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Wolfgang v. Pennsylvania Dep't of Corrections

March 20, 2006


The opinion of the court was delivered by: Judge McClure



This pro se civil rights action pursuant to 42 U.S.C. § 1983 was filed by Eric John Wolfgang, an inmate presently confined at the Retreat State Correctional Institution, Hunlock Creek, Pennsylvania (SCI-Retreat). The Plaintiff alleges that his constitutional rights were violated during his prior confinement at the State Correctional Institution, Dallas, Pennsylvania (SCI-Dallas).*fn1 He seeks compensatory and punitive damages as well as injunctive relief, i.e., either a transfer or his outright release.

By Memorandum and Order dated September 22, 2004, Defendants Kelly Gallagher, Cheryl Wisniewski and Doctor Stanley Bohinski's motion to dismiss was granted. The Order also entered dismissal in favor of Defendants H.R. Nicholson Company, Pennsylvania Department of Corrections (DOC), SCI-Dallas, and the prison's PRC, Tailor Shop, and Medical Department. Requests for dismissal by Defendants John Dokonovitch, Thomas James, Jeffrey Beard, H. Clifford O'Hara, Donald Williamson, Richard Holmes, Thomas Stachelek and Patricia Ginochetti were also granted.

The remaining Defendants are the following eight (8) SCI-Dallas officials: Superintendent Thomas Lavan; Grievance Coordinator Kenneth Burnett; Counselor Diana Dean; Unit Manager Chris Putnam; Lieutenant Frederick Bleich; Program Manager Demming; Deputy Superintendent McGrady; and Captain Michael Griego.

Wolfgang's initial remaining claim maintains that he was subjected to retaliatory misconduct by Defendants Bleich and Griego which included the encouragement of prisoners to harass the Plaintiff, the poisoning/tampering of his food, failure to provide sufficient clothing, and removal of legal materials from his cell.

It is undisputed that pursuant to a request from the Plaintiff, he was placed in Administrative Custody on July 6, 2002 for his personal safety. Administrative Custody prisoners at SCI-Dallas are housed in K Block. Also confined in K Block are Disciplinary Custody prisoners. As a result, both classifications of prisoners were allegedly intermingled with one another.*fn2 Lieutenant Bleich and Captain Griego were both assigned to K Block during the relevant time period of this action.

Following the filing of the complaint in this matter, Defendants Bleich and Griego allegedly subjected Plaintiff to retaliation including the removal of legal materials from his cell and an incident of food tampering which took place on October 4, 2002.*fn3 Wolfgang adds that Defendants Bleich and Griego "had Plaintiff set up in the shower." Record document no. 30, ¶ 15. Specifically, those two Defendants allegedly identified the Plaintiff as being an informant, thereby placing him in harm's way. Thereafter, they purportedly placed Wolfgang in the K Block shower room with a Disciplinary Custody inmate who hit him with a bar of soap. He adds that the officers stood by and failed to intervene.

Furthermore, Lieutenant Bleich also purportedly allowed Administrative and Disciplinary Custody inmates in the exercise yard at the same time which resulted in an unidentified prisoner spitting on the Plaintiff when walking past him. He adds that once again the correctional officers failed to intervene. It is also alleged that Bleich confiscated Wolfgang's laundry bag and was involved in the failure to supply the prisoner with an adequate amount of underwear, t-shirts, and socks.

Plaintiff's second remaining claim alleges that Grievance Coordinator Burnett, Superintendent Lavan, Deputy Superintendent McGrady, and Program Manager Demming failed to protect his safety by not responding to his grievances.*fn4 Specifically, Wolfgang states that he submitted grievances to Burnett and Lavan regarding the fact that prisoners were being served drinks made from beverage bases which contained Saccharine, a known carcinogen. Lavan and Putnam also purportedly failed to respond to grievances regarding the separation of Plaintiff from Inmate Howard. It is additionally asserted that although the inmate sent grievances to Burnett, Lavan, Demming and McGrady regarding the alleged retaliation tactics being employed against him, no corrective action was taken.

The Plaintiff's final remaining claim contends that Counselor Diana Dean and Unit Manager Chris Putnam failed to protect his safety during February, 2002 by not enforcing a directive that he be kept separated from fellow prisoner Antonio Howard. Inmate Howard allegedly threatened Wolfgang's life when they were previously confined together at another state correctional facility. The original complaint indicates that while subsequently confined at the Rockview State Correctional Institution, Bellefonte, Pennsylvania, an administrative directive requiring that Wolfgang be separated from Inmate Howard was issued.

After Howard arrived at SCI-Dallas, Plaintiff alleges that he wrote to Dean and Putnam advising them of the aforementioned separation order. He concludes that their failure to respond constituted a failure to protect him from a known safety risk.*fn5 He further indicates that their disregard for his safety was intentional due to the fact that he had previously accused Defendant Putnam of providing him with marijuana.

Presently pending is a summary judgment motion submitted by the Remaining Defendants. The motion has been fully briefed and is ripe for consideration.


The Remaining Defendants contend they are entitled to entry of summary judgment on the grounds that: (1) Wolfgang can produce no evidence that Lieutenant Bleich and Captain Griego took any adverse action against him; (2) a viable claim of retaliation has not been alleged against Bleich and Griego; (3) Plaintiff can produce no evidence that Defendants Burnett, Lavan, McGrady, Demming, Dean and Putnam failed to protect his safety; and (4) Wolfgang failed to exhaust his administrative remedies with respect to his assertions of being subjected to retaliation.

A. Standard of Review

Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, 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).

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a 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. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. "[T]he standard [for granting summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a)...."

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, (1986).

The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. The moving party can discharge that burden by "'showing' . . . that there is an absence of evidence to support the nonmoving party's case." Celotex, supra, 106 S.Ct. at 2553 and 2554. Once the moving party has satisfied its burden, the nonmoving party must present "affirmative evidence" to defeat the motion, consisting of verified or documented materials. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). Issues of fact are "genuine only if a reasonable jury, considering the evidence presented could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988). Only disputes over facts that might ...

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