The opinion of the court was delivered by: Christopher C. Conner United States District Judge
Presently before the court is defendants' motion for summary judgment (Doc. 46) pursuant to FED. R. CIV. P. 56. In his amended complaint (Doc. 25), plaintiff Hilton Mincy ("Mincy") alleges violations of the First, Eighth, and Fourteenth Amendments to the United States Constitution under theories of retaliation, conspiracy and due process.*fn1 Mincy concedes that he has no right to relief under the Eighth Amendment or pursuant to a conspiracy to retaliate theory. (Doc. 55-1. pp. 28-29). Consequently, all defendants will be granted summary judgment on the Eighth Amendment and conspiracy to retaliate claims. The First Amendment retaliation claims against defendants Datchko, Robinson, Farber, Kane, Spaide, Williams, Cudwaidie, Bitner, and Klem will be considered. The Court will also address the Fourteenth Amendment due process claim against defendants Kane, Spaide, Williams, Cudwaidie, Bitner, and Klem. For the reasons set forth below, the motion for summary judgment will be granted.
On April 3, 2005, while incarcerated at the State Correctional Institute at Mahanoy, Mincy found pebbles in his food. (Doc. 25, p. 7). He believes that officers named as defendants in a separate lawsuit, Mincy v. Chmielewski, 1:05-CV-292, "were the ones who may had [sic] put the 'rocks' in his tray." (Doc. 25, p. 7). On or about April 11, 2005, he filed grievance #114795 concerning this incident. (Doc. 25, p. 7; Doc. 60-2, p. 42). In addition, on April 15, 2005, Mincy's sister contacted the prison concerning the incident and informed prison administration that she considered this attempted murder. (Doc. 60-2, p. 31). On April 18, 2005, Defendant Datchko ("Datchko"), who was the security office lieutenant responsible for investigating the incident, received an electronic mail message from prison administration about Mincy's sister's phone call. (Doc. 50-2, p. 13). On that same day, he interviewed Mincy and ordered an investigative search of his cell to determine whether the pebbles came from inside the cell. (Doc. 50-2, pp.16-17; Doc. 50-5, p. 22; Doc. 60-2, p. 31).*fn2 The Restricted Housing Unit ("RHU") cells are constructed of cement and inmates frequently destroy the surfacing of the cells which allows them to dig up small pebbles or rocks. (Doc. 50-5, p. 22). The search was conducted by defendants Robinson and Farber, correctional officers. (Doc. 50-6, p. 12). No pebbles were found in the cell. (Id.). Throughout the course of the investigation, Datchko also interviewed Mincy's cellmate, the kitchen steward who delivered the food tray to the cell, the kitchen supervisor and other staff members. These interviews revealed that the food trays were sealed and placed on a locked cart when they left the kitchen and that they were still sealed when they were delivered to the cell. (Doc. 50-2, p. 21; Doc. 60-2, p. 32). Ultimately, defendant Datchko concluded that because the food trays were sealed when they were delivered to Mincy's cell that the pebbles must have come from food processing. (Doc. 60-2, p. 33). He denied the grievance. Mincy unsuccessfully appealed to the next level or review. He then appealed the grievance to final review. On August 12, 2005, he was notified that his appeal was denied. (Doc. 25, p. 12). Although the investigative search did not produce pebbles, Robinson and Farber found white tablets on Mincy's desk and a "transport device" under the toilet.*fn3 (Doc. 50-6, p. 12). While the transport device was easily identified as contraband (Doc. 50-5, pp. 28-29), further investigation was necessary to determine whether Mincy properly possessed the white tablets. When questioned, he indicated that the pills belonged to his former cellmate, Craig Alford. (Doc. 50-5, p. 21). Robinson and Farber asked defendant Wislosky, a nurse working in the medical department, to identify the pills.*fn4 (Doc. 50-7, p. 3). She consulted the IDENT-A-DRUG manual, and by evaluating the shape, color and markings on the pill, concluded that it was potassium chloride. (Id. at p. 4, ¶ 6). She was then asked to determine whether Mincy had a prescription for potassium chloride.*fn5 She confirmed that he did not have such a prescription. (Id. at ¶ 7). If an inmate possesses medication that has not been prescribed for him by an institution physician, it is considered contraband. (Id. at ¶ 8).
Mincy was charged in Misconduct No. A632920 with possession of contraband. (Docs. 50-6, p. 12; 50-8, p. 36). Along with the misconduct, he was given an inmate request for representation and witnesses. (Doc. 50-6, p. 13). He indicated that he did not need representation, but that he would like to call several witnesses. (Id.). He also prepared a written statement in which he alleges that the search was in retaliation for grievances that he has filed against the prison. (Docs. 50-6, p. 14; 55-14, p. 2). Mincy claims that the pills must have been prescribed for his cellmate, Craig Alford, who simply abandoned them in the cell when he was released back to general population. (Id.).
A misconduct hearing was held on April 25, 2005, before defendant Hearing Examiner Kane. (Doc. 50-6, p. 12). The witness requests were considered by defendant Kane and rejected as unnecessary to establish the facts. (Doc. 50-8, pp. 23-26). "According to the policy [found at DC-ADM 801], the hearing officer has the discretion to approve the presence of any staff member or witness only if the staff member or witness has knowledge of the incident and only if the testimony is needed to establish guilt or innocence." (Docs. 50-10, p. 5, ¶ 11; 50-10, p. 4, ¶ 9). The hearing examiner considered defendant Robinson's version of the events, as he authored the misconduct. Defendant Kane also considered Mincy's witness requests, Mincy's written version of the events and Mincy's testimony. The hearing examiner set forth the following findings of fact:
He essentially states that he had no knowledge of the pills being in his cell. They had to be left by his cellmate a few days before the search, when he was released. His cellmate was DT 2486. He states that the transportation device found was already there when he moved in. In the case of the transportation device, he never informed staff that it was there. He feels that this is in retaliation for a lawsuit and grievance he filed. He also disputes the amount of the pills that were found.
I checked with medical concerning his claim of the pills belonging to DT 2486 and was told that the potassium chloride pills found in Mincy's cell were not prescribed to Mincy or DT 2486. This was shared with Mincy. At this time Mincy refused to stay and left the hearing.
I find for the officer's report over the inmate's denial that his cell was searched and potassium chloride were found, along with a cell-to-cell transportation device. I find that since Mincy is not prescribed the pills and neither was his last cellmate, they are contraband. I also find that the transportation device found is also contraband. The amount of pills found, whether it was one or one thousand is not a prejudicial error. He is not to possess any of the pills and he did possess them. I find him guilty of the charge. (Doc. 50-6, p. 11). The contraband was confiscated and Mincy was given sixty days of disciplinary custody. (Id.) Because he left prior to the conclusion of the hearing, defendant Kane was unable to inform him of his decision and the reasons behind it, was not able to provide him with a copy of the report, and could not advise him of his appeal rights. (Doc. 50-8, pp. 30, 40-45).
Mincy appealed the decision to the Program Review Committee ("PRC"). "The PRC that hears misconduct appeals is a standing committee at the institution. The membership of the committee rotates weekly and meets once a week." (Doc. 50-9, p. 3, ¶ 4). The committee does not select the appeals it reviews. (Doc. 50-14, p. 3, ¶ 4). Rather, their docket includes all appeals filed by noon on the day preceding the pre-scheduled weekly PRC committee meeting. (Id.). At the time of Mincy's appeal, defendants Spaide, Williams, and Cudwadie, were sitting on the PRC. (Doc. 50-6, p. 8). He claimed, inter alia, that there were procedural violations and that defendant Kane found him guilty in retaliation for having filed a lawsuit against him. (Docs. 50-6, p. 9; 50-9, p. 4). He also complained that he did not have a copy of defendant Kane's report. "The three valid bases for an appeal to the PRC are: (1) the procedures employed were contrary to law, Department directives, or regulations; (2) the punishment is disproportionate to the offense; and/or (3) the findings of fact were insufficient to support the decision." (DC-ADM 801, Inmate Discipline, Doc. 50-9, p. 26). The committee concluded that no procedural violations occurred at the misconduct hearing level. Further, because Mincy failed to produce any new evidence that would warrant reconsideration, the decision of the hearing examiner was sustained. (Doc. 50-6, p. 8).
Mincy next forwarded a letter to defendant Klem, Superintendent at SCI Mahanoy, which defendant Klem construed as a misconduct appeal. (Doc. 50-6, p. 7). He again complained about hearing irregularities and stated that defendant Kane refused to give him a copy of the hearing examiner's report. (Id.). After reviewing the pertinent documentation, on May 3, 2005, defendant Klem concluded as follows:
My review of the above-cited documents fails to disclose any procedural violations which would have prevented you from receiving a fair and objective hearing. In this case, the Hearing Examiner was correct in his ruling that the requested witnesses were not needed to establish the facts.
The Hearing Examiner considered your denial of the charges and also considered the report of the citing staff member. The Hearing Examiner found the citing staff member's report over your denial.
This is viewed as sufficient evidence to support a finding of guilt. There is not evidence that staff acted in a retaliatory fashion.
The finding and sanction of the Hearing Examiner are therefore sustained. Your appeal to my office is denied. (Doc. 50-6, p. 6). On that same date, he sent a written request to defendant Kane for a copy of his hearing report. (Doc. 50-8, p. 60). On May 11, 2005, defendant Kane notified him that there was no copy provided because he left the hearing early and, unfortunately, because he did not keep copies of his reports he could not give him one. Mincy filed another appeal of the same misconduct on May 24, 2005. (Id. ...