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September 29, 2005.

HENRY B. JOHNSON, ET AL., Plaintiffs,
D. SCOTT DODRILL, ET AL., Defendants.

The opinion of the court was delivered by: EDWIN KOSIK, Senior District Judge


I. Introduction

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

  II. Background

  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.

  III. Standard

  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.

  IV. Discussion

  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 ...

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