The opinion of the court was delivered by: Judge Sylvia H. Rambo
This matter comes before the court on Plaintiff's motion for summary judgment and Defendants' cross-motion for summary judgment. Plaintiff has brought this suit pro se under 42 U.S.C. § 1983, alleging First and Fourteenth Amendment violations by various prison officials. The court has carefully considered the papers submitted by the parties. For the reasons that follow, Plaintiff's motion for summary judgment will be denied and Defendants' cross-motion for summary judgment will be granted in part and denied in part..
Plaintiff acts pro se and brings this suit while serving a life sentence without possibility of parole. (Doc. 96 ¶ 35.) Plaintiff, a forty-year old inmate incarcerated since 1987, is currently housed at the State Correctional Institution in Huntingdon, Pennsylvania ("SCI-Huntingdon"). (Id. ¶¶ 36--37.) He has been housed in SCI-Huntingdon since September 22, 2004. (Id. ¶ 36.) He has been housed at several other state correctional institutions, including a previous stay at SCI-Huntingdon during which prison guards, Plaintiff alleges, subjected him to mistreatment. (Id. at ¶ 38.)
Plaintiff, upon returning to SCI-Huntingdon, drafted two letters to Central Command at SCI-Camp Hill in which he requested transfer to a different correctional institution out of fear that SCI-Huntingdon guards would retaliate against him. (Id. ¶ 39.) On September 27, 2005, Plaintiff drafted and mailed a third letter ("the Letter") to Central Command. (Doc. 97-4.) This third letter did not mince words. In a crisp tone and straightforward style, Plaintiff expressed his frustration over Central Command's failure to address his previous letters:
I wrote to Central Office twice, so therefore this is my third time. I did't get any response the first two times, and don't expect a response this time. They no my situation, they also know that I do not suppose to be here at Huntingdon State Prison, because of what happened to me here . . . I try to respect people, But central office disrespects me, knowing whats going on, so fuck all you racist motherfuckers, and hope you bastards die a violent death. What you want me to do, be these cowards friend, after the shit they did to me. Im not playing any games these people fuck with me one more time, how do you think I seeing the same chumps, who did crazy things to me in the hole, all in retaliation for something that happened at another prison. And for you people, you racist bastards no you are wrong, so fuck all of y'all killers. (Doc. 97-4)
In response to the letter, the Department of Corrections conducted a disciplinary hearing on October 25, 2005 and found Plaintiff guilty of threatening an employee and using abusive language. (Doc. 97-5.) Plaintiff received a sentence of sixty days in Disciplinary Custody in the Restrictive Housing Unit ("RHU"). (Id.)
Correctional institutions have different levels of housing for inmates based on the inmates classification. (Doc. 96 ¶ 1.) SCI-Huntingdon houses most inmates in the "general population." (Id. ¶ 2.) Some inmates, however, may be housed in the RHU for a number of different reasons, including situations in which the correctional institution finds an inmate guilty of violating an institution rule. (Id. ¶¶ 4--6.) Moreover, an inmate may self-confine in the RHU if he has a safety concern with regard to the institution staff or other inmates in the general population. (Id. ¶ 9.) Inmates confined in the RHU receive periodic reviews from the Program Review Committee ("PRC") to determine whether the inmate should remain in the RHU. (Id. ¶ 11.) Inmates confined in the RHU are assigned a counselor who meets with the inmate on a regular basis and makes recommendations to the PRC. (Id. ¶ 12.) An inmate may be denied release from the RHU if he remains a danger to himself or others or has exhibited a negative adjustment during PRC reviews. (Id. ¶ 14.)
While serving his time in the RHU, the SCI-Huntingdon staff requested a transfer of Plaintiff from SCI-Huntingdon to another state prison. (Doc. 96 ¶¶ 45--46.) Plaintiff had expressed concern that specific guards at SCI-Huntingdon might retaliate against him because he had previously been charged with assaulting a corrections officer at SCI-Rockview. (Doc. 97-9.) Defendant Deputy Secretary of the Eastern Region of the Department of Corrections Donald Vaughn reviewed and denied Plaintiff's transfer request, because he "felt that [Plaintiff] was only using the request in order to transfer to an institution more to his liking." (Doc. 97-12 ¶ 12.) Additionally, psychologist Kenneth F. Ley submitted a request for transfer to a Long Term Segregation Unit on Plaintiff's behalf, which was denied on May 19, 2006. (Doc. 97-7, 97-9, 97-12.) Finally, another request for Administrative Transfer was denied on January 9, 2007. (97-9.)
During his stay in the RHU, Plaintiff underwent periodic reviews in which PRC or a Unit Team*fn1 assessed Plaintiff's progress and adjustment. (Doc. 97-10.) On November 3, 2005, PRC found that the Letter justified a sixty day sentence. (Id.) On December 14, 2005, a Unit Team recommended placing Plaintiff in "administrative custody as he needs to be separated from SCI-HUN staff." (Id.) On May 31, 2006, PRC determined that "the Unit Team must come up with a plan by next PRC [for Plaintiff]" but recommended that Plaintiff remain in administrative custody because he "poses a danger to himself and others" and "has an extensive assaultive misconduct history." (Id.) On August 23, 2006, PRC found that Plaintiff's "adjustment within the RHU is described as satisfactory" by his counselor, but nonetheless determined that Plaintiff should remain confined until "his separation concerns are resolved." (Id.) At the August 23 meeting, Plaintiff stated that he no longer needed to be separated from the staff members at SCIHuntingdon. (Id.) On November 15, 2006, PRC found that Plaintiff had regular contact with his counselor, described Plaintiff's adjustment within RHU as satisfactory, and commented that "RHU officers report no problems from Plaintiff this review period." (Id.) PRC, however, recommended that Plaintiff stay in the RHU due to his "extensive assaultive history" and prior request for separation from the staff. (Id.) On February 7, 2007, PRC continued to comment that Plaintiff had satisfactory adjustment, had regular contact with his counselor, and had no reported problems within the RHU. (Id.) Plaintiff remained in the RHU until July 17, 2007. (Doc. 97-3 at 68.)
In response to this punishment, on December 21, 2006, Plaintiff filed claims pursuant to 42 U.S.C. § 1983, alleging violations of his rights under the First and Fourteenth Amendments to the United States Constitution. (Doc. 1.) Defendants filed timely an answer on March 13, 2007. (Doc. 30.) On May 1, 2008, Plaintiff filed a motion for summary judgment and supporting documents. (Docs. 84--86.) On May 7, 2008, Defendants filed a motion for extension of time to respond to Plaintiff's motion for summary judgment , which the court granted on May 7, 2008. (Docs. 88--89.) On June 25, 2008, Defendants filed a brief in opposition to Plaintiff's motion for summary judgment as well as a motion for summary judgment along with supporting documents. (Docs. 95--99.) On June 10, 2008, Plaintiff filed a brief in opposition to Defendants' motion for summary judgment as well as a statement of facts supporting his motion for summary judgment. (Docs. 107--08.) Neither party submitted a reply brief. Pursuant to court order, the parties submitted additional briefing on Plaintiff's First Amendment claim pursuant to 42 U.S.C. § 1983. (Docs. 115, 116.) The motions are ripe for disposition.
Summary judgment is proper when "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c); accord Saldana v. Kmart Corp., 260 F.3d 228, 231--32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 248. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322--23. "'Such affirmative evidence-regardless of whether it is direct or circumstantial-must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.'" Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460--61 (3d Cir. 1989)).
Plaintiff's complaint suggests two distinct constitutional violations. First, Plaintiff alleges that Defendants violated his speech rights under the First Amendment by punishing him for the letter he drafted to Central Command, which contained protected speech. Second, Plaintiff alleges that Defendants deprived him of liberty without due process of the law keeping him in the RHU for 638 days. Plaintiff has moved for summary judgment on these claims and Defendants filed a cross-motion for summary judgment, arguing (1) that Plaintiff's letter constituted a threat not protected by the First Amendment and (2) that Plaintiff had no liberty interest in being removed from the RHU. The court will review each of these arguments in turn.
Plaintiff and Defendants disagree on the threshold issue of whether the First Amendment protects Plaintiff's letter or whether the Letter contained a threat unprotected by the First Amendment. Indeed, Defendants argue the issue in their briefs with the coolness of Frank Sinatra singing "All or Nothing at All," failing to cite a single federal case, failing to note the substantially diminished scope of the First Amendment in the prison context, and basing their argument on the proposition that "they would have been justified in filing criminal charges against the plaintiff for terroristic threats under [18 Pa. Con. Stat. Ann. § 2706]." (Doc. 98 at 16.) Plaintiff, in contrast, argues that the Letter did not constitute a threat, but merely abusive and hostile language, which the government may not punish without showing that the punishment necessarily or essentially served a substantial and important government interest. Hence, to resolve the cross-motions for summary judgment, the court must consider (a) whether the Letter constituted a threat and, (b) if not, whether punishing Plaintiff for posting the letter constituted a violation of Plaintiff's rights under the First Amendment. As discussed below, the court finds that the Letter did not contain a true threat, but genuine issues of material fact exist concerning whether punishing Plaintiff was necessary to serve a substantial and important governmental interest.
1. Whether the Letter Contained a True Threat
The First Amendment, applicable to the states through the Fourteenth Amendment, provides that "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I. Courts have acknowledged that the First Amendment protects "not only learned political discourse but also vituperative verbal and written attacks." United States v. Kosma, 951 F.2d 549, 553 (3d Cir. 1991) (citing Osborne v. Ohio, 495 U.S. 103 (1990) (Brennan, J., dissenting) ("When speech is eloquent and the ideas expressed lofty, it is easy to find restrictions on them invalid. But were the First Amendment limited to such discourse, our freedom would be sterile indeed.")).
The First Amendment, however, does not offer absolute protection. Virginia v. Black, 538 U.S. 343, 358 (2003). The government may regulate certain narrowly limited categories of speech that fall outside the scope of the First Amendment. Id. For example, the First Amendment does not prohibit banning "true threats." Watts v. United States, 394 U.S. 705, 708 (1969). " 'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia, 583 U.S. at 359. The speaker, however, "need not actually intend to carry out the threat," since "the prohibition on true threats protects ...