The opinion of the court was delivered by: McLaughlin, J.
The plaintiff in this civil rights action is a former inmate at Berks County Prison ("BCP") who is now serving a state prison sentence in the Pennsylvania Department of Corrections. The defendants are former BCP Deputy Warden Robert Nichols and current BCP Deputy Warden Kristen Reichard. The plaintiff claims that the defendants violated his right to freely exercise his religion under the First Amendment by denying him access to religious services and Bible study classes while he was housed in protective custody and by failing to provide him any adequate alternatives by which he could practice his religion. He also claims that the defendants retaliated against him when he complained about these alleged violations by removing him from the prison's sexual offender group therapy program.
The defendants have moved for summary judgment. They argue that any denial of access to religious services was the result of the plaintiff's own choice to be housed in protective custody, and that even in protective custody, the plaintiff received adequate religious services. They further argue that the plaintiff was not removed from the sexual offender group therapy program as retaliation for his complaints regarding his religious rights, but rather, because he failed to participate in the program as required. The Court will grant the defendants' motion in part and deny it in part without prejudice.
I. Factual Background*fn1
Jamie Houseknecht entered BCP in January 2004. At that time, he was detained pending trial on charges related to the indecent assault of a minor. In December 2004, after having pled guilty to three charges, the plaintiff was sentenced to twelve to twenty-four years in a state correctional facility. Deposition of Jamie Houseknecht 41-42 ("Houseknecht Dep."), attached as Ex. A to Defs.' Mot. for Summ. J. ("Defs.' Mot."); Sentence Orders from Berks County Court of Common Pleas, Defs.' Mot. Ex. C.
On January 4, 2004, the plaintiff was placed into protective custody. Protective custody is a close custody classification intended to keep an inmate who feels that he may be in danger in the general prison population from interacting with that population. It is standard operating procedure at BCP to permit an inmate who believes he may be in danger in the general population to elect to sign himself into protective custody. An inmate also may choose to sign himself out of protective custody. To sign in or out of protective custody, an inmate must sign a form making such a request. The plaintiff requested to be placed into protective custody on January 4, 2004. On that date, he signed a form making such a request. He did so because he was fearful for his safety due to the nature of his charges. The plaintiff was not harmed during his stay in protective custody. Houseknecht Dep. 46, 68, 71-72, 124-25; Affidavit of Deputy Warden Kimberly M. Bergan ¶¶ 3-4, 6 ("Bergan Aff."), Defs.' Mot. Ex. D; Admin. Segregation R., Defs.' Mot. Ex. E.
General population inmates at BCP are given access to weekly formal worship services. In the interest of safety, protective custody inmates are not permitted to attend those services. Instead, protective custody inmates receive separate chaplaincy services. These services allow protective custody inmates the opportunity to meet with a chaplain, to participate in Bible study within the housing unit, and to receive religious educational materials. The inmate handbook given to all inmates provides that, when an inmate is housed in protective custody, "chaplaincy counseling will be provided only on the housing unit." During his deposition, the plaintiff acknowledged that he received the handbook upon his entry into BCP, and that he read about protective custody in the inmate handbook. Houseknecht Dep. 54, 68-71; Bergan Aff. ¶¶ 10-12; BCP Inmate Handbook 21, Defs.' Mot. Ex. D.
During his stay in protective custody, the plaintiff complained that he was not provided access to religious services and certain religious media and materials. The defendants have attached to their motion nearly thirty "Inmate Communication Forms" filed by the plaintiff with BCP. A member of the prison staff responded to each of these complaints. One of these responses explains:
Generally, inmates that are in protective custody are not permitted to "mix" with inmates in general population . . . . Exceptions to this have been made for inmates who are required, by parole, to complete specific treatment programs, e.g.[,] sex offender group, and the group cannot, for practical reasons be run on the unit.
See Inmate Communication Forms, Defs.' Mot. Exs. F-G. The plaintiff has acknowledged that BCP staff would have difficulty protecting protective custody inmates were they to attend formal religious services with general population inmates. Houseknecht Dep. 123-25.
During his deposition, the plaintiff admitted that he had regular, even daily, communication with an individual identified as "Chaplain Paul," and that the chaplain regularly brought reading materials to the inmates in protective custody.*fn2
He also acknowledged that he was not unhappy with any of the responses to his inmate communication forms. The plaintiff also admitted that although inmates in protective custody were not permitted to hold gatherings inside inmates' cells, there was nothing preventing him from sitting with other inmates and doing his own Bible study in the unit day room. At no time did any member of the BCP staff inform the plaintiff that he was not permitted to do so. Houseknecht Dep. 94-95, 100-03, 148-49, 154-56.
During his time at BCP, the plaintiff attended a sex offender's therapy group which was administered by the defendants. On February 24, 2004, the plaintiff signed a document entitled "Conditions for Participation in the Berks Count Prison Treatment Phase of the Sex Offender Program." By signing this document, the plaintiff acknowledged, among other things: (1) that he was "required to actively participate in the program"; (2) that he "must attend all sessions unless an excused absence is warranted"; (3) that "[o]ne unauthorized absence from a group session may result in . . . termination from the Sex Offender Program"; (4) that he "must make whatever arrangements necessary" to assure that other work, interests, or responsibilities would not interfere with his attendance; and (5) that he agreed "to abide by any sanctions up to and including dismissal from the program . . . for violation of these requirements." The plaintiff also acknowledged that he could be removed from the group "for administrative reasons unrelated to [his] conduct." See Houseknecht Dep. 95-97; Defs.' Mot. Ex. H 2-3 (emphasis in original).
On October 24, 2004, the plaintiff was removed from the Sex Offenders Therapy Group. Defendant Reichard has averred that the plaintiff was removed "due to his noncompliance with the treatment process, specifically his unwillingness to give definitive answers to questions about his offending behaviors . . . . He went on to state that he was addressing his sexual deviancy on his own through his religious beliefs and therefore did not need to do so in [the] group." Defendant Nichols has averred that "[o]n the day Plaintiff was removed from the sexual offenders group, he voiced complaints that were improperly raised during group and to which he had already received a response" and that the plaintiff also "refused to participate in the group." Defs.' Mot. Ex. I ¶ 20; id. Ex. J ¶ 8.
The plaintiff has admitted that he did not file any inmate communication forms complaining about the basis for his removal from the sexual offenders group. After he was removed from the group, however, the plaintiff did continue to file inmate communication forms regarding his denial of access to religious services. See Houseknecht Dep. 90-91; Defs.' Mot. Ex. G; Pl.'s Opp. Ex. B.
In an affidavit attached to his opposition to the defendants' motion, the plaintiff asserts additional facts in opposition to the documentary evidence presented by the defendants. See Pl.'s Opp. Ex. A.*fn3 In this affidavit, the plaintiff states that during his stay in protective custody, he was unable to attend "any formal religious services or bible study classes," and that the "only opportunity" available to him consisted of "one to two monthly informal meetings held between several protective custody inmates . . . which were split up on several occasions due to boisterous arguments over various issues." He states that between January 4, 2004, and January 5, 2005, the protective custody units did not have religious volunteers or volunteer faith counselors visiting the units. He admits that religious materials were available, including "a Bible, Our Daily Bread Devotionals, Monthly Periodicals/ Magazines, fiction novels, and study booklets/tracts on basics of christian belief system [sic] and receiving salvation." The plaintiff further states that he was not advised of the restriction that would be placed on his religious freedom prior to entering protective custody. Id. ¶¶ 3-8.
Regarding the sexual offenders therapy group, the plaintiff's affidavit states that on October 12, 2004, the defendants "aggressively confronted" him about a tattoo on his arm and the complaints he filed about his religious freedom. He averred that they told him that Christians do not tattoo themselves or engage in deviant sexual behavior. He stated that they also told him that because he wanted to "'act' so spiritual all of a sudden" and spend time trying to obtain religious privileges, he "obviously" was not taking his treatment seriously and should not come back to the group. He stated that he "always activel[y] and honestly participated" in the group and was "never disruptive, non-compliant with the treatment process, or resistant to accepting treatment." Id. ¶¶ 9, 12.
Finally, the affidavit states that in October 2004, he personally spoke to the BCP clinical supervisor about the defendants' retaliation against him. According to the plaintiff, the supervisor told him that ...