The opinion of the court was delivered by: Judge Kosik
This consolidated civil rights action pursuant to 42 U.S.C. § 1983 was filed by Bruce Ferrell, an inmate currently confined at the State Correctional Institution at Fayette, Pennsylvania, on May 24, 2001.*fn1 Named as Defendants are Jeffrey Beard, Secretary of the Department of Corrections ("DOC"), and the following former employees at the State Correctional Institution at Camp Hill ("SCI-Camp Hill"), Pennsylvania, Plaintiff's former place of confinement: Martin Dragovich, Superintendent; John Palakovich, Deputy Superintendent for Facility Management; Robert Novotney, Superintendent for Facility Management; Blaine Steigerwalt, Unit Manager in the Special Management Unit ("SMU")*fn2 ; and David Maeyer, Business Manager. On March 22, 2002, Plaintiff's motion to add Sarah B. Vanderbrook Meart, former Chief Counsel of the DOC, as a defendant in this action was granted. (Doc. 34.) In the complaint Plaintiff contends that he was subjected to retaliation and denied access to the courts in conjunction with his transfer from the State Correctional Institution at Greene, Pennsylvania ("SCI-Greene") to the SMU at SCI-Camp Hill, and then subsequently to the Long Term Segregation Unit ("LTSU") at the State Correctional Institution at Pittsburgh (SCI-Pittsburgh). The case has a tortured procedural history which is fully set forth in the detailed opinions previously issued by this Court, and will not be reiterated herein. Numerous discovery and other miscellaneous motions have been filed and resolved. Defendants have filed a motion for summary judgment (Doc. 111) which is ripe for consideration. For the reasons that follow, the motion will be granted.
Plaintiff is serving a five (5) to ten (10) year sentence for robbery. The effective date of his sentence was March 27, 1999, with minimum and maximum sentence expiration dates of March 27, 2004, and March 27, 2009. (Doc. 130, Southers Declar. ¶ 6; Doc. 164, Ex. A, Sentence Status Summary.) Plaintiff's sentence was a "continuation sentence" resulting from a re-entry detainer that took effect after he finished serving back-time for a parole violation.*fn3 On November 22, 1999, Plaintiff was transferred from SCI-Greene to the SMU at SCI-Camp Hill. (Doc. 130, Southers Declar. ¶ 7.) The SMU is a specialized area within SCI-Camp Hill where inmates from various DOC institutions are assigned when they exhibit dangerous or unduly aggressive behavior over an extended period of time during their incarceration. This unit offers a prescriptive program designed to encourage cooperation and compliance with prison rules through positive reinforcement.
When an inmate is first confined in the SMU, he is extremely limited in his privileges. As he progresses through the program, he earns greater privileges. The goal is release back into the general population which has the greatest degree of privileges. (Doc. 164, Ex. G.) Plaintiff was transferred to the SMU because he consistently exhibited dangerous and uncooperative behavior at SCI-Greene. In the calendar year 1999 alone, Plaintiff's actions included lying to an employee, destroying/ damaging property, and repeated instances of assault, threatening an employee, refusing to obey orders, possession of contraband and using abusive or obscene language.*fn4 He was transferred as a Phase 5 Disciplinary custody status inmate. Phase 5 is the category reserved for inmates who pose the most serious threats to the prison. (Doc. 130, Southers Declar. ¶ 8.)
Following his arrival in the SMU Plaintiff admits that he refused to cooperate with staff there. Plaintiff contested his confinement in the SMU, and made repeated complaints about the denial of access to personal property. Inmates in the SMU are not permitted to possess unlimited amounts of personal material in their cells, including legal property. Upon his transfer to the SMU from SCI-Greene, Plaintiff was permitted to bring two (2) boxes of legal property and a television. While Plaintiff had eleven (11) more boxes of personal property, these were not shipped to SCI-Camp Hill until one month later. Plaintiff was advised that he had to select the property he would keep at SCI-Camp Hill, and the property he wished to have shipped elsewhere outside of the prison. (Doc. 130, Southers Declar. ¶20.) Although Plaintiff was always permitted access to his property by submitting request slips, he would often interfere with the staff's efforts to accommodate him and overall did not adjust in a positive way to the SMU. (Doc. 130, Steigerwalt Declar. ¶¶ 4, 5.) After arriving at the SMU, Plaintiff received eight (8) misconducts, accumulating 750 days of disciplinary custody to be added to the number he received while at SCI-Greene. This brought his disciplinary maximum date to August 22, 2004. (Id., Southers Declar. ¶ 25.) Plaintiff began to spread feces all over himself, his cell walls and the floor. He disputes that he ever threw waste at the officers. He does not dispute threatening to throw waste upon the SMU staff, urinating in his cell to wash the feces out onto the tier, and refusing to flush his toilet in an attempt to clog the pipes to spew his wastes onto the tier. Plaintiff also refused to attend Program Review Committee meetings which were scheduled once a month. (Id., ¶¶ 27 - 33.) Despite complaints about possessing as much personal property as he wished, Plaintiff would interfere with efforts to provide him with materials by threatening to throw waste at staff attempting to approach his cell. On several occasions Plaintiff was placed in a psychiatric observation cell in the prison's infirmary due to this conduct in addition to engaging in a hunger strike.
Plaintiff was ultimately considered to be an SMU program failure because of his refusal to progress from Phase 5 or participate in any way with the SMU programming. (Doc. 130, Southers Declar. ¶28; Doc. 164, Ex. B, 2/2/00 Continuation Psychological Eval.; 12/11/00 Misconduct Report; Doc. 130, Dragovich Declar. ¶¶ 11, 12.) SMU staff thereafter detailed all the events which had occurred and recommended to Superintendent Dragovich that he seek Plaintiff's transfer to the Long Term Segregation Unit (LTSU). After submitting a petition to the Central Office and obtaining DOC Secretary Beard's approval, Plaintiff was transferred on February 12, 2001, to the LTSU at SCI-Pittsburgh. (Doc. 130, Southers Declar. ¶31; Beard Declar. ¶¶ 13-14; Brandt Declar. ¶ 14.)
Plaintiff's property exceeded the amount he was permitted to take to SCI-Pittsburgh. The policy at that time was that a prisoner could take with him at prison expense two record boxes and a television box for shipment on the bus or van which transported him. A standard size footlocker could be substituted for the two boxes. (Id., Southers Declar. ¶ 17.) Plaintiff was informed by Defendant Steigerwalt that the excess would be shipped by the least expensive common carrier available at Plaintiff's own expense. (Doc. 130, Steigerwalt Declar. ¶ 18.) Plaintiff took two record boxes and a television box with him. In August of 2001, Defendant Maeyer, the Business Manager at SCI-Camp Hill, was asked by Dragovich to respond to a request from Plaintiff as to the amount it would cost him to have his remaining boxes of property at SCI-Camp Hill shipped to him at SCI-Pittsburgh. (Doc. 130, Maeyer Declar. ¶ 3; Doc. 164.) Maeyer responded on August 21, 2001 by informing Plaintiff that he had ten (10) boxes of property which would cost $78.90 to ship. He was further informed that he had a negative $1,445.40 balance on his institution account (Doc. 164, Plaintiff's Ex. D.) In October of 2001, Plaintiff submitted requests to the Business Office at SCI-Camp Hill seeking to have his property shipped to SCI-Pittsburgh. He was again informed by Maeyer of his negative balance, and told that to have the property shipped, he would either need to have the funds available in his account or authority from the courts or the DOC permitting the Business Office to "anticipate" funds on his account to pay for the costs of shipping. Nothing was ever received by Maeyer authorizing him to anticipate funds on Plaintiff's account. In 2002, Plaintiff submitted request slips, letters and three (3) grievances with regard to this issue. Plaintiff disputes the negative balance claiming that it arose under his prior sentence and, therefore, was extinguished when service of that sentence was completed. In April of 2002, in response to Plaintiff's grievances, Ian Taggart, Assistant to the Superintendent at SCI-Camp Hill, contacted the DOC Central Office regarding Plaintiff's requests that his personal property be shipped for free. (Doc. 130, Taggart Declar. ¶ 21.) After discussions, it was decided that the prison would ship the 10 boxes of property on the DOC's buses scheduled to travel to SCI-Pittsburgh when space was available. Plaintiff was informed of this decision on April 2, 2002. (Id., Ex. 2.) The property was ultimately shipped some time prior to April 16, 2002. (Id., Taggart Declar. ¶ 23.)
Summary judgment should be granted when "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). "The 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 v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment. The substantive law determines which facts are material. Id. at 248. A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 250. If the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial'." Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)(citing First Nat. Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 289 (1968)). All inferences, however, "'should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true'." Pastore v. Bell Tel. Co. of Pennsylvania, 24 F.3d 508, 512 (3d Cir. 1994)(citing Big Apple BMW, Inc. v. BMW of N. America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992); Wicker v. Consol. Rail Corp., 142 F.3d 690, 696 (3d Cir. 1998).
The moving party bears the initial responsibility of stating the basis for its motion, identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). As a general rule, unsubstantiated arguments made in briefs are not considered evidence of asserted facts. Versarge v. Township of Clinton, 984 F.2d 1359, 1370 (3d Cir. 1993). The moving party must present competent evidence to support his version of events. Likewise, the nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)). The nonmoving party cannot "simply reassert factually unsupported allegations contained in [the] pleadings." Williams, 891 F.2d at 460 (citing Celotex, 477 U.S. at 325). "Once the moving party has carried the initial burden of showing that no genuine issue of material fact exists, the nonmoving party ... 'must make a showing sufficient to establish the existence of every element essential to his case, based on the affidavits or by the depositions and admissions on file'." Pastore, 24 F.3d at 511 (citing Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992)). If the evidence in favor of the nonmoving party is merely colorable or not significantly probative, summary judgment should be granted. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998)(citing Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).