The opinion of the court was delivered by: Jones, II, J.
Thurman Mearin, a prisoner in state custody serving a life sentence, brought this civil rights action pursuant to 42 U.S.C. § 1983 alleging that Defendants Major Thomas Dohman and Lieutenant John Moyer unlawfully retaliated against him in violation of his First and Fifth Amendment rights. Presently before the Court is the Defendants' Motion for Summary Judgment (Dkt. No. 78), along with a Statement of Undisputed Facts (Dkt. No. 79). Mearin has filed a Response to the Motion (Dkt. No. 82), a Statement of Facts Answering Defendants' Statement of Undisputed Material Facts and a Counter-Statement of Facts. (Dkt. No. 83). For the reasons set forth below the Defendants' Motion will be granted.
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To defeat a motion for summary judgment, disputes must be both (1) material, meaning concerning facts that will affect the outcome of the issue under substantive law; and (2) genuine, meaning the evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. An issue is genuine if the fact finder could reasonably return a verdict in favor of the nonmoving party with respect to that issue. Anderson, 477 U.S. at 249. In reviewing a motion for summary judgment, the court does not make credibility determinations and "must view facts and inferences in the light most favorable to the party opposing the motion." Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995).
At the time of the events giving rise to this litigation, Defendant Dohman was the Security Captain at the State Correctional Institution at Graterford ("SCIG"). (Def. Ex. A ("Dohman Dep.") at 16.) Defendant Moyer was a Security Department Lieutenant. (Def. Ex. B ("Moyer Dep.") at 5.) Mearin was an inmate at SCIG since 1995, serving a life sentence with no possibility of parole, plus a consecutive twenty-year sentence. (Def. Ex. C ("Mearin Dep.") at 8, 10.) On November 2, 2004, a mail inspector at SCIG notified the Internal Security Department that a suspicious package containing a hard cover book addressed to inmate Terrance Edmonds, aka Jazz, was isolated for further scrutiny. (Moyer Dep. at 16.) Sgt. Springer was called to the mail room to conduct a canine "air scan" with K-9 Oliver. The initial air scan produced no results from K-9 Oliver. (Def. Ex. D at 16.) Upon opening the package, the inspector noticed that the book's cover and spine appeared to have been altered. (Moyer Dep. at 16.) K-9 Oliver then showed a behavior change on sniffing the book, knocked it off the desk where it had been placed, and sat on it. (Def. Ex. D at 18.) Lt. Moyer noticed an identical package addressed to Mearin. (Moyer Dep. at 17.) That package was also opened and found to contain a hard cover book that had been altered. (Id.) There is no indication in the record that K-9 Oliver air scanned this book. The packages were identically wrapped, were mailed from the same address, and appeared to come from a fictitious book retailer. (Id. at 58-59; Def. Ex. D at 1.) Lt. Raymond Knauer, in Moyer's presence, opened both book bindings and discovered that each book contained twelve small blue wax bags. (Moyer Dep. at 23-25, 51; Def. Ex. D at 1.) All twenty-four bags were identically marked with an encircled "X" and contained a brownish, powdery substance suspected to be heroin. (Moyer Dep. at 47; Def. Ex. D at 1-2, Def. Ex. A at 2.)
The books, packaging material, and suspected heroin were taken to the Internal Security Department and Moyer called the Pennsylvania State Police. (Moyer Dep. at 25.) Trooper Thomas Bishop responded to SCIG and conducted a field test on one of the bags removed from the book addressed to Edmunds. (Id. at 37, 52; Def. Ex. D at 2.) The package field tested positive for opium alkaloids using the NIK Reagent Test Kit A, and the wax bags were processed as evidence and turned over to Trooper Bishop. (Moyer Dep. at 53; Def. Ex. D.) No test was performed on a bag found in the book addressed to Mearin. (Dohman Dep. at 139.) The packages and their contents were turned over to the Pennsylvania State Police. (Dohman Dep. at 139-49; Moyer Dep. at 37; Pl. Ex. 1 at 2, 5.) Once contraband is turned over to the State Police, it is within its discretion whether to do additional testing or file criminal charges. (Moyer Dep. at 35.) The contraband was destroyed by the Pennsylvania State Police on September 19, 2007, approximately one year after Mearin brought this suit. (Pl. Ex. E; Ex. F at 11.) There is no evidence that the State Police notified Defendants prior to destroying the contraband. After they were named in this suit, neither Dohman nor Moyer ever contacted the State Police to retrieve the contraband or to prevent its destruction. (Dohman Dep. at 153.)*fn1
On November 29, 2004, Moyer and Dohman interviewed Mearin about the packages. (Moyer Dep. at 39; Dohman Dep. at 59-60; Def. Ex. F.) Mearin was not shown the packages or the bags of heroin during the interview, but he was shown a picture of the books. (Mearin Dep. at 20.) Mearin denied that he arranged to receive heroin through the mail, but admitted that he was friends with Eric Tubbs, aka Najee Aazoner, the man suspected of shipping the books to SCIG. (Def. Ex. F at 2, 4-5.) He admitted that he communicated with Tubbs using a written Egyptian language called "grifficks." (Id. at 6; Mearin Dep. at 36.) A key equating symbols to letters and numbers was found in a subsequent search of Mearin's cell on December 1, 2004. (Def. Ex. D at 6; Def. Ex. H.) Mearin denies that the key is a code, claiming that it is "grifficks." (Dohman Dep. at 71-72; Def. Ex. F at 6.) During the interview, Dohman told Mearin that he was going to be given misconducts for his involvement with the heroin. (Def. Ex. F at 4, 7-8.)
An investigation of correctional officers at SCIG suspected of bringing contraband into the facility was going on at the same time as the Mearin incident. (Dohman Dep. at 72-76.) It resulted in the incarceration of four or five officers. (Id. at 75.) These officers' activities were not related to the Mearin incident and there is no evidence that Mearin was involved in those activities. (Id.) Dohman asked Mearin if was able and willing to give him any information on prison staff involved in bringing contraband into SCIG. (Def. Ex. F at 8.) Mearin denied any knowledge of unlawful activity. (Id.)
Moyer issued Mearin Class A misconducts for possession of a controlled substance, committing a violation of the Pennsylvania crimes code, specifically conspiracy, and Class B misconducts for possession of contraband and lying to an employee. (Def. Ex. I.) He was placed in pre-hearing confinement in the Restricted Housing Unit ("RHU"). (Def. Ex. D at 4.) A misconduct hearing was held on December 2, 2004 and Mearin was found guilty of all four misconducts. (Def. Ex. J.) He was removed from his prison job, and ordered to serve 270 days of disciplinary custody in the RHU, which after appeal, was reduced to 103 days. (Id.; Mearin Dep. at 15-18, 73.) After 103 days in disciplinary custody, he was transferred to the State Correctional Institution at Greene. (Mearin Dep. at 16, 74.)
Plaintiff's expert, Alan C. Donelson, Ph.D., holds a doctoral degree in pharmacology and an undergraduate degree in chemistry. (Pl. Ex. 1, App'x B.) He has submitted a report opining that the NIK Test Kit A is not specific for the category of chemicals known as opium alkaloids or for the specific chemical compound heroin. (Id. at 3.) Rather, it tests a variety of substances, of which heroin (diacetylmorphine) is one. (Id., Table 1.) He opines that the specific test for "brown heroin" is NIK Test Kit L. (Id. at 4.) He notes in his report that there is no indication in the record that other packets discovered in the altered books were tested to ensure that the contents of all the packets were the same, and there is no record of any further testing done by the Pennsylvania State Police before the samples were destroyed. (Id. at 5.) He opines that the record does not establish direct, positive evidence that the packets found in the book sent to Mearin contained heroin. (Id.) He notes that a news article reported the use of "sham heroin" on May 27, 2004 (approximately five months before the incident giving rise to this litigation), during an investigation into the smuggling of contraband into SCIG. (Id.) He opines that he cannot form an opinion with reasonable scientific certainty that the packets contained heroin. (Id. at 6.)
As a threshold issue, Mearin argues that summary judgment should be denied and the Defendants' defenses should be stricken as a sanction for their spoliation of evidence central to the Plaintiff's case, namely the packets of heroin, the altered book addressed to him, and its packaging. It is well-settled that "[a] party which reasonably anticipates litigation has an affirmative duty to preserve relevant evidence." Bowman v. Am. Med. Sys. Inc., Civ. A. No. 96-7871, 1998 WL 721079, at *3 (E.D. Pa. Oct. 9, 1998); see also Hohider v. United Parcel Serv., Inc., 257 F.R.D. 80, 82 (W.D. Pa. 2009) (same). "Spoliation is 'the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.'" Chirdo v. Minerals Techs., Inc., Civ. A. No. 06-5523, 2009 WL 2195135, at *1 (E.D. Pa. July 23, 2009) (quoting Mosaid Techs., Inc. v. Samsung Elec. Co., Ltd., 348 F. Supp. 2d 332, 335 (D.N.J. 2004)). "Spoliation occurs where: the evidence was in the party's control; the evidence is relevant to the claims or defenses in the case; there has been actual ...