The opinion of the court was delivered by: Judge Conner
Presently before the court is defendants' motion for summary judgment pursuant to FED. R. CIV. P. 56. (Doc. 94). In his amended complaint (Doc. 21), plaintiff Hilton Mincy ("Mincy") alleges violations of the First, Eighth, and Fourteenth Amendments to the United States Constitution under theories of retaliation, unconstitutional conditions of confinement, due process, and conspiracy against Pennsylvania Department of Corrections defendants Chmielewski, Mooney, Gavin, Kane, Kramer, Joffe, Kehoe, Everding, Clark, Renninger, Breiner, Morgan, Vance, Murphy, Lapatovich, Gower, Lowe, Avellino, Derfler, Kaufman, Rutecki, Bitner, Klem, and Ahner. Mincy has agreed to an entry of summary judgment in favor of defendants Kehoe, Kramer and Ahner.*fn1 (Doc. 124-11, p. 2). In addition, Mincy acknowledges that he has failed to set forth a viable conspiracy theory (Doc. 134, p. 31). Therefore, all defendants will be granted summary judgment on the conspiracy claim.
For the reasons set forth below, the motion for summary judgment will also be granted with respect to the remaining claims.
Mincy, at all times relevant, was an inmate at the State Correctional Institution at Mahanoy ("SCI-Mahanoy"). On November 10, 2004, Mincy's cellmate, Willie Young ("Young"), was involved in a physical altercation with Officer James Kehoe (hereinafter referred to as the "Young/Kehoe incident"). An investigation was conducted by the security office. The investigative role of Lieutenant Gavin ("Lt. Gavin") and his supervisor, Captain Mooney, was to insure that appropriate documentation was completed by staff, submitted to the superintendent for his approval and then forwarded to the Pennsylvania State Police. (Doc. 124-12, p. 11). In an effort to "assure that the incident as it was reported on the date of the incident and was presumed to be an isolated incident, whereas one inmate assaulted one staff member and it wasn't a coordinated thing, and there was no larger problems as far as a group activity or anything," on November 12, 2004, Lt. Gavin chose to interview Mincy because he was Young's cellmate. (Id. at p. 15; Doc. 21, p. 3). Mincy initially objected. However, upon being assured by Lt. Gavin that he would not be charged criminally, Mincy gave a statement in which he asserted that Officer Kehoe "may have" referred to inmate Young as a homosexual which led inexorably to a physical altercation. (Id. at pp. 17, 18).
Mincy forwarded correspondence dated November 12, 2004, and November 13, 2004, to the Pennsylvania Department of Corrections Office of Professional Responsibility, and to the Pennsylvania Prison Society, concerning the Young/Kehoe incident and his interview in the security office. (Doc. 131-7, pp. 2, 3). Mincy expressed concerns that inmate Young had been brutally beaten by prison staff following the incident.
When Officer Kehoe was scheduled to return to work*fn2 , the unit manager telephoned Lt. Gavin to inquire as to whether it was "a good idea to have Mincy and Officer Kehoe on the same unit, or should we transfer him?" (Doc. 124-12, p. 29). Although Mincy was not directly involved in the Young/Kehoe incident, Lt. Gavin felt that it was in Mincy's best interest not to be on the same housing unit with Officer Kehoe in light of Mincy's statement to investigators and Mincy's potential sensitivity and volatility in interacting with Officer Kehoe. Id. Mincy was informed on November 23, 2004, that he would be moved from the housing unit. In response, he filed Grievance Number 102459 charging that the move was in retaliation for providing information about the Young/Kehoe incident and amounted to harassment. (Doc. 124-5, p. 226). Further, the move would result in the loss of his block job, loss of wages and loss of prepaid cable. (Id.). Lt. Gavin responded as follows:
Your housing unit move from E Unit to D Unit was based on the security needs of the institution. As you are well aware you have and continue to be involved in an ongoing criminal investigation. This investigation involves an assault on staff perpetrated by your prior cellmate. Your move from the unit the assault occurred on will only serve to enhance the security of the institution.
Your assertion that you were moved because you would not change your version of the events that occurred during the assault on staff are baseless. Your statements to me have been forwarded to the PA State Police who are continuing their investigation into the staff assault. At no time did I nor will I ever ask you to change your statement.
Your request to transfer to another institution should be directed through your unit team, not a grievance. As you were not directly involved in the incident that precipitated your housing unit move and there is no evidence of any type of retaliation, I would not recommend a transfer at this time. If circumstances change the transfer request will be revisited. (Doc. 124-5, p. 8). The grievance was appealed to Superintendent Klem who reiterated that the move was taken as a security measure and that his statement was forwarded to the Pennsylvania State Police. (Id. at p. 11). His appeal to final review was denied. The Chief Grievance Officer stated that "[y]our claim that you were moved to another housing unit because you would not change your 'story' is without merit. I find that your issues have been thoroughly addressed and [you] have been moved to another unit based on the security needs of the institution." (Id. at p. 5).
Mincy contends that following the writing of the letters and the filing of the grievance, he was subjected to constant cell searches and "pat down" searches. He also alleges that an investigative cell search was conducted the morning after the Young/Kehoe incident. (Doc. 21, p. 2, ¶¶ 4, 5). In accordance with Department of Corrections Administrative Directive ("DC-ADM") 203, "[a] cell search may be conducted as part of a general search, randomly selected or as needed as part of an investigation." (Doc. 126-4, p. 4). A showing of reasonable suspicion or probable cause is not necessary for general or random searches. (Id. at p. 5). However, reasonable suspicion is necessary for an investigative search. (Id.). With regard to a search of an inmate's person, "[e]very inmate is subject to search at any time. Staff personnel of either gender may conduct pat searches in any area of the facility. They will be conducted in a professional manner with tact and proper attitude displayed." (Id. at p. 7).
Mincy was removed from his housing unit on November 27, 2004, the day Officer Kehoe was scheduled to return to work, and placed in administrative custody.*fn3 (Doc. 124-2; Doc. 126-1, p. 7, ¶18). On the same day he was transferred to AC status, he was charged by Officer Breiner with Misconduct No. A552267 for refusing to obey an order and failure to stand count or interference with count. (Doc. 124-4, p. 22). Officer Breiner states that on November 27, 2004, he was conducting a security tour of the RHU pods and that Mincy had draped his blanket over the front of his bed and crawled under his bed, concealing himself. (Doc. 124- 8, p. 3, ¶¶ 6, 8). The officer knocked loudly several times on his cell door and called out for him to show himself. Mincy refused to answer or show himself. Shortly thereafter, Officer Breiner was conducting a count tour and Mincy again refused his order to show himself. (Id. at p. 4, ¶ 15). Based on this conduct, the officer wrote Misconduct No. A552267.
In preparing for the misconduct hearing, Mincy contends that Officers Vance and Murphy refused to assist him in submitting the witness form. The hearing was held on December 3, 2004. The findings of fact, verdict and sanctions imposed by Hearing Officer Kane are as follows:
Inmate pleads not guilty to both charges and submits a version but no witness form. He claims to have submitted a witness form, but did not retain his copy of it. Neither I, nor the recorder have his witness form. Therefore, no witness will be called due to the untimely request for them.
States that he was asleep when the officer came around and heard no orders given to him. He also states that at the time, he was asleep but not fully covered up.
I find for the staff's report over the inmate's denial that he was ordered to show himself to the officer when the officer was taking count and he refused, interfering with the officers' [sic] count. I don't find his statement of being asleep and knowing he was not covered up completely very credible. I find him guilty of both charges.
Sanction: 60 days D.C. eff. 11-27-04 thru 1-25-05. ((Doc. 124-4, p. 24). Mincy unsuccessfully appealed the decision of Hearing Officer Kane to final review. (Doc. 124-4). However, on the same day he commenced the misconduct appeal process, he filed a grievance alleging that Officer Murphy refused to take his misconduct witness form and that Officer Vance would not sign the form because it was turned in late. (Doc. 124-5, p. 14). Based upon Officer Vance's contention that he actually received the witness form, but then forwarded it to "Control" per standard procedure, Superintendent Klem sustained the grievance and directed Hearing Officer Kane to rehear the misconduct. (Doc. 124-5, p. 15).
The rehearing took place on January 21, 2005. (Doc. 124-4, p. 16). Hearing Officer Kane found as follows:
This is a rehearing remanded back by the superintendent.
Inmate pleads not guilty and submits a witness form, but no version form.
States that his report should be dismissed due [to] the hearing being held past 7 working days of the notice for a rehearing. Then he states that he was not covered nor blocking the officer's view.
He was never given any orders.
As to his claim of an untimely hearing, it is being held after the recorded [sic] was given notice, thru the mail, and after Mincy was given a witness form and given time to submit it. There is no documentation in the 801 that covers the time table ...