The opinion of the court was delivered by: EDWIN KOSIK, Senior District Judge
Plaintiffs Henry B. Johnson and Willie Engram-Bey originally
filed this civil rights action pursuant to 28 U.S.C. § 1331 in
the United States District Court for the District of Columbia on
October 20, 2003. The matter was transferred to this court
approximately one month later. At the time the complaint was
filed, plaintiffs were both inmates at the United States
Penitentiary at Lewisburg (USP-Lewisburg), Pennsylvania. Johnson
is now confined at the United States Penitentiary at Marion,
Illinois, and Engram-Bey has been transferred to the United
States Penitentiary-Max in Florence, Colorado. The standing
complaint in this case consists of Documents 1 and 5. There are
fourteen remaining defendants all employees at
USP-Lewisburg.*fn1 In the complaint, plaintiffs allege that
their due process rights were violated with regard to their placement in the Special Management Unit (SMU)
and also claim that placement in the SMU was a threat to them.
They further contend that the decision of the United States
Parole Commission to rescind Johnson's parole was improper and
that Engram-Bey received inadequate medical care while in the
SMU. Plaintiffs also raise claims with regard to incident reports
they received for failure to participate in the gang unit
program. Plaintiffs seek injunctive and monetary relief.*fn2
Presently pending is a motion to dismiss, or, in the
alternative, for summary judgment filed by defendants on January
24, 2005. (Doc. 40.) Prior to the time defendants submitted their
supporting brief and documents, plaintiffs filed their brief in
opposition to the motion. (Doc. 47.) Thereafter, a supporting
brief, statement of material facts and evidentiary materials were
filed by defendants on February 7, 2005. (Docs. 50, 51, 54, 55.)
An Order was issued by the court on February 8, 2005, directing
plaintiffs to file their opposing statement of material facts
within 15 days, as well as file a supplement to their opposition
brief if they so desired. (Doc. 57.) Neither an opposing
statement of material facts or a supplemental opposition brief
was filed by plaintiffs.*fn3
The allegations in the complaint stem from a riot disturbance
which occurred at USP-Lewisburg in the recreation yard on August
18, 2002 between D.C. Black inmates and the Hispanic NETA gang
members. On the morning of August 18, 2002, the USP-Lewisburg
Control Center Officer made an announcement that staff needed
assistance on the recreation yard with regard to the large scale
altercation which was taking place. Following the deployment of
Precision Ordinance Thunder Flashes, the inmates separated and
dispersed. Due to numerous injured inmates, additional staff
responded. Approximately 25 inmates from Washington, D.C. were
observed gathered near a pavilion in the yard.
Following a lengthy investigation it was determined that the
altercation which took place was a result of smaller incidents
which had occurred on the morning of August 18, 2002, including a
dining room incident between a D.C. inmate and a Hispanic inmate.
Due to their involvement in the resulting yard altercation,
plaintiffs each received incident reports for "Rioting and
Conduct which Disrupts" and were sanctioned. (Doc. 1, Compl. Exs.
1, 2.) Both plaintiffs were also found to be candidates for the
SMU program at USP-Lewisburg due to their roles in the incident.
Both plaintiffs were ultimately transferred out of the SMU
program for refusing to participate. Engram-Bey was transferred
out on or about April 11, 2004, and Johnson on or about July 3,
2004. For the reasons that follow, the motion for summary
judgment will be granted.
Defendants have filed a motion to dismiss or, in the
alternative, for summary judgment. Along with their motion,
defendants have submitted evidentiary materials, specifically,
the declarations made under penalty of perjury of Brian Chambers,
Cynthia Lewis and L. Cunningham, each with supporting exhibits.
Defendants have also submitted copies of DHO reports,
Administrative Remedy Responses and Memorandums and materials
pertaining to the Special Management Unit at USP-Lewisburg.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), if on a
motion asserting the defense numbered (6) to dismiss for failure
of the pleading to state a claim upon which relief can be
granted, 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 pursuant to Fed.R.Civ.P. 56.
This court will not exclude the supporting evidentiary materials
submitted by defendants, and, as such, will address the instant
motion as one for summary judgment. Because defendants labeled
their motion as one to dismiss or, in the alternative for summary
judgment, thereby placing plaintiff on notice, and because a
separate Order was issued by the court directing plaintiffs to
file an opposing statement of material facts and giving them an
opportunity to file supplemental opposing materials in an attempt
to controvert those submitted by defendants, there is no need to
first provide notice to plaintiffs that the instant motion will
be construed as one for summary judgment.
The court will consider defendants' motion under the
well-established standard applicable to summary judgment. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986); Celotex Corporation v.
Catrett, 477 U.S. 317, 324 (1986); Matsushita Electrical
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
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 the moving party is entitled to a judgment as a
matter of law." Fed.R.Civ. . 56©); see also Turner v.
Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The
party moving for summary judgment bears the burden of showing the
absence of a genuine issue as to any material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986); Young v. Quinlan,
960 F.2d 351, 357 (3d Cir. 1992). The moving party, however, has
no burden to negate or disprove matters on which the nonmoving
party will have the burden of proof at trial. The moving party
need only point out to the Court that there is an absence of
evidence to support the non-moving party's case. See Celotex
Corp., 477 U.S. at 325. After such a showing has been made, the
burden then shifts to the opposition to "set forth specific facts
showing that there is a genuine issue for trial." Fed.R.Civ.P.
56(e). The evidence need not be in a form that would be
admissible at trial. Celotex, 477 U.S. at 324. However, the
nonmoving party "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Elec.
Indus., 475 U.S. at 586. Further, a plaintiff may not simply
"replace conclusory allegations of the complaint or answer with
conclusory allegations of an affidavit." Lujan v. National
Wildlife Federation, 497 U.S. 871, 888 (1990) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The nonmoving
party must raise "more than a scintilla of evidence in its favor" in order to overcome a summary judgment motion, and
cannot survive by relying on unsupported assertions, conclusory
allegations, or mere suspicion. Williams v. Borough of W.
Chester, 891 F.2d 458, 460 (3d Cir. 1989).
At the summary judgment stage, the court's function is not to
weigh the evidence and determine the truth of the matter, but
rather to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. The mere existence of some alleged
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment. Id. at 247. In
determining whether there exists a material issue of disputed
fact, however, the facts and the inferences to be drawn from the
facts are to be viewed in the light most favorable to the
nonmoving party. Pollock v. American Tel. & Tel. Long Lines,
794 F.2d 860, 864 (3d Cir. 1986). Yet, the court must determine
whether the nonmoving party has met its burden, in doing so the
court must focus on both the materiality and the genuineness of
the factual issues raised by the nonmovant. "[T]he 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, 477 U.S. at 247-48. In addition to
being genuine, the disputed facts must be material, as determined
by the substantive law. Anderson, 477 U.S. at 248. "[O]nly
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment." Id.
A. Due Process Claims regarding SMU placement, Challenges to
SMU Program, Johnson's Disciplinary Hearing and Parole
Rescission The majority of the claims raised in the instant complaint
relate to plaintiffs' placement and stay in the SMU, challenges
to the SMU program, Johnson's disciplinary hearing and also the
rescission of his parole. In moving for summary judgment
defendants argue that the above claims have all been previously
adjudicated on the merits and thus are barred by the doctrine of
res judicata. In support of their argument, defendants
provide citations to two previous lawsuits in which plaintiffs
were involved. The first is Johnson v. Warden, USP Lewisburg,
Civil No. 3:CV-04-0068, slip op. (M.D. Pa. Mar. 18, 2004) (Kosik,
J.). In this case the court found that Johnson's due process
rights were neither violated during the disciplinary proceedings
against him, nor were they violated by his placement in the ...