The opinion of the court was delivered by: L. Felipe Restrepo United States Magistrate Judge
Before the Court is the Motion of Defendants, William Banta, Jeffrey A. Beard, Robert Bitner, Mary Canino, David DiGuglielmo, Thomas Dohman, Jason Dombrosky, William Fairall, Francis Field, Gerald Galinski, Michael Lorenzo, Jaime Luquis, John W. Moyer, Sylvia Pallott, Ronald Quick, Thomas Scarpati, John S. Shaffer, Wendy Shaylor, Guy Smith, Earl E. Thomas, Kim Ulisny, and Donald T. Vaughn, for Summary Judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, and plaintiff's opposition thereto.*fn1 In support of their motion, defendants assert the following grounds for relief: (1) plaintiff's claims under 42 U.S.C. § 1983 against defendants Beard, Dohman, Fairall, Shaffer, and Vaughn fail for lack of personal involvement in any constitutional wrongdoing; (2) defendants are entitled to judgment as a matter of law on plaintiff's claim for declaratory relief; (3) plaintiff cannot show an "actual injury" from the alleged confiscation of his legal materials; alternatively, the rule of Heck v. Humprhrey, 512 U.S. 477 (1974), bars plaintiff's First Amendment access-to-courts claims; (4) as a matter of law, plaintiff cannot prevail on his First Amendment retaliation claims; (5) no reasonable jury could find that defendants violated plaintiff's right to due process; (6) no reasonable jury could find that the strip searches violated the Fourth Amendment; (7) defendant Fairall is entitled to absolute immunity; and (8) the Commonwealth defendants are entitled to qualified immunity. (Defs.' Br. 4-32; Defs.' Reply Br. 1-26.) For the reasons that follow, defendants' summary judgment motion is granted in part and denied in part.
1. SUMMARY JUDGMENT LEGAL STANDARD
Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Unless evidence in the record would permit a jury to return a verdict for the nonmoving party, there are no issues for trial, and summary judgment becomes appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
An issue is "genuine" only if there is sufficient evidence with which a reasonable jury could find for the nonmoving party. Id. at 249. Furthermore, a factual dispute is only "material" if it might affect the outcome of the case. Anderson, 477 U.S. at 248.
The movant bears the burden of demonstrating that the evidence presented is insufficient to support the claims and therefore a reasonable jury would be unable to reach a verdict for the plaintiff. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party bears the burden of proof on a particular issue at trial, the movant's initial burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the nonmoving party's case." Id. at 325.
If this initial burden is met, then the nonmoving party bears the burden of demonstrating that there are disputes of material fact that should proceed to trial. Matsushita Elec., 475 U.S. at 586. "There must be sufficient evidence for a jury to return a verdict in favor of the nonmoving party; if the evidence is merely colorable or not significantly probative, summary judgment should be granted." Monroe v. Beard, 536 F.3d 198, 207 (3d Cir. 2008) (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)), cert. denied, 129 U.S. 1647 (2009); see Celotex Corp., 477 U.S. at 322 (If the nonmoving party does not carry this burden, then summary judgment should be granted.).
(A) PERSONAL INVOLVEMENT IN CONSTITUTIONAL WRONG DOING
Section 1983 does not immunize state officials who are sued in their individual capacity. Monroe v. Beard, 2007 WL 2359833, *21 (E.D. Pa. Aug. 16, 2007), aff'd, 536 F.3d 198 (3d Cir. 2008), cert. denied, 129 U.S. 1647. Nevertheless, for liability to attach, there must be an element of personal involvement on the part of the defendant through particular participation, knowledge, or acquiescence. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); Monroe, 2007 WL 2359833, at *21. Defendants' motion alleges that plaintiff's § 1983 claims against defendants Beard, Dohman, Fairall, Shaffer, and Vaughn fail for lack of personal involvement in any constitutional wrongdoing.*fn2 (Defs.' Br. 4 (citing Rode, 845 F.2d at 1207).)
Plaintiff responds that the summary judgment motion should be denied with respect to defendant Beard, "because as [a] state actor, [he] can and should be held liable for approving a policy whose implementation amounted to deliberate indifference to an inmate's constitutional rights." (Pl.'s Letter Br. 2/1710, at 3 (emphasis added).) Plaintiff does not provide evidence that defendant Beard violated the Constitution by approving the policy, see, e.g., Monroe, 536 F.3d at 209, or that Mr. Beard, in particular, was personally involved in applying the policy in a manner that violated plaintiff's constitutional rights. Furthermore, "a section 1983 action cannot be based solely upon a theory of respondeat superior." Rode, 845 F.2d at 1207-08; see also Rizzo v. Goode, 423 U.S. 362 (1976). Accordingly, defendants' motion is granted with regard to defendant Beard for lack of personal involvement required in a § 1983 action. See, e.g., Rambert v. Beard, 2010 WL 936293, *7 (M.D. Pa. Mar. 15, 2010) (dismissing defendant Beard from a § 1983 action in that the plaintiff "[did] not allege that Beard violated the Constitution by enacting [a policy], or that Beard was personally involved in applying the policy in a manner that violated [the] plaintiff's constitutional rights").
With regard to defendant Shaffer, plaintiff contends:
Defendant Shaffer was included on the August 10, 2005 memorandum distributed by Defendant Lorenzo, referred to in this case as the 'Lorenzo Memorandum,' along with approximately forty inmates, including Mr. Griffin-El, who had items seized from them during the August 4, 2005 UCC search. Accordingly, Defendant Shaffer was personally aware that documents had been seized from [plaintiff], as well as the procedure that was supposed to be followed with regard to the return of any items that were seized improperly.
(Pl.'s Letter Br. 2/17/10, at 3 (citations to record omitted).) However, although plaintiff argues that Shaffer was aware that documents had been seized from plaintiff as well as numerous other prisoners and that he was aware of the procedure that was supposed to be followed, as with defendant Beard, plaintiff fails to point to evidence indicating that defendant Shaffer was personally involved in applying the policy in a manner that violated plaintiff's constitutional rights. Accordingly, ...