The pro se plaintiff, David Solan, currently an inmate at FCC-Peterburg, Petersburg, Virginia, filed this civil-rights action for various events occurring while he was an inmate at FCI-Allenwood, White Deer, Pennsylvania.
On an early defense motion for summary judgment, we dismissed the following claims and defendants: (1) an Eighth Amendment excessive-force claim based on Plaintiff's forced removal from a shower stall on June 10, 2005 (including a claim based on absent eyeglasses); (2) a retaliation claim based on placement in segregated housing on July 3, 2005; (3) all claims against former warden Williamson; and (4) all claims against defendant Espinoza-Levi except for her alleged involvement in Plaintiff's not getting his original cell back and his July 7 placement in segregated housing after he refused a six-man cell assignment in his old unit. See Solan v. Ranck, 2007 WL 141918, at *9 (M.D. Pa. Jan. 18, 2007).
We permitted the following claims to proceed: (1) a claim for Plaintiff's being removed from the shower and marched back to his cell while naked and shackled, a claim we recognized under the Fourth Amendment; (2) an equal-protection claim alleging that the forced removal from the shower and the naked escort were because Plaintiff is an elderly, peaceful Jewish intellectual; (3) a retaliation claim for his transfer to USP-Canaan, Waymart, Pennsylvania; (4) a retaliation claim for placement in a segregation cell from July 5, 2005, through July 7, 2005; (5) a retaliation claim for refusal to return Plaintiff to the cell he occupied before July 3; (6) a retaliation claim for the attempt to place him in a six-man cell on July 7, after his return from an operation, and then when he refused this assignment, his placement in segregated housing; and (7) a claim that defendant Feltman made a false investigation of the June 10 shower-stall incident and was "likely" involved in the disappearance of the videotape covering the incident. Id.
The following Allenwood officials and former official and officers remain as defendants: Viola Ranck, a unit counselor; Scott Clarkson, a former lieutenant at Allenwood; Kevin Bittenbender, the disciplinary hearing officer; Lt. Shepard, a lieutenant at the prison; Ms. Angel Espinoza-Levi, Plaintiff's unit manager at the time pertinent to this action; and Lt. Brian Feltman, an SIS officer.
We are considering their motion for summary judgment under Fed. R. Civ. P. 56(b), made after a period for discovery. We will evaluate the motion under the well established standard. See Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).
Based on the parties' filings, but mostly following the defendants' statement of material fact (SMF), and often borrowing their language, the following is the record for summary-judgment purposes.
A. The Shower-Stall Incident of June 10, 2005
During Plaintiff's incarceration at FCI-Allenwood, at about 7:00 p.m. on June 7, 2005, "there was a major riot in the rec area." (Doc. 117-2, Ex. 1, Solan Dep. p. 19.) Because of the riot, numerous inmates were placed in the Special Housing Unit (SHU). The prison was also placed on lockdown from June 7, 2005, through approximately June 17, 2005.
When an entire institution is locked down, precautionary security measures are taken due to the heightened watchfulness. During this Allenwood lockdown, staff prohibited open movement within the units and compound most of the time. Many programs were suspended, placing more responsibility on staff (because they do not have the assistance of inmates during the lockdown). Tensions are also high during lockdowns, and during this particular one, many inmates who had not been involved in the riot resented the restrictions the lockdown caused.
Between June 7, 2005, and June 10, 2005, Allenwood staff did not allow inmates to shower because of the lockdown. On June 10, 2005, at about 8:30 a.m., staff informed inmates of the availability of showers, but the inmates would only have between four and five minutes to take a shower. This limitation was imposed to ensure the safety of everyone in the institution; a limited amount of time to shower allowed inmates to shower while minimizing the amount of time they were out of their cells.
Inmates were instructed to come out of their cells in their underwear, t-shirt and shower shoes. For safety concerns due to the riot, staff "quickly searched" the inmates. Staff then escorted inmates to the unit showers. The shower stalls have a swinging door, open at the top and bottom, but obscuring the occupant's mid-section.
It took Solan twenty-five seconds to walk to the stall from his cell. He thought that he heard that it was a four-minute time limit on showers. (Doc. 117-2, Ex. 1, Solan Dep. p. 38.) He "got in [a]nd realized [he] had very, very little time to take a shower." (Id. pp. 18-19.) Solan said, "Two minutes into the shower, while I still had a lot of soap on my body, I heard Ms. Ranck [say] something to the effect that you have a two minute warning or you have two minutes to go or perhaps she said you have been in two minutes." (Id. pp. 24-25.)
According to Solan, he spent two more minutes in the shower for a total of about four minutes and thirty seconds. Just seconds after he turned the water off, defendant Clarkson, with handcuffs in hand, slammed the shower door open and in a "vicious" tone told him to put his hands behind his back. (Id. pp. 25-26.) Clarkson stated that it took him "several minutes" to get to the unit after being notified by radio. (Doc. 117-2, Ex. 3, Clarkson Decl. ¶ 12.) Inmate Watkins saw Ranck talking on the radio about three minutes after the shower began before guards appeared at the stall. (Doc. 67, Watkins Decl. p. 1.) Watkins and two other inmates, Decator and Espaillat, saw Ranck direct guards to the showers. (Doc. 67, Decator, Espaillat and Watkins Declarations).
Solan admits he did not comply with that order and instead, without saying a word to Clarkson, reached for his towel. According to Plaintiff, when Clarkson saw him do this, Clarkson realized Plaintiff was not "going to turn around to be handcuffed behind [his] back while [he] was naked and wet," (Doc. 117-2, Ex. 1, Solan Dep. p. 26), so Clarkson "attacked" him. Plaintiff did not fight back; he "fought merely to get the towel around [his] waist," (id.), but Clarkson was trying to prevent this because it was his intent to handcuff Plaintiff while he was naked. (Id.) Plaintiff managed to get the towel around his waist and thinks he was holding it with his left hand while Clarkson was holding his right hand and trying to get his left hand behind his back as well. Plaintiff struggled with him, "trying to hold the towel in place around [his] waist because he did not want to go out of the shower naked." (Id., p. 27.)
Clarkson was forcing Plaintiff out of the shower backwards when Defendant Bittenbender arrived and forced Solan's left hand behind his back, causing the towel to drop to the side while Plaintiff still held it in one hand. (Id., p. 27.) Plaintiff was handcuffed behind his back, dragged out of the shower, and "turned around frontally to face a number of women and probably over a hundred inmates," as well as a "number of male guards." (Id.). The women (apparently five in number) were standing a few feet away from Plaintiff and looking in his direction. (Id. p. 41.) However, defendant Ranck denies seeing him naked while he was being removed from the shower (or later when being escorted back to his cell). (Doc. 122, Ranck Decl. ¶ 11.)
More officers surrounded him, at least four total. They gripped him tightly and moved him to the sally-port area of the unit, keeping him on his tiptoes as they went. He was detained at the sally-port area for what he believed was about two minutes but his witnesses said it was shorter. Bittenbender asked him whether he wanted to go to the SHU or to his cell.
(Doc. 117-2, Ex. 1, Solan Dep. p. 28.) They took him to his cell and threw him in, with Bittenbender giving him a powerful blow to the back of his head. (Id., p. 29.)
Solan was not physically injured but does claim emotional and psychological injuries as a result of the "open display of his naked body in front of over a hundred people." (Id.,p. 70). He never sought counseling for these psychological injuries. (Id.).
On June 20, 2005, he began proceedings under the BOP grievance process by filing an "informal resolution" form. (Doc. 117-2, Ex. 7). He eventually exhausted all of his administrative remedies. (Id. Exs. 8-10.)
B. The Transfer to USP-Canaan
Plaintiff was formerly incarcerated at FCI-Allenwood, White Deer, Pennsylvania. On December 29, 2004, Plaintiff's unit team recommended him for transfer to USP-Canaan to build the population of that newly-constructed institution. (Doc. 118, SMF ¶ 2; doc. 117-2, Ex. 18, penalty-of-perjury decl. of Rick Lavella, Allenwood's case management coordinator, ¶ 6.) In general, the process is that a request for transfer is prepared by the inmate's case manager and approved by his unit manager. "[T]he recommendation is routed to the Case Management Coordinator, the Associate Warden of Programs, and then the Warden of the institution for final approval. Upon the Warden's approval, the document is forwarded to the Regional Office."
(Doc. 117-2, Lavella decl. ¶ 7.) "[T]he Regional Office [then] approves or disapproves the transfer." (Id., ¶ 8.) On June 24, 2005, the Regional Office approved Solan's transfer to USP-Canaan. (Id.; doc. 118, Defs.' SMF ¶ 3.)
The inmate is then cleared for transfer but the actual transfer date is set by the Federal detention Center in Oklahoma. Solan's transfer happened on March 23, 2006, some nine months after the Regional Office's approval. Plaintiff was being treated for an arm injury suffered in a handball game (as explained below). "Due to this injury, his transfer was deferred pending medical treatment. Once Solan's treatment was completed and he was medically cleared for transfer, he was transferred to USP Canaan." (Doc. 117-2, Lavella decl. ¶ 12.)
According to Plaintiff, he was told at Allenwood by Chaplain Beadle in March 2005 "that he had indeed been put in for a transfer earlier, but that the request had been rescinded, perhaps at Chaplain Beadle's suggestion." (Doc. 149, Pl.'s Br. in Opp'n at p. 6, citing doc. 71, p. 20, ¶ 30). According to Plaintiff, he was also told by a case manager, David Ferry, in August 2005 "that he had indeed been put in for a transfer earlier to USP Canaan . . . around June of 2005, not December, 2004." (Doc. 149, Pl.'s Br. in Opp'n at p. 6, citing doc. 71, p. 22, ¶ 30). Plaintiff believes the transfer request was actually made on or about June 21, 2005. (Doc. 71, ¶ 31(d)). He was never told through official channels of this impending transfer.
Plaintiff has also prepared a document from the discovery made by the defense concerning the transfer of those Allenwood inmates recommended for transfer to Canaan in December 2004. According to Plaintiff, of the forty recommended for transfer on that date, thirty-six had already been bussed to Canaan in March 2005. (Doc. 149, Pl.'s Br. in Opp'n at p. 6, incorporating doc. 103, ¶¶ 13-15).
According to Plaintiff, while trying to get the assistance of Mr. Laino, Allenwood's health care administrator in obtaining X-rays of his arm, Laino told him that it was not his problem and that he was going to have Plaintiff transferred so that Plaintiff could not sue him about it. (Doc. 149, Pl.'s Br. in Opp'n at p. 8 and Ex. 1).
C. Claimed Retaliatory Placements in Housing Not the Equivalent of the Two-Man Cell Plaintiff Occupied Before July 3, 2005
On July 3, 2005, Solan injured his left arm while playing handball. Staff transported him to the outside hospital later that morning for treatment that lasted a few hours. During Solan's escort to the hospital, a physician informed Solan of his next appointment. Because this knowledge could have posed a threat to the safety and security of the institution, when Solan was returned to the prison later on ...