The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Plaintiff Kareem Hassan Milhouse ("Milhouse"), an inmate currently incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania ("USPLewisburg"), filed this Bivens*fn1 -styled complaint against several Federal Bureau of Prisons ("BOP") and USP-Lewisburg officials*fn2 (collectively, "Defendants") on October 9, 2009, (Doc. 1), as amended November 2, 2009, (Doc. 6). Milhouse asserts several complaints about his designation to USP-Lewisburg's Special Management Unit ("SMU") and the conditions in the SMU since designated there.
Before the court is a motion to dismiss and for summary judgment filed on behalf of Defendants. (Doc. 32.) Also before the court is a motion to submit additional pages to the amended complaint, filed by Milhouse. (Doc. 26.) For the reasons set forth below, the motion for summary judgment will be granted in part in favor of Defendants, denied in part, and Milhouse will be permitted to amend his complaint.
The following facts are undisputed unless noted. BOP Program Statement 5217.01, Special Management Units, provides, in pertinent part:
Designation to a SMU may be considered for any sentenced inmate whose interaction requires greater management to ensure the safety, security, or orderly operation of Bureau facilities, or protection of the public, because the inmate meets any of the following criteria:
P Participated in disruptive geographical group/gang-related activity.
P Had a leadership role in disruptive geographical group/gang-related activity.
P Has a history of serious and/or disruptive disciplinary infractions.
CFR part 541, after being classified as a member of a Disruptive Group pursuant to 28 CFR part 524. P Participated in, organized, or facilitated any group misconduct that adversely affected the orderly operation
P Committed any 100-level prohibited act, according to 28 of a correctional facility.
P Otherwise participated in or was associated with activity such that greater management of the inmate's interaction with other persons is necessary to ensure the safety, security, or orderly operation of Bureau facilities, or protection of the public. (Doc. 39 ¶ 1) (quoting BOP Program Statement 5217.01, Special Management Units, at 2). That statement also provides, in pertinent part:
a. Referral. If an inmate appears to satisfy any of the referral criteria above, the Unit Team may present a designation referral to the Warden. The referral packet consists of a completed Request for Transfer/Application of Management Variable (EMS-A409), copies of pertinent Special Investigative Supervisor reports and incident reports, and a cover memorandum to the Warden summarizing the rationale for referral for SMU designation. If the Warden approves the referral, it is submitted to the Regional Director. The packet may be submitted electronically at all stages. The Unit Team will be notified if the Warden denies the referral.
b. Hearing. If the Regional Director determines that sufficient evidence exists to convene a hearing, the Regional Director appoints a Hearing Administrator to conduct a hearing into whether the inmate meets the criteria for SMU designation. The Hearing Administrator will have been trained and certified as a Discipline Hearing Officer [("DHO")], will be an impartial decision-maker, and will not have been personally involved as a witness or victim in any relevant disciplinary action involving that inmate.
(1) Pre-Hearing Notice. The Hearing Administrator completes the form BP-A0935, Notice to Inmate: Hearing Referral for Designation to a Special Management Unit . . . and sends it to the inmate's current institution. Unit team staff provide the inmate with a copy of the Notice at least 24 hours before the hearing, and document delivery to the inmate.
(2) Inmate Appearance and Evidence. The inmate has the opportunity to appear at the hearing, make an oral statement, and present documentary evidence and written witness statements, except where contrary to the safety, security, or orderly operation of Bureau facilities, or protection of the public.
c. Post-Hearing Findings and Decision. The Hearing Administrator considers whether, based on information obtained during the referral process and presented at the hearing, the inmate meets the criteria for the SMU program. The Hearing Administrator prepares the form BP-A0936, Hearing Administrator's Report on Referral for Designation to a Special Management Unit (available on Sallyport) and provides it to the Regional Director. The Report provides a detailed explanation of the reasons for the Hearing Administrator's findings, but does not include information that would jeopardize the safety, security, or orderly operation of correctional facilities, or protection of the public.
The Regional Director considers whether, based on the Hearing Administrator's findings, the SMU referral is necessary to ensure the safety, security, or orderly operation of Bureau facilities, or protection of the public. The Regional Director includes a recommendation on the Report and forwards it to the Designation and Sentence Computation Center (DSCC). (Doc. 39 ¶ 9) (quoting BOP Program Statement 5217.01, Special Management Units, at 2-3).
In Milhouse's case, his SMU referral documentation, dated February 24, 2009, referenced twelve prior incident reports, including, inter alia, "Using Martial Arts," "Destroying Government Property over $100," "Interfering with Security Devices," and "Engaging in Sexual Acts." (Doc. 39 ¶ 2; Doc. 38-2, Attach. 3, Notice to Inmate: Hearing Referral for Designation to a Special Management Unit.) In his opposition to Defendants' statement of material facts, Milhouse asserts that these incident reports should not have been considered in the SMU referral documentation because he received them while he was a pre-trial detainee at the Federal Detention Center in Philadelphia ("FDC-Philadelphia"). (Doc. 42 at 1.) In support, he cites BOP Program Statement 5217.01, which states with respect to "Pretrial/Holdover/Detainee Procedures" that the statement "applies only to sentenced inmates." (Id.) (citing BOP Program Statement 5217.01, Special Management Units, at 1).
The SMU referral also included information that Milhouse had sent threatening correspondence to two federal judges while in federal custody. (Doc. 39 ¶ 3; Doc. 38-2 at 31.) In addition, the referral referenced an incident which occurred in July 2006*fn3 while Milhouse was incarcerated at FDC-Philadelphia. (Doc. 39 ¶ 4; Doc. 38-2 at 31.) Milhouse was in a proffer room with his attorney at the William J. Green Federal Building in Philadelphia, when he showed her a razor blade and threatened to cut her throat if she screamed. (Doc. 39 ¶ 5; Doc. 38-2 at 31.) He told the attorney that he "had not had sex in a while, wanted to have sex," and held the razor blade to her neck. (Doc. 39 ¶ 6; Doc. 38-2 at 31.) The attorney yelled, and Milhouse grabbed her and threw her over the table, causing her injury. (Doc. 39 ¶ 7; Doc. 38-2 at 31.) As law enforcement entered the room, Milhouse tried to break the window with his shoulder and then picked up a chair and tried again to smash the window. (Doc. 39 ¶ 8; Doc. 38-2 at 31.) In his opposition to Defendants' statement of material facts, Milhouse asserts that this incident was only alleged, that none of the facts were substantiated, and in fact the incident report was expunged in November 2007. (Doc. 42 at 2.) In materials attached to his opposition, it is apparent that the incident report was expunged on November 28, 2007 (Doc. 42 at 4); however, the materials also indicate that the report was expunged because Milhouse was charged criminally by the FBI for his attempted escape and assaultive behavior. (Id. at 5.)
A hearing regarding Milhouse's SMU referral was scheduled and Milhouse was notified of such. (Doc. 39 ¶¶ 10, 11; Doc. 38-2 at 30-40.) On February 25, 2009, DHO Renda conducted the hearing, with Milhouse present. (Doc. 39 ¶¶ 12, 13; Doc. 38-2 at 36-40.) Milhouse was given the opportunity to make a statement, which was documented by DHO Renda as follows:
Milhouse stated for the record: "I don't have all the evidence I can present. Second thing I couldn't consult with my attorney. My behavior doesn't support this referral. I worked in UNICOR. I haven't had a misconduct . . . except I have a civil suit at FDC Philadelphia for misconduct. They said I destroyed government property. They put us in the cell for the light hanging off. The officer put us in the cell. They still found me guilty. They found me guilty of pressing the duress button. I had four cellies. They said I'm a threat to the general population. I know how to use the administrative remedy [form] and seek justice through the courts. I know that. None of it adds up. A lot of stuff happened from retaliation. They kept me in the hole for two months without telling me. I threatened the judge but nobody showed me any documentation. It's about my constitutional violations. My access to the court is being blocked. (Doc. 39 ¶ 14; Doc. 38-2 at 36.) In his report signed on February 26, 2009, DHO Renda found that Milhouse "meets the following criteria for designation to a Special Management Unit." (Doc. 39 ¶ 15; Doc. 38-2 at 37.) Specifically, DHO Renda found that Milhouse met two of the referral criteria: "has a history of serious and disruptive disciplinary infractions," and "[t]he inmate otherwise participated in or was associated with activity such that greater management of the inmate's interaction with other persons is necessary to ensure the safety, security, or orderly operation of Bureau facilities, or protection of the public." (Doc. 39 ¶ 16; Doc. 38-2 at 37.) On February 27, 2009, a non-defendant BOP staff member acting for the Regional Director concurred in the findings and recommended that Milhouse be designated to the SMU. (Doc. 39 ¶ 18; Doc. 38-2 at 39.) A DSCC staff member approved Milhouse's designation to the SMU on March 27, 2009. (Doc. 39 ¶ 19; Doc. 38-2 at 39.) On April 5, 2009, Milhouse signed the form indicating that he was provided with a copy of the SMU referral and DHO report. (Doc. 39 ¶ 20; Doc. 38-2 at 39.)
Milhouse filed his original complaint on October 9, 2009. (Doc. 1.) However, prior to service of the original complaint, Milhouse filed an amended complaint on November 2, 2009. (Doc. 6.) By order dated December 2, 2009, the court directed service of the amended complaint on the Defendants named therein. (Doc. 10.) Defendants filed the instant motion to dismiss and for summary judgment on April 6, 2010. (Doc. 32.) Supporting and responsive briefing have been filed. (See Docs. 38, 41, 56, 59.) Thus, the instant motion is ripe for disposition.
Defendants has filed a motion which, in part, seeks dismissal of the complaint on the grounds that Milhouse's complaint fails to state a claim upon which relief can be granted, as provided by Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion, however, goes beyond a simple motion to dismiss under Rule 12(b)(6) because it is accompanied by evidentiary documents outside the pleadings contravening Milhouse's claims. Rule 12(d) provides as follows:
If, on a motion under Rule 12(b)(6) or (12)(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
Fed. R. Civ. P. 12(d). The court will not exclude the evidentiary materials accompanying Defendants' motion to dismiss because Milhouse has also been given a reasonable opportunity to present material relevant to the motion. Thus, Defendants' motion to dismiss and for summary judgment shall be treated solely as seeking summary judgment.
B. Motion for Summary Judgment
Summary judgment is proper when "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); accord 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. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "'Such affirmative evidence -- regardless of whether it is direct or circumstantial -- must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.'" Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
In their motion for summary judgment, Defendants assert that Milhouse's claim with respect to designation to the SMU does not set forth a constitutional violation and thus fails to state a claim. Further, Defendants contend that Milhouse's general allegations with respect to the conditions of the SMU are ...