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November 30, 2010


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


I. Introduction

Plaintiff, Kenneth Malik Miller is a Pennsylvania state prisoner currently serving a life sentence for first degree murder and has during all times relevant to this action been incarcerated within Pennsylvania prisons, including the State Correctional Institutes at Graterford and Huntingdon ("SCI Graterford" and "SCI Huntingdon"). Plaintiff filed this action for money damages pursuant to 42 U.S.C. § 1983, and the First, Fifth, and Eighth Amendments of the United States Constitution against the Superintendent, Deputy Superintendent, and other correctional officers at SCI Graterford. Plaintiff originally asserted four claims as follows:

Count I: Retaliation for his making complaints and preparing to file litigation. Count II: Denial of due process relating to the confiscation/loss of his wedding ring. Count III: Denial of access to courts for legal redress.

Count IV: An Eighth Amendment claim for not responding to his complaints about his cell being unreasonably cold.

Presently before the Court is Defendants' second Motion for Summary Judgment as to Counts I and II (Doc. No. 90). Counts III and IV were previously dismissed.

A. Procedural History

Plaintiff filed his original pro se civil rights complaint on July 3, 2008 (Doc. No. 3). The Second Amended Complaint, filed after Plaintiff secured appointed counsel, named as Defendants David DiGuglielmo (Superintendent of SCI Graterford); Michael Lorenzo (Deputy Superintendent of SCI Graterford); Thomas Dohman (Security Captain at SCI Graterford); William Radle (Security Lieutenant at SCI Graterford); John Moyer (Security Lieutenant at SCI Graterford); Jason Dombrosky (Corrections Officer at SCI Graterford); and Ronald Quick (Corrections Officer at SCI Graterford) (Doc. No. 53).*fn1

Defendants first moved for Summary Judgment on September 16, 2009 (Doc. No. 62). At oral argument, held on December 8, 2009, the Court ruled on all four Counts, memorializing the decision in a Memorandum (Doc. No. 75) and Order (Doc. No. 76) issued on December 15, 2009. See Miller v. DiGuglielmo, No. 07-2686, 2009 WL 4857383 (E.D. Pa. December 15, 2009). As Plaintiff agreed to withdraw all claims against DiGuglielmo and Lorenzo, the Court dismissed these Defendants with prejudice from the litigation. Id. at *1. The Court also granted summary judgment in favor of all Defendants as to Count Three, determining that a prior decision on Plaintiff's Post Conviction Relief Act ("PCRA") petition barred relief in this case. Id. Recognizing that Plaintiff had brought Count Four solely against DiGuglielmo, the Court also granted summary judgment to DiGuglielmo as to Count Four. Id. at *2.

The Court denied Defendants' Motion for Summary Judgment as to Counts One and Two. Id. The Court found issues remaining as to whether Defendants had possession of Plaintiff's wedding ring, precluding an immediate decision on these Counts. The Court ordered Defendants to provide Plaintiff an opportunity to examine the ring to determine if Defendants maintained possession and, if so, to resolve the question of whether the ring could remain with Plaintiff or be given to a family member. Id. at *2.

On December 29, 2009, Plaintiff filed a Motion for Clarification or Reconsideration (Doc. No. 78), asserting that the Court incorrectly disposed of Count Four. See Miller v. DiGuglielmo. No. 07-2686, 2010 WL 1539965, *1 (E.D. Pa. April 14, 2010). Plaintiff requested the Court either clarify that it had determined Plaintiff to have put forth insufficient evidence to raise a material issue of fact as to the Eight Amendment claim or reinstate that claim against DiGuglielmo. Id. In a Memorandum (Doc. No. 85) and Order (Doc. No. 86) issued on April 15, 2010, the Court affirmed its prior ruling, finding Plaintiff to have provided insufficient evidence to support the claim. Id. at*3.

Counsel for the remaining Defendants (Dohman, Radle, Moyer, Dombroski, and Quick, respectively) moved for Summary Judgment for the second time on June 15, 2010, submitting a statement of undisputed facts (Doc. No. 90). At oral argument held on August 10, 2010, the Court requested Plaintiff submit a supplemental memorandum of law and a supplemental statement of undisputed facts, which Plaintiff did on September 10, 2010 (Doc. Nos. 97 and 98). Defendants responded to both documents on September 27, 2010 (Doc. Nos. 101 and 102).

For the reasons discussed below, the motions for summary judgment on Count Two by Radle and Dohman and on Count One by Dombrosky are denied . All other motions for summary judgment are granted.

B. Factual History

This case concerns events surrounding the confiscation and loss of Plaintiff's wedding ring, as well as a series of grievances filed by Plaintiff against certain Defendants and misconduct charges filed by certain Defendants against Plaintiff. Given substantial disputes of fact, the Court will consider the facts in the light most favorable to the Plaintiff, as the non-moving party. The Court relies on facts not in dispute, but, where disputes exist in the record, relies on facts established by documents and/or deposition testimony as cited by Plaintiff. The factual discussion summarizes Plaintiff's contentions, but resolution of factual disputes is reserved for trial.

Plaintiff has been in Pennsylvania Department of Corrections ("DOC") custody since 1987 and was incarcerated at SCI Graterford from 2000 until September 25, 2007. (Aug. 13, 2009 Pl. Dep. at 9:8-22; Moyer Dep. at 43:4-5.)

During the events related to Plaintiff's claims, Defendant Thomas Dohman directly supervised Internal Security Department ("ISD") Lieutenants. (Dohman Dep. at 10-11.) In 2004, Dohman initiated an investigation of Plaintiff, based on information indicating that Plaintiff and his cousin, another SCI Graterford inmate, were distributing drugs and other contraband throughout the prison. (Dohman Dep. at 58-59; Defs.' Dep. Exh. P10.) Starting on February 20, 2004, Dohman and Moyer monitored Plaintiff's non-privileged in-coming and out-going mail. (Dohman Dep. at 58-59, 63-64; Defs.' Dep. Exh. P10.) Through mail surveillance, Defendants identified letters containing street or prison terms, which Defendants maintain signaled Plaintiff's involvement in illicit activities. (Moyer Dep. at 33-34, 67-68; Defs.' Dep. Exh. P11.) Defendants continued surveillance of Plaintiff's mail in order to identify prison staff involved in distribution of contraband. (Moyer Dep. at 40-41.)

1. Plaintiff's MRSA infection

In February 2006, Plaintiff contracted Methicillin-resistant Staphylococcus aureus ("MRSA"), a serious bacterial infection, requiring treatment in the Graterford infirmary. (Pl.Dep. 29:1-23; Pl. Ex. B at P18.)*fn2 Following treatment, Plaintiff began to work with other inmates and civil attorneys to initiate a class action against Graterford officials alleging their deliberate indifference to his need for MRSA-related care. (Pl. Dep. 42:4-44:9; 149:21-152:15.)*fn3

On March 7, 2006, Plaintiff filed Grievance No. 146183, complaining that Dombrosky conducted a "rough pat down search" that aggravated Plaintiff's MRSA-related wounds. (Pl. Dep. at 27:17-23, 28:1-31:19; Pl. Ex. D-2, pp. 1-2.) On that same date, Plaintiff sent a handwritten letter to DiGuglielmo describing the incident. (Pl. Ex. C at P19.) Plaintiff received a response to the March 7, 2006 grievance from Captain Dennis Blumfield dated March 24, 2006, which stated merely that officers are obliged to conduct pat down searches "in a way to uncover any contraband[,]" but without "offend[ing]" the prisoner. (Pl. Ex. C. at D2.)

2. Raid on Plaintiff's Cell

On May 28, 2006, Dombrosky and Quick were assigned to be a search team, tasked with conducting six random searches per shift, in conjunction with requirements that each cell be searched several times per year. (Dombrosky Dep. at 26; Radle Dep. at 20:1-22:11.) On that date,the two Defendants searched Plaintiff's cell, confiscating three photographs, which depicted Plaintiff with prison employees, and a ring embedded with stones. (Pl. Dep. at 47:8-9, 47:19-20; 52:5-7; Dombrosky Dep. at 28:1-29:24.) Throughout Plaintiff's time in custody, DOC regulations have barred inmates from possessing rings with embedded stones or photographs of staff members to whom they are not related. (Pl. Dep. at 47:5-7; Dohman Dep. at 43:17-44:10; Dombrosky Dep. at 28:1-29:24; Radle Dep. at 24:1-26:24.) At the outset of the search, Plaintiff denied to Dombrosky that he possessed any contraband and later claimed that he had rightfully possessed all confiscated items. (Dombrosky Dep. at 28:1-6; Pl. Dep. at 46:23-47:19.) During the search, Plaintiff witnessed Dombrosky reading Plaintiff's legal materials, including the March 7, 2006 grievance and materials related to Plaintiff's development of a MRSA lawsuit.*fn4

(Pl. Dep. at 28:12-25, 29-32, 33:1-14, 35-37, 41:8-42:23; Pl. Ex. C at D4.)

On the same day as the search, Dombrosky issued a misconduct to Plaintiff for possessing contraband, including the ring with stones and the photographs, and for lying to an employee. (Pl. Dep. at 48:25-49:8; Dombrosky Dep. at 24:12-25:13; Pl. Ex. B at P19.) At the conclusion of the search, Dombrosky issued to Plaintiff a Confiscated Items Receipt, listing each of the items taken. (Dombrosky Dep. at 35-36, Defs. Ex. 6 at P1.) Dombrosky turned the ring and the photographs over to Dohman and did not see them again. (Dombrosky Dep. at 44:11-45:5.) Dombrosky also charged Plaintiff with possession of scented oil, another contraband item. (Pl. Dep. at 48:25-49:8; Dombrosky Dep. at 24:12-25:13, Pl. Ex. B at P19.) Plaintiff denies that he possessed a bottle of oil during the search or that any was removed from his cell. (Pl. Dep. at 53:6-25; 55:7-19; 56:18-24.) Security was never able to produce the oil allegedly confiscated from Plaintiff. (Radle Dep. at 35:6-36:2; Pl. Dep. at 63; Pl. Ex. B at P20.)

On May 31, 2006, Hearing Examiner Mary Canino convened a hearing on the May 28, 2006 misconduct during which Plaintiff pled not guilty to all charges. (Pl. Dep. at 54:8-10:, Pl. Ex. C at D3.) Dohman produced the ring and photographs at the hearing. (Dohman Dep. at 21:19-24, 26:2-15; Pl. Dep. at 55:2-56:20.) Canino found Plaintiff guilty of charges related to the ring and photographs, reducing the charges, in part, "due to positive attitude." (Pl. Dep. at 58:8-15, Pl Ex. C at D3, pp. 4-5; June 10, 2010 Canino Dep. at 69:9-14, 70:12-18.) Canino found Plaintiff permitted to possess the pictures, but ordered the ring "revoked." (Canino Dep. at 69:6-14, 70:12-18, Pl. Ex. B at P2.) According to Plaintiff, Canino instructed Plaintiff that he would be allowed to send the ring home, (Pl. Dep. at 58:8-59:10; Canino Dep. at 71:10-24), and warned him that ISD officials were "going to retaliate" against him because of the ring situation and advised him to "back up off them for a minute." (Pl. Dep. 57:25 to 58:5.) Canino refuted the latter statement in her deposition. (Canino Dep. 72:7-12.)

On June 2, 2006, Plaintiff filed Grievance No. 154118 against Dombrosky regarding the cell search and accused him of harassment. (Pl. Dep. at 59:11-62:9; Pl. Ex. C at D4, pp. 1-2.) While mentioning Quick's involvement in the search, Plaintiff did not grieve any behavior by Quick, noting that he had "conducted himself in a professional manner, as he have [sic] in the past." (Pl. Dep. at 60; Pl. Ex. C at D4, pp. 1-2.) The grievance was assigned to Radle, (Pl. Ex. C at D-4, p. 3), who responded in writing on June 7, 2006 (1) that Dombrosky had searched, but denied reading, Plaintiff's legal materials; and (2) that the ring was contraband but Plaintiff had been "allowed to send that item home." (Id.)

3. Loss of Plaintiff's Wedding Ring

On October 13, 2006, after Plaintiff received the grievance response, Radle informed Plaintiff orally that his confiscated wedding ring was missing. (Pl. Dep. at 68:12-21; Radle Dep. at 18:17-19:14; Pl. Ex. C at D5, p.3.) Radle instructed that Plaintiff could seek reimbursement for the ring with proof of ownership or a receipt, or bring a criminal complaint regarding its disappearance. (Id.) At some point between October 13 and 28, 2006, Plaintiff asked his sister to send him proof of the cost of the ring. (Pl. Dep. at 71.) On October 28, 2006, Plaintiff filed Grievance No. 168480 about the loss of his ring, requesting reimbursement and indicating his intention to bring civil and criminal actions against Dombrosky. (Pl. Dep. at 66:8-67:22; Pl. Ex. C at D5.) According to Dombrosky's deposition, Dombrosky was unaware both that the ring was missing and of this grievance until after Plaintiff commenced this litigation in July 2007. (Dombrosky Dep. at 42:12-43:20.) Plaintiff disputes this fact, but cites in support only his own deposition testimony that he was "sure" Defendant was aware because it is prison procedure to inform staff of grievances against them. (Pl. Dep. at 66:8-67:22, 77-78).

On November 14, 2006, Radle responded to Plaintiff's grievance in writing, stating that "I have informed you several times to obtain a copy of the receipt for your ring that was confiscated and we will proceed from that point. I cannot proceed until you provide a copy of a receipt for the property." (Radle Dep. at 35; Pl. Ex. C at P20.) Plaintiff filed no appeal to this response. (Pl. Dep. at 73:1-75:20.) Sometime after receiving Radle's response, Plaintiff received from his sister a copy of a May 21, 1992 ring appraisal provided by Irving Zeigler Jewelers of Philadelphia, which valued a white gold ring containing ...

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