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Ebersole v. Commonwealth

September 25, 2007


The opinion of the court was delivered by: Judge John E. Jones III


Plaintiff David Ebersole filed this action pursuant 42 U.S.C. § 1983, alleging violations of his First, Eighth, and Fourteenth Amendment rights. The defendants at issue were employees in the kitchen at the State Correctional Institution at Camp Hill ("SCI-Camp Hill"), where Ebersole was confined, and the security lieutenant at that facility. Ebersole alleges that the defendants retaliated against him for providing affidavits in support of the harassment lawsuit of another kitchen employee by placing him in the restricted housing unit ("RHU") and transferring him away from SCI-Camp Hill. Ebersole also alleges that his placement in RHU and transfer were without due process and that conditions in the RHU violated his Eighth Amendment rights.

Presently before the Court is the motion for summary judgment of Defendants Alan Keck, Michael Enck, Robert Shellenberger, Shar Liddick, Bruce Burgess, Donald Gelnett, William Hartley, and Zoda Lauer. For the reasons set forth below, the motion will be granted.


The following facts are derived from the complaint and the briefs, declarations, and other evidence submitted by the parties in support of and opposition to the current motion. These facts, and any reasonable inferences drawn therefrom, are viewed in the light most favorable to the non-moving party, Ebersole. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

While confined at SCI-Camp Hill, Ebersole was assigned to work in the prison kitchen where he was supervised by prison staff member Diane Schall. Defs.' Statement of Undisputed Material Facts ("SUF"), ¶¶ 5-6; Pl.'s Answer to Defs.' Statement of Undisputed Material Facts ("PA"), ¶¶ 5-6. Defendants Enck, Shellenberger, Liddick, Burgess, Gelnett, Hartley, and Lauer were also kitchen staff. Enck Decl. ¶ 1; Shellenberger Decl. ¶ 1; Liddick Decl. ¶ 1; Burgess Decl. ¶ 1; Gelnett Decl. ¶ 1; Hartley Decl. ¶ 1; Lauer Decl. ¶ 1.

Schall was the target of harassment and rumors of misconduct from some of the other kitchen staff, including defendants Enck, Shellenberger, Liddick, Burgess, Hartley, and Lauer. Schall Dep. at 11-15; Ebersole Dep. at 51-54. Ebersole prepared a number of "affidavits" describing the harassment for Schall to use in a potential civil lawsuit. Ebersole Dep. at 60, 63, 65, 67-68, 72; Keck Decl., Ex. 1-2. Ebersole describes himself as a "witness" for Schall in her "labor dispute." Ebersole Dep. at 60. Ebersole also provided Schall with legal information. Schall Dep. at 18-20, 26. Schall did not request that Ebersole prepare the affidavits, and upon receiving them, filed reports and turned them over to prison security. Keck Decl. ¶ 15; Schall Dep. at 23-24, 27-28.

The other kitchen staff was unaware that Schall had turned the affidavits over to security, Schall Dep. at 33-34; however, the kitchen staff heard rumors from other inmates that Ebersole was preparing "legal work" for Schall. Pl.'s Ex. B; Enck Decl. ¶ 8; Burgess Decl. ¶ 7; Liddick Decl. ¶¶ 8-10; Shellenberger Decl. ¶ 8; Gelnett Decl. ¶ 8; Hartley Decl. ¶ 8. The kitchen staff were concerned that Ebersole was preparing a discrimination and harassment lawsuit on Schall's behalf against Enck, Liddick, and Shellenberger. Keck Decl. ¶ 4; Pl's Ex. B & C. Enck, Liddick, and Shellenberger reported these rumors of possible fraternization to their supervisors. Schall Dep. at 24; Enck Decl. ¶ 9; Liddick Decl. ¶¶ 11-12; Shellenberger Decl. ¶ 9.

Ebersole alleges that, because of the rumors regarding his legal help for Schall, he was threatened by Enck and Shellenberger. Pl.'s Ex. A; Schall Dep. at 31-32. Ebersole alleges that Shellenberger took him into the bread cooler alone and told him "there will be big problems for both you and Diane" and "someone is going to get hurt."*fn1 Keck Decl. Ex. B. Ebersole also alleges that Enck told him "I'll sick my dogs on you if you continue to help her" and shoved plastic water pitchers into his chest. Schall Dep. at 54-56, 81-82; Keck Decl. Ex 3. Enck and Shellenberger admit that they spoke to Ebersole about the rumors, but deny threatening him him. Pl.'s Ex. A at 2, 4-5, 7.

On September 10, 2001, Keck was assigned to investigate the alleged fraternization between Schall and Ebersole. Pl.'s Ex. A at 1. On that same date, Ebersole was placed in administrative custody in the RHU, pending the outcome of the investigation. Keck Decl. ¶ 8; Pl.'s Ex. E at 13; Ebersole Dep. at 98. Keck placed Ebersole in the RHU to separate him from the prison staff. Keck Decl. ¶ 8. Keck placed Ebersole in administrative custody in the RHU pursuant to Department of Corrections Administrative Directive ("DC-ADM") 802, which provides for "closer supervision, control, and protection" of inmates. Keck Decl. ¶¶ 9-10, Ex. 1. Such confinement is standard procedure when an inmate is implicated in an investigation. Id. at ¶ 10.

Ebersole was confined in the RHU from September 10, 2001 to September 20, 2001. Ebersole Dep. at 98; Pl.'s Ex. D. Ebersole alleges that, while in the RHU, he was denied showers, exercise, and medical treatment. Ebersole Dep. at 98. Ebersole also states that his legal materials were withheld from him. Ebersole Dep. at 106; SUF ¶ 11; PA ¶ 11. Ebersole filed grievances about his transfer to and the conditions of the RHU, which were not responded to for almost 80 or 90 days. Ebersole Dep. 104-05. After his release from the RHU, Ebersole remained in administrative custody until his transfer from SCI-Camp Hill. Id. at 99. Ebersole was not told why he was assigned to the RHU and was not given a hearing regarding the placement. Id. Ebersole, however, was informed of the investigation and interviewed by Keck on September 20, 2001. Ebersole Dep. at 98, 100, 101-02; Pl.'s Ex. A at 1.

After conducting interviews of Ebersole, Schall, Enck, Shellenberger, Liddick, and two other kitchen employees, Keck prepared a written report of his findings. SUF ¶ 12; PA ¶ 12; Pl.'s Ex. A. Keck was not able to substantiate the allegations of fraternization between Schall and Ebersole, and therefore, recommended that the investigation be closed and no action be taken against Schall. Pl.'s Ex. A; Keck Decl. ¶ 17.

Keck, however, concluded that Ebersole had become too familiar with kitchen staff, and that, given the allegations of fraternization and Ebersole's affidavits alleging harassment by the staff, it would difficult, if not impossible, to keep Ebersole safe at SCI-Camp Hill. Keck Dec. ¶¶ 18-19. For reasons of safety and security, Keck recommended that Ebersole be transferred from SCI-Camp Hill. Keck Decl. ¶ 20; SUF ¶ 14. Ebersole was transferred to SCI-Retreat on December 12, 2001. SUF ¶ 14; PA ¶ 14. Ebersole claims that his custody level was raised when he was transferred to SCI-Retreat, so that he must be escorted by guards at all times. Ebersole Dep. at 109-10.


Summary judgment is appropriate if the record establishes "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by pointing to an absence of evidence supporting an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325. Once the moving party meets its burden, the burden then shifts to the non-moving party to show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). An issue is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a factual dispute is "material" only if it might affect the outcome of the action under the governing law. Anderson, 477 U.S. at 248-49.

In opposing summary judgment, the non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000). Arguments made in briefs "are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co. v. Township of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985). However, the underlying facts and all reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party. P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir. 2006).

Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a fact-finder could draw from them. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; there must be a ...

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