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Walthour v. Tennis

January 28, 2010


The opinion of the court was delivered by: Judge Vanaskie



Joseph Walthour, proceeding pro se, initiated this civil rights action while previously confined at the Rockview State Correctional Institution, Bellefonte, Pennsylvania (SCIRockview).*fn1 Sixteen (16) defendants were named in the Complaint. Plaintiff alleged that after filing a complaint in this Court on January 12, 2006, Walthour v. Tennis, et al., Civil Action No. 3:06-CV-86, he was issued retaliatory misconduct reports on four (4) separate occasions.

By Memorandum and Order dated September 24, 2008, Defendants' motion to dismiss was granted in part. (Dkt. Entry # 31.)*fn2 Specifically, all claims and Defendants were dismissed with the exception of the retaliation claims asserted in connection with the issuance and disposition of Misconduct #A 919198. As a result, the remaining Defendants are Deputy Chief Counsel Timothy Mark of the Pennsylvania Department of Corrections (DOC) and the following SCI-Rockview officials: Superintendent Franklin Tennis, Hearing Examiner L. Shay Kerns-Barr, Major Stephen Glunt, Program Review Committee (PRC) members Deputy Superintendent Joel Dickson, Program Manager Melinda Smith, and Deputy Superintendent Marirosa Lamas.

It is undisputed that on December 18, 2006, Corrections Officer Trainee Benjamin Leidhecker issued Misconduct #A 919198, which charged Plaintiff with threatening an employee or his/her family member with bodily harm; refusing to obey an order; use of abusive, obscene, or inappropriate language to an employee, and being present in an unauthorized area. Walthour contends that Major Glunt was responsible for investigating the misconduct, had Plaintiff labeled as posing a threat to institutional staff, and transferred from general population to solitary confinement pending disposition of the disciplinary charge.

Defendants acknowledge that the misconduct report written by Leidhecker was approved by Major Glunt and that Walthour was placed in pre-hearing confinement by Glunt pending disposition of the charges. However, they contend that "Glunt did not investigate the misconduct charge." (Dkt. Entry # 47 at 2.)

Plaintiff further avers that on the same day he was issued the misconduct, he submitted a form requesting the appearance of three (3) witnesses, all correctional officers,*fn3 at his misconduct hearing. He claims that his request was improperly denied. Defendants concur that the misconduct hearing was conducted by Defendant Kerns-Barr on December 20, 2006 and she denied Walthour's request to have the three correctional staff members appear as witnesses. Plaintiff was found not guilty on the threatening an employee charge, but guilty on the remaining charges and sanctioned to a sixty (60) day term of disciplinary confinement and the loss of his institutional job.

On January 1, 2007, Walthour appealed the finding of guilt to the PRC, consisting of Defendants Dickson, Lamas, and Smith. The decision of Hearing Examiner Kerns-Barr was sustained by the PRC. Further administrative appeals to both Superintendent Tennis and Chief Counsel Mark were similarly unsuccessful.

Presently pending is the remaining Defendants' unopposed summary judgment motion. (Dkt. Entry # 40.) The motion is ripe for consideration.


The remaining Defendants claim entitlement to summary judgment on the grounds that:

(1) the undisputed facts establish that Defendants Glunt and Kerns-Barr did not retaliate against Plaintiff; and (2) Defendants Dickson, Smith, Lamas, Tennis, and Mark were not personally involved in any violation of Plaintiff's constitutional rights.

Standard of Review

Summary judgment is proper if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c);Seealso, Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 248. The court must resolve all doubts as to the ...

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