The opinion of the court was delivered by: Hay, Magistrate Judge
Derrick Israel, ("Plaintiff") was, at the time of initiating this Section 1983 action, and continues to be, a Pennsylvania state prisoner. He named a total of ten defendants, all of whom were somehow involved in Plaintiff's disciplinary proceedings that resulted in Plaintiff serving 90 days in disciplinary custody, based on the Hearing Examiner's finding that Plaintiff attempted to have drugs smuggled into the prison hidden in a radio. Plaintiff was also criminally prosecuted for this attempt but was found not guilty.
Plaintiff's primary complaint is that he was denied procedural due process by the imposition of the 90 days of disciplinary custody plus 16 months he spent in administrative custody at the conclusion of the 90 days of disciplinary custody. Because being housed in disciplinary confinement for a mere 90 days does not implicate a state created liberty or property interest, Plaintiff's procedural due process claim fails as a matter of law.
Relevant Procedural and Factual History
On March 31, 2008, Plaintiff filed a motion for leave to proceed in forma pauperis (IFP), Dkt. , which was granted. Dkt. . The operative complaint is Dkt. . In that complaint, Plaintiff named ten Defendants all of whom were somehow involved in his being sanctioned with 90 days of disciplinary confinement. One of the defendants is State Trooper Louis J. Serafini, who criminally investigated Plaintiff's actions and initiated the criminal complaint against him. Another defendant is Captain Manchas, who is a Department of Corrections ("DOC") employee that internally investigated Plaintiff's activities and initiated the disciplinary proceedings against Plaintiff. Defendant Kerri Cross was the hearing examiner who conducted the disciplinary hearing that resulted in Plaintiff being sanctioned with 90 days of disciplinary custody. Plaintiff also named three John Doe Defendants, who were the members of the Program Review Committee ("PRC") to whom Plaintiff appealed his sanction, and who affirmed. The Superintendent of SCI-Fayette was also named as a defendant for his role in affirming Plaintiff's sanction after Plaintiff appealed to the Superintendent from the PRC. Plaintiff also named Robert Bitner who was, at the time, the DOC Chief Hearing Officer and the final person to whom Plaintiff appealed. Defendant Bitner likewise affirmed. Defendant also named as defendants "CSI # 19" and "CSI #1," both of whom are apparently fellow prisoners whom Plaintiff solicited to help him in the importation of the drugs into the prison and both of whom informed the proper authorities. The three John Doe defendants, the two CSI defendants and Defendant Bitner were never served with process.
Plaintiff's complaint alleged that in March 2005, some three years prior to filing the current complaint, he received a misconduct charge for attempting to introduce drugs into the prison via having a fellow prisoner order a radio from outside the institution that would have drugs hidden inside of it. Plaintiff alleged that the two CSI Defendants gave false information to Captain Manchas who then based the disciplinary charges against Plaintiff on that false information. After receiving the disciplinary charges, Plaintiff requested that a certain witness, namely Peter Robinson (who may or may not be one of the CSI defendants, see Dkt.  at 7, ¶ 11), be made available to testify at Plaintiff's disciplinary hearing. In addition, Plaintiff requested that certain video tapes be made available to him, which were allegedly videotapes of the area and time period wherein Plaintiff was said to have recruited the two prisoners to participate in the scheme. Both of Plaintiff's requests were denied.
A misconduct hearing was held on April 1, 2005, at the conclusion of which, Defendant Cross found Plaintiff guilty of the misconducts and sanctioned Plaintiff to 90 days of disciplinary custody time, effective March 7, 2005. Dkt. [18-2] at 19. Consequently, 90 days after March 7, 2005 or roughly June 5, 2005, Plaintiff's sanction of being in disciplinary custody ended. Although Plaintiff appealed through all of the proper channels, Defendant Cross was affirmed. Even after Plaintiff had completed serving his 90 days in disciplinary custody, he was then placed in administrative custody for roughly 16 months thereafter. Plaintiff further complains that his custody level is a level four, apparently an undesirable level with restricted privileges which he alleges is a direct result of the false misconduct.
Meanwhile, on April 25, 2005, Plaintiff was criminally charged for his alleged actions in connection with attempting to introduce drugs into the prison. However, on November 3, 2006, a jury found Plaintiff not guilty of the charges.
In his complaint, Plaintiff lists Six "Claims for Relief:" (1) due process rights violated when he was denied witnesses at his disciplinary hearing; (2) denied due process when Defendants Manchas and Cross denied him access to the requested video tape and by failing to disclose evidence of Plaintiff being misidentified;*fn1 (3) denied due process when Defendant Cross denied Plaintiff access to various documentary evidence such as prison logs, and denied due process by Defendant Serafini's alleged use of some, perhaps false evidence included in an affidavit of probable cause; (4) denied due process when there were not adequate procedures to assure the credibility and reliability of the two CSI witnesses, notwithstanding that Defendant Cross held an in camera hearing to determine their credibility and reliability but relied solely upon the testimony of Defendant Manchas concerning the CSI witnesses, neither of whom personally appeared before Cross; (5) denied due process by Defendants Bitner, the Superintendent and the PRC members for their failure to investigate and challenge the procedures utilized by Defendant Cross at Plaintiff's disciplinary hearing; (6) denied substantive due process because of the myriad of procedural defects in Plaintiff's disciplinary proceedings; and (7) the actions of the Defendants as recounted in the complaint were taken in retaliation for Plaintiff's "exercise of his constitutional privileges such as the filing of grievances." Dkt.  at 12.
The Pennsylvania Attorney General's Office entered an appearance on behalf of Defendants Cross, Serafini, Manchas and the Superintendent. Dkt. . Thereafter, a motion to dismiss or in the alternative a motion for summary judgment was filed on behalf of those Defendants (hereinafter, collectively, "the Moving Defendants"). The Court ordered that the motion would be treated as one for summary judgment and informed Plaintiff that he would have to respond accordingly, indicating that the motion would be decided under Fed.R.Civ.P. 56. Dkt. . On September 5, 2008, Plaintiff filed a response in opposition, Dkt. , and a brief in support, Dkt. . A mere four days later, Plaintiff filed a response in opposition, Dkt. , and a brief in opposition, Dkt. , identical in all ways to the prior filings, save for the addition of a certificate of service. On November 5, 2008, the Court issued a rule to show cause on Plaintiff as to why this action should not be dismissed as against the three John Doe defendants as well as the two CSI defendants. The rule was returnable November 25, 2008. To date, Plaintiff has not responded to the rule to show cause.
Plaintiff and the Moving Defendants have consented to have the undersigned exercise plenary jurisdiction over this case.
Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden to show or point out why there is no genuine issue of material fact. Walters ex rel. Walters v. General Motors Corp., 209 F.Supp.2d 481, 484 (W.D. Pa. 2002). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial . . ." or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). "Where the record taken as a whole could not lead a reasonable trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587. The inquiry involves determining whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990). If a court, having reviewed the evidence with this standard in mind, concludes that "the evidence is merely colorable . . . or is not significantly probative," then summary judgment may be granted. Anderson, 477 U.S. at 249-50. Moreover, it is not enough for the nonmovant to show that there is some dispute as to facts, rather, "only disputes over facts that might affect the outcome of the suit will prevent summary judgment." Anderson, 477 U.S. at 248.
In short, the summary judgment motion is an evidence testing device to see if there is sufficient evidence to support a party's position with respect to an issue for which that party bears the burden of proof at trial so as to justify holding a trial. Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001)(summary judgment is the "moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.").
In their motion, the Moving Defendants point out, inter alia, that this action is time barred for the most part. Alternatively, Moving Defendants argue that Plaintiff has failed to show that he was deprived of a liberty interest under the Fourteenth Amendment. The Court agrees that Plaintiff ...