff allegedly refused to comply with the DOC's policy on tuberculosis ("TB").*fn15 After the hearing, the Greene PRC concluded that plaintiff should remain in administrative custody indefinitely pending his compliance with the DOC policy on TB and because there was a need for increased control based on his previous misconduct against defendant Thomas. Like the Graterford PRC, the Greene PRC reviewed plaintiff's status in administrative custody every thirty days. Plaintiff never challenged his confinement in administrative custody at Greene to the Central Office Review Committee, the body charged under DOC regulations to hear appeals of the PRC's decision. On February 12, 1998, after submitting to a TB test, plaintiff was released into the general prison population at Greene.

Plaintiff filed the instant action on August 12, 1998.*fn16 In his complaint, plaintiff contends that defendants Horn, Vaughn, Brumfield, Matalavage, Thomas, Martin, Newton, and the Graterford PRC conspired to place plaintiff in, acquiesced in plaintiff's placement in, or knew of plaintiff's placement in restrictive housing and/or solitary confinement at Graterford in violation of his Fourteenth Amendment due process rights, First Amendment rights, his Sixth Amendment rights to counsel. Plaintiff further contends that while he was so confined, he suffered "loss of life-giving food, loss of exercise, needless degradation, loss of work opportunities . . ., loss of money, loss of schooling and training opportunities, loss of self improvement through reading books of plaintiff's own choice, loss of parole status for release on minimum sentence . . .," allegedly in violation of his Eighth Amendment right to be free from cruel and unusual punishment. Compl. ¶¶ 47-53 (Count I). Plaintiff also alleges that defendants Varner, Horn, and the Greene PRC have improperly retained plaintiff in restrictive housing without the benefit of proper review procedures of that confinement, in retaliation for his filing of grievances and statements concerning the oppressive nature of the prison system, and have failed to provide plaintiff with proper health care, all in violation of his First, Sixth, Eighth, Fourteenth Amendment rights. Id. ¶¶ 56-65 (count II).

Plaintiff's prayer for relief against defendants Graterford PRC, Horn, Vaughn, Brumfield, Matalavage, Thomas, Martin, and Newton includes, inter alia, a request for a declaratory judgment that the defendants have violated plaintiff's constitutional rights, injunctive relief prohibiting those defendants from retaliating against him for filing the instant action, immediate release from confinement, compensatory damages, and punitive damages. Against defendants Varner, Horn, and the Greene PRC, plaintiff seeks, inter alia, a declaratory judgment that the defendants have violated plaintiff's constitutional rights, transfer from Greene to "a facility of less confinement," immediate release from confinement, compensatory damages, and punitive damages. After conducting discovery, defendants filed the instant motion for summary judgment.


Summary judgment is appropriate if the moving party can "show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When ruling on a motion for summary judgment, the court must view the evidence in the light most favorable to the non-movant. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In addition, the court must accept the non-movant's version of the facts as true and resolve conflicts in the non-movant's favor. See Big Apple BMW, Inc. v. BMW of N. Amer., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

The moving party bears the initial burden of demonstrating the absence of genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has done so, however, the non-moving party cannot rest on its pleadings. See Fed.R.Civ.P. 56(e). Rather, the non-movant must then "make a showing sufficient to establish the existence of every element essential to his case, based on the affidavits or by depositions and admissions on file." Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Speculation, conclusory allegations, and mere denials are insufficient to raise genuine issues of material fact. To defeat "a properly supported summary judgment motion, the party opposing it must present sufficient evidence for a reasonable jury to find in its favor."*fn17 Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). In addition, Rule 56 of the Federal Rules of Civil Procedure imposes on the non-moving party "the duty to `designate' the specific facts in the record that create genuine issues precluding summary judgment." Jones v. Sheehan, Young & Culp, 82 F.3d 1334, 1338 (5th Cir. 1996).


To establish a claim under 42 U.S.C. § 1983, a plaintiff must show that a person acting under color of state law deprived him of a right secured by the Constitution or the laws of the United States.*fn18 See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000).*fn19

The court will address each of plaintiff's claims seriatim.

A. Plaintiff's Claims against the DOC, the Graterford PRC, the Greene PRC and the Individual Defendants in the ...

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