The opinion of the court was delivered by: Judge Kosik
Donald R. Hull, an inmate currently confined at the State Correctional Institution at Fayette, Pennsylvania, initiated this civil rights action pursuant to 42 U.S.C. § 1983 on September 2, 2003. The matter proceeds on an amended complaint submitted by Hull on October 10, 2003. There are twenty-five (25) named defendants which include present or former employees at the State Correctional Institution at Coal Township ("SCI-Coal"), Hull's former place of incarceration, as well as current or former employees of the Pennsylvania Board of Probation and Parole ("the Board"). Also named are Jeffrey A. Beard and Donald A. Kelchner, Department of Corrections ("DOC") Officials
In the complaint Hull contends that his constitutional rights were violated when: (1) he was continuously denied parole staffings and the opportunity to be heard; (2) he was deprived of a fair parole hearing due to prejudicial and discriminatory information placed in his institutional record*fn1 ; (3) the Ex Post Facto clause was violated because the Parole Board retroactively applied the 1996 amendment to the Parole Act to his October 2001 and October 2002 applications for parole; and (4) defendants retaliated against him for seeking redress regarding his claims by transferring him from one cell block to another, denying him access to the courts and threatening him.
Currently pending is defendants' unopposed motion for summary judgment (Doc. 64) filed on October 4, 2004. Despite a lengthy period of discovery in this matter and the grants of enlargements of time within which to oppose the motion, no opposition to the motion has been submitted nor have any further requests for additional time to respond to the motion been made.*fn2 As such, the motion for summary judgment will be deemed unopposed and addressed on the merits. For the reasons that follow, the motion for summary judgment will be granted.
II. Allegations in the Complaint
Hull states that he was sentenced on November 18, 1993 to 8-20 years in prison for aggravated assault and involuntary sexual intercourse. He contends that his participation in institutional programs as a requirement for parole was not made a part of his sentence by the judge. Hull states that during the time period following his transfer to SCI-Coal on February 20, 2001, and continuing through September of 2001, he made requests to numerous defendants for a parole staffing in light of a parole hearing he had scheduled for August 13, 2001. Despite his requests, defendants Krum, Rodgers, Williams and Augustine failed to schedule the parole staffing. Hull further contends that he was subject to retaliation for seeking redress with regard to the parole staffing issue. He claims he was transferred to the "east side" of the prison, called names and deprived access to the law library. He contends he also informed Defendants Gillis, Johnson, Lane and Kaskie that he never received a parole staffing, yet he continued to be deprived of a staffing and was subjected to further retaliation.
On October 1, 2001, Hull was seen by defendant Stout, a parole supervisor, and informed him that he never received a parole staffing by defendant Krum, the parole agent. On October 2, 2001, Hull states that he was seen by the Parole Board with respect to his minimum parole eligibility, but that he had never first been provided with an opportunity to be heard at a parole staffing. On October 23, 2001, Hull received a decision from the Board denying parole based upon reasons he states did not apply to him. He contends that this hearing was invalid since he never received the parole staffing.
On November 1, 2001, Hull states he was given notice regarding an assessment for participation in a Drug and Alcohol program on November 8, 2001. He did not participate in the program claiming that he had participated in a program at SCI-Mahanoy while he was there. Defendant Littel informed Hull that he would have to provide a copy of the certificate from that program. In late November of 2002, he was again reviewed by the Parole Board and was denied parole. Hull contends that this denial violated the Ex Post Facto clause and was improperly based upon his failure to complete a sex offender program.
In December of 2002, Hull was transferred to the State Correctional Institution at Laurel Highlands where he also refused to participate in the Drug and Alcohol Program. He was ultimately transferred back to SCI-Coal due to his refusal to participate in institutional programs. Hull was again provided with notice for a Drug and Alcohol assessment in the months of May and August of 2003 by defendant Nesbitt. On August 20, 2003, Nesbitt placed Hull on the mandatory attendance list for the program and Hull contends that this was an abuse of authority. Hull filed a grievance with regard to this issue and claims he was thereafter subjected to retaliation in the form of the denial of basic personal hygiene necessities and threats by defendant Chismar. Hull seeks relief in the form of monetary damages.
III. Motion for Summary Judgment Standard
A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. Fed. R. Civ. P. 56(c). An issue of fact is "'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)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
The burden of proving that there is no genuine issue of material fact is initially upon the movant. Forms, Inc. v. American Standard, Inc., 546 F. Supp. 3145, 320 (E.D. Pa. 1982). Upon such a showing, the burden shifts to the nonmoving party. Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by "depositions, answers to interrogatories and admissions on file" designate "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).
In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In doing so, the court must accept the non-movant's allegations as true and resolve any conflicts in his favor. Id. (citations omitted).
Hull has failed to oppose defendants' pending motion for summary judgment. As such, the motion is deemed unopposed. Moreover, since Hull has failed to file a separate statement of material facts controverting the statement filed by defendants, all material facts set forth in defendants' Statement of Material Facts (Doc. 70) will be deemed admitted. See M.D. Pa. Local Rule 56.1.*fn3
Defendants' statement of material facts and supporting documentation*fn4 indicates that Hull has a history of arrest prior to 1985 on such charges as Receiving Stolen Property, Simple Assault, Burglary, Terroristic Threats and Possession of an Instrument. In November of 1993, he was sentenced to serve two concurrent terms of 8 to 20 years following pleas of guilt to Involuntary Deviate Sexual Intercourse and Aggravated Assault. His minimum sentence date is August 14, 2001, and his maximum sentence date is August 14, 2013. Following several transfers from different prisons, he arrived at SCI-Coal on February 20, 2001. In December of 2002, he was transferred to SCI-Laurel Highlands and then back to SCI-Coal in April of 2003.
Upon incarceration, a correctional plan or prescriptive treatment program is developed for an inmate based upon their initial classification and summary evaluations. Factors considered in formulating a plan or treatment program include the underlying offense and criminal history, social and educational assessment, drug and alcohol history and pre-sentencing investigations and reports. (Doc. 70, Ex. B, ¶ 5.) Inmates serving prison terms related to sex offenses are prescribed the Sex Offenders Program ("SOP") as part of their plan. (Id., ¶ 6.) The SOP is made up of three phases, and only those successfully completing the first two phases can participate in the final phase. Likewise, inmates serving prison terms related to drug and alcohol abuse or who have a history of the same are prescribed the Alcohol and Other Drug Program ("AOD') as part of their correctional plan. (Id., ¶ 8.) An inmate must attend an AOD assessment before any recommendation is made as to AOD programming. (Id., ¶ 9.) Because of the nature of Hull's charges and his history of drug and alcohol abuse, his correctional programming included participation and completion of the sex offenders program and the drug and alcohol abuse programs. (Id., ¶ 10.) According to Hull's institutional records, he only completed Phase I of the SOP program and Drug and Alcohol education. (Id., ¶ 15.) As such, Hull did not complete his correctional plan.
Prior to an inmate's consideration for parole by the Board, the staff at the correctional institution where an inmate is confined conducts a staffing for parole review. Institutional staff such as unit managers, counselors and psychologists participate in the review. (Doc. 70, Vuksta Decl., Ex. G at ¶ 4.) Various records reviewed include an inmate's conduct and educational records, work records, medical records, staff evaluations and pre-release reports. Following the staffing, a recommendation is made by prison personnel regarding the inmate's parole. The inmate is informed of the staff's recommendation. (Id. at ¶¶ 5, 6.) Although inmates may attend, there is no DOC policy that exists which requires an inmate's presence at a parole staffing review. Due to safety concerns in the Restricted Housing Unit ("RHU") at SCI-Mahanoy, inmates housed there are not routinely present for parole staffing reviews. (Id., ¶ 7.)
On January 31, 2001, Hull was placed in the RHU at SCI-Mahanoy and confined there pending transfer to another institution due to inmate separation and safety concerns. (Id., ¶ 8.) The SCI-Mahanoy staff conducted a staffing for parole review regarding Hull on February 12, 2001. Because of safety concerns in the RHU, Hull was not present for the review. (Id., ¶ 9.) Following a review of the institutional record and reports, the SCIMahanoy staff unanimously voted against recommending parole for Hull at the expiration of his minimum sentence. Reasons provided to support this decision were the seriousness of Hull's crime, his institutional misconducts and his failure to complete the Sex Offenders Program. Hull was also advised of this recommendation. Hull was thereafter transferred to SCI-Coal on February 20, 2001. (Id., ¶ 10.) Upon arrival at SCI-Coal, Hull voiced complaints that he was never staffed for parole while at SCI-Mahanoy. Staff at SCI-Coal informed Hull several times that he had been given a staffing while at SCI-Mahanoy. (Doc. 70, Ex. B, ¶ 16.)
On April 1, 2001, Hull filed a grievance (#0273-01) alleging the denial of access to the courts because SCI-Coal business managers would not provide him with free writing materials beyond the DOC authorized allocations set forth in DC-ADM 803. (Doc. 70, Dascani Decl., Ex. C at ¶ 11.) Grievance Coordinator Dascani responded to the grievance informing Hull that he had ...