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Fortune v. Bitner

September 25, 2006

KENNETH FORTUNE, PLAINTIFF
v.
ROBERT S. BITNER, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

I. Introduction

Fortune initiated this action on January 18, 2001, while housed in SCIHuntingdon's Restrictive Housing Unit ("RHU"), allegedly in violation of an existing separation order that was to segregate him from certain SCI-Huntingdon RHU staff members who purportedly had previously made an attempt on his life.*fn1 Fortune asserts that he repeatedly requested defendants Bitner and Bell to transfer him from SCI-Huntingdon due to the prior separation order and his fear that staff intentionally mislabeled him as mentally ill for the purpose of covering up his planned murder by claiming he committed suicide. Fortune further claims that on December 28, 1999, Defendants Boone, Calderwood, Couch, Gibson, Wyatt, Whitesel, Duggan, and Fogel used unreasonable force to remove his jumpsuit and undergarments during a cell extraction. On that day, Fortune avers, he was ordered to surrender his legal materials and come to the front of his RHU cell to be handcuffed while a security check of his cell was performed. He claims Defendants then forcibly stripped him, leaving him naked "without the use of life['s] basic necessities, such as bed covering and underclothing for about 5 or 6 days, [and] as a result was freezing and very cold." He claims Nurse William Williams, who was assigned to the Extraction Team that day, knew he suffered serious medical injuries from this event but failed to provide him any medical treatment. Fortune's final claim is that he was attacked by Corrections Officers Stevens, Park, Snyder, Mellott and Smith on July 24, 2000, after he "spoke to a prisoner who spoke to him" while he was being escorted to the RHU exercise yard.

On June 14, 2004, Defendants filed a motion for summary judgment, supporting brief, Appendix, and Statement of Material Facts. (See Dkt. Entries 182, 184, 185 and 194.) Plaintiff then filed a motion for a continuance pursuant to Fed. R. Civ. P. 56(f) which was granted. A contentious period of discovery then ensued. On April 17, 2006, Fortune filed a Brief in Opposition to Defendants' motion, a statement of disputed facts, and appendix. (See Dkt. Entries 305 - 307.) Defendants filed a Reply Brief and Appendix on May 8, 2006. (Dkt. Entries 309 and 312.) Fortune has filed a motion to strike Defendants' Reply Brief (Dkt. Entry 314), accusing them of challenging his exhaustion efforts as to the July 2000 use of force incident for the first time in their reply materials. In opposition to this motion, Defendants note they raised the affirmative defense of failure to exhaust administrative remedies as to his claims against Bell and Bitner as well as both use of force events. Fortune did not file a reply brief. These motions are presently ripe for decision.

For the following reasons, Defendants' Motion for Summary Judgment will be granted and Fortune's Motion to Strike will be denied.

II. Undisputed Facts as Established by the Record

A. Request for Emergency Transfer out of SCI-Huntingdon

Fortune was transferred out of SCI-Huntingdon in 1993, only to return in 1996 after being involved in a fight with a fellow prisoner at another facility. (Dkt. Entry 185-2, Appx. in Support of Defendants' Motion for Summary Judgment, Exh. 1, Portions of Fortune's Deposition, p. 5.) Upon his return, Plaintiff was fearful of unidentified SCI-Huntingdon staff members after reading a series of Philadelphia newspaper articles reporting the discovery and exhumation of several inmate bodies on institutional grounds. (Id.) Although fearful of SCIHuntingdon staff members in general, Fortune could not specifically identify any staff members who made him feel as if they were going to murder him. (Id. at pp. 5-6.)

Upon his return to SCI-Huntingdon on December 29, 1996, Plaintiff was placed in Administrative Custody ("AC"), and held there until February 1997, when he was released into the institution's general population. (Dkt. Entry 305, Plaintiff's Disputed Statement of Material Facts ("PSMF") at ¶ 10.) On March 5, 1998, Fortune was placed in the RHU, under Disciplinary Custody ("DC"), after receiving several misconducts resulting in DC time extending until September 30, 1998. (Dkt. Entry 307, Fortune's Appx. in Opposition to Summary Judgment, p. 21.)

On May 15, 1998, Fortune wrote to former Secretary Martin Horn requesting an emergency transfer from SCI-Huntingdon based on his fears that staff had tried to kill him on March 6, 1998.*fn2 (Dkt. Entry 185-2, Appx. in Support of Defendants' Motion for Summary Judgment, Exh. 1, Portions of Fortune's Deposition, p.7; see also Id., Exh. 2, Deposition Exhibits, p. 18.) Defendant Bell, a member of the Bureau of Inmate Services, was designated to respond to Fortune's letter and did so on May 29, 1998, advising him that all transfer requests must originate at the institutional level. (Id. at p. 19.) In June 1998, Fortune wrote directly to Bell complaining that SCI-Huntingdon staff would not consider his transfer request because it involved staff from that facility. (Dkt. Entry 185-2, Appx. in Support of Defendants' Motion for Summary Judgment, Exh. 2, Deposition Documents, Fortune Exh. 2, p. 20.) He requested Bell review the video tape of the incident to confirm his claims of staff malfeasance. (Id.) On July 14, 1998, Bell sent Fortune a letter identical to his earlier correspondence. (Id., Exh. 2, Deposition Documents, Fortune Exh. 3, p. 21.) Bell's only other involvement with Fortune was in response to grievance appeals filed to final review while Plaintiff was housed at SCI-Greene.*fn3 Those grievances dealt exclusively with issues and events arising at SCI-Greene. (Id., p. 9; see also, Exh. 5, Bell Decl. at ¶ 8.) At all times relevant to this action, Bell had no authority over inmate separations or transfer matters. (Dkt. Entry 182, DSMF at ¶ 8.)

Robert Bitner is the DOC's Chief Hearing Examiner responsible for reviewing and deciding inmate appeals related to their placement in a DOC level 5 housing unit, like an RHU, for either administrative custody or disciplinary custody reasons. His role is limited to providing the final level of review of the inmate's first and second level institutional appeals of their custody designation as set forth in DC-ADM 801, Inmate Discipline Policy, and DC-ADM 802, Administrative Custody Procedures. (Dkt. Entry 182, DSMF at ¶ 14; Dkt. Entry 312, Appx. to Defendants' Reply Brief, Bitner Decl. at ¶ 2; see also http:/www.cor.state.pa.us, DOC Policies, DC-ADM 801 and DC-ADM 802.)

Initially, an inmate may be placed in AC at his request, or by security staff, with final approval being required by the Program Review Committee ("PRC") . (See DC-ADM 802.) On September 28, 1998, at the expiration of Fortune's DC time, he remained in the RHU, but placed in AC status due to his "pattern of extremely aggressive and unpredictable behavior" pending a transfer to SCI-Waymart's RHU program for inmates with mental health problems. (Dkt. Entry 185-2, Appx. in Support of Defendants' Motion for Summary Judgment, Exh. 6, Bitner Decl., Exh. A, Other Report No. 528542, p. 69.) Fortune appealed the PRC's decision to SCI-Huntingdon's Superintendent who denied the appeal. Dissatisfied with the Superintendent's response, he appealed to the Chief Hearing Examiner, Robert Bitner, who concurred with the institution's decision to place him in AC. (Id. at pp. 70 - 74; see also Dkt. Entry 182, DSMF at ¶ 17.)

On November 25, 1998, Fortune received "Other Report" No. 165605, which returned him to AC status at the conclusion of a stint of DC time. The report noted that "there are circumstances that may preclude Fortune's placement in our general population, specifically, there are mental health concerns and inmate Fortune is being considered for the special assessment unit at SCI-Waymart." (Dkt. Entry 185-2, Defendants' Appx. in Support of Motion for Summary Judgment, Exh. 6, Bitner Decl., Exh. C, p. 82.) At the PRC hearing, Fortune opposed his AC placement and submitted an inmate version, which he also read aloud to the PRC. (Id.) After Superintendent Frank denied Fortune's appeal of the PRC's decision, Fortune pursued his appeal to final review, specifically taking issue with the "PRC finding labeling [him] as mentally ill and its proposal to commit [him] to a mental health program." (Id. at pp. 82 - 86.) On March 4, 1999, Bitner denied the appeal, finding that Fortune's "placement in Administrative Custody was in complete accordance with the provisions outlined under DCADM 802." (Id. at p. 87; Dkt. Entry 182, DSMF at ¶¶ 19-20.)

In February 1999, SCI-Huntingdon's PRC reviewed Fortune's counselor's recommendation for transfer and approved it. (Dkt. Entry 307, Fortune's Appx. in Opposition to Summary Judgment, Exh. D2, PRC Periodic Review of 2/11/99, p. 22.) In March 1999, Fortune, concerned for his safety after being removed from the Mental Health Roster, wrote to Superintendent Frank requesting an emergency transfer. Plaintiff claimed not to have raised the issue of his personal safety with the Superintendent earlier because he was fearful he would be committed to a Mental Health Unit. (Id., Exh. D3, p. 23.) Fortune was advised that his personal security concerns were previously addressed and determined to be unfounded. Fortune was also told that facility staff did submit a transfer request on his behalf to Central Office, but the request was denied. (Id., Exh. D4, p. 24.)

On July 19, 1999, Other Report 165609 was issued to Fortune, placing him on AC status at the conclusion of his disciplinary custody time due to his "unpredictable and highly problematic" behavior. In opposing the PRC's AC placement, Fortune wrote "a transfer would be in [his] best interest" because, despite his best efforts "to do what is right," staff continue to provoke him into situations which allow them to make veiled attempts on his life. He appealed the PRC's determination to the Superintendent on the basis that his written statement requesting a transfer was not considered by the committee. Superintendent Frank, noting that he had read Fortune's written statement, upheld the PRC's decision based on Fortune's behavior. Fortune appealed the PRC's decision to final review, again asserting that the PRC had not considered his written statement. Defendant Bitner denied the appeal, noting that Fortune's placement was in accordance with the provisions of DC-ADM 802, the Administrative Custody Procedures. (Dkt. Entry 185-2, Appx. in Support of Defendants' Motion for Summary Judgment, Exh. 6, Bitner Decl., Exh. B, pp. 75 - 81; Dkt. Entry 182, DSMF at ¶ 18.)

At no time did Fortune file a grievance via the DOC's Inmate Grievance System, DC-ADM 804, against either Defendants Bitner or Bell. (Dkt. Entry 182, DSMF at ¶ 5; Dkt. Entry 305, PSMF at ¶ 5.) He raised no claim administratively that implicated Bitner or Bell in connection with a claim that they frustrated his attempts to obtain a transfer in deliberate indifference to a substantial risk of serious harm.

B. December 28, 1999, Use of Force Event

On December 28, 1999, while single-celled in SCI-Huntingdon's RHU, Lt. Couch gave Fortune repeated orders to come to his cell door to be handcuffed, so security officers could remove him from the cell and perform a security check of his cell. (Dkt. Entry 185-2, Appx. in Support of Defendants' Motion for Summary Judgment, Exh. 1, Portions of Fortune's Deposition, p. 13.) When Fortune failed to comply with these orders, an extraction team entered his cell, handcuffed him behind his back, tore his jump suit and undergarments from his body, and strip searched him. Shackles were also placed on Plaintiff's legs. Officers carried Fortune naked from his cell to the end of his tier, where he was temporarily placed in a dry shower stall. Fortune stood in the shower with his back against the door for several minutes. After corrections staff searched ...


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