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DEMETER v. BUSKIRK

March 1, 2004.

GREGORY ALEX DEMETER
v.
TODD BUSKIRK, et al



The opinion of the court was delivered by: JOHN PADOVA, District Judge

MEMORANDUM

Pro se Plaintiff Gregory Alex Demeter brings this action pursuant to 42 U.S.C. § 1983 against Defendants Todd Buskirk, James Smith, and Bob Meyers, all of whom are officials of the Northampton County Prison ("NCP") in Easton, Pennsylvania, for alleged violations of his federal and state constitutional rights while he was a pretrial detainee. Defendants filed a Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and the matter has been briefed by both parties. For the reasons that follow, the Court grants Defendants' Motion for Summary Judgment in its entirety.

I. BACKGROUND

  The following facts are essentially undisputed. On or about May 14, 2003, Plaintiff was arrested by officers of the Bethlehem Police Department and charged with theft and receipt of stolen property. (Am. Compl. ¶ 1; Demeter Dep. at 5.) After Plaintiff failed to post $5000 bail, he was committed to the Northampton County Prison for pretrial detention. (Am. Compl. ¶ 2; Demeter Dep. at 5-6.) Plaintiff had been previously incarcerated at NCP on at least four separate occasions. (Buskirk Aff. ¶ 4.) On May 16, Page 2 2003, Defendant Todd Buskirk, NCP Warden, decided to transfer Plaintiff to the Curran-Fromhold Correctional Facility ("CFCF") in Philadelphia, (Am. Compl. ¶ 3; Buskirk Aff. ¶ 6), which is 62.49 miles away from NCP. (Def.'s Mem. Supp. Summ. J. at 17, n.5.) Plaintiff was transferred pursuant to an agreement between wardens of local county correctional facilities. (Buskirk Aff. ¶ 9.) Plaintiff was not given an opportunity to be heard in opposition to the transfer. (Am. Compl. ¶ 5.) At the time of his transfer, Plaintiff was litigating three pro se § 1983 actions against NCP officials in the United States District Court for the Eastern District of Pennsylvania, which is located in Philadelphia. (Buskirk Aff. ¶ 13.)

  On May 19, 2003, Plaintiff sent a grievance slip to Defendant Buskirk requesting his return to NCP. (Pl.'s Ex. I.) By letter dated May 29, 2003, Defendant Buskirk denied Plaintiff's grievance. (Pl.'s Ex. 2.) Enclosed with the letter were two Northampton County Public Defender appointment forms. (Demeter Dep. at 12.) Plaintiff submitted a completed form to NCP, and a criminal defense attorney thereafter entered an appearance for Plaintiff in the Northampton County Court of Common Pleas on June 23, 2003. (Id. at 20, 26.) On or about June 23, 2003, Plaintiff was transported from CFCF to NCP so that he could appear in court the next day for the preliminary hearing on the criminal charges. (Id. at 26-27.) Plaintiff was timely transferred from CFCF to NCP every time that Page 3 he received a notice of a court appearance in connection his criminal case. (Id. at 40, 53.)

  Plaintiff met with his attorney for the first time on the day of his preliminary hearing. (Id. at 27.) He did not ask his attorney why she had not met with him earlier. (Id. at 30.) During their meeting, Plaintiff's attorney advised him to waive the preliminary hearing, as the prosecution would be willing to drop some of the criminal charges in exchange. (Id. at 30.) Plaintiff's attorney also advised him that waiving the preliminary hearing would enable him to promptly obtain mental health treatment, which was his main concern. (Id. at 30, 32.) Upon his attorney's advice, Plaintiff decided to waive the preliminary hearing. (Id. at 31.)

  Plaintiff subsequently reconsidered his decision to waive the preliminary hearing. (Id. at 36.) He sent his attorney approximately fifteen letters requesting a preliminary hearing. (Id. at 37.) Plaintiff did not receive any response from his attorney concerning his request for a preliminary hearing. (Id. at 38.) Plaintiff also sent his attorney approximately fifteen more letters requesting that she provide him with discovery and file various motions on his behalf, including a motion for bail reduction. (Id. at 58-59, 83.) Plaintiff did not receive any response to those letters until November 2003, when his attorney provided him with copies of discovery. Plaintiff's attorney has informed him that she received the letters. (Id. at 83, 85.) She Page 4 has also advised him that her ability to represent him was not hampered by the fact that he was incarcerated at CFCF. (Id. at 69-70.) On or about October 15, 2003, Plaintiff filed a petition to remove counsel. (Id. at 62-63.)

  Notwithstanding his petition to remove counsel, Plaintiff met with his attorney in November 2003 and entered a guilty plea through her on or about December 19, 2003. (Id. at 61, 73.) On February 11, 2004, Plaintiff's attorney filed a motion for bail reduction on his behalf. The motion was granted, and Plaintiff's bail was reduced to $500. (Id. at 81-82.)

  While incarcerated at CFCF, Plaintiff has been attacked twice by other inmates. (Id. at 110-111.) After Plaintiff submitted complaints to CFCF prison officials, the offending inmates were relocated in the prison. (Id. at 111.) To Defendant Buskirk's knowledge, CFCF is no more dangerous than any other county correctional institution. (Buskirk Aff. ¶ 10.)

  In his Amended Complaint, Plaintiff asserts several constitutional claims against NCP Warden Todd Buskirk, NCP Director of Corrections James Smith, and NCP Intake Administrator Bob Meyers based on his transfer from NCP to CFCF.*fn1 Specifically, Plaintiff Page 5 argues that Defendants violated his federal and state constitutional rights by transferring him to CFCF in retaliation for his filing of lawsuits against various NCP officials. Plaintiff also contends that Defendants violated his federal and state constitutional due process rights by transferring him to CFCF without first according him an opportunity to be heard in opposition to the transfer. Plaintiff further asserts that his transfer to CFCF by Defendants interfered with his access to counsel, caused unnecessary delays in his bail being reduced, and subjected him to punitive prison conditions, in violation of his federal and state constitutional rights.

 II. LEGAL STANDARD

  Summary Judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c) ("Rule 56"). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Page 6 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.

  A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325. After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255. "If the opponent [of summary judgment] has exceeded the `mere scintilla' ...


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