The opinion of the court was delivered by: Chief Judge Kane
This Bivens-styled civil rights action pursuant to 28 U.S.C. § 1331 was filed by Vernon White ("White"), at the time an inmate confined at the United States Penitentiary at Lewisburg ("USP-Lewisburg"), Pennsylvania.*fn1 The matter proceeds on an amended complaint filed on May 10, 2010. (Doc. No. 15.) Named as Defendants are four employees of the Federal Bureau of Prisons ("BOP"). Three of the Defendants are employees at USP-Lewisburg: B.A. Bledsoe, Warden; L. Karpen, Chief Psychologist; and R. Hicks, Safety Administrator. The fourth Defendant appears to be Harrell Watts, National Inmate Appeals Administrator. Presently pending is Defendants' motion to dismiss or, in the alternative, for summary judgment. (Doc. No. 22.) For the reasons that follow, the motion will be deemed unopposed and granted.
I. Allegations in Complaint
White alleges that on August 10, 2009, he filed an appeal with respect to his placement in the Special Management Unit ("SMU") Program at USP-Lewisburg. On or about September 16, 2009, he received notification that an extension if time was granted to the prison officials with respect to the time limitation on responding to his appeal. He maintains that the grant of such extension was a denial of his right to due process.
White states that he only expects to be in the SMU under a year, but claims that his personal property is limited to six (6) family photos and ten (10) letters, and argues that he is only permitted sixty (60) minutes a month on the phone. He also claims that he was subjected to roaches for a five (5) month period beginning on August 10, 2009 when he arrived at USPLewisburg, and also experienced a mouse in his mattress. Although he states he was moved to a different block at the end of January 2010, he believes it contains asbestos. (Doc. No. 15, Am. Compl. at 4-5.) White claims that Defendants Hicks and Bledsoe knew of these conditions and therefore were deliberately indifferent to his health and safety in violation of the Eighth Amendment.
White also alleges that due to his placement in the SMU he was not afforded adequate time to speak with Mental Health Services. He claims that the "Head of Mental Health Department" has shown deliberate indifference by not giving him the services he needs for a long, prior mental health issue. As relief, he seeks compensatory damages.
On May 12, 2010, the Court issued an order directing service of the amended complaint upon the Defendants. (Doc. No. 16.) Following the grant of an extension of time, Defendants filed the pending motion to dismiss or, in the alternative, for summary judgment on September 10, 2010. (Doc. No. 22.) On September 23, 2010, a brief, statement of material facts and exhibits in support of the motion were submitted. (Doc. Nos. 23, 24.) Following White's failure to respond to the motion, or request an enlargement of time within which to do so, the Court issued an order on October 15, 2010, directing him to file his opposition to Defendants' motion within fourteen (14) days. He was warned that his failure to do so may result in the motion being deemed unopposed or the case being dismissed for failure to prosecute. (Doc. No. 25.) At the time, White was still confined at USP-Lewisburg. Despite the Court's order, he failed to file his opposition brief or seek an enlargement of time within which to do so. In fact, the last time the Court received contact from Plaintiff was on May 10, 2010, when he filed his amended complaint in this action.*fn2
Because documents outside the pleadings have been presented by Defendants and will be considered by the Court, the motion will be addressed as one for summary judgment.*fn3 Federal Rule of Civil Procedure 56(a) provides that the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.*fn4 A fact is "material" if it will "affect the outcome of the suit under the governing law .... " Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A dispute is "genuine" if it could lead a "reasonable jury [to] return a verdict for the nonmoving party." Id. at 250.
When deciding the existence of a genuine dispute of material fact, a court's role is not to weigh the evidence. All reasonable inferences are also to be resolved in favor of the moving party. Meyer v. Riegel Products Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983). However, "a mere scintilla of evidence," without more, will not give rise to a genuine dispute for trial. Anderson, 477 U.S. at 249. In the face of such evidence, summary judgment is still appropriate "where the record ... could not lead a rational trier of fact to find for the nonmoving party ...." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). "Summary judgment motions thus require judges to 'assess how one-sided evidence is, or what a fair-minded jury could reasonably decide.'" Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460 (3d Cir. 1989)(quoting Anderson, 477 U.S. at 265).
The movant "always bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(quoting Fed. R. Civ. P. 56(c)). Then, "when a properly supported motion for summary judgment [has been] made, the adverse party 'must set forth specific facts showing that there is a genuine issue for trial.'" Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P. 56(e)). The non-movant "must point to concrete evidence in the record" in that mere allegations, conclusions, conjecture, and speculation will not defeat summary judgment. Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995).
Along with their motion for summary judgment Defendants submitted a statement of undisputed facts and documents in support thereof. (Doc. Nos. 24, 24-2.) Because White has failed to file a statement of material facts in opposition to Defendants' submission, the facts as set forth in Defendants' statement will be deemed admitted pursuant to M.D. Pa. Local Rule 56.1. The undisputed facts are as follows.
The SMU at USP-Lewisburg began accepting inmates in September of 2002. (Doc. No. 24-2, Ex. A, Cunningham Decl., ¶ 1.) From September 2002 until the Spring of 2009, the SMU was confined to one unit housing approximately 80 inmates. (Id. ¶ 7.) The idea behind the SMU was to provide additional programming opportunities to inmates who may have been involved in or played a leadership role in a disruptive incident involving some type of gang activity, or who have a significant disciplinary history and who have chronically not been able to f unction in the general population. (Id. ¶ 8.) The SMU program is a multi-phase approach designed to teach inmates self-discipline, pro-social values and the ability to successfully coexist with members of other geographical, cultural and religious backgrounds. (Id. ¶ 9.) The program ordinarily takes 18-24 months to complete.
In the Fall of 2008, the BOP announced plans to change USP-Lewisburg's mission from an ordinary penitentiary to become a more controlled, restrictive institution that will house inmates who have been difficult to manage in other institutions. (Id. ¶ 10.) Prior to the expansion of the SMU, the BOP issued Program Statement 5217.01, Special Management Units, which became effective on November 19, 2008. (Doc. No. 24-2, Ex. 2, Program Statement 5217.01.) According to the PS 5217.01, SMU designation is non-punitive, and may be appropriate for any inmate who has, inter alia, participated in a disruptive geographical group/gang-related activity, had a leadership role in disruptive geographical group/gang-related ...