The opinion of the court was delivered by: Judge Caputo
At all times relevant to this lawsuit, Plaintiff, Jess L. Rauch, a former inmate, was housed at the Camp Hill State Correctional Institution ("SCI-Camp Hill"), Camp Hill, Pennsylvania.*fn1 Plaintiff, with the assistance of counsel, initiated this action pursuant to 42 U.S.C. § 1983 on October 7, 2004, against the Pennsylvania Board of Probation and Parole ("PBPP"), the Department of Corrections, Janna Hammit, Valotti Prather and Robin Rommel. On October 13, 2004, Plaintiff filed an Amended Complaint. On December 28, 2004, Rauch filed a second Amended Complaint (Doc. 6), naming the following as Defendants: Gateway Rehabilitation Center ("Gateway") a private contractor who administered a drug and alcohol therapeutic community at SCI-Camp Hill, and two its employees, Janna Hammit and Carol Martin.*fn2 Rauch's allegations can be summarized as follows: On September 4, 1998, Rauch commenced serving a three to eight year state sentence. The PBPP paroled Rauch on April 9, 2001. On June 8, 2002, Rauch was recommitted as a technical parole violator after frequenting a bar and imbibing alcohol. The PBPP required Rauch to participate in and complete a Residential Substance Abuse Treatment ("RSAT") program. Rauch claims he was promised by an unknown PBPP representative that upon his completion of the first phase of the RSAT program, a six months therapeutic community based substance abuse program offered within confines of the prison, he would immediately be transferred to the second phase, a half way house, and then reparole. (Id.)
Rauch enrolled in an RSAT program at SCI-Camp Hill that was operated by Gateway. Rauch claims Ms. Hammit, the RSAT program director, terminated him from the program in retaliation for personal comments he wrote about her and other staff members in his therapeutic journal, and because Rauch's mother repeatedly contacted Ms. Hammit "to discuss [Ms. Hammit's] animosity towards" her son. (Id.) Further, Rauch claims Defendants threatened him with false misconducts and were verbally abusive to him. Rauch contends that he was denied parole as a direct result of Defendants' retaliatory act of discharging him from the RSAT program. Rauch was released from DOC on February 26, 2006, at the expiration of his sentence. (Id.)
Presently before the Court is Defendants' Motion for Summary Judgment asserting, in part, that they are not state actors for the purpose of § 1983. Alternatively, they argue that their actions did not violate Rauch's constitutional rights, and that they did not possess the ability or means to grant or deny Rauch parole regardless of his completion of the therapeutic program. For the reasons that follow, the Defendants' motion for summary judgment will be granted.*fn3
II. Undisputed Facts as Established by the Record*fn4
Public records show that Jess Lee Rauch, is a white male born on June 17, 1976. On August 20, 1998, Rauch was convicted of involuntary manslaughter, driving under the influence of alcohol, and reckless endangerment as a result of a motor vehicle accident. (Doc 32, Defendants' Statement of Material Facts ("SMF") at ¶ 1.) Rauch was sentenced to three to eight years imprisonment. (Id.) On September 4, 1998, Rauch commenced serving his sentence at the Frackville State Correctional Institution ("SCI-Frackville"). (Doc. 6, Amended Complaint at ¶ 9.) In April 2001, after spending a little over two years and seven months in state custody, Rauch was paroled.
On June 8, 2002, Rauch violated the terms of his parole by patronizing a bar and imbibing alcoholic beverages. (Doc. 33-14, Exh. M, Rauch Deposition Transcript ("Rauch Depo."), RR. 10 - 11.)*fn5 On June 29, 2002, the PBPP recommitted Rauch to the DOC as a technical parole violator. He received a ten month sentence for his consumption of alcohol and a concurrent nine month sentence for failing to comply with all laws. (Doc. 6 at ¶ 13; SMF at ¶ 4.) The PBPP also ordered Rauch to participate in, and complete, a Residential Substance Abuse Treatment Program ("RSAT"). (SMF at ¶ 4.)
The RSAT program is a federally funded program. The Commonwealth of Pennsylvania contracted with Gateway from 1999 until October 2003 to provide a RSAT program at SCI-Camp Hill. (Doc. 24, Joint Case Management Plan; Doc. 33-16, Service Purchase Contract, RR. 1 - 13.) Gateway's contract with the Commonwealth of Pennsylvania specifically defines Gateway "as an independent contractor and not as an employee or agent of the Commonwealth." (Id. at R. 3.) At all times relevant to this action, Janna Hammit, was Gateway's Director of the SCI-Camp Hill RSAT program, while Carol Martin was a counselor. (Doc. 18, Answer.)
Plaintiff voluntarily entered Gateway's RSAT program at SCI-Camp Hill on August 15, 2002. (SMF at ¶ 7; Doc. 24, Joint Case Management Plan.) While a member of the RSAT therapeutic communiry, Rauch was required to participate in group therapy. Rauch admits that he "didn't really talk to a lot of people" while in the RSAT program. (Rauch Depo. at R. 30.) After Rauch was not promoted from level two to level three within the program, Rauch told others in the program that "I don't care what level, that makes no difference to me because six months I'm getting out of here". (Id. at RR. 29 - 30.) Rauch claims that the PBPP representative*fn6 at his parole revocation hearing guaranteed him immediate placement in a halfway house upon his completion of the six month in prison RSAT program. (Id. at R. 12; SMF at ¶ 9.) RSAT participants were also expected to self-police each other and issue one another demerits for rule violations. (Rauch Depo. at R. 17.) The RSAT staff kept track of program participant's demerits. (Id.) Rauch refused to "write [other inmates] up or play cop or whatever [the RSAT staff] want[ed] me to do." (Id. at RR. 17 - 18.) While in the program, Rauch admits he received "a couple" of demerits. (Id. at R. 17.)
As part of the RSAT program, Rauch was required to keep a written daily journal. (Doc. 33-15, Journal Writing at R. 1.) Gateway's policy stated that the journal was a tool "to help you remember, sort things, out and see yourself more clearly, while your brain is healing." (Id.) RSAT participants were encouraged to take time "when relevant or helpful ... to jot down ... any feeling you are having ... positive and negative." (Id.) Gateway's journal guidelines state, interalia, that "[n]o one besides you and your counselor will read it." (Id.) Carol Martin was Rauch's assigned counselor. (Doc 33-14, Rauch Depo at R. 15.) According to Rauch, he was not aware that RSAT counselors would read his journal. (Id. at R. 23.) Rauch does not know whether the other counselors read the journals of other inmates. (Id.) Gateway's RSAT notice of "Patient Rights" states that "[e]very patient's confidentiality will be upheld within the limits of Federal and State regulations. This means information about you will only be released with your written permission" except under limited circumstances. (Doc. 33-15, Patient Rights at R. 2.) Gateway's guidelines did not prohibit RSAT counselors or corrections staff from reading Plaintiff's journal. (SMF at ¶ 15.) There are no federal or state statute or regulations that prohibited Gateway's employees from obtaining Plaintiff's journal, reading it and sharing it within a therapeutic setting. (SMF at ¶ 16.)
Ms. Hammit did not check Rauch's journal on a daily basis. (Doc 33-14, Rauch Depo at R. 58.) The first, and only, time Ms. Hammit reviewed Rauch's journal was after he approached her to discuss why his program release date had been extended. (Id. at RR. 19, 26 - 27.) Rauch objected to the extension and questioned Ms. Hammit as to "how are you going to play the parole board[?]" (Id. at R. 27.) Rauch then gave Ms. Hammit permission to read his journal. (Id. at R. 19 and R. 26.) When Ms. Hammit asked if she could "hold on to [it] and read it," Rauch said "I don't care but you're not going to like everything you read in it." (Id. at R. 19.)
All of the RSAT counselors at SCI-Camp Hill were women. (Id. at R. 14.) In his journal, Rauch referred to the counselors as "dumb cunts" and "devils or stuff like that" and wrote that "a bunch of monkeys [could] run this program better than them." (Id. at R. 22 and R. 41.) Rauch also wrote "a couple of negative feelings ... about the program or [Ms. Hammit] or the other people in the program or the inmates." (Id. at R. 21.) Rauch was not immediately removed from the RSAT program after Ms. Hammit read his journal. (Id. at R. 20.)
Rauch did not successfully complete the RSAT program within six months. (SMF at ¶ 12 and ¶ 17.) Rauch does not know why his six month period was extended. Rauch agreed to participate in the RSAT therapeutic community for six months, "not six months maybe more." (Doc. 33-14, Rauch Depo. at R. 12 and R. 27. ) Defendants extended Plaintiff's participation in the program an additional three to four weeks to give Rauch time to satisfy the program's requirements in order for him to move on to the next level, a halfway house, if approved by the PBPP. (SMF at ¶ 18; Doc. 33-3, March 6, 2003 Letter from Superintendent Kelchner; Doc. 33-14, Rauch Depo at RR. 26 - 27.) Rauch was also given a new RSAT graduation date and enrolled in, and completed a two-week Community Orientation and Reintegration Program ("CORE"), a program necessary prior to participation in the second phase of the RSAT program. (Doc.33-14, Rauch Depo. at R. 27; Doc. 36-2, at R. 29, Exh. D, Certificate of Completion dated February 14, 2003.)
During his RSAT stay, Rauch's mother telephoned Ms. Hammit two or three times regarding her son and questioned Ms. Hammit's capability to run the RSAT program. (Doc. 36-2, Select Portions of Mrs. Rauch's Depo. at R. 25.) After one such call, Ms. Hammit commented "in front of everyone" that Rauch had his "mommy call here to talk to me." (Doc, 33-14, Rauch Depo. at R. 20.) Another call took place after Rauch's release date was extended. (Id.) Rauch then "had [his] mom" call Ms. Hammit's supervisor, Ms. Prather, the RSAT Supervisor and a non-defendant.*fn7 (Id.) The next day Rauch was discharged from the RSAT program. (Id. at R. 21 and Portions of Mrs. Rauch's Depo. at R. 25.) Rauch was discharged from the RSAT program on February 25, 2003, for non-compliance with the program's policies approximately two weeks after staff extended his stay. (SMF at ¶ 19.)
Superintendent Kelchner, a non-defendant, in responding to Mrs. Rauch's letter of inquiry regarding her son, reported that:
It is very evident that Mr. Rauch was outside [the RSAT program] guidelines with his remarks. Several times he made very inappropriate remarks about staff. Instead of focusing on his feelings and thinking, the remarks were often negative and inappropriate. Ms. Hammett (sic) believes these remarks reflect his attitude toward RSAT.
The RSAT staff asked for an extension of his time in the program so that he might improve his performance. However, when Mr. Rauch failed to turn in two mandatory assignments it was the unanimous decision of staff that he be removed from the program. After reviewing all the documentation of his participation, Mr. Kressler, [the Unit Manager of the block where the RSAT program is located], conclude[d] Mr. Rauch was not open to the program. ...
Because of his failure to meet program requirements, Mr. Rauch did not successfully complete Phase I. He will not be transferred to Phase 2. He will be returned to the institution that ...