The pro se plaintiff, David Solan, currently an inmate at FCC-Peterburg, Petersburg, Virginia, filed a complaint alleging his constitutional rights were violated while he was an inmate at FCI-Allenwood, White Deer, Pennsylvania. He has named the following Allenwood officials and officers as defendants: Ms. Ranck, a counselor; Lt. Clarkson, a former lieutenant at Allenwood; Mr. Bittenbender, the disciplinary hearing officer; Lt. Shepard, a lieutenant at the prison; Ms. Levi, a former unit manager; Lt. Feltman, an SIS officer; and Troy Williamson, the former warden. Plaintiff also lists unnamed defendants.
The complaint makes the following claims: (1) an Eighth Amendment excessive-force claim arising from Plaintiff's forced removal from a shower stall on June 10, 2005; (2) a Fourth Amendment claim for being removed from the shower and marched back to his cell while naked and shackled; (3) an equal- protection claim alleging that the forced removal from the shower and the naked escort was because Plaintiff is an elderly, peaceful Jewish intellectual. In addition, there are five retaliation claims, all based on Plaintiff's having filed grievances about the June 10 incident and thereafter: (1) Plaintiff's transfer to USP-Canaan; (2) his placement in segregated housing on July 3, 2005; (3) his placement in a segregation cell from July 5, 2005, through July 7, 2005, with a mentally disturbed inmate who caused Plaintiff emotional suffering; (4) the refusal to return Plaintiff to the cell he occupied before July 3; (5) the attempted placement on July 7 after his return from an operation in a six-man cell with incompatible cell mates and filthy conditions and then when he refused this assignment, placement in segregated housing with a mentally disturbed cell mate in filthy conditions.
We are considering the defendants' motion for summary judgment under Fed. R. Civ. P. 56(b).
In Anderson v. Consolidated Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002), the Third Circuit set forth the standard for deciding a summary-judgment motion:
Summary judgment is proper if after considering "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavit, if any, . . . there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In conducting that review, the non-moving party is entitled to all reasonable inferences and the record is construed in the light most favorable to that party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).
With this standard in mind, we set forth the record for summary-judgment purposes, noting disparities in the evidence where appropriate. The record includes the verified complaint. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)("A verified complaint is to be treated as an affidavit for summary judgment purposes, and therefore will be considered in determining whether material issues of fact exist, provided that it meets the other requirements for an affidavit under Rule 56(e)."); Chambers v. Upper Darby Twp., 1997 WL 164273, at *5 (E.D. Pa.).
A. The Shower-Stall Incident of June 10, 2005
FCI-Allenwood was in lockdown from June 7, 2005, through June 17, 2005, after a large-scale disturbance. (Doc. 1, Compl., pp. 2-3; doc. 45, Defs.' statement of material facts, ¶ 3). On June 10, 2005, Plaintiff was taking a shower, limited to five minutes because of the lockdown. (Doc. 1, Compl., pp. 2-3; doc. 24, p. 1). Defendant Ranck was monitoring the shower and told Plaintiff when two minutes were up. At a little past four minutes, defendant Clarkson "burst into [the] shower stall and ordered Plaintiff to put his hands behind his back." (Compl., p. 4). When Plaintiff tried instead to first reach for a towel "to cover his nakedness," Clarkson "attack[ed]" him so that he could handcuff him. (Id.). "Then other officers attacked Plaintiff in that shower stall . . . eventually handcuffing him behind his back." (Id.). Defendant Bittenbender participated in the attack (id., p. 5), and Ranck helped direct it, although she did not participate in it. (Id., p. 12). However, she did "continue[ ] the humiliation and abuse . . . by refusing to return Plaintiff's eyeglasses for another thirty hours." (Id., p. 12).
"Plaintiff was dragged out of the shower stall, entirely naked . . . paraded throughout the unit, with at least a three minute wait at the head of the steps leading down to his cell, in full view of most inmates . . . and in front of all the officers in the unit at the time," including five females officers. (Id., p. 4). Plaintiff was in full view of the video cameras on the unit and was subjected to verbal abuse from officers while being returned to his cell. Defendant Bittenbender threw Plaintiff into his cell. (Id., p. 4). On June 16, 2005, a correctional officer told him the videotapes were being repeatedly played for the enjoyment of the officers who were not present at the time. (Id., p. 5).
Three witnesses support Plaintiff's version of events. In pertinent part, Kittrell B. Decator, an Allenwood inmate at the time, affirms that on the morning of June 10, twelve correctional officers entered the cell block, about five of whom were female. Five-minute showers were announced for any inmate who wanted one. Defendants Ranck and Bittenbender were standing outside the stall Plaintiff was using. Ranck motioned for other officers to come over. Eventually, three did and about two minutes later, two officers entered the stall and removed Solen. Three officers then "conducted" Solen, "stark naked" and handcuffed behind his back, to the sally-port area for Plaintiff's unit. As Plaintiff was led along, enough pressure was placed on the cuffs to make it look as if "Solen was walking on air." (Doc. 67, Decator penalty-of-perjury declaration).
Two other inmates have also supplied penalty-of-perjury declarations consistent with Decator's. Elbio Espaillat heard Ranck announce a "two-minute warning" to Solan and then seconds later saw officers entering the stall and removing Plaintiff. At first, Solan held a towel around his middle, but it fell away as he was being handcuffed, and Solan was naked as he was "dragged" to the sally port, where he stood for about two minutes. (Id., Espaillat penalty-of-perjury declaration).
In pertinent part, Gary Rahim Watkins affirmed that less than three minutes after Solan entered the shower, Ranck radioed for officers and directed them to remove Solan from the shower. Two officers did so, with Solan naked. He had a towel in one hand "but it covered nothing. He was handcuffed behind his back." Along with Ranck, another female officer was present. Ranck "sort of cover[ed] her eyes," but the other female officer looked at Solan. Solan "was being jacked up by the handcuffs so that he was walking on tip toe," and four officers "roughly conducted" him to the sally-port area. Defendant Bittenbender "pushed Solan hard on the back of the head into [his] cell." Solan's total time of exposure was about a minute. (Id., Watkins penalty-of-perjury declaration).
During the lockdown, inmates were allowed three-to-four minute showers. The shower stalls have a swinging door, open at the top and bottom, but obscuring the occupant's midsection. Solan was advised by staff that he had two minutes left for his shower. When Solan refused to leave the shower, staff entered the stall to remove him, including defendants Bittenbender and Clarkson. Before reopening the shower door, staff placed Solan in handcuffs loosely enough that he could keep his towel around his waist, which he was allowed to do. Solan was given the option to either return to his cell or to be placed in the SHU, and he requested to be placed in his cell.
"Staff then escorted Solan from the shower unit to his cell." (Doc. 45, Defs.' statement of material facts, ¶ 19). "Solan was compliant with the escort and no further assistance was needed." (Id., ¶ 20).
"Defendant Ranck gathered Solan's belongings from the shower, which included soap, a soap dish, a pair of eyeglasses, and a few other items." (Id., ¶ 21). "Ranck placed the items on a table in front of Solan's cell because she did not have a key to his cell at that time." (Id., ¶ 23). "Sometime later, Defendant Ranck saw the items still lying on the table and returned them to Solan." (Id., ¶ 23).
Solan grieved the staff's treatment of him during the incident, but in an interview with defendant Feltman, he said that staff had not "attacked or physically abused" him. (Id., ¶ 28). The video of the incident does not exist because of the rotation of the video tapes. (Id., ¶ 31).
B. The July 3, 2005, Placement in Segregated Housing
On July 3, 2005, Plaintiff fractured his arm while playing handball. He was taken to the local hospital for treatment. According to Plaintiff, the common practice for an inmate taken out of the prison for a short period of time for medical treatment is to put him back in his own cell upon his return. Plaintiff's cell was a two-man one where he had lower-bunk status. (Compl., p. 7). However, upon Plaintiff's return a few hours later, defendant Shepard placed him in the segregated housing unit (SHU) under twenty-four-hour lockdown. (Id., p. 13). Shepard said this was for "security reasons," but Plaintiff alleges his placement in the SHU with a broken arm and awaiting an operation was in retaliation for his complaints after the shower-stall incident. (Id., p. 6). Plaintiff alleges that defendant Ranck participated in the decision to take away his cell. (Id., p. 12).*fn1 Plaintiff has also supplied the penalty-of-perjury declarations of two inmates who affirm that when they were sent to the hospital for operations, they were returned to their original cells. (Doc. 66).
Plaintiff's SHU cell mate for the forty-eight hours before Plaintiff's operation, scheduled for July 7, was "a highly disturbed and hyperactive inmate" who "turned Plaintiff into a nervous wreck and kept him up day and night." (Compl., p. 7). The cell mate came into the cell spraying blood from a head wound ...