OPINION AND ORDER RE: ECF NO. 125
MAUREEN P. KELLY, Magistrate Judge.
Plaintiff Robert Stratton, a Pennsylvania state prisoner proceeding with appointed counsel, has filed a civil rights action pursuant to 42 U.S.C. § 1983 against various employees of the State Correctional Institution at Fayette ("SCI - Fayette"), alleging the violation of his rights under the First, Eighth and Fourteenth Amendments to the United States Constitution, Section 504 of the Rehabilitation Act of 1972 (29 U.S.C. § 794), and Title II of the Americans with Disabilities Act (42 U.S.C. § 12131, et seq. ). Defendants have filed a Motion for Summary Judgment as to all claims [ECF No. 125]. For the following reasons, the Motion for Summary Judgment is granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, proceeding pro se and in forma pauperis, commenced this Section 1983 action on February 3, 2011, by filing a Complaint, exhibits thereto, and a Motion for Appointment of Counsel [ECF No. 1]. Upon consideration of Plaintiff's documented and apparent history of mental health issues and given his filing of several unsupported motions seeking judicial intervention with regard to the circumstances of his confinement, this Court granted Plaintiff's Motion for Appointment of Counsel. [ECF No. 81].
A Second Amended Complaint [ECF No. 103] was filed by appointed counsel, alleging claims arising out of Plaintiff's incarceration at SCI - Fayette. In Count I, Plaintiff alleges he was retaliated against for filing a grievance against the assistant librarian and deprived of due process in violation of his First and Fourteenth Amendment rights, when his assigned counselor, Defendant Summer Dugan, increased his custody level to Level 4, and thereby precluded Plaintiff from being considered for an incentive based transfer. At Count II, Plaintiff alleges that Defendants were deliberately indifferent to his serious mental health needs and, in violation of his Eighth Amendment rights, failed to provide him with adequate mental health care. At Count III, Plaintiff alleges an Eighth Amendment claim for cruel and unusual punishment arising out of housing Plaintiff in a Restricted Housing Unit, without appropriate mental health care and treatment. Finally, at Count IV, Plaintiff alleges a claim for the violation of the Rehabilitation Act and the Americans with Disabilities Act, 29 U.S.C. § 794 and 42 U.S.C. § 12132, for failing to provide non-segregated and non-isolated confinement and increased mental health care treatment as "reasonable accommodations to prevent confinement conditions which exacerbate Plaintiff's mental illness." [ECF No. 103, ¶ 51].
In response, Defendants contend that there are no material issues of fact precluding the entry of judgment in favor of Defendants as a matter of law as to each of the claims presented.
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56(a), "[t]he 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." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). "[T]his standard provides that the 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 (1986) (emphasis in original).
A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson , 477 U.S. at 248; Gray v. York Newspapers, Inc. , 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson , 477 U.S. at 257; Brenner v. Local 514, United Brotherhood of Carpenters and Joiners of America , 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether there is a genuine issue of material fact, the court must view the facts and all reasonable inferences in favor of the nonmoving party. Moore v. Tartler , 986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail Corporation , 963 F.2d 599, 600 (3d Cir. 1992). In order to avoid summary judgment, however, parties may not rely on unsubstantiated allegations. Parties seeking to establish that a fact is or is not genuinely disputed must support such an assertion by "citing to particular parts of materials in the record, " by showing that an adverse party's factual assertion lacks support from cited materials, or demonstrating that a factual assertion is unsupportable by admissible evidence. Fed.R.Civ.P. 56(c)(1); see Celotex , 477 U.S. at 324 (requiring evidentiary support for factual assertions made in response to summary judgment). The party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio , 475 U.S. 574, 586 (1986). Parties must produce evidence to show the existence of every element essential to its case that they bear the burden of proving at trial, for "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex , 477 U.S. at 323; see Harter v. G.A.F. Corp. , 967 F.2d 846, 851 (3d Cir. 1992). Failure to properly support or contest an assertion of fact may result in the fact being considered undisputed for the purpose of the motion, although a court may also give parties an opportunity to properly provide support or opposition. Fed.R.Civ.P. 56(e).
Plaintiff asserts claims against Defendants pursuant to 42 U.S.C. § 1983 for the violation of his First, Eighth and Fourteenth Amendment rights, as well as his rights arising under the Rehabilitation Act and the Americans with Disabilities Act, 29 U.S.C. § 794 and 42 U.S.C. § 12132. Section 1983 affords a right to relief where official action causes a deprivation of rights protected by the Constitution or federal law. Monell v. Dep't of Soc. Servs , 436 U.S. 658, 690 (1978). The statute is not an independent source of substantive rights, but merely provides a remedy. Thus, to establish a claim under Section 1983, "a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." Harvey v. Plains Twp. Police Dep't , 421 F.3d 185, 189 (3d Cir. 2005) (quoting West v. Atkins , 487 U.S. 42, 48 (1988)). For the reasons that follow, Plaintiff fails to establish the violation of any Constitutional right or federal law and Defendants therefore are entitled to the entry of judgment in their favor as a matter of law.
A. Count I - Due Process and Retaliation Claims
Plaintiff's Second Amended Complaint alleges the violation of his First and Fourteenth Amendment rights because of a change in his facility custody level implicating his institutional placement. In particular, Plaintiff alleges that on or about December 3, 2010, he requested an incentive-based hardship transfer from SCI-Fayette, presumably to be closer to his family in Eastern Pennsylvania. [ECF No. 103, ¶ 18]. Plaintiff contends that his request was denied because his facility custody level was set at Level 4 and incentive-based transfers are only granted to inmates with a Level 2 custody level. Id . Plaintiff alleges that his custody level was changed without his knowledge in retaliation for filing Grievance # 320068 against Assistant Librarian J. Brown on June 1, 2010. The change is alleged to have been made by Defendant Dugan, who Plaintiff believes "had a personal relationship" with Assistant Librarian Brown. [ECF No. 134, ¶ 3].
As a factual matter, discovery has concluded and Plaintiff has not provided the Court with evidence that his custody level was increased in any relevant manner after the filing of Grievance # 320068, or that Defendant Dugan was aware of this particular grievance so that a fact finder could reasonably infer a motive to retaliate. Instead, the documents supplied by Defendants indicate that for the period 1998 through at least June 2012, Plaintiff's custody level was never lower than a Level 3, and for the period November 9, 2007, though January 14, 2011, his custody level appears to have remained at Level 4, at which point it was briefly increased to Level 5 during Plaintiff's stay in a psychiatric observation unit. [ECF No. 127-3]. Defendants have presented evidence that to the extent a change may have occurred, Plaintiff's custody level was dictated by applicable Department of Corrections' policy, based upon Plaintiff's extensive history of assaultive behavior while incarcerated. [ECF Nos. 127-2, pp. 7-11; 127-4]. Defendant Dugan's review of Plaintiff's incarceration and assault record resulted in her recommendation of a Level 4 custody level. This recommendation was approved by personnel at the Department of Corrections ("DOC") responsible for single cell custody levels. Id . Defendant Dugan testified that she would not have been informed of the grievance at issue until the final disposition and imposition of a penalty, and so she was unaware of Plaintiff's grievance at the time she made her custody level recommendation. Further, given the applicable DOC regulations and Plaintiff's history of assaults, Plaintiff's custody level was automatically set by the computer program used to determine custody level status for the protection of other inmates and staff and served to protect any potential cellmates. [ECF No. 127-2].
Against this factual background, Defendants are entitled to the entry of judgment in their favor as a matter of law with regard to Plaintiff's Fourteenth Amendment due process claim. To the extent Plaintiff alleges his custody level was changed without notice, Plaintiff cannot establish that he was deprived of a protected ...