The opinion of the court was delivered by: Judge Rambo
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 USP-Lewisburg
officials*fn2 (collectively, "Defendants") on November
2, 2009, as amended May 10, 2010. (Doc. 30.) Milhouse alleges various
constitutional violations against Defendants, including excessive use
of force, conditions of confinement, a strip search,*fn3
and verbal harassment.
Before the court is a motion to dismiss and for summary judgment filed on behalf of Defendants. (Doc. 42.) For the reasons set forth below, the motion for summary judgment will be granted in part and denied in part.
The allegations in Milhouse's amended complaint stem from incidents occurring in late 2009 and early 2010. In support of their motion to dismiss and for summary judgment, Defendants have submitted a statement of material facts.*fn4
(Doc. 48.) Milhouse has submitted a counter statement of material facts. (Doc. 77.) Thus, the following facts are undisputed except where noted.
1. Excessive Use of Force
In his amended complaint, Milhouse complains of two incidents of alleged excessive use of force on October 23, 2009. The following facts relate to the first incident. On October 23, 2009, Defendants Marr, Gee, and Crawford were assigned to USP-Lewisburg's Special Housing Unit ("SHU"), a secure unit where inmates are confined to their cells for twenty-four (24) hours a day except for recreation periods, medical appointments, and scheduled trips or visits. (Doc. 48 ¶¶ 1, 6, 7.) On this day, Defendant Marr was assigned to work as the Number One Officer (1st Floor), and was responsible for opening and closing individual cell doors by way of a control panel box. (Id. ¶¶ 1, 2.) When staff members approach cells to determine if inmates want to leave their cells to participate in recreation, they notify Defendant Marr of which cell doors to open and close. (Id. ¶ 3.) Defendant Crawford was assigned to work as an Escort Officer. (Id. ¶ 6.) And, Defendant Gee was conducting searches of inmate cells on the SHU's first floor.*fn5
On the morning of this day, October 23, 2009, Milhouse did not go to recreation. (Id. ¶ 4.) However, his cellmate chose to go to recreation, and as a result Defendant Marr opened the cell door. (Id. ¶ 4, 5.) Milhouse was handcuffed with his hands behind his back so that his cellmate could be escorted to recreation. (Id. ¶ 9.) He was also informed at this time that Defendant Gee would be conducting a search of the cell for contraband. (Id. ¶ 8.) As Defendant Gee held Milhouse by his restraints directly outside the cell, Milhouse told him that he would not go to a holding cell during the search. (Id. ¶¶ 9, 10.) Defendant Gee gave him several direct orders to go to the holding cell, but Milhouse refused, stating that he wanted to change his shoes because he was wearing only shower shoes and socks. (Id. ¶¶ 11, 12.) Defendant Gee then attempted to escort Milhouse to the holding cell on the first floor, but Milhouse resisted by refusing to move and struggling. (Id. ¶¶ 13, 14.) At this time, Defendant Crawford was inside the SHU's Officer's Station on the first floor, and heard a staff member directing an inmate to permit a cell search. (Id. ¶ 17.) He also heard keys rattling and thought that there might be a confrontation occurring between staff and an inmate.*fn6 (Id. ¶ 18.) As a result, Defendant Crawford exited the Officer's Station and observed Milhouse struggling with staff in the hall. (Id. ¶ 19.) He and another staff member immediately responded in order to assist Defendant Gee in escorting Milhouse to the holding cell. (Id. ¶¶ 15, 20.) Defendant Crawford took one of Milhouse's arms while Defendant Gee took the other arm. (Id. ¶ 21.) As they escorted him, Milhouse continued to resist their efforts and drag his feet. (Id. ¶ 22.) When they arrived at the holding cell, the door was open and they placed Milhouse in the cell without incident. (Id. ¶ 23.) The holding cell is a bare room with three walls and a metal grill and door serving as the fourth wall. (Id. ¶ 25.) Neither Defendant Gee or Crawford observed Milhouse striking his head on the wall. (Id. ¶ 24.)
After placing Milhouse in the holding cell, Defendant Gee searched his cell. (Id. ¶ 26.) He did not destroy any property or bedding, but did remove two or three black metal binder clips since a recent policy change prohibits inmates from possessing such items. (Id. ¶¶ 27-29.) As a result of the incident, Defendant Gee wrote an incident report charging Milhouse with a Code 307 violation ("Refusing to Obey an Order of Any Staff Member"), a Code 312 violation ("Insolence Towards a Staff Member"), and a Code 398 violation ("Interfering with Staff in the Performance of Duties"). (Id. ¶ 31.) Milhouse later appeared before the Unit Discipline Committee and was found guilty of the Code 307 violation. (Id. ¶ 32.) Consequently, he was sanctioned with a loss of commissary privileges for 240 days. (Id. ¶ 33.)
Milhouse provides a different version of this incident in his counter statement of facts. Initially, Milhouse does not dispute that Defendant Gee wanted to search his cell and held him by his restraints outside the cell while the cellmate was escorted from the cell. (Doc. 77 ¶ 9.) However, Milhouse denies that he told Defendant Gee that he would not go to a holding cell during the search. (Id. ¶ 10.) Rather, Milhouse stated that he wanted to put his pants on first.*fn7 (Id.) He further asserts that he was talking with Defendant Gee rather than resisting an escort to the holding cell. (Id. ¶¶ 13, 14.) In fact, he asserts that staff were not attempting to escort him to a holding cell until Defendant Crawford arrived and "aggressively grabbed" him. (Id. ¶ 19.) Milhouse states that he never resisted the officers, and when they arrived at the holding cell, Defendant Crawford pushed him into the cell and he hit his head on the wall, causing a cut. (Id. ¶ 23.) Afterwards, Defendant Crawford stated, "You ain't gon do shit, motherfucker." (Id. ¶ 24.)
Milhouse does not dispute that Defendant Gee searched his cell. (Id. ¶ 26.) However, he asserts that Defendant Gee removed food items, prayer oil, legal materials, and a mirror, and left his personal property and bedding "disorganized" and "in disarray."*fn8 (Id. ¶¶ 27-29.) He also asserts that when his cellmate asked Defendant Gee why he took his coffee, Defendant Gee answered, "You should be mad at Milhouse." (Id. ¶ 30.) Defendant Gee denies making this statement. (Doc. 48 ¶ 30.)
The following facts are related to the second incident of alleged excessive use of force on October 23, 2009. On this day, Defendant Marr was assigned to the task of retrieving the noon meal food trays from the cells on the first floor. (Id. ¶ 35.) In doing so, Defendant Marr would approach each cell door and open the food slot ("wicket") with a key so that the inmates could pass their used food trays through the wicket to Defendant Marr. (Id. ¶ 36.) Defendant Marr would then place the trays on a food cart so that they could be returned to the Food Services Department. (Id.) He would then lock the wicket and proceed to the next cell. (Id. ¶ 37.)
When Defendant Marr was retrieving the food trays from Milhouse's cell, his cellmate handed Defendant Marr the first food tray. (Id. ¶ 38.) Defendant Marr thought the cellmate was reaching for the second food tray, but instead, the cellmate threw a cup full of feces and urine out of the wicket at Defendant Marr. (Id. ¶ 39.) As a result of the cellmate's actions, Defendant Marr's arms, chest, and pants were covered in feces and urine. (Id. ¶ 41.) Defendant Marr's immediate reaction was to shove the first food tray back through the wicket and secure the wicket so that no other items could be thrown out of the cell. (Id. ¶ 40.) Once the wicket was secured, Defendant Marr went to the Officer's Station and notified the Shift Lieutenant of the incident. (Id. ¶ 42.) Subsequently, the Special Investigative Staff ("SIS") arrived in the unit and took photographs of Defendant Marr's clothing. (Id. ¶ 43.) Defendant Marr then left the unit in order to change his clothes. (Id. ¶ 44.) Defendant Marr also wrote an incident report charging Milhouse's cellmate with assault. (Id. ¶ 45.) He did return to the unit that day, but did not leave the Officer's Station area or go down range to the inmate cells for the remainder of his shift. (Id. ¶ 46.) To the best of Defendant Marr's knowledge, Milhouse was not involved in the incident. (Id. ¶ 47.)
In his counter statement of material facts, Milhouse asserts that he saw his cellmate hand the second food tray to Defendant Marr and leave the wicket area. (Doc. 77 ¶ 39.) He also states that he saw Defendant Marr throw the food tray and kick the wicket. (Id. ¶ 40.) He states that he did not see anything on Defendant Marr's chest or arms, and later saw him come back down range to the inmate cells. (Id. ¶¶ 41, 46.) In fact, in his amended complaint, Milhouse claims that feces hit him in the left arm when Defendant Marr threw the tray back into the cell. (Doc. 30-2 at 4.)
2. Conditions of Confinement
In his amended complaint, Milhouse alleges several violations relating to his conditions of confinement. (Doc. 30-2.) The following facts are relevant to those claims.
His first allegation relates to his cell's mattress, and the following facts are relevant. Starting on September 22, 2009, Defendant Gee was assigned to work as the Number Two Officer (1st Floor) in USP-Lewisburg's SHU. (Doc. 48 ¶ 48.) Although Defendant Gee does not recall the exact date, he recalls conducting a search of Milhouse's cell and noticing that Milhouse did not have a mattress. (Id. ¶ 49.) Approximately one week later, Milhouse asked Defendant Gee where his mattress was and Defendant Gee told him that he would look into it. (Id. ¶ 50.) Defendant Gee asked another officer in the unit about the mattress and was told that it had been removed at the direction of the Captain. (Id. ¶ 51.) Defendant Gee had not been involved in this decision. (Id. ¶ 52.) Defendant Gee then informed Milhouse that the mattress had been removed at the direction of the Captain. (Id. ¶ 53.) In response, Milhouse asked him when it would be returned to him. (Id. ¶ 54.) Defendant Gee said he would look into it, and several days later after learning from the Captain that he could return it, Defendant Gee gave the mattress back to Milhouse that day. (Id. ¶¶ 54, 55.)
In his counter statement of material facts, Milhouse asserts that Defendant Gee took his mattress. (Doc. 77 ¶¶ 49, 52.) He further counters that it was not Defendant Gee, but an individual named Reece who asked him about the mattress' location. (Id. ¶¶ 50, 51.) While he does not deny that Defendant Gee informed him that the mattress was taken at the direction of the Captain, he asserts that he did so over a week after Milhouse had already filed a tort claim relating to the mattress. (Id. ¶ 53.)
Milhouse also asserts complaints about other conditions in his cell, and the following facts are relevant. Milhouse asserts that Defendant Crawford assigned him and his cellmate to cell 118 which had a dysfunctional shower, and that he remained in this cell for nineteen (19) days. (Id. ¶ 56.) He states that this cell had been in this condition for months. (Id. ¶ 57.) He also states that he requested to be moved several times. (Id. ¶¶ 58, 59.) Defendant Crawford denies these facts, countering that he was not aware that the cell had a dysfunctional shower, and if he had been aware, he would have either submitted a work order to have the shower repaired or moved Milhouse (or any other inmate) to another cell with a functional shower. (Doc. 48 ¶¶ 56-59.)
Milhouse also asserts that on February 12, 2010, Defendant Crawford assigned him to cell 120 which did not have hot water. (Doc. 77 ¶ 60.) He states that he filed numerous requests for administrative remedies related to the hot water, but a work order was never submitted and instead he was moved to another cell block that had no showers and smaller cells. (Id. ¶¶ 62, 64.) Defendant Crawford denies that he knowingly assigned Milhouse to a cell with no hot water. (Doc. 48 ¶ 60.) He asserts that at no time would he allow an inmate to occupy a cell without drinking and toilet water. (Id. ¶ 63.) He further asserts that he would have submitted a work order if he had been informed that the cell did not have functioning water, and depending on when the work could be done, he would have moved Milhouse (or any other inmate) to a cell with functioning water. (Id. ¶ 61.) In support of these assertions, Defendants state that as a lockdown unit, staff are present 24 hours a day, 365 days a year, and that additional staff conduct regular visits to the SHU. (Id. ¶¶ 65, 66.) Milhouse could have raised his complaints with any of those staff members in the unit. (Id. ¶ 67.) In his counter statement of facts, Milhouse denies that staff are present at all hours of the day and that staff members make regular rounds. (Doc. 77 ¶¶ 65, 66.)
Finally, Milhouse asserts that on October 23, 2009, Defendant Marr refused to reset Milhouse's toilet. (Doc. 30-2 at 4.) In the instant motion, Defendants explain that the toilets in the SHU are automatically reset every fifteen (15) minutes, and that therefore, there was no reason for Defendant Marr to reset Milhouse's toilet. (Doc. 48 ¶ 75.) Defendant Marr does not recall Milhouse asking him to reset his toilet, and denies refusing to do so. (Id. ¶¶ 74, 76.) In response, Milhouse asserts that the toilets are reset every thirty (30) minutes. (Doc. 77 ¶ 75.)
In his amended complaint, Milhouse asserts that Defendant Crawford repeatedly denied him access to USP-Lewisburg's barbershop. (Doc. 30-2 at 5.) In the instant motion, Defendant Crawford denies that he did not provide Milhouse with access to the barber. (Doc. 48 ¶ 68.) Although Defendant Crawford does escort inmates for haircuts, this is a routine task which can be accomplished by any of the officers assigned to the unit and occurs often. (Id. ¶ 69.) Specifically, inmates are normally provided access to the barber kit once every thirty (30) days by submitting a written request and staff will escort them from their cells to a holding cell. (Id. ¶ 70.) The inmate or his cellmate can then cut his hair. (Id. ¶ 71.) Once the inmate's hair is cut, the barber kit is recovered and an inventory is conducted. (Id. ¶ ...