The opinion of the court was delivered by: (Judge Caldwell)
The pro se plaintiff, Israel Torres, brings this suit pursuant to 42 U.S.C. § 1983 alleging First, Eighth and Fourteenth Amendment violations by various prison officials. Named as defendants are the following SCI-Frackville prison employees: Superintendent Wenerowicz; Security Captain T. P. Clark; Classification Program Manager S. K. Kephart; and Hearing Examiner (HEX) Sharon Luquis.
Plaintiff makes the following claims: (1) Capt. Clark violated his First Amendment rights when he issued him a retaliatory misconduct for writing a letter to a friend containing protected speech about CO Blankenhorn; (2) Torres' placement in the T-Cell (a cell separate from the RHU cells and located in the psychiatric observation area) was in retaliation for the same First Amendment protected speech; (3) HEX Luquis violated his due process rights during the course of his misconduct hearing by denying him the opportunity to question Capt. Clark; and (4) defendants violated his Eighth Amendment rights when they failed to remedy the unsanitary and unhealthy conditions of his confinement in the T-Cell which caused him blurry vision, sleep deprivation, and an aggravation of his mental-health condition.
This matter comes before the court on defendants' motion for summary judgment. Defendants' motion will be granted as the summary-judgment evidence establishes the following. First, Torres was not issued a retaliatory misconduct. Capt. Clark did issue him a misconduct for writing his letter but the letter did not contain protected speech. To the contrary, it contained unprotected speech, a threat against CO Blankenhorn. In other respects, the retaliation claim lacks merit. Second, the due process claim fails because Plaintiff failed to properly exhaust his administrative remedies in respect to his misconduct hearing. Third, the conditions-of-confinement claim (which also contains an Eighth Amendment medical claim) for his placement in the T-Cell fails in part because:
(1) he also did not properly exhaust his administrative remedies on this claim; (2) he has not shown Defendants' deliberate indifference; and (3) the claim in some respects lacks merit.
Under Fed. R. Civ. P. 56, summary judgment should be granted "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." Fed. R. Civ. P. 56(a). In pertinent part, parties moving for, or opposing, summary judgment must support their position by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A). In deciding a motion for summary judgment, "[t]he court need
consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3). "'The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.'" Meditz v. City of Newark, 658 F.3d 364, 369 (3d Cir. 2011)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006)(citing Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510).
At summary judgment, the moving party has the burden of showing the absence of a genuine issue of material fact, but the nonmoving party must present affirmative evidence from which a jury might return a verdict in the nonmoving party's favor. Liberty Lobby, 477 U.S. at 256-57, 106 S.Ct. at 2514. "[T]he non-moving party must rebut the motion with facts in the record." Berckeley Inv. Group, Ltd. V. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). "The non-moving party cannot rest on mere pleadings or allegations," El v. Southeastern Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007), but "must set forth specific facts showing that there is a genuine issue for trial." Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). Allegations made without evidentiary support may be disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000).
The record evidence, viewed in the light most favorable to the non-moving party, reveals the following undisputed facts relevant to the disposition of the instant motion.
First Misconduct Hearing - March 9, 2010: Misuse of the Mail
At all times relevant to this action, Torres was incarcerated at SCI-Frackville. (Doc. 65, Defs.' Statement of Undisputed Material Facts (DSMF) at ¶ 1). Capt. Clark is the Security Captain at SCI-Frackville. (Id. ¶ 2). In that role, he supervises all of the activities associated with SCI-Frackville's Security Office. His duties include, but are not limited to, intelligence gathering, investigations, drug interdiction efforts, search team activities, coordination of the search of employee/volunteers, selection of inmate cells for random searches, Security Threat Group (STG) monitoring,*fn1 inmate telephone monitoring, closed circuit television monitoring, evidence control and maintenance of the confidential sources of information (CSI) files. (Id. ¶ 3).
On March 2, 2010, Torres was housed in SCI-Frackville's Restricted
Housing Unit (RHU) on disciplinary status with an expected RHU release
date of July 20, 2010. (Doc. 65-1, ECF p. 12). On March 2, 2010, the
Security Office intercepted a piece of Torres' outgoing non-privileged
correspondence addressed to Ms. Patricia Chistakoff. (Id.) The
envelope contained two letters, one for Ms. Chistakoff, and a second
letter that Torres instructed Ms. Chistakoff send to her nephew,
"Shizz." (Id.) Prison officials identified
"Shizz" as inmate Shawn Colon who is housed at SCI-Houtzdale. (Id.)
After reading the letters and conducting an investigation, CO
Blankenhorn issued Torres a misconduct on four charges: misuse of the
mail, refusing to obey an order regarding correspondence between
inmates without DOC approval, possession of contraband, and engaging
in or encouraging unauthorized group activity because the letter to
Shizz was STG in nature.*fn2
The letter instructed Shizz to remain loyal to the Bloods while in prison. (Id., ECF pp. 12-13).
Torres pled guilty to two of the four misconduct charges. Following a misconduct hearing on March 9, 2010, before HEX Luquis, Torres was found guilty on all charges and given 90 days' additional disciplinary custody time. (Doc. 65-1, ECF pp. 14-18).
Second Misconduct Hearing - March 25, 2010: Letter Threatening Blankenhorn and Using Abusive Language
On March 22, 2010, Torres penned a second letter to Ms. Chistakoff. (Doc. 65-1, Mar. 22, 2010, letter, ECF pp. 9-10). In this letter, Torres advised Chistakoff that he had not received her recent letter because prison officials confiscated it believing it contained STG material, "in other words it was gang related." (Id., ECF p. 9). He noted that "with me everything is STG . . . It's that cocksucka Blankenhorn again. . . But I don't worry to (sic) much about him because he's just a subordinate with limited authority . . . He probably been (sic) a subordinate all his life and repeatedly got his ass kicked in school by the class nerd." (Id.) In a "P.S." to his letter to Ms. Chistakoff, Torres wrote:
That fagette (sic) Blankenhorn is so desperite (sic) that he is searching everyone's mail who's in the R.H.U. in hopes of finding something with my name on it especially those who I accociate (sic) myself with . . . If he keep's acting like he is above policy/law somebody is going to break his jaw is what I assume?! (Id., ECF p. 10).
On March 25, 2010, Capt. Clark issued Torres Misconduct Report B187325 making two charges: (1) threatening an employee or their family with bodily harm; and (2) using abusive, obscene, or inappropriate language to an employee. (Doc. 65-1, misconduct report, ECF pp. 7). Capt. Clark had reviewed Torres' letter to Ms. Chistakoff in accordance with DC-ADM 803, the DOC's Inmate Mail and Incoming Publications directive. (Id.) As the institution's Security Captain, Capt. Clark believed issuing Torres a misconduct for his threat to CO Blankenhorn was necessary to preserve internal order and discipline and to maintain institutional security. (DSMF ¶ 8). As written by Capt. Clark, the misconduct report focused on the following language from the letter:
"It has come to my . . . that a letter was received into this jail from you but personally I did not receive it. . . It's that cocksucka Blankenhorn." and "That fagette Blankenhorn is . . . searching everyone's mail . . . if he keeps acting like this . . . someone is going to break his jaw." (Doc. 65-1, ECF p. 7).
There is a factual dispute about whether Plaintiff knew when he wrote the March 22 letter that his mail was being reviewed by C.O. Blankenhorn before it was sent out of the institution. Capt. Clark affirms that on March 4, 2010, he advised Torres that "CO Blankenhorn was monitoring [his] mail to Patricia Chistakoff" because of the previous misconduct where Plaintiff had used Chistakoff to forward letters to other inmates. (Doc. 65-1, Clark Decl. ¶ 3, ECF p. 3). Torres admits that Clark interviewed him on March 4, but denies that he was ever told that CO Blankenhorn would be monitoring his outgoing mail. (Doc. 77-2, Torres Decl. ¶ 1, ECF p. 39). He also denies CO Blankenhorn's accusation that he was secretly sending letters to other inmates within SCI-Frackville. (Doc. 77-2, ECF p. 67).
There is also a factual dispute about whether Clark or Blankenhorn intercepted the March 22 letter. Clark affirms that Blakenhorn had intercepted the letter while he was inspecting Plaintiff's outgoing mail. (Doc. 65-1, Clark Decl. ¶ 4, ECF p. 3). Plaintiff maintains that Clark was monitoring his mail and that Clark intercepted and read the letter, as alleged in paragraph 8 of his amended complaint and admitted to by the defendants in their answer. (Doc. 29, Am. Compl. ¶ 8, and doc. 34, Answer ¶ 8).
On April 1, 2010, HEX Luquis conducted a misconduct hearing on Misconduct Report B187325. (Doc. 65-2, misconduct report, findings of fact, ECF p. 2). Luquis noted that she "allowed Mr. Torres the opportunity to question Capt. Clark [at the hearing], however, Mr. Torres informed HEX that he ha[d] no questions for Capt. Clark at [that] time." (Id.). Ms. Luquis found that Plaintiff knew his mail was being monitored by CO Blankenhorn and that he would have read the statements in the letter.*fn3 She found Torres guilty of "threatening an employee or their family with bodily harm" and "using abusive, obscene, or inappropriate language to an employee." (DSMF ¶ 11; see also Doc. 65-2, ECF pp. 2-3). Torres was sanctioned with an additional 60 days in the RHU for the threat charge and an additional 30 days for the abusive language charge. (Doc. 65-2, misconduct report, ECF p. 3); (DSMF ¶ 12).
Aside from offering his testimony at the misconduct hearing, Capt. Clark did not consult with HEX Luquis regarding her findings with Torres' misconduct. (DSMF ¶ 13). Likewise, he did not determine the sanction or penalty Torres received. (Id.)
Torres was housed in the RHU before his second disciplinary report charging him with writing an abusive and threatening letter in regard to C.O. Blankenhorn. (DSMF ¶ 14). After his misconduct hearing on those charges, Clark transferred Torres to a transition cell, or T-Cell, in the "SSNU." (DSMF ¶ 15).*fn4 The T-Cell is designed to be both a Psychiatric Observation Cell (POC) and a security-based Transition Cell (T-Cell). (DSMF ¶ 18). When used as a T-Cell, it is governed by local Transition Cell Post Orders, and placement is determined by the Shift Commander. (Id.) The primary purpose for placing an inmate in the T-Cell is for security reasons such as: isolation for investigative purposes, dry cell purposes, behavioral management for problematic, non-committable inmates, isolation for medical reasons such as street PV in need of clearance; or other purposes as determined by the Shift Commander.*fn5 (Id.)
Capt. Clark placed Torres in the T-Cell due to concerns that Torres may attempt to use other inmates in the RHU to send and receive letters. (DSMF ¶ 19). Capt. Clark did not escort Torres to the T-Cell. (Id. ¶ 16). Ms. Luquis is not responsible for maintaining cells and does not decide which particular cell an inmate is placed in within the RHU after they are sanctioned with time in the RHU. (Id. ¶ 17; Doc. 65-1 , ...