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Bleau v. Diguglielmo


March 18, 2009


The opinion of the court was delivered by: Golden, J.


Before the Court is Defendants' Motion for Summary Judgment (Doc. No. 62) seeking judgment as to all of pro se Plaintiff Steven Bleau's ("Bleau") claims in his Second Amended Complaint. Plaintiff alleges, pursuant to 42 U.S.C. § 1983, violations of his constitutional rights under both the Due Process Clause of the Fourteenth Amendment and the Eighth Amendment's prohibition of cruel and unusual punishment. (Second Am. Compl. ¶¶ 30, 32). Also before the Court is Plaintiff's Cross-Motion for Partial Summary Judgment seeking judgment as a matter of law only as to his Due Process claim. (Doc. No. 65).*fn1

On January 24, 2006, prison officials from the State Correctional Institution in Graterford, Pennsylvania ("SCI-Graterford")-some of whom are named as Defendants in this matter-placed Plaintiff in administrative custody pending an investigation into whether he was involved in the drug culture at the prison. Plaintiff was not informed of the reasons for his detention in administrative custody until April 25, 2006. The investigation by prison officials involved an examination of various letters written by Plaintiff and, on May 31, 2006, culminated in the issuance of several misconduct charges, some of which involved drug-related activity. On June 6, 2006, Plaintiff was found guilty of these misconduct charges and immediately placed in disciplinary custody. On July 24, 2006, Plaintiff was released from disciplinary custody status and transferred to administrative custody status. Plaintiff remained in administrative custody, with the exception of time spent in the infirmary, until he was transferred to the State Correctional Institution at Fayette, Pennsylvania ("SCI-Fayette") on September 26, 2006. In total, Plaintiff spent 245 days in restrictive detention: 181 days in administrative custody, sixteen days in the infirmary, and 48 days in disciplinary custody.

Plaintiff's Due Process claims are essentially based on his contention that there was no factual basis for prison officials to believe that he was part of the drug culture at SCI-Graterford. Furthermore, Plaintiff argues that prison officials violated various prison regulations in both placing Plaintiff in restrictive detention and prosecuting Plaintiff for misconduct. Separately, Plaintiff's Eighth Amendment claim alleges that several prison officials were deliberately indifferent to Plaintiff's lockjaw condition. For the reasons that follow, Defendants' Motion for Summary Judgment is granted, and Plaintiff's Cross-Motion for Partial Summary Judgment is denied.*fn2


Summary judgment should be granted if the record, including pleadings, depositions, affidavits, and answers to interrogatories, demonstrates "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). In making that determination, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). It is not the role of the trial judge "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Id. at 250. Indeed, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. at 255. Rather, the question is 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." Id. at 251-52. "At the summary judgment stage, in other words, 'all that is required [for the non-moving party to survive the motion] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve [at trial] the parties' differing versions of the truth." Jackson v. Univ. of Pittsburgh, 826 F.2d 230, 233 (3d Cir. 1987) (quoting First Nat'l Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 288-89 (1968)), cert. denied, 484 U.S. 1020 (1988). As Plaintiff will bear the burden of proof at trial, Defendants may obtain summary judgment by affirmatively demonstrating that Plaintiff has either no evidence or insufficient evidence to meet his burden at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Further, as Plaintiff is not represented by counsel, the Court notes that "a pro se litigant's complaint must be construed liberally, and by extension, all reasonable latitude must be afforded in the summary judgment context." Woods v. Bentsen, 889 F. Supp. 179, 184 (E.D. Pa. 1995); see also Haines v. Kerner, 404 U.S. 519, 520 (1972).


I. Facts Relating to Due Process Claim

A. Placement in Administrative Custody

In 2006, Plaintiff Steven Bleau was an inmate at SCI-Graterford serving a sentence of life imprisonment. (Bleau Dep. 4). On January 24, 2006, Bleau was removed from SCI-Graterford's general population and placed in administrative custody in the L-Block of the A-wing within the Restricted Housing Unit ("RHU") of the prison pending an investigation by prison officials into whether Plaintiff was contributing to the prison's drug culture. (Id. at 10; Dohman Decl. ¶ 3; Defs.' Stmt. of Facts ¶ A.2).*fn3 On January 24, 2006, Plaintiff also received an "Other" report (#A770830) authored by Defendant Intelligence Captain Thomas Dohman stating the following: "It has been reported that you may be in violation of institutional rules or regulations. You will remain in administrative custody status pending an investigation." (Defs.' Ex. 16). Plaintiff was not informed why he was under investigation. (Defs.' Stmt. of Facts ¶ A.3). On February 8, 2006-fifteen days after Plaintiff's initial detention-Defendant Superintendent David DiGuglielmo approved a fifteenday extension of Plaintiff's placement in the RHU under administrative custody during the pendency of the investigation. (Defs.' Exs. 18, 21; Dohman Dec. ¶ 5; Defs.' Stmt. of Facts ¶ A.4).*fn4

On February 24, 2006, Plaintiff received a second "Other" report (#A770870) by prison officials stating the following: "It has been determined that your involvement in illicit activities in the institution pose[s] a danger to the institution. You will be placed in administrative custody for the safety of the institution pending possible charges and transfer." (Defs.' Ex. 19; Pl.'s Ex. 3; Dohman Decl. ¶ 6). This "Other" report also states that Plaintiff is "release[d] from investigation," but will "remain on A.C. [administrative custody] status" pursuant to DC-ADM 802 because Plaintiff is a "danger to the institution." (Defs.' Ex. 19).*fn5

On March 1, 2006, Plaintiff wrote to DiGuglielmo complaining about his allegedly arbitrary placement in the RHU. (Defs.' Ex. 20; Pl.'s Ex. 4-1). In particular, Plaintiff complained that he was not given a reason for his placement in administrative custody, which he argued constituted a violation of DC-ADM 802(VI)(B)(5). (Defs.' Ex. 20; Pl.'s Ex. 4-1).*fn6 Plaintiff also claimed that, after the fifteen-day administrative custody detention period ended on February 8, 2006, he had "never seen [a] PRC [Program Review Committee]" nor had he received "a 15 day continuance of investigation report from the Superintendent." (Defs.' Ex. 20; Pl.'s Ex. 4-1).*fn7 Plaintiff's complaint was treated as an appeal of both "Other" reports. (Defs.' Ex. 21). On March 6, 2006, DiGuglielmo sustained Plaintiff's placement in administrative custody. (Id.). Also on March 6, 2006, DiGuglielmo informed Plaintiff that a fifteen-day extension of administrative custody had been granted on February 8, 2006 pursuant to Dohman's request. (Id.; Defs.' Ex. 18; Pl.'s Ex. 4-2).*fn8

B. Placement in Disciplinary Custody

On approximately April 25, 2006, Dohman interviewed Plaintiff and informed Plaintiff, for the first time, that he had been placed in administrative custody because prison officials believed that Plaintiff was involved in the drug culture at SCI-Graterford. (Bleau Decl. ¶ 7; Bleau Dep. 65-67; Dohman Decl. ¶ 11). Dohman stated to Plaintiff that, based on confiscated letters, Plaintiff would be charged with various misconduct violations, some of which related to drugs. (Bleau Dep. 65-67; Dohman Decl. ¶ 11). Plaintiff denied (and continues to deny) any association with drugs, and argued (and continues to argue) that the confiscated letters concern Plaintiff's "poetry CD and book projects," not drugs. (Second Am. Compl. ¶ 23; Pl.'s Stmt. of Facts ¶ A.13). In the confiscated letters, Plaintiff wrote about an ongoing venture, profit from a prior project called a "hustle," and his need to make money. (Defs.' Exs. 30 at 3, 5, 7). Plaintiff wrote the following: "Make sure that you put it all in one loon as small as possible." (Id. at 5 (emphasis added)). He also wrote, "If you need me to pay you for the AOL, let me know. I really need to make that money." (Id. at 3). Plaintiff's letters discuss a CD project, and one letter advises a cousin to contact Plaintiff by calling his counselor and claiming an important legal call. (Id. at 10). This letter also refers to paying other inmates who are working on Plaintiff's project. (Id. at 11).

On May 31, 2006, Plaintiff was formally charged with several misconduct violations. The charges were the following: (1) Possession or Use of a Dangerous or Controlled Substance; (2) collectively, violations of 18 Pa. Cons. Stat. Ann. § 5123(a), (a.2), (c) (giving, transmitting, or furnishing a controlled substance to a convict in prison), 35 Pa. Cons. Stat. Ann. § 780-101, et seq. (Controlled Substance, Drug, Device and Cosmetic Act), and 18 Pa. Cons. Stat. Ann. § 903 (criminal conspiracy); (3) Possession of Contraband; (4) Unauthorized Use of the Mail or Telephone; (5) Violation of Visiting Regulations; (6) Refusing to Obey an Order; and (7) Lying to an Employee. (Defs.' Ex. 29; Bleau Decl. ¶ 17).

On June 2, 2006, Defendant Hearing Examiner Mary Canino began Plaintiff's misconduct hearing. (Canino Decl. ¶ 4). During the hearing, Plaintiff again denied any involvement in bringing drugs into the prison, but admitted to making three-way phone calls in violation of prison rules. (Bleau Dep. 122-23; Defs.' Ex. 31). Accordingly, Plaintiff pled "guilty" to engaging in the "Unauthorized Use of the Mail or Telephone," but pled "not guilty" to the remaining six charges. (Defs.' Exs. 29, 31; Bleau Dep. 122-23). On June 6, 2006, after examining the letters, Canino found Plaintiff guilty of the six misconduct charges to which he had pled "not guilty." (Defs.' Ex. 31). Canino imposed a sanction of 360 days in disciplinary custody, with no credit for time already spent in administrative custody. (Defs.' Ex. 31; Pl.'s Ex. 15-1). Plaintiff claims that he was never given an opportunity to defend himself during the hearing. (Bleau Decl. ¶ 22.e). Plaintiff's disciplinary custody punishment officially began on June 6, 2006, though he was not moved from the A-wing to the B-wing within the L-block of the RHU until June 13, 2006. (Defs.' Ex. 29; Banta Decl. ¶ 6).*fn9

On June 6, 2006, Plaintiff appealed his conviction, which was affirmed on June 12, 2006. (Defs.' Exs. 32-33).*fn10

On June 13, 2006, Plaintiff filed an additional appeal. (Defs.' Ex. 34). On June 14, 2006, DiGuglielmo ruled that there were no procedural violations in the misconduct hearing. (Defs.' Ex. 35; Pl.'s Exs. 18-1, 33).*fn11 However, DiGuglielmo modified Canino's decision by crediting Plaintiff with time previously spent in administrative custody and reducing his sentence from 360 days to 210 days in disciplinary custody. (Defs.' Ex. 35; Pl.'s Exs. 18-1, 33; Bitner Decl. ¶ 7).

On June 19, 2006, Plaintiff filed his final appeal of his misconduct convictions. (Defs.' Ex. 36). On July 12, 2006, non-party Department of Corrections ("DOC") Secretary Jeffrey Beard, in consideration of Defendant Chief Hearing Examiner Bitner's recommendation, dismissed the findings of guilt on the following four charges: (1) Violation of Visiting Regulations; (2) Refusing to Obey an Order; (3) Lying to an Employee, and (4) Violation of 35 Pa. Cons. Stat. Ann. § 780-101, et seq. (Controlled Substance, Drug, Device and Cosmetic Act). (Defs.' Exs. 37-38; Pl.'s Ex. 18-2). Secretary Beard upheld the findings of guilt on the following four charges: (1) Possession or Use of a Dangerous or Controlled Substance; (2) collectively, violations of 18 Pa. Cons. Stat. Ann. § 5123(a), (a.2), (c) (giving, transmitting, or furnishing a controlled substance to a convict in prison), and 18 Pa. Cons. Stat. Ann. § 903 (criminal conspiracy); (3) Possession of Contraband; and (4) Unauthorized Use of the Mail or Telephone. (Defs.' Exs. 37-38; Pl.'s Exs. 18-2, 34; Bleau Dep. 147). As a result, Plaintiff's sentence to disciplinary custody was further reduced from 210 days to 180 days, with credit for the time he had already served in administrative custody. (Defs.' Exs. 37- 38; Pl.'s Exs. 18-2, 34). Thus, Plaintiff's sentence to disciplinary custody was set to conclude on July 18, 2006. (Defs.' Ex. 37; Pl.'s Exs. 18-2, 34; Bitner Decl. ¶ 7).

On approximately July 24, 2006-six days after his disciplinary custody sentence was to expire-Plaintiff's sentence was officially modified to 180 days and Plaintiff was transferred from disciplinary custody status to administrative custody status, though he remained housed in the B-wing within the L-block of the RHU. (Defs.' Exs. 38, 42; Banta Decl. ¶ 6).*fn12 Plaintiff did not file a grievance complaining that he had been placed in disciplinary custody beyond the July 18, 2006 expiration date. (Bleau Decl. ¶ 23.f). Plaintiff stayed in the B-wing while in administrative custody until August 2, 2006, at which time he was moved to the infirmary for dental treatment. (Banta Decl. ¶ 14; Bleau Dep. 94-97; Defs.' Stmt. of Facts ¶ A.38). Plaintiff remained in the infirmary until August 18, 2006. (Banta Decl. ¶ 13; Bleau Dep. 94-97). Upon his return to the RHU on August 18, 2006, Plaintiff was placed in administrative custody within the L-Block's A-wing. (Banta Decl. ¶ 14). On September 26, 2006, Plaintiff was transferred to SCI-Fayette. (Defs.' Ex. 46).

Plaintiff's total time on restricted status within the RHU at SCI-Graterford was 245 days-from January 24, 2006 until his transfer on September 26, 2006. Of the 245-day total, Plaintiff spent sixteen days in the infirmary from August 2, 2006 to August 18, 2006. Of the remaining 229 days, Plaintiff was housed in the L-Block of the RHU. He was in administrative custody within the A-wing for the first 133 days (January 24, 2006 to June 6, 2006). He stayed in the A-wing for an additional seven days while in disciplinary custody after his sentence began (June 6, 2006 to June 13, 2006). (Bleau Dep. 73; Banta Decl. ¶ 6). Plaintiff then moved to the B-wing, where he stayed for 41 days while in disciplinary custody (June 13, 2006 to July 24, 2006). (Defs.' Ex. 69; Banta Decl. ¶ 6). Plaintiff was transferred to administrative custody status on July 24, 2006,*fn13 but remained in the B-wing for nine additional days (July 24, 2006 to August 2, 2006). (Banta Decl. ¶¶ 6, 14). Plaintiff was then placed in the infirmary for approximately sixteen days (August 2, 2006 to August 18, 2006). (Defs.' Ex. 74; Stanishefski Decl. ¶ 4; Bleau Decl. ¶ 15). On August 18, 2006, Plaintiff was moved from the infirmary to administrative custody within the Awing of the L-Block-where he spent 39 days until his transfer to SCI-Fayette on September 26, 2006. (Defs.' Ex. 74; Banta Decl. ¶¶ 13-14). Accordingly, Plaintiff spent 181 days in administrative custody (not including the sixteen-day infirmary stay) and 48 days in disciplinary custody. (Defs.' Stmt. of Facts ¶ A.38).*fn14

II. Analysis

Plaintiff's Due Process claim has been asserted against all ten Defendants*fn15 in this action. (Second Am. Compl. ¶¶ 30-31, 37).*fn16 Plaintiff specifically contends that his Due Process rights were violated by Defendants' collective decision "to place and continue [Plaintiff's] placement in the segregated housing units (the hole) under Administrative Custody due to their unsubstantiated claim that plaintiff [had] violated D.O.C. [rules without] adhering to the Department of Corrections DC-ADM 802 Administrative Custody Policy." (Id. ¶ 30). Further, Plaintiff contends that the collective decision of Defendants to "issue Plaintiff a misconduct report with fabricated drug charges, convict, sentence to 360 days in the RHU, and sustain said conviction" violated his Due Process rights. (Id. ¶ 31). Defendants preliminarily argue that not all of Defendants were involved in the decision to place Plaintiff in administrative and disciplinary custody. (Defs.' Br. at 37-39). However, the Court need not assess the actual involvement of each Defendant for the purposes of determining liability. Regardless of any involvement, none of the Defendants can be held liable for Due Process violations because Plaintiff did not have a constitutionally-protected liberty interest in remaining within the general population of SCI-Graterford.*fn17

Under the Fourteenth Amendment, no state shall deprive any person of liberty without due process of law. U.S. Const. amend. XIV, § 1. Thus, as a threshold matter, the Court must determine if Plaintiff had a constitutionally-protected liberty interest in avoiding either administrative or disciplinary custody. A protected liberty interest in avoiding restrictive detention may arise from only (1) state law or (2) the Due Process Clause itself. See Asquith v. Dep't of Corr., 186 F.3d 407, 409 (3d Cir. 1999).*fn18

A. State-Created Liberty Interest

A state can create a constitutionally-protected liberty interest if the alleged deprivation or change in prison conditions "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). Prison conditions are "atypical and significant" when a sentenced inmate may not reasonably expect to encounter such a condition as a result of his or her conviction in accordance with due process of law. Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997). As a result, "the focus of this inquiry should not be on the language of a particular regulation, but rather on the nature of the deprivation." Fraise v. Terhune, 283 F.3d 506, 522 (3d Cir. 2002). In deciding whether a protected liberty interest exists, a court must engage in a fact-specific inquiry into "the duration of the . . . confinement and the conditions of that confinement in relation to other prison conditions." Mitchell v. Horn, 318 F.3d 523, 532 (3d Cir. 2003).

The Court will first examine the conditions imposed on Plaintiff while he was in administrative and disciplinary custody within the RHU. Pennsylvania DOC Policy states that administrative custody is "a status of confinement for non-disciplinary reasons, which provides closer supervision, control, and protection than is provided in general population." (DC-ADM 801(IV)(A); Defs.' Ex. 1). Disciplinary custody is the "maximum restrictive status of confinement to which an inmate guilty of a Class I misconduct may be committed." (DC-ADM 801(IV)(H); Defs.' Ex. 1). In the RHU, prisoners are subjected to 23-hour daily lockdown, while general population inmates experience 12.5-hour daily lockdown. (Pl.'s Br. at 16). While Plaintiff was in administrative custody within the L-Block of the RHU, he was permitted to request calls to people on his call list, sign-up and go to the law library, as well as receive non-contact visits from everyone on his visiting list. (Banta Decl. ¶ 16; Bleau Dep. 70-71, 93, 101-02; DC-ADM 802(VI)(F)(1)(d); Defs.' Ex. 2). Plaintiff could also request television and radio while in administrative custody, though he only did so once in late-August 2006. (Bleau Dep. 89; Defs.' Ex. 44; Banta Decl. ¶¶ 16-17; Lorenzo Decl. ¶ 9; DC-ADM 802(VI)(F)(1)(b), (F)(3); Defs.' Ex. 2). These activities were restricted while Plaintiff was in disciplinary custody. (Banta Decl. ¶ 16). For example, while in disciplinary custody, Plaintiff could have one non-contact family member visit once per month and he could only receive phone calls from his lawyer. (Id.). Disciplinary custody inmates are also not allowed television or radio privileges. (Id.). Plaintiff had no visits during July and August 2006 in which Plaintiff's status in either administrative or disciplinary custody would have mattered. (Id. ¶ 17; Bleau Dep. 102). Additionally, while in both administrative and disciplinary detention in the L-Block, Plaintiff received meals three times a day, showers every third day, and "yard" privileges for at least one hour for five days a week, though Plaintiff was denied "yard" on several occasions. (Bleau Dep. 97, 104, 113; Defs.' Ex. 25; Pl.'s Br. at 16; Defs.' Br. at 30). While in administrative and disciplinary custody, Plaintiff also received weekly visits from an imam, weekly or biweekly visits from his counselor, and monthly visits from a program management team which consisted of two officials, including a psychologist. (Bleau Dep. 70, 104-05; Banta Decl. ¶ 18).

1. Placement in Administrative Custody

Based on the conditions described above, Plaintiff's placement in administrative custody for 181 days (excluding the sixteen days in the infirmary) did not impose an atypical and significant hardship in relation to the ordinary incidents of prison life. Plaintiff complains that the atypical and significant conditions imposed on him while he was in the RHU included, among other things, (1) having his mail screened by security before it was sent to the post office, (2) the increased level of security in the RHU as compared to the general population, (3) his denial of access to the law library and "yard" on a few occasions (Bleau Decl. ¶ 20), (4) restrictions on contact visits, and (5) the inability to attend work and educational programs. (Pl.'s Br. at 16-17; Bleau Dep. 92-94). These conditions, however, do not satisfy the Sandin standard, as it is not unusual for inmates in a number of circumstances to find themselves subjected to the conditions to which Plaintiff was also subjected while in administrative custody. See Griffin, 112 F.3d at 708 (holding that "it is not extraordinary for inmates in a variety of circumstances to find themselves exposed to the conditions to which [plaintiff] was subjected [while in administrative custody in Pennsylvania prison]"); Allah v. Seiverling, 229 F.3d 220, 224 (3d Cir. 2000) ("[P]lacement in administrative confinement will generally not create a liberty interest.").

Moreover, Plaintiff's 181-day stay in administrative custody and 245-day total stay in the RHU were not outside the norm, as it is not unusual for inmates to be subjected to conditions similar to those placed on administrative custody inmates "for a substantial period of time." Griffin, 112 F.3d at 708.*fn19 As the Third Circuit has held, "[g]iven the considerations that lead to transfers to administrative custody of inmates at risk from others, inmates at risk from themselves, and inmates deemed to be security risks, etc., one can conclude with confidence that stays of many months are not uncommon ." See id. (emphasis added). For example, the Griffin Court determined that placement in administrative custody for a period as long as 15 months does not create an atypical and significant hardship. Id. Thus, Plaintiff's exposure to the conditions of administrative custody for 181 days (or approximately six months) did not deprive Plaintiff of a state-created liberty interest. See Fraise, 283 F.3d at 522-23 (holding that indefinite placement in a harsh form of administrative detention "designed to isolate and rehabilitate gang members" and its accompanying restrictions did not impose an atypical and significant hardship); see also Torres v. Fauver, 292 F.3d 141, 151-52 (3d Cir. 2002) (placement in administrative custody for 120 days did not deprive plaintiff of a protected liberty interest); Jones v. Baker, 155 F.3d 810, 813 (6th Cir. 1998) (confinement in administrative custody for two and one-half years did not implicate a state-created liberty interest); Wilson v. Hogsten, 269 F. App'x 193, 195 (3d Cir. 2008) (placement in administrative detention "during the pendency of the ten-month internal investigation, and for ten weeks afterward, is not a cognizable constitutional claim"), cert. denied, 2009 WL 578702 (2009); Wilkins v. Bittenbender, No. 06-2827, 2007 WL 708993, at *2 (3d Cir. Mar. 7, 2007) (per curiam) (over ten months in administrative custody did not implicate a liberty interest); Riley v. Carroll, 200 F. App'x 157, 159 (3d Cir. 2006) (six months in administrative custody did not implicate a liberty interest); but see Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000) (eight years in administrative custody implicated a liberty interest).*fn20

2. Placement in Disciplinary Custody

Similarly, Plaintiff's 48-day placement in disciplinary custody (from June 6 to July 24, 2006) did not impose an atypical and significant hardship that would implicate a state-created liberty interest. In Sandin, the U.S. Supreme Court held that the plaintiff prisoner's 30-day placement in disciplinary custody did not impose an "atypical and significant hardship" that would have created a liberty interest. The Sandin Court reached this conclusion based on its findings that "disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody," and general population inmates experienced "significant amounts of 'lockdown time.'" See Sandin, 515 U.S. at 486. The Third Circuit has applied Sandin to hold that a period of confinement in disciplinary custody exceeding 48 days does not implicate a state-created liberty interest. See Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (holding that seven months in disciplinary custody "does not, on its own, violate a protected liberty interest"); Sims v. Vaughn, 189 F. App'x 139, 141 (3d Cir. 2006) (67-day placement in the RHU did not involve atypical or significant hardship); Davis v. United States, 182 F. App'x 105, 108 (3d Cir. 2006) (60 days in disciplinary custody did not constitute atypical or significant hardship); see also Mitchell, 318 F.3d at 532 (stating that the differences between administrative custody and disciplinary custody under the DC-ADM are "marginal" and do "not appear to cross the constitutional line," though reversing district court's dismissal because the record needed to be more fully developed); Torres, 292 F.3d at 151-52 (placement in disciplinary custody for 15 days did not violate a protected liberty interest). Plaintiff has presented no evidence indicating that the length or condition of his 48-day confinement in disciplinary custody was atypical or constituted a significant deprivation.*fn21

3. Effect of Prison Regulations

It is also worth noting that the existence of prison regulations does not create a liberty interest. First, the DOC regulations themselves explain that any policy stated therein "does not create rights in any person." (DC-ADM 802(VIII)). Rather, these policies "should be interpreted to have sufficient flexibility to be consistent with law and to permit the accomplishment of the purpose of the policies of the Department [of Corrections]." (Id.); see also 37 Pa. Code § 93.11(a) ("An inmate does not have a right to be housed in a particular facility or in a particular area within a facility."); Nichelson v. Redwine, No. 99-1769, 2000 WL 1599246, at *2 (E.D. Pa. Oct. 26, 2000) ("Neither the Due Process Clause nor the laws of Pennsylvania give a convict a protected liberty interest in remaining in any particular housing status, in any particular state prison, or in any particular housing area within a state prison."). Second, the mere existence of a regulation "conferring a right is not alone enough to trigger due process," but, rather, the plaintiff inmate must show the imposition of some atypical and significant hardship. See Griffin, 112 F.3d at 708; see also Sandin, 515 U.S. at 484.*fn22 Despite Plaintiff's repeated contention that prison regulations were violated and thus his Due Process rights were infringed upon, the U.S. Supreme Court has rejected the notion that (even where a state's statutes and regulations set forth mandatory procedures for confining an inmate to restrictive detention) a state-created liberty interest exists in remaining in the general prison population. See Sandin, 515 U.S. at 481; see also Griffin, 112 F.3d at 709 n.3 ("The mere fact that Pennsylvania has created a careful procedural structure to regulate the use of administrative segregation does not indicate the existence of a protected liberty interest. The process afforded by state law is not relevant in determining whether there is a state created right that triggers due process protection.").*fn23 Courts have routinely held that the judiciary is "'ill equipped to deal with the increasingly urgent problems of prison administration and reform' and should therefore give significant deference to judgments made by prison officials in establishing, interpreting, and applying prison regulations." See Fraise, 283 F.3d at 515 (quoting Turner v. Safley, 482 U.S. 78, 84-85 (1987)). However, even if Defendant prison officials violated the provisions of the DC-ADM (and the Court makes no decision on this point), the DC-ADM does not provide rights congruent with those rights afforded by the Fourteenth Amendment's Due Process Clause. See Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) ("[T]here is no federal constitutional liberty interest in having state officers follow state law or prison officials follow prison regulations."); Hovater v. Robinson, 1 F.3d 1063, 1068 n.4 (10th Cir. 1993) (stating that "a failure to adhere to administrative regulations does not equate to a constitutional violation"); United States v. Jiles, 658 F.2d 194, 200 (3d Cir. 1981) ("The simple fact that state law prescribes certain procedures does not mean that the procedures thereby acquire a federal constitutional dimension.") (quoting Slotnick v. Staviskey, 560 F.2d 31, 34 (1st Cir. 1977)), cert. denied, 455 U.S. 923 (1982).*fn24

B. Due Process-Created Liberty Interest

As to whether the Due Process Clause created a liberty interest in Plaintiff not being placed in restrictive detention, it is clear-as the Court acknowledged in its March 6, 2007 Order (Doc. No. 31)-that no such liberty interest was created. The U.S. Supreme Court has stated that "[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight." See Hewitt v. Helms, 459 U.S. 460, 468 (1983) (internal citations omitted), overruled on other grounds by Sandin, 515 U.S. 472; see also Fraise, 283 F.3d at 522. Put another way, "where there is no state-created liberty interest, the Due Process Clause applies only if the restraints at issue exceed the prisoner's sentence 'in such an unexpected manner as to give rise to protection by the Due Process Clause of [their] own force' and do not violate any other constitutional provision." Torres, 292 F.3d at 150 (quoting Sandin, 515 U.S. at 484).

The U.S. Supreme Court has held that a plaintiff prisoner's transfer to "less amenable and more restrictive quarters," such as administrative custody, does not implicate a liberty interest protected by the Due Process Clause because "administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration." See Hewitt, 459 U.S. at 468; see also Williams v. Campbell, No. 07-885, 2008 WL 2816089, at *9 (E.D. Pa. July 18, 2008). A prisoner similarly does not have a liberty interest found in the Due Process Clause to be free from disciplinary custody. See Torres, 292 F.3d at 150 (holding that plaintiff prisoner had no Due Process liberty interest to remain free from detention in both administrative and disciplinary custody). Thus, the Constitution does not guarantee that a convicted prisoner will be placed in any particular prison or remain in a preferred facility within a state's prison system. See Meachum v. Fano, 427 U.S. 215, 224 (1976); Asquith, 186 F.3d at 410. Here, Plaintiff's commitment to both administrative custody for 181 days and disciplinary custody for 48 days neither exceeded Plaintiff's sentence of life imprisonment nor violated the Constitution. (Bleau Dep. 4).*fn25 Accordingly, Defendants did not infringe upon any liberty interest created by the Constitution. See Fraise, 283 F.3d at 522 (holding that an indefinite transfer to administrative custody did not implicate a liberty interest created by the Constitution).*fn26


I. Facts Relating to Eighth Amendment Claim

On February 28, 2006, Plaintiff went to the oral surgery clinic at SCI-Graterford where non-party dentist Dr. Martin Zarkoski extracted Plaintiff's upper left wisdom tooth due to decay. (Defs.' Ex. 52; Bleau Dep. 27-30, 32; Pl.'s Stmt. of Facts ¶ C.1). A few days after the tooth extraction-on or about March 3, 2006-Plaintiff began experiencing lockjaw. (Defs.' Exs. 61, 68; Bleau Dep. 32; Bleau Decl. ¶ 10). On March 7, 2006, Plaintiff went to the dental clinic. (Defs.' Exs. 52, 54). The examining dentist noted a "possible dry socket" at the tooth extraction site, and subsequently prescribed antibiotic and pain medication. (Bleau Dep. 35-36; Defs.' Exs. 52, 54). On March 13, 2006, Plaintiff received another dental examination. (Defs.' Ex. 54; Pl.'s Stmt. of Facts ¶ C.2). During this examination, Dr. Zarkoski ordered that Plaintiff consume a soft-food diet until April 1, 2006. (Defs.' Ex. 54; Pl.'s Stmt. of Facts ¶ C.2). He also ordered that Plaintiff receive a consultation with an oral surgeon. (Bleau Dep. 39-40, 57; Defs.' Exs. 52, 54).

On March 16, 2006, Plaintiff received an oral surgeon consultation with non-party Dr. Daniel Lucyk, who periodically performed examinations at SCI-Graterford. (Defs.' Exs. 52, 54). The next day, Plaintiff went to the dental clinic for a follow-up visit with Dr. Zarkoski, who prescribed additional pain medication. (Defs.' Ex. 56). Plaintiff saw Dr. Zarkoski at the dental clinic again on March 23, 2006, during which time Plaintiff was prescribed more medication. (Defs.' Exs. 56-57; Bleau Dep. 47-48). On March 24, 2006, Plaintiff was taken to Episcopal Hospital for an appointment due to his oral health problems, but he was not treated because prison officials transported Plaintiff to the hospital after the appointment's scheduled time. (Pl.'s Stmt. of Facts. ¶ C.3; Defs.' Reply at 7 ¶¶ C.2-3). Plaintiff was returned to the RHU in administrative custody, and his treatment was rescheduled for April 3, 2006. (Defs.' Ex. 56).

On March 29, 2006, Plaintiff wrote to DiGuglielmo in an "Inmate Request to a Staff Member" form complaining that he had only received four soft-food trays despite Dr. Zarkoski's March 13 order. (Defs.' Ex. 59). On March 30, 2006, Plaintiff wrote to Dohman in another "Inmate Request to a Staff Member" form expressing similar concerns. (Defs.' Ex. 60). Plaintiff also asked Dohman to release Plaintiff from administrative custody in the RHU or, in the alternative, to set up an expedited transfer of Plaintiff to the general population of another prison.

(Id.). Plaintiff once again stated in the letter that he had only received four soft-food trays since being prescribed a soft-food diet on March 13, 2006, and he complained that he was "literally starving down" in the RHU. (Id.; Pl.'s Stmt. of Facts ¶ C.2; Bleau Decl. ¶ 11; Moore Decl. ¶¶ 4, 5). On April 1, 2006, Dr. Zarkoski's order that Plaintiff be placed on a soft-food diet expired. (Defs.' Exs. 54, 62). Plaintiff argues before the Court, as he did in his grievances, that he only received four soft-food trays between March 13, 2006-the date of Dr. Zarkoski's soft-food diet order-and April 1, 2006-the date the soft-food diet order expired. (Second Am. Compl. ¶ 32.c; Bleau Decl. ¶ 11).

On April 3, 2006, Plaintiff was taken off site to Episcopal Hospital for treatment regarding complications from his tooth extraction, including Plaintiff's lockjaw condition. (Defs.' Ex. 56). At Episcopal Hospital, a surgical procedure was performed which forced Plaintiff's mouth open. (Bleau Dep. 49-50). The physician treating Plaintiff also recommended post-surgery therapy to prevent the recurrence of lockjaw. (Pl.'s Stmt. of Facts ¶ C.5). Plaintiff returned to administrative custody that same day. (Defs.' Ex. 56). According to Plaintiff, his jaw remained closed from February 28, 2006 to the date of his surgery on April 3, 2006. (Pl.'s Stmt. of Facts ¶ C.4; Bleau Decl. ¶ 10).

Also on April 3, 2006-two days after the soft-food diet order expired-Plaintiff submitted an "Official Inmate Grievance" form to non-party Facility Grievance Coordinator Wendy Moyer claiming the following:

Soft meals have been ordered for me over three weeks ago [on March 13, 2006] by the dental department. To date, I have literally received four . . . soft [food] trays. When I did get them it was only for one meal out of the day. I have not been able to open my mouth to eat solid food since March 3rd due to an improper dental procedure [tooth extraction on February 28, 2006] that resulted in lockjaw. Since I am on A/C [administrative custody] status in the RHU, I cannot make my own meals and must rely on the trays to get the proper daily nutrition. I don't know if the main kitchen isn't sending the trays, or they are and the officers here in the RHU aren't giving them to me. I do know I am going to bed hungry and waking up hungry [throughout] most of the day, since the trays were ordered [on March 13, 2006].

(Defs.' Ex. 61; Pl.'s Ex. 21-1).

On April 18, 2006, non-party Grievance Officer Jeraldine Marable responded to the grievance, and informed Plaintiff that the soft-food diet order was on file, but that the grievance had been resolved because Dr. Zarkoski's soft-food diet order had expired on April 1, 2006. (Defs.' Ex. 62; Pl.'s Ex. 21-2).

On April 6, 2006, Dr. Zarkoski again examined Plaintiff in the dental clinic. (Bleau Dep. 61). Dr. Zarkoski did not extend his March 13, 2006 soft-food diet order, nor is there any notation by Dr. Zarkoski in his medical report indicating that Plaintiff asked for an extension of this order. (Defs.' Ex. 56). On April 16, 2006, Plaintiff was again treated by Dr. Zarkoski, and Dr. Zarkoski noted in his report that Plaintiff's "range of motion is greatly improved and pain almost gone." (Id.; Bleau Dep. 62).

On June 14, 2006, after Plaintiff's lockjaw condition recurred, an attempt was made by an oral surgeon to open Plaintiff's mouth in a medical procedure. (Defs.' Exs. 65-66, 68; Pl.'s Exs. 20-3, 24-1; Bleau Dep. 81). After opening Plaintiff's mouth one-quarter inch, the procedure was suspended due to pain. (Defs.' Ex. 68; Pl.'s Ex. 24-1). The oral surgeon also recommended that Plaintiff receive additional therapy with Dr. Zarkoski. (Defs.' Ex. 68; Pl.'s Ex. 24-1). On July 3, 2006, Plaintiff filed another grievance with Grievance Coordinator Wendy Moyer claiming that he had not received any dental therapy after his June 14, 2006 appointment with the oral surgeon and complaining that his conditions in the RHU had not been relaxed as a result of his medical condition. (Defs.' Ex. 68; Pl.'s Ex. 24-1). On July 10, 2006, non-party Health Care Administrator Myron Stanishefski ("Stanishefski") denied the grievance and informed Plaintiff that he would be seen by Dr. Lucyk on July 13, 2006. (Defs.' Ex. 69; Pl.'s Ex. 24-2). This July 13, 2006 appointment did not occur, (Defs.' Exs. 49, 66, 69; Pl.'s Ex. 24-2), though Dr. Zarkoski recommended to Dr. Lucyk on July 12, 2006 that Plaintiff be treated by an off-site oral surgeon. (Defs.' Ex. 66; Pl.'s Exs. 20-3, 24-2). On July 14, 2006, Plaintiff filed an appeal of Stanishefski's grievance denial. (Defs.' Ex. 69; Pl.'s Ex. 24-2). On July 26, 2006, Plaintiff was taken to an oral surgeon at Episcopal Hospital, where the surgeon again attempted to open Plaintiff's mouth, but was unable to do so. (Defs.' Ex. 71; Pl.'s Ex. 23). The surgeon recommended therapy twice a day and a follow-up appointment within thirty days. (Pl.'s Exs. 4-3, 23, 24-2). On August 2, 2006, DiGuglielmo remanded Plaintiff's grievance appeal back to Stanishefski to investigate Plaintiff's need for follow-up evaluation and treatment. (Defs.' Ex. 69; Pl.'s Ex. 24-2). On August 4, 2006, Stanishefski informed Plaintiff that his grievance had been resolved based on his July 26, 2006 treatment. (Pl.'s Ex. 24-2).*fn27

On August 2, 2006, Plaintiff was transferred from disciplinary custody in the L-Block to the infirmary for his requested dental therapy. (Stanishefski Decl. ¶ 4; Bleau Dep. 94). Plaintiff ate a normal diet during his stay in the infirmary. (Defs.' Exs. 71-73; Bleau Dep. 95). He also saw a dentist and nurse daily for therapy and received dental exercises. (Bleau Dep. 95-97; Stanishefski Decl. ¶ 5; Defs.' Exs. 74-75). On August 18, 2006, Plaintiff was transferred after sixteen days in the infirmary, where he received a bite block and was instructed how to conduct the dental therapy by himself. (Defs.' Ex. 74). In total, Plaintiff received at least eighteen dental visits with a dentist or oral surgeon for his lockjaw condition. (Defs.' Exs. 50-58, 72-75; Defs.' Br. at 29, 44).

II. Analysis

Plaintiff asserts Eighth Amendment violations by Defendants Superintendent David DiGuglielmo, Intelligence Captain Thomas Dohman, and Deputy Superintendent for Internal Security Michael Lorenzo. (Second Am. Compl. ¶¶ 32, 35-36).*fn28 The Eighth Amendment guarantees that individuals will not be subjected to "cruel and unusual punishment." U.S. Const. amend. VIII. "[T]he Eighth Amendment's prohibition against cruel and unusual punishment requires prison officials to provide basic medical treatment to those whom it has incarcerated." Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97 (1976)). To establish an Eighth Amendment claim "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Id. (quoting Estelle, 429 U.S. at 106). Thus, to succeed under these principles, a plaintiff must (1) make a "subjective" showing that the defendants acted with a sufficiently culpable state of mind and (2) make an "objective" showing that the deprivation was "sufficiently serious." See id.; Thomas v. Dragovich, 142 F. App'x 33, 36 (3d Cir. 2005). Defendants do not appear to argue that Plaintiff's medical needs relating to his lockjaw condition were non-serious.*fn29 Therefore, the dispute between the parties centers on whether Defendants acted with a sufficiently culpable state of mind to establish "deliberate indifference." Although prisons have a duty to provide adequate medical care, "[i]t is well-settled that claims of negligence or medical malpractice, without some more culpable state of mind, do not constitute 'deliberate indifference'" Rouse, 182 F.3d at 197; see also Estelle, 429 U.S. at 105-06. Instead, "deliberate indifference" requires "'obduracy and wantonness,' which has been likened to conduct that includes recklessness or a conscious disregard of a serious risk." Rouse, 182 F.3d at 197 (citing Whitley v. Albers, 475 U.S. 312, 219 (1986), and Farmer v. Brennan, 511 U.S. 825, 842 (1994)); Brooks v. Celeste, 39 F.3d 125, 127-28 (6th Cir. 1994).

The Third Circuit Court of Appeals has found "deliberate indifference" in a number of circumstances, including "where the prison official (1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment." Rouse, 182 F.3d at 197; see also Drippe v. Gototweski, No. 06-1096, 2008 WL 3347817, at *3 (E.D. Pa. Aug. 11, 2008). However, where a prisoner is under the care of a medical expert, a non-medical prison official can only be held to be deliberately indifferent to a medical condition if that non-medical prison official has "a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating)" the prisoner. Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). "This follows naturally from the division of labor within a prison." Id. "If a prisoner is under the care of medical experts . . ., a non-medical prison official will generally be justified in believing that the prisoner is in capable hands." Id. In order to charge a non-medical prison official with the Eighth Amendment scienter requirement of "deliberate indifference," a plaintiff "bears the burden of proving . . . facts supporting the defendants' mental states." Id. More specifically, the failure of a corrections officer to take further action once the officer has (a) reviewed the prisoner's medical complaints, (b) verified that the prisoner is receiving treatment, and (c) referred those complaints to medical providers, does not constitute deliberate indifference because medical providers could have been expected to address prisoner's concerns. See Greeno v. Daly, 414 F.3d 645, 655-56 (7th Cir. 2005).

Plaintiff claims that DiGuglielmo, Lorenzo, and Dohman exhibited deliberate indifference by: (1) failing to expedite the transfer of Plaintiff to an outside facility for emergency treatment of his lockjaw condition from approximately March 3, 2006 to April 3, 2006, during which time he could not open his mouth to eat solid foods (Pl.'s Br. at 28); (2) failing to relax the restrictive conditions in the RHU following the April 3, 2006 procedure, which would have enabled him to receive pain medication, prevented the recurrence of lockjaw, and eliminated the need for additional medical treatment (Second Am. Compl. ¶¶ 19, 32.d); (3) failing to follow prison doctors' therapy orders following the April 3, 2006 procedure until July 26, 2006, where such therapy would have prevented the recurrence of lockjaw and the need for additional medical procedures on June 14, 2006 and July 26, 2006 (Second Am. Compl. ¶¶ 19, 32.d; Bleau Decl. ¶ 12); and (4) providing Plaintiff with only four soft-food trays between March 13, 2006-the date of Dr. Zarkoski's soft- food diet order-and April 1, 2006-the date the soft-food diet order expired (Second Am. Compl. ¶ 32.c).*fn30

Plaintiff's contentions that Defendants failed to both expedite medical treatment in March 2006 and relax the restrictive conditions in the RHU do not constitute Eighth Amendment violations. No evidence has been proffered establishing that Plaintiff made verbal complaints regarding his lockjaw condition to DiGuglielmo, Dohman, or Lorenzo, and the Court can find nothing in the record indicating that these three Defendants ever personally observed Plaintiff's lockjaw condition. Though DiGuglielmo and Dohman (and possibly Lorenzo) were informed of Plaintiff's condition, at the earliest, on March 29, 2006 and March 30, 2006 respectively, (Defs.' Exs. 59-60; Bleau Dep. 55; Dohman Decl. ¶ 24), they are not doctors and were perfectly "justified in believing that [plaintiff was] in [the] capable hands" of medical professionals. See Spruill, 372 F.3d at 236. Indeed, the record demonstrates that Plaintiff was constantly receiving medical care throughout his lockjaw ordeal. (Defs.' Exs. 48-75; Stanishefski Decl. ¶ 3). Plaintiff received multiple consultations between March 3, 2006 and April 3, 2006. (Defs.' Exs. 52, 54). Plaintiff also received at least eighteen dental visits with a dentist or oral surgeon, including three off-site visits, while Plaintiff was suffering from his lockjaw condition. See Scott v. Vaughn, No. 05-1574, 2007 WL 1031380, at *8 (M.D. Pa. Mar. 30, 2007) (holding that no Eighth Amendment liability existed where, among other things, plaintiff's "own exhibits show that he was being provided with care by the prison doctors"). Plaintiff's belief that he should have received off-site medical treatment prior to April 3, 2006, along with his contention that he deserved relaxed conditions while in the RHU, can only be categorized as mere disagreements with the medical treatment he received, which are insufficient to establish "deliberate indifference." See White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990) ("[M]ere disagreements over medical judgment do not state Eighth Amendment claims."); United States ex rel. Walker v. Fayette County, 599 F.2d 573, 575 n.2 (3d Cir. 1979) ("Where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.").

Moreover, Plaintiff's allegation that an Eighth Amendment violation was created as a result of DiGuglielmo, Lorenzo, and Dohman's supposed failure to follow post-surgery orders issued on or around April 3, 2006 is also without merit. Plaintiff formally complained to Facility Grievance Coordinator Wendy Moyer that he was not receiving post-surgery therapy in his July 3, 2006 grievance-three months after the April 3, 2006 procedure. (Defs.' Ex. 68; Pl.'s Ex. 24-1). Though the Court cannot find any evidence that Dohman or Lorenzo had any knowledge of Plaintiff's post-surgery therapy complaint, the record does indicate that DiGuglielmo acquired this knowledge at some point between July 14, 2006 (the date of Plaintiff's appeal of Stanishefski's denial of Plaintiff's July 3, 2006 grievance request) and August 2, 2006 (the date DiGuglielmo responded to the appeal). (Defs.' Ex. 69; Pl.'s Ex. 24-2). However, a non-physician prison official cannot be found "deliberately indifferent simply because [he] fail[s] to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor." Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993). Notwithstanding this legal principle, based on DiGuglielmo's response to Plaintiff's grievance, the record demonstrates that DiGuglielmo reviewed Plaintiff's grievance, attempted to verify Plaintiff's allegations, and referred the complaint to the appropriate prison personnel for resolution (in this case, to Stanishefski). See Greeno, 414 F.3d at 655-56. Indeed, on August 2, 2006, DiGuglielmo did not reject Plaintiff's appeal outright, but informed Plaintiff that he was remanding the matter back to Stanishefski because Plaintiff's July 13, 2006 follow-up appointment with Dr. Lucyk did not occur. Further, on August 2, 2006, DiGuglielmo informed Stanishefski that the July 13, 2006 appointment "did not happen" and that Stanishefski should "[s]end an amended response and have [Plaintiff] seen by a dentist." (Defs.' Ex. 69; Pl.'s Ex. 24-2). DiGuglielmo's conduct not only indicates his reliance on prison health care administrators, but also demonstrates a conscientiousness towards Plaintiff's concerns that does not constitute an Eighth Amendment violation. In short, though there may have been a delay in Plaintiff receiving post-surgery therapy, DiGuglielmo and the remaining Defendants cannot be found liable under the Eighth Amendment.

As to Plaintiff's complaint that he only received four soft-food trays, Plaintiff only filed a formal grievance on April 3, 2006, two days after the March 13, 2006 soft-food diet order expired. (Defs.' Ex. 61; Pl.'s Ex. 21-1; Bleau Dep. 57-58).*fn31 Again, under Spruill, Defendants can only be liable if they had actual knowledge or some sort of personal involvement in Plaintiff's mistreatment.

See Spruill, 372 F.3d at 236; see also Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Plaintiff did complain in writing that he was not receiving soft-food trays prior to the order's expiration to DiGuglielmo and Dohman (and possibly Lorenzo) on March 29, 2006 and March 30, 2006, respectively. (Defs.' Exs. 59-60). The Court will therefore infer favorably to Plaintiff that Defendants acquired knowledge of Plaintiff's concerns on these respective dates. This notice, though, was not received until two to three days before the soft-food diet order expired on April 1, 2006. The passing of two to three days (before plaintiff's complaints became moot upon the soft-food diet order's expiration) without a response from prison officials does not constitute deliberate indifference. See Taylor v. Caldwell, 878 F.2d 1439 (9th Cir. 1989) (unpublished table decision) (holding that plaintiff's claim of deliberate indifference based on defendant registered nurse's refusal to call a doctor to get a script for a soft-food diet for plaintiff has no merit because the result was only a four-day delay in the provision of such a diet). Indeed, it cannot be said under Spruill that failing to immediately correct the fact that Plaintiff only received four soft-food trays within (at most) two to three days of acquiring actual knowledge of this deficiency constitutes deliberate indifference. While liability may be imposed where prison officials intentionally interfere with or refuse to provide a prescribed treatment, see White, 897 F.2d at 109-110, Plaintiff has not presented any evidence of intentional interference nor does this principle prohibit prison officials from taking the time necessary to conduct an investigation of a prisoner's complaints. Were there to be liability in the absence of immediate action upon the receipt of a valid medical complaint from a prisoner, a prison official would not have enough time to review the prisoner's complaint, verify that such complaints are accurate, and refer a remedial action to a prison medical professional. See Greeno, 414 F.3d at 655-56; see also Glenn v. Barua, 252 F. App'x 493, 498 (3d Cir. 2007) (holding that the relative inaction by a prison official to plaintiff's medical complaint did not create a constitutional violation where the prison official responded 16 days after the complaint and the inaction was "properly based on the fact that [the plaintiff] was receiving treatment from prison medical personnel").

Nor is there liability on the part of Defendants for not giving Plaintiff soft-food trays after April 1, 2006. During an April 6, 2006 consultation, Dr. Zarkoski did not order an extension of his then-expired soft-food diet prescription (Defs.' Ex. 56), and any contention on the part of Plaintiff that he needed such a diet represents a mere dispute as to medical services that is insufficient to constitute an Eighth Amendment violation. See Durmer, 991 F.2d at 67 (holding that a doctor's decision not to supply an inmate-patient with the medical services that the patient desires or believes to be proper does not amount to a constitutional violation). The Court will not second-guess the adequacy of the medical decisions made by Plaintiff's physicians. See Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) ("Courts will disavow any attempt to second-guess the propriety or adequacy of a particular course of treatment which remains a question of sound professional judgment.") (internal quotations omitted).*fn32

Defendants also seek summary judgment on the ground that Plaintiff failed to exhaust his administrative remedies as to his Eighth Amendment oral health and lockjaw claims pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"). (Defs.' Br. at 40-41). Failure to exhaust is an affirmative defense under the PLRA. See Jones v. Bock, 549 U.S. 199, 216 (2007) ("We conclude that failure to exhaust is an affirmative defense under the PLRA."); Woodford v. Ngo, 548 U.S. 81, 93 (2006) (stating that exhaustion "attempts to eliminate unwarranted federal-court interference with the administration of prisons, and thus seeks to afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case ") (emphasis added) (internal quotations and footnotes omitted). Because Plaintiff's Eighth Amendment claims fail as a matter of law, the Court need not address this affirmative defense. See Heirs of Estate of Jenkins v. Paramount Pictures Corp., 90 F. Supp. 2d 706, 714 (E.D. Va. 2000) (concluding that, because plaintiff's complaint must be dismissed on summary judgment, "the merits of defendant's affirmative defenses need not be reached"), aff'd, 7 F. App'x 270 (4th Cir. 2001).*fn33

An appropriate Order follows.


AND NOW, this 18th day of March 2009, upon consideration of Plaintiff's pro se Cross-Motion for Partial Summary Judgment as to his Due Process claim, Defendants' Response, and all appended exhibits, it is hereby ORDERED that this Motion (Doc. No. 65) is DENIED.

IT IS FURTHER ORDERED that, upon consideration of Defendants' Motion for Summary Judgment, Plaintiff's pro se Response, Defendants' Reply Brief, and all appended exhibits, this Motion (Doc. No. 62) is GRANTED.

Accordingly, JUDGMENT IS ENTERED in favor of all Defendants against Plaintiff. The Clerk of Court is directed to CLOSE this case for statistical purposes.


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