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September 12, 2005.

D. SCOTT DODRILL, Regional Director; JOSEPH V. SMITH, Warden; T.R. SNZIEZK, Assistant Warden; BECKY CLAY, Captain, Defendants.

The opinion of the court was delivered by: JAMES MUNLEY, District Judge


Before the court for disposition are a motion for summary judgment filed by Defendants D. Scott Dodrill, Joeseph Smith, T.R. Snziezk, and Barbara Clay, as well as Plaintiff Freddie Francis' cross motions for summary judgment. These matters have been fully briefed and are ripe for disposition. For the following reasons, we will grant the defendants' motion for summary judgment and enter judgment on their behalf.

I. Background

  Francis is a federal prisoner incarcerated at the United States Prison at Lewisburg, Pennsylvania ("USP-Lewisburg"). On August 2, 2004, he filed a complaint instituting the present action against D. Scott Dodrill, the Regional Director of the Bureau of Prisons, Joseph Smith, the USP-Lewisburg Warden, T.R. Sniezk, the Assistant Warden, and Captain Becky Clay*fn1 (collectively "Defendants"). Francis alleges that he was improperly transferred to USP-Lewisburg's Special Management Unit ("SMU"). He was transferred because of his involvement with a gang, although he claims he was never involved in gang activity. He was not provided with notice or a hearing prior to his transfer. He claims that the SMU program is run without a proper policy or without congressional authorization. He alleges that his placement in the SMU program violates his Fifth Amendment due process rights, and constitutes cruel and unusual punishment in violation of his Eight Amendment rights.

  II. Standard

  Granting summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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. See Knabe v. Boury, 114 F.3d 407, 410 n. 4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

  In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.

  III. Discussion

  The defendants present three grounds for their motion. First, they argue that Francis fails to produce evidence of their personal involvement in the alleged constitutional violations. Second, they argue that Francis's placement in the SMU does not implicate his due process rights because it is not a punitive unit. Third, they argue that they are entitled to qualified immunity. Francis has filed cross motions for summary judgment. We will grant summary judgment for the defendants on the first two arguments, and thus need not address qualified immunity.

  A. Personal Involvement

  Francis claims that his placement in the SMU violates his constitutional rights under the Cruel and Unusual Punishment Clause and the Due Process Clause. A claim for violations of constitutional rights is actionable pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) and is the federal counterpart to 42 U.S.C. ยง 1983.*fn2 To state a claim for a violation of the Cruel and Unusual Punishment Clause, a prisoner must demonstrate that "he has been deprived of `the minimal civilized measure of life's necessities' . . . and that a prison official acted with deliberate indifference in subjecting him to that deprivation." Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997) (quoting Young v. Quinlan, 960 F.2d 351, 359 (1992)). A violation of the Due Process Clause involves the following three elements: "1) the claimant must be `deprived' of a protectable interest; 2) that deprivation must be due to some government action; and 3) the deprivation must be without due process." Cospito v. Heckler, 742 F.2d 72, 80 (3d Cir. 1984). To establish liability under Bivens, a plaintiff must demonstrate that the defendants were personally involved in the deprivation of his rights, and the theory of respondeat superior is not a basis for liability. See Rode v. Dellarciprete, 845 F.2d 1195, 1208 (3d Cir. 1988) ("A defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.").*fn3

  Francis has produced no evidence that Defendants Becky Clay, D. Scott Dodrill, or T.R. Snziezck were involved in his placement in the SMU, and instead relies on the doctrine of respondeat superior. Francis' exhibits contain no allegations regarding these individual defendants, and his evidence does not reference them in any way. Thus, we find that Francis has not created a genuine issue of material fact that these defendants violated his constitutional rights, and we will grant summary judgment. Francis has, however, submitted a letter from Defendant Warden Joseph Smith, providing that his placement in the SMU would be reevaluated. Thus, he has created a genuine issue of material fact that Smith had sufficient personal involvement in his placement in the SMU, and we will not grant summary judgment for Smith on this ground.*fn4

  B. Due Process

  The defendants also argue that Francis' placement in the SMU does not implicate his due process rights. We agree. A due process liberty interest "in avoiding particular conditions of confinement may arise from state policies or regulations." Wilkinson v. Austin, 125 S. Ct. 2384, 2393 (2005). The Due Process Clause protects a prisoner's right to "freedom from restraint, which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical ...

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