The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan
Plaintiff, Todd Tarselli, is an inmate in the custody of the Pennsylvania Department of Corrections currently incarcerated at the State Correctional Institution at Greene ("SCI-Greene") in Waynesburg, Pennsylvania. Plaintiff initiated this action on September 24, 2010, by filing a Complaint against the following Defendants: Corrections Officer Harkleroad, Corrections Officer J.M. Smith, Lieutenant Tanner, Major Winfield, Superintendent Folino, and Chief Grievance Officer Dorina Varner. His Complaint asserts liability pursuant to 42 U.S.C. § 1983, alleging violations of due process and his rights under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment in connection with the confiscation of art supplies and related items from his cell on January 25, 2010, and the revocation of his art permit.*fn1
Defendants filed an Answer to Plaintiff's Complaint on December 9, 2010 (ECF No. 20), and following discovery, filed a Motion for Summary Judgment on July 1, 2011 (ECF No. 43). In support of their motion, Defendants attached four exhibits containing over one-hundred twenty pages of documents relating to Plaintiff's claims. (ECF No. 46.) Defendants also filed a Brief in Support of Summary Judgment (ECF No. 44) and a Concise Statement of Material Facts (ECF No. 45). In response, Plaintiff filed a Brief in Opposition to Summary Judgment (ECF No. 55), Responsive Concise Statement of Material Facts (ECF No. 56), Statement of Undisputed Material Facts (ECF No. 57), Statement of Genuine Issues of Material Fact (ECF No. 58) and over eighty pages of exhibits (ECF No. 59). Defendants filed a Reply to Plaintiff's Brief in Opposition to Summary Judgment (ECF No. 64), and Responses to Plaintiff's Statement of Undisputed Material Facts (ECF No. 66) and Statement of Genuine Issues of Material Facts (ECF No. 67).
Following an alleged escape attempt at SCI-Rockview, Plaintiff was transferred to the Restricted Housing Unit ("RHU") and placed on the Restricted Release List ("RRL") at SCI-Greene in December 1997. (ECF No. 45 at 1; No. 46-1 at 1-9; No. 56 at 16.) Plaintiff remained in the RHU until July 1999, at which point he was released to general population. (ECF No. 45 at 1; No. 46-1 at 2; No. 56 at 16.) Following an incident in April 2001, in which Plaintiff was allegedly observed whispering with other inmates under suspicious circumstances, Plaintiff's cell was searched and a large piece of black velour, a razor blade and extra pillow cases and towels were found. (ECF No. 45 at 2; No. 46-1 at 2-3; No. 49-1 at 2.) Plaintiff claimed that the black velour was given to him by a staff member in the art department, but security determined that there was enough material to make a rope or dark clothing that could be used in an escape. (ECF No. 45 at 2; No. 46-1 at 3; No. 56 at 16.) As a result, Plaintiff was issued a misconduct, found guilty and assessed 45 days of disciplinary confinement, after which he remained in the RHU on RRL status. (ECF No. 45 at 2; No. 46-1 at 3; No. 56 at 16.) The Program Review Committee, which included Defendant Winfield, recommended Plaintiff's release from the RRL in August 2008 subject to a detailed step-down plan involving close supervision. (ECF No. 45 at 2; No. 46-1 at 3, 5; No. 49-1 at 3; No. 56 at 16.) The proposed step-down plan was approved and Plaintiff was returned to general population in October 2008. (ECF No. 45 at 2; No. 46-1 at 5, 6; No. 49-1 at 3; No. 56 at 16.) Defendant Winfield stressed that in order to continue in general population, Plaintiff's conduct could in no way be perceived as plotting or planning an escape. (ECF No. 45 at 2; No. 49-1 at 3; No. 56 at 16.)
After returning to general population in October 2008, Plaintiff began asking about ordering art supplies and obtaining an updated art permit, as he had an art permit that had been issued in 1999. (ECF No. 45 at 3; No. 46-2 at 3, 10-13, 18; No. 49-1 at 3; No. 56 at 17.) The art permit at SCI-Greene permits inmates to order, and keep in their cells, potentially hundreds of art items. (ECF No. 45 at 3; No. 46-3 at 34; No. 56 at 17.) According to Defendant Winfield, she had reservations permitting Plaintiff to order art supplies given Plaintiff's escape history and previous incident involving the black velour. (ECF No. 45 at 3; No. 46-2 at 15; No. 49-1 at 3-4.) She initially limited Plaintiff's purchases and advised security to watch for efforts by Plaintiff to collect too much of any one thing, but by August and September of 2009, staff began to relax some of the restrictions. (ECF No. 45 at 3, 4; No. 46-2 at 31-33; No. 49-1 at 3-4.)
During a random cell search on January 18, 2010, Officers discovered in Plaintiff's cell two standard art boards that appeared to be loosened or torn at the edge. (ECF No. 45 at 4; No. 46-2 at 43; No. 56 at 17.) Upon inspection, the art boards were found to have hidden compartments which contained pornographic magazines. (ECF No. 45 at 4; No. 46-2 at 43; No. 56 at 17.) As a result, Plaintiff was issued a misconduct report and pled guilty to charges of altering property and possessing contraband. (ECF No. 45 at 4; No. 46-2 at 43; No. 56 at 17.)
Following the January 18, 2010 incident, Defendant Winfield instructed the Security Department to conduct a thorough search of Plaintiff's cell and confiscate all art-related items as well as anything else that seemed suspicious. (ECF No. 45 at 4; No. 49-1 at 4.) Because of the altered items discovered in Plaintiff's cell on January 18, 2010, and because Plaintiff presented escape concerns and had a history of possessing art-related materials as potential implements of escape, Defendant Winfield felt that security concerns justified the removal of all art-related items. (ECF No. 45 at 4; No. 49-1 at 4.) Defendant Winfield also revoked Plaintiff's art permit and directed that he not be permitted to purchase more art supplies. (ECF No. 45 at 5; No. 46-3 at 32; No. 49-1 at 4.)
Defendants Harkleroad and Smith conducted the confiscation of all art-related items from Plaintiff's cell on January 25, 2010, per Defendant Winfield's instructions, and removed a substantial amount of material from the cell, including two large boxes and several oversized items. (ECF No. 45 at 5; No. 46-4 at 4, 5; No. 56 at 17.) This included items that were both covered and not covered by Plaintiff's art permit. (ECF No. 1 at 7.) Plaintiff asserts that, during the search, Defendant Harkleroad came across artwork that was critical of the DOC and made intimidating and racially insensitive statements toward Plaintiff. (ECF No. 1 at 8.)
After the search, Defendant Harkleroad sat with Plaintiff for several hours and inventoried all the confiscated items, listing them on seven confiscation slips. (ECF No. 45 at 5; No. 46-4 at 4; No. 56 at 17.) During the inventory process, Defendant Harkleroad separated items that were altered or not allowed and designated them to be destroyed by noting a "D" in the disposition column of the confiscation slip. (ECF No. 45 at 5; No. 46-3 at 2-8; No. 46-4 at 5; No. 56 at 17.) However, this designation did not necessarily result in destruction and some of these items may have been returned to the boxes. Certain items Plaintiff was not permitted to retain were destroyed per DOC policy after the inventory. (ECF No. 45 at 5, 6; No. 46-4 at 5.) With respect to the remaining items confiscated, Plaintiff was given the option of shipping them home- which he chose not to do- or having them destroyed. (ECF No. 45 at 7; No. 46-3 at 21.) The items were not destroyed, but instead remained in the security office. (ECF No. 45 at 7; No. 46-4 at 11.)
On February 6, 2010, Plaintiff filed a grievance wherein he complained of the comments made to him by Defendant Harkleroad during the search of his cell on January 25, 2010. (ECF No. 1-5 at 2-3.) He also argued that the DOC could not confiscate his property without due process and require him to ship the items or they would be destroyed; that the revocation of his art permit was an unreasonable over-reaction to security concerns; that confiscation of art-related items not covered by the art permit such as personal sketches, art books, and art magazines, violated the First Amendment; and that one of the books seized was a used book and not "property of another" as described by Defendant Harkleroad. (ECF No. 1-5 at 2-3.) Defendant Tanner responded by denying Plaintiff's grievance on February 16, 2010, noting that Defendant Harkleroad had denied making the alleged statements and their concern was that Plaintiff was "once again testing the parameters of involving [himself] in another escape attempt." (ECF No. 1-6 at 2.) Plaintiff appealed on February 28, 2010, arguing that the incident involving the art boards used to conceal pornographic magazines was in no way related to "plotting or planning an escape." (ECF No. 1-7 at 2.) Instead he was simply trying to hide the magazines so he could keep them. (ECF No. 1-7 at 2.) Defendant Folino denied Plaintiff's appeal on March 2, 2010, (ECF No. 1-8 at 2), and Plaintiff filed his last appeal on March 12, 2010, (ECF No. 1-9 at 2-3), which was denied by Defendant Varner on March 31, 2010 (ECF No. 1-10 at 2).
Plaintiff served 90 days in disciplinary custody for the January 18, 2010, misconduct involving the altered art boards and pornographic magazines, and he remained in the RHU on AC status until early 2011, when he was once again released back into general population. (ECF No. 45 at 8; No. 49-1 at 5; No. 56 at 18.)
After Plaintiff filed this lawsuit and a motion to preserve his property, a second inventory of his property was performed on October 26, 2010, by Officer Tait. (ECF No. 45 at 7; No. 46-3 at 10-19; No. 46-4 at 11.) Officer Tait's inventory matched Defendant Harkleroad's inventory from January 25, 2010, except with respect to a few items. She found several things that were not destroyed although originally designated for destruction, and a few items not accounted for on the confiscation slips. (ECF No. 45 at 7; No. 46-3 at 10-19; No. 46-4 at 12.) Officer Tait also could not locate a pencil sharpener and a large roll of craft paper that were listed on the confiscation slips. (ECF No. 45 at 7-8; No. 46-3 at 10-19; No. 46-4 at 12.)
Plaintiff was permitted to inspect his confiscated property on June 8, 2011, at which point he looked at a large priority envelope containing several inches of papers and drawings and said that things were missing, namely drawings critical of the DOC. (ECF No. 45 at 10; No. 46-4 at 13; No. 56 at 19.) Additionally, several larger items that had been identified on the original confiscation slips from January 25, 2010, could not be located. (ECF No. 39 at 1.) After several attempts to locate the items were unsuccessful, Plaintiff was reimbursed for the cost of the items. (ECF No. 39 at 3.)
After consultation with the Office of Attorney General, SCI-Green's Security Captain, Craig Haywood, was willing to consider returning some of Plaintiff's confiscated property, particularly his books and the large priority envelope containing several inches of papers and personal drawings, as those items did not appear to raise the same security concerns or risks associated with the art-related items and supplies. (ECF No. 45 at 10; No. 46-4 at 13; No. 49-1 at 11-12.) However, after Plaintiff inspected the property on June 8, 2011, and suggested that drawings had been removed from the priority envelope, counsel for Defendants advised Captain ...