The opinion of the court was delivered by: Schiller, J.
Plaintiff Rodney Burns brought this civil rights action, pursuant to 28 U.S.C. § 1983, against Pennsylvania Department of Corrections ("DOC") officials Donald Williamson, David DiGuglielmo, Thomas Dohman, Mary Canino, Robert S. Bitner, Tony Wolfe, Levi Hosband, and Frank Regan ("Defendants"). On February 6, 2007 this Court granted Defendants summary judgment on all of Plaintiff's claims. Plaintiff appealed, and the Third Circuit reversed and remanded the case on September 19, 2008. Presently before the Court are Defendants' second motion for summary judgment and Plaintiff's second motion for partial summary judgment. For the reasons that follow, Defendants' motion is granted in part and denied in part and Plaintiff's motion is granted in part and denied in part.
A. Factual Background*fn1
In February of 2005, Plaintiff was incarcerated in Housing Unit B ("B Block") at SCI Graterford, a Pennsylvania prison. On February 10, 2005, an inmate named Charles Mobley was assaulted by another inmate, who threw scalding hot water on his face. The attack occurred in the B Block "dayroom" area. Mobley's burns were discovered four days later by Corrections Officer Angelina Rivera, who then notified her superiors. Mobley was taken to the prison medical unit for treatment. A nurse cleaned his burn, applied antibiotic ointment and administered a Tetanus shot.
Mobley subsequently identified his assailant as a resident of cell BA-1022. Ricky Holmes, one of the two inmates in that cell, was placed in administrative custody with restricted cell status for four days while the incident was investigated. The prison's Security Department later received two phone calls through a special hotline established to enable reliable inmates, who were selectively given the hotline number, to share confidential information. Both callers stated that Holmes was not responsible for the incident and that Burns had thrown hot water on Mobley. Defendant Thomas Dohman, Captain of Security at SCI Graterford, deemed this information credible because he recognized the callers' voices and had previously received reliable information from them. On February 18, 2005, the same day Holmes was released from restricted cell status, Dohman interviewed Plaintiff. Dohman concluded that Mobley, whom he described, from prior experience, as "semi-coherent" at times, had confused Holmes and Plaintiff, who look similar. Dohman accused Plaintiff of committing the assault, but Plaintiff repeatedly denied any involvement in the incident. Nonetheless, following the meeting with Dohman, Plaintiff was placed in administrative custody and transferred to the Restricted Housing Unit ("RHU") while the investigation continued.
Dohman issued a misconduct report on March 7, 2005, charging Plaintiff with assault. The report stated that the charges were based on statements from two confidential informants, who saw the assault and had given reliable information in the past, as well as information, which also implicated Plaintiff, given by other inmates to Lt. Abdul Ansari. After placing Plaintiff in administrative custody, Dohman received an anonymous letter, which informed him that he had "the right man" and told him that Plaintiff had threatened to retaliate against Mobley. Dohman believed that the letter was written by someone other than the two confidential informants who had called the hotline, but because it was anonymous he did not rely upon it in preparing the Misconduct Report.
After the report was issued, Plaintiff filed timely requests for Mobley to appear as a witness at his disciplinary hearing and for disclosure of the videotape of the incident. On March 10, 2005, Burns appeared before Hearing Officer Mary Canino for his disciplinary hearing and pled not guilty. Plaintiff also renewed his requests to view the videotape of the incident and for Canino to view the tape as well. As a result of these requests, Canino continued the hearing.
On March 15, 2005, Canino held an in camera hearing regarding Plaintiff's disciplinary charges, during which she heard testimony from Dohman summarizing the statements of the two confidential informants. Dohman did not identify the confidential informants during this hearing, nor did Canino obtain written statements or receive direct testimony from them. Dohman informed Canino that the incident was not recorded on videotape. Canino met with Mobley, who refused to testify at Plaintiff's disciplinary hearing or in camera. She did not obtain a written statement from Mobley, nor did she ask him why he refused to testify at Plaintiff's disciplinary hearing or at an in camera hearing. Later that day, Canino reconvened Plaintiff's disciplinary hearing and informed him that: (1) Mobley had refused to testify; (2) she found the confidential informants' statements, as described by Dohman, to be credible and reliable; and (3) the incident was not recorded on videotape.
Canino found Plaintiff guilty of the assault by a preponderance of the evidence and imposed the following sanctions: (1) 180 days of disciplinary confinement in the RHU; (2) loss of his prison job; and (3) assessment of his inmate account for any medical or other expenses incurred by Mobley as a result of the assault. Plaintiff appealed his disciplinary conviction to the Program Review Committee, Superintendent David Diguglielmo, and Chief Hearing Examiner Robert Bitner. All three administrative levels upheld the conviction after reviewing the same record, which included Canino's hearing report, Dohman's misconduct report, Plaintiff's inmate statement, and his witness request form.
A separation order was entered between Plaintiff and Mobley on April 4, 2005, as a result of Plaintiff's misconduct charge and to eliminate the possibility that Plaintiff would retaliate against Mobley upon release from disciplinary custody. On September 6, 2005, Plaintiff was transferred to SCI Huntingdon. As a result of his transfer, Plaintiff must now pay long-distance calling rates to talk to his family on the telephone and, to this point, has incurred $132.50 in calling card expenses. In addition, Plaintiff has lost over $2,000 in wages because of losing his prison job in the SCI Graterford Clothing Plant and being placed in the "general labor" pool. (Pls.' Mem. in Supp. of Second Mot. for Partial Summ. J. ["Pl.'s Second Mem."] at 24-25.)
Plaintiff's Second Amended Complaint included seven claims for relief. The first five claims asserted that Plaintiff's due process rights were breached by: (1) the denial of his right to call witnesses, (2) the Defendants' failure to turn over exculpatory evidence, (3) the denial of his right to present documentary evidence, (4) the Defendants' failure to adequately ensure the credibility and reliability of unnamed confidential informants, and (5) the Defendants' failure, on appeal, to investigate the procedures utilized at his disciplinary hearing. The sixth claim asserted that Plaintiff's disciplinary conviction was arbitrary and constitutionally impermissible, breaching his substantive due process rights. The seventh and final claim contended that retaliatory actions taken against Plaintiff, for exercising his constitutional privilege against self incrimination, also breached his substantive due process rights.
On February 6, 2007, the Court denied Plaintiff's partial motion for summary judgment and granted Defendants summary judgment on all of Plaintiff's claims. Finding that Plaintiff could not show the deprivation of a protected property interest, the Court concluded that he had failed, as a matter of law, to state a due process violation. Plaintiff appealed this decision. The Third Circuit's opinion focused on"whether a disciplinary conviction directing that an inmate's institutional account be assessed for medical or other expenses implicates a property interest sufficient to trigger the protections of procedural due process." Burns v. Pa. Dep't of Corr., 544 F.3d 279, 280 (3d Cir. 2008). The court declared this "an issue of first impression across the courts of appeals." Id. The court ultimately found that "the Department of Corrections acquired something similar to a money judgment by assessing [Plaintiff's] inmate account." Id. at 288. This assessment, the court concluded, "constituted the deprivation of a protected property interest for purposes of procedural due process." Id. at 291. Accordingly, this Court's previous order, which granted summary judgment to the Defendants on Plaintiff's procedural due process claims -- on the grounds that Plaintiff failed to assert a protected property interest -- was reversed and the matter remanded.*fn2
No money has been deducted from Plaintiff's inmate account. Moreover, the Department of Corrections has confirmed in writing that it will not be proceeding with the assessment of Plaintiff's account for any expenses related to the incident at issue in this case.
Summary judgment is appropriate "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 a judgment as a matter of law." FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the initial burden of identifying those portions of the record that it believes illustrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party makes such a demonstration, the burden then shifts to the non-movant, who must offer evidence that establishes a genuine issue of material fact that should proceed to trial. Id. at 324; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). When the moving party does not bear the burden of persuasion at trial, it may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial. Celotex,477 U.S. at 323. Thereafter, the nonmoving party demonstrates a genuine issue of material fact if sufficient evidence is provided to allow a reasonable finder of fact to find for the nonmoving party at trial. Anderson, 477 U.S. at 248.
In reviewing the record, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). Furthermore, a court may not make credibility determinations or weigh the evidence in making its determination. See Reeves v. Sanderson Plumbing Prods., 530 U.S.133, 150 (2000); see also Goodman v. Pa. Tpk. Comm'n, 293 F.3d 655, 665 (3d Cir. 2002).
At the same time, to avoid summary judgment, "a nonmoving party must adduce more than a mere scintilla of evidence in its favor." Williams v. Borough of W. Chester, Pa., 891 F.2d 458, 460 (3d Cir. 1989) (citing Anderson, 477 U.S. at 249). Although credibility determinations remain the function of the jury, a judge considering a summary judgment motion by a defendant in a civil case "unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict-'whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.'" Anderson, 477 U.S. at 252 (quoting Improvement Co. v. Munson,81 U.S. 442, 448 (1871)). The same standards apply to cross motions for summary judgment. Appelmans v. City of Phila, 826 F.2d 214, 216 (3d Cir. 1987); see also Transportes Ferreos de Venezuela II CA v. NKK Corp., 239 F.3d 555, 560 (3d Cir. 2001).
A. Plaintiff's Damages Claims
The Supreme Court's decision in Harlow v. Fitzgerald held that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." 457 U.S. 800, 818 (1982). Furthermore,
For a constitutional right to be clearly established, its contours "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell [v. Forsyth, 472 U.S.] 511, 535, n. 12, 105 S.Ct. 2806, 86 L.Ed.2d 411; but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
Hope v. Pelzer, 536 U.S. 730, 739 (2002).
Under Saucier v. Katz, courts were required first to determine whether the facts of a case constitute a violation of a constitutional right and second to decide whether the right at issue is "clearly established." 533 U.S. 194, 201 (2001). Recently, however, the Supreme Court rejected the sequence outlined in Saucier. Pearson v. Callahan, 129 S.Ct. 808, 817 (2009). District and appellate court judges are now "permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. at 818. Here, because the Court decides that the right asserted was not clearly established, it need not determine whether a constitutional violation occurred.
The Third Circuit's opinion declared that "no court has either accepted or rejected the argument that Burns advances in this case. It appears to be an issue of first impression across the courts of appeals." Burns, 544 F.3d at 286. The lack of any "precedential authority addressing the right to security" compelled the court to rely upon other sources. Id. at 287. Accordingly, the court drew on the work of legal philosophers like A.M. (Tony) Honoré and law and economics theory before concluding, in a 2-1 decision, that the "assessment of Burns' institutional account constituted the deprivation of a protected property interest for purposes of procedural due process." Id. at 291.
The Court agrees with Defendants that the right in question in this case cannot, by any means, be described as clearly established. The Third Circuit's opinion made this clear by emphasizing the dearth of authority on this subject. Id. at 287 ("[W]e are aware of no precedential authority addressing the right to security."); see also id. at 291 (Hardiman, J., dissenting) ("Today the Court finds a new property right for purposes of 42 U.S.C. § 1983: an inmate's right to 'security' in his prison account."). Plaintiff, however, contends that while the Third Circuit addressed an issue of first impression regarding the nature of the property interest in question, this served only as a factual predicate to the procedural due process rights at issue, which "have been clearly established for years, even decades." (Pl.'s Mem. of Law in Opp'n to Commonwealth Defs.' Second Mot. for Summ. J. ["Pl.'s Opp'n"] at 5.) According to Plaintiff, "the property interest at issue is clearly established, with the Third Circuit's recent decision addressing little more than a 'factual wrinkle' in that area of law." (Id.)
Plaintiff relies on Hope v. Pelzer, in which a prisoner argued that prison officials violated his Eight Amendment right to be free from cruel and unusual punishment when they handcuffed him to a hitching post. 536 U.S. at 733. According to Plaintiff, "The court found that this violated a 'clearly established' right despite having no precedent addressing use of a hitching post as cruel and unusual punishment." (Pl.'s Opp'nat 6 n.5.) Although no binding precedent directly dealt with the use of a hitching post, the Supreme Court concluded that the right was still clearly established given Eleventh Circuit precedent, a state department of corrections regulation, and a report from the Department of Justice on the constitutionality of the use of a hitching post. Hope, 536 U.S. at 741-42. Specifically, the Court noted binding precedent in which a court squarely held that "handcuffing inmates to the fence and to cells for long periods of time, . . . and forcing inmates to stand, sit or lie on crates, stumps, or otherwise maintain awkward positions for prolonged periods" violated the Eighth Amendment. Id. at 742 (citing Gates v. Collier, 501 F.2d 1291, 1306 (5th Cir. 1974)). The Supreme Court found that "for the purpose of providing fair notice to reasonable officers administering punishment for past misconduct . . . [there is no] reason to draw a constitutional distinction between a practice of handcuffing an inmate to a fence for prolonged periods and handcuffing him to a hitching post for seven hours." 536 U.S. at 742. The Court concluded that the distinction between a fence and a hitching post constitutes the sort of "factual wrinkle" Plaintiff's argument against qualified immunity relies upon. The property interest recognized here does not present a wrinkle of similar subtlety.
The Court is unwilling to conclude that the writings of Professor Honoré offered the prison officials in this case fair warning equivalent to the pronouncements found in Hope. Nor does the Court agree with Plaintiff that prior case law holding that a prisoner has a property interest in an inmate account, or that an actual impairment of an account deprives an inmate of a property interest, sufficiently supports the conclusion that a mere assessment of an account impinges upon a clearly established property interest. (Pl.'s Opp'n at 7.) Such a conclusion would render unnecessary the Third Circuit's lengthy and scholarly analysis of this issue. Therefore, qualified immunity bars Plaintiff's ninth, tenth, and eleventh requests for relief, in the form of damages.*fn3 However, because qualified immunity does not preclude declaratory or ...