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George Rivera v. D. A. Kuhn; Hearing Examiner

March 15, 2011

GEORGE RIVERA,
PLAINTIFF
v.
D. A. KUHN; HEARING EXAMINER; F. R. ROYER, DEPUTY FOR CENTRALIZED
SERVICES;
R.L. HEASTER, ACTING CORRECTIONS
COUNSELOR FOR CENTRALIZED SERVICES AT SCI-SMITHFIELD, PROGRAM MANAGER;
T.E. MCCAULEY, UNIT MANAGER AT SCI-SMITHFIELD;
JON D. FISHER, SUPERINTENDENT AT
SCI-SMITHFIELD; ROBERT MACINTYRE, CHIEF
HEARING EXAMINER FOR THE DEPARTMENT OF CORRECTIONS; D. SULLIVAN, CORRECTIONAL OFFICER AT SCI-SMITHFIELD; K. SMITH, CORRECTIONAL OFFICER AT SCI-SMITHFIELD; D. BENN, CORRECTIONAL SERGEANT AT SCI-SMITHFIELD; T. SUNDERLAND, CAPTAIN OF THE GUARD AT SCI-SMITHFIELD; J. EICHENLAUB, CAPTAIN OF THE GUARD AT SCI-SMITHFIELD;
CHIEF GRIEVANCE COORDINATOR FOR THE DEPARTMENT OF CORRECTIONS, DEFENDANTS



The opinion of the court was delivered by: Judge Rambo

MEMORANDUM

I. Introduction

On June 16, 2010, Plaintiff, George Rivera, filed a complaint pursuant to 42 U.S.C. § 1983 against numerous prison officials and corrections officers at the State Correctional Institution at Smithfield ("SCI-Smithfield") and officials of the Pennsylvania Department of Corrections. On September 7, 2010, Defendants filed a motion and supporting brief to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff has filed a response. No reply has been filed and the matter is ripe for disposition.

II. Facts Alleged in the Complaint*fn1

Rivera alleges that, on May 6, 2010, he asked that Benn process a homemade Mother's Day card in accordance with the DC-ADM 803. (Complaint, ¶ 24.) The card is alleged to have been made from a cardboard box that Rivera purchased from the commissary. (Id. at ¶ 25.) Benn asked if he could open the sealed envelope, and Rivera told him that he could if he (Benn) could then reseal it without damaging it. (Id., ¶ 26.) Sullivan and Smith are alleged to have appeared and recognized Rivera from an incident following which Rivera filed a grievance against them. They allegedly took the envelope, ripped it open, and ripped the paper from the cardboard. Rivera told them they had no right to do that and he asked Benn for a grievance form. (Id., ¶¶ 27-28.) Sullivan allegedly told Rivera to go to his cell. Rivera alleges that he complied but was then taken to the Restricted Housing Unit ("RHU"). (Id., ¶¶ 29-30.)

Rivera was subsequently served with a misconduct by Sullivan. Smith and Benn were listed as witnesses. The misconduct charged Rivera with using abusive, obscene, or inappropriate language; refusing to obey an order; possession of contraband; and lying to an employee. (Id., ¶ 31.) On the misconduct, Sullivan stated that he observed the homemade card from the bubble, the card was examined and it was discovered that there was corrugated cardboard inside. (Id., ¶ 32.) Upon inquiring of Rivera what kind of cardboard it was, Rivera stated, "the back of a notebook." Then, Sullivan pulled out a piece of corrugated cardboard and told him it was not the back of a notebook but a cut-up records box.*fn2 (Id.) Sullivan alleges that Rivera then started yelling at Benn and he (Sullivan) ordered Rivera to return to his cell and that Rivera kept yelling and swearing and refused to return to his cell. Sullivan further alleges that Rivera leisurely walked back to his cell and that the cell door was still not closed when Smith entered the wing. (Id.) Rivera alleges that Sullivan's version of what transpired was fabricated. (Id., ¶ 33.)

Rivera alleges that he filed Grievance No. 317370 against Sullivan and Benn for "violating his mail and destruction of his property." (Id., ¶ 34.) Rivera alleges that he appeared before Hearing Examiner Kuhn on May 10, 2010, and asked that the misconduct be dismissed with prejudice because, inter alia, it was improperly served and there was no valid security reason stated as to why the misconduct was listed for formal resolution on informal charges. (Id. ¶ 35.) Kuhn allegedly agreed with Rivera and stated that even though policy precludes him from dismissing the misconduct without prejudice, he was going to do so to allow Sullivan to rewrite the misconduct. (Id. ¶ 36.)

Sullivan rewrote the misconduct. (Id., ¶ 37.) On May 12, 2010, Rivera went before Kuhn and asked that the misconduct be dismissed because the rewriting of the misconduct violated DC-ADM 801. Specifically, Rivera alleges that Kuhn "was not given authorization to dismiss the misconduct without prejudice to allow or permit reservice of the misconduct, that the report writter [sic] failed to serve [Rivera] with a witness request form or inmate version form, and he could not request any witnesses, that he could not request an assistant to assist him while on pre-hearing confinement, that he was prejudiced by the rewritting [sic] of the misconduct because [Kuhn] could only find him guilty." (Id.,¶ 38.) Rivera alleges that he pled guilty to possession of contraband, Kuhn denied Rivera's request to dismiss the misconduct, and Kuhn found Rivera guilty of refusing to obey an order and using abusive/obscene/inappropriate language. (Id., ¶ 39.) Rivera was sanctioned to 120 days of disciplinary custody. He appealed the misconduct to the Program Review Committee, consisting of Heaster, Royer, and McCauley, but they denied the appeal. (Id., ¶¶ 40-43.) Rivera's subsequent appeals to Fisher and then MacIntyre were likewise denied. (Id., ¶¶ 44-46.)

Rivera alleges that he was denied parole because of the misconduct and the sanction of 120-days in disciplinary custody. (Id., ¶ 47.) Then, Eichenlaub denied Grievance No. 317370. Rivera alleges he appealed the denial to Fisher but Fisher never responded, which denied Rivera the opportunity to seek final review. (Id., ¶¶ 48-49.)

Rivera alleges that Sullivan, Smith, and Benn conspired to issue him the fabricated misconduct; that Kuhn, Royer, Heaster, McCauley, Fisher, and MacIntyre denied him procedural and substantive due process in violation of the Fourteenth Amendment, state law (37 Pa. Code § 93.10), and the DC-ADM 801; that he was issued the misconduct in retaliation for having filed a previous grievance against Sullivan and Smith and for requesting a new grievance to file against Sullivan, Smith, and Benn; that Sullivan, Smith, and Benn violated his First Amendment rights and DC-ADM 803 when they opened his outgoing mail without his permission; and that while in the RHU, he was subjected to ventilation that emitted excessively cold air in violation of the Eighth Amendment. (Id., ¶¶ 19-23, 50.)

III. Issues Presented

1) Were Rivera's due process rights violated at his misconduct hearing?

2) Has Rivera stated a conspiracy claim?

3) Are Defendants Royer, Heaster, McCauley, Fisher, Eichenlaub, MacIntyre, Sunderland, and Varner entitled to dismissal due to lack of personal involvement in an alleged constitutional violation?

4) Was the misconduct proceeding in retaliation for Rivera's earlier grievance filed against Sullivan and Smith?

5) Has Rivera stated a cause of action under the First Amendment based on prison personnel opening a Mother's Day card?

6) Has Rivera stated a cause of action under the Eighth Amendment for cruel and unusual punishment based on his ...


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