The opinion of the court was delivered by: Judge Muir
(Complaint Filed 8/08/06)
On August 8, 2006, Pedro Garcia, an inmate formerly confined at the Allenwood Low Security Correctional Institution,("LSCI-Allenwood"), White Deer, Pennsylvania*fn1, filed a Bivens*fn2 complaint pursuant to 28 U.S.C. § 1331. The case is proceeding on the basis of an amended complaint which was filed on July 24, 2007. The named Defendants are the following LSCI-Allenwood employees: Lt. Jack McArdle, Chaplain William Hoops, Unit Counselor Jeff Solomon, Case Manager Danny Thomas, and Assistant Warden Bobby Meeks.
Plaintiff challenges an incident report he received for Possession, Manufacture, or Introduction of a Non-Hazardous Tool, or other Non-Hazardous Contraband, a violation of Disciplinary Code 331. Plaintiff claims that the "charges against him were trumped up, due to the fact that [plaintiff] had previously wrote administrative complaints against both Lt. McArdle and Chaplain Hoops." (Doc. 33, amended complaint). Presently before the Court is defendants' motion for summary judgment. (Doc. 42). The motion is fully briefed and is ripe for disposition. For the reason set forth below, the motion will be granted.
Federal Rule of Civil Procedure 56(c) requires the court to render summary judgment "... forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether there is a genuine issue of material fact, the court must view the facts and all reasonable inferences in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail Corporation, 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. When the party seeking summary judgment satisfies its burden under Rule 56(c) of identifying evidence which demonstrates the absence of a genuine issue of material fact, the nonmoving party is required by Rule 56(e) to go beyond the pleadings with affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Celotex Corporation v. Catrett, 477 U.S. 317, 324 (1986). The party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule 56(e) shifts the burden of production to the nonmoving party, that party must produce evidence to show the existence of every element essential to its case which it bears the burden of proving at trial, for "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."
Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
From the pleadings, declarations and exhibits submitted therewith, the following facts can be ascertained as undisputed.
The Bureau of Prison's ("BOP") policy regarding incoming hardcover publications provides, in relevant part,
(a)(1) At all Bureau institutions, an inmate may receive hardcover publications and newspaper only from the publisher, from a book club, or from a bookstore. The sender's address shall be clearly identified on the outside of the package.
BOP PS 5266.10(6)(a)(1)(Jan. 10, 2003) (codified at 28 C.F.R. § 540.71(a)(1)(2002)).
On or about August 26, 2005, the LSCI-Mail Room returned two books mailed to plaintiff from his Rabbi. (Doc. 33, ¶ 27). In a letter to Garcia, dated September 19, 2005, Garcia's Rabbi acknowledged the returned books, stating the following:
Unfortunately two books, with the letter enclosed were returned, stating that we are not a publishing house and also not a store and therefore cannot sent you any hard cover books. Maybe you can talk to your chaplain and ask him if he wouldn't mind receiving some books for you: The other alternative is that we add publishing to our return address, like Reaching Out Publishers do you think it would work then? But this will take a few weeks. (Doc. 46, Ex. 1, Att. 8, Sept. 19, 2005 letter).
At the end of September, 2005, upon the advice of his Rabbi, Garcia spoke to Chaplain Hoops as to whether Religious Services could receive the books as a donation from the Lubavitch Youth Organization. (Doc. 33, amended complaint at ¶ 28; Doc. 46, Ex. 6, Declaration of Chaplain William Hoops at ¶ 3). Chaplain Hoops informed Garcia that the books could be received as a donation so long as there was no cost involved. (Doc. 46, Ex. 6 at ¶ 4).
Subsequent to his conversation with Garcia, Chaplain Hoops received a call from Rabbi Spritzer of the Lubavitch Youth Organization. Id. The Rabbi was interested in donating the books Leviticus and Exodus to Religious Services at LSCIAllenwood. Id.
On January 18, 2006, Garcia filed administrative remedy 401335-R1, regarding the denial of his religious freedoms. (Doc. 46, Ex. 1, Att. 1, p. 9). On January 23, 2006, this remedy was rejected for filing at the wrong remedy level. Id.
On February 2, 2006, after the approval from Chaplain Hoops, the two religious books, Leviticus and Exodus were received in the Religious Services Department. (Doc. 46, Ex. 6 at ¶ 5). The books were valued at $103.50, and were received from the Lubavitch Youth Organization. Id. at ¶6. In accordance with policy, Religious Services can accept donations of $250 or less, but cannot solicit donations. Id. at ¶ 7. The two books were given to the inmate clerk for tracking. Id. at ¶ 8.
Upon the inmate clerk receiving the books for tracking, Garcia intercepted them stating that they belonged to him. Id. at ¶ 9. Although Chaplain Hoops did confirm with the clerk that the books were for Garcia, as it is not unusual for Religious Services to receive donated books from organizations for a specific person, donated items remain institution property and are available for any inmate to use. Id. at ¶ 10. Chaplain Hoops counseled the inmate clerk for failing to catalog the books prior to giving them to Garcia. Id. at ¶ 11.
On or about February 9, 2006, the inmate Chapel clerk asked Garcia if he could bring the books back to the Chapel so that he may log them. (Doc. 33, ¶ 39). At that time, the inmate clerk retrieved the books from Garcia and cataloged them. (Doc. 46, Ex. 6 at ¶ 12). The books were then re-issued to Garcia with a return date of two weeks. Id. at ¶ 13.
Upon discovering that Garcia was under investigation for circumventing policy, the books were retrieved from his property and returned to Religious Services. Id. at ¶ 14.
On February 23, 2006, after monitoring Garcia's mail for several months, defendant McArdle placed Garcia in the SHU at LSCI-Allenwood on administrative detention status pending the outcome of an investigation for receiving unauthorized items (two books) through unauthorized means (not directly from the publisher). (Doc. 46, Ex. 2, Declaration of SIS Lieutenant Jack McArdle, at ¶ 3).
On April 14, 2006, Garcia was temporarily transferred to Special Housing Unit ("SHU") at Allenwood Federal Correctional Institution, White Deer, (FCIAllenwood),Pennsylvania, for security reasons surrounding the nature and sensitivity of the investigation, and to cease all communications between him and Chaplain Hoops. (Doc. 46, Ex. 2, Declaration of Lieutenant Jack McArdle at ¶ 8).
On June 14, 2006, Garcia filed administrative remedy 416773-F1 complaining that staff confiscated books from his personal property. (Doc. 46, Ex. 1, ¶ 13). On June 30, 2006, this administrative remedy was closed. Id. No appeal from this decision was filed. Id.
On June 15, 2006, plaintiff returned to the LSCIAllenwood. (Doc. 46, Ex 2, ¶ 9).
On June 22, 2006, Garcia was served with Incident Report Number 1481400, charging him with Possession, Manufacture, or Introduction of a Non-Hazardous Tool, or other Non-Hazardous Contraband, a violation of Disciplinary Code 331; Possession of Anything Not Authorized, in violation of Disciplinary Code 305; and Giving Money or Anything of Value to, or Accepting Money or Anything of Value from Another Inmate, or Any Other Person Without Staff Authorization, in violation of Disciplinary Code 328. (Doc. 46, Ex. 2, Att., 3, Discipline Hearing Officer Report).
On June 29, 2006, Plaintiff appeared for his disciplinary hearing. Id. The Disciplinary Hearing Officer ("DHO") determined that plaintiff had received advance written notice of the charge on June 22, 2006, and was advised of his rights before the DHO by a staff member on June 23, 2006. Id. The summary of Plaintiff's statement is as follow:
At the onset of this hearing, GARCIA was advised of his Rights before the DHO, indicated he understood them (waived staff representative and witness testimony) and chose to provide the following statement: "This is incorrect. This is a third set of books I've had come in. I got them in October or November and December and January. I ...