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Stokes v. Wetzel

United States District Court, M.D. Pennsylvania

April 30, 2014

MAURICE STOKES, Plaintiff
v.
JOHN WETZEL, et al., Defendants

MEMORANDUM

MALACHY E. MANNION, District Judge.

Background

Maurice Stokes, an inmate presently confined in the State Correctional Institution, Huntingdon ("SCI-Huntingdon"), Pennsylvania, filed this pro se civil rights action pursuant to 42 U.S.C. §1983. The named Defendants are John Wetzel, Secretary of Department of Corrections and Tabb Bickell, SCI-Huntingdon Superintendent. Along with his complaint, Plaintiff submitted an application requesting leave to proceed in forma pauperis under 28 U.S.C. §1915. The Prison Litigation Reform Act (the "Act"), Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996) imposes obligations on prisoners who file suit in federal court and wish to proceed in forma pauperis under 28 U.S.C. §1915, e.g., the full filing fee ultimately must be paid (at least in a non-habeas suit). Also, the section requires screening complaints in prisoner actions.[1]

The complaint will now be reviewed pursuant to the screening provisions of the Act. For the reasons set forth below, the instant complaint will be dismissed as legally frivolous pursuant 28 U.S.C. §1915(e)(2)(B)(i).

When considering a complaint accompanied by a motion to proceed in forma pauperis , a district court may determine that process should not be issued if the complaint is malicious, presents an indisputably meritless legal theory, or is predicated on clearly baseless factual contentions. Neitzke v. Williams , 490 U.S. 319, 327-28 (1989); Wilson v. Rackmill , 878 F.2d 772, 774 (3d Cir. 1989).[2] "The frivolousness determination is a discretionary one, " and trial courts "are in the best position" to determine when an indigent litigant's complaint is appropriate for summary dismissal. Denton v. Hernandez , 504 U.S. 25, 33 (1992).

On September 25, 2013, Plaintiff claims that he was seen by the Program Review Committee, where it was "decided [he] would remain in the Restricted Housing Unit because placement in general population would endanger [his] safety." (Doc. No. 3, complaint at 3).

On October 2, 2013, Plaintiff was "made to sign into an interstate corrections compact (transfer to leave the state)." Id . He claims that he "signed it believing he had not choice and [he] had been held in the RHU since." Id . Plaintiff states that his "problem is [he does] not want this transfer" and that "there are many options which are less oppressive that could give [him] some safety but they refuse to take them." Id.

On April 15, 2013, Plaintiff filed the instant action. He believes that "what they're doing is not a form of relief, it is psychological torture" and that he is "being punished, not helped", as he was "tried and convicted in Pa, they should not be allowed to force [him] to serve time somewhere else, as the physical separation from [his] family would in fact be a punishment too." Id . For relief, Plaintiff seeks "to have the interstate corrections compact withdrawn" and "be transferred and released into general population in another facility within the state." Id.

Discussion

To the extent that Stokes premises his claim for relief on an entitlement to a transfer, this claim fails as a matter of law. It is well established that the United States Constitution does not confer any right upon an inmate to any particular custody or security classification. Moody v. Daggett , 429 U.S. 78, 88, (1976); Montanye v. Haymes , 427 U.S. 236, 242 (1976). Thus, inmates do not have a liberty interest in retaining or receiving any particular security or custody status "[a]s long as the [challenged] conditions or degree of confinement is within the sentence imposed... and is not otherwise violative of the Constitution." Id . Similarly, it has long been recognized that prison transfer decisions, standing alone, do not constitute cruel and unusual punishment in violation of the Eighth Amendment to the Constitution. See, e.g., Hassain v. Johnson , 790 F.2d 1420 (9th Cir.1986); Serrano v. Torres , 764 F.2d 47 (1st Cir.1985). Thus, even inmate transfers to facilities far from their homes do not rise to the level of cruel and unusual punishment. See, e.g., Gov't of Virgin Island v. Gereau , 592 F.2d 192 (3d Cir.1979) (transfer from Virgin Islands to mainland); Rodriguez-Sandoval v. United States , 409 F.2d 529 (1st Cir.1969) (transfer from Puerto Rico to Atlanta). In sum, well-settled law establishes that prisoners have no inherent constitutional right to placement in any particular prison, to any security classification, or to any particular housing assignment. See Olim v. Wakinekona , 461 U.S. 238, 245 (1983); Meachum v. Fano , 427 U.S. 215, 225 (1976); Montanye , 427 U.S. at 242; Bulger v. U.S. Bureau of Prisons , 65 F.3d 48 (5th Cir.1995); Marchesani v. McCune , 531 F.2d 459 (10th Cir.), cert. denied, 429 U.S. 846 , 97 S.Ct. 127, 50 L.Ed.2d 117 (1976). Simply put, as a legal matter Stokes has no constitutional right to choose his prison.

Nor can Stokes premise this claim upon an assertion that he is entitled to leave the RHU. This assertion also misconstrues the controlling legal standards governing inmate disciplinary housing claims. Those controlling legal tenets were summarized in the following terms:

In Sandin v. Conner , 515 U.S. 472 (1995) the Supreme Court dramatically narrowed the range of liberty interests created by law and regulation. Prior to Sandin, courts reviewed the specific language of the pertinent law or regulation to determine whether the language was unmistakably mandatory in character such that it created a liberty interest. The Supreme Court announced a new rule in Sandin for determining whether a prisoner had a protected liberty interest created under statute or regulation by shifting the focus of inquiry from the specific language of the law or regulation to whether the deprivation suffered by the prisoner imposes an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin , 515 U.S. at 483 (emphasis added). [Following Sandin] [e]very court that has addressed this issue in Pennsylvania has determined that prisoners do not have a liberty interest in remaining free from confinement in the SMU or similar housing. See, e.g., Smith v. Dodrill , 2009 WL 62175 (M.D. Pa. Jan 8, 2009); Spencer v. Kelchner , 2007 WL 88084 (M.D.Pa. Jan.9, 2007); Dantzler v. Beard , 2007 WL 5018184 (W.D.Pa. Dec.6, 2007); Francis v. Dodrill , 2005 WL 2216582 (M.D.Pa. Sept.12, 2005). Cf. Johnson v. Hill , 910 F.Supp. 218, 220 (E.D.Pa.1996) (holding that, absent a state-created liberty interest that does not exist in Pennsylvania, prisoner placement is a matter of prison administration and a prisoner has no constitutional right to be placed in any particular cell or housing unit).

Brown v. Beard, No. 07-637, 2011 WL 1085890, *20 (W.D.Pa. March 21, 2011)

In sum, since Stokes manifestly does not have a constitutional right to leave the RHU, he cannot base a constitutional claim against Defendants upon their alleged failure to give him a benefit which he was not entitled to receive-a transfer to the prison of his choosing. Since Plaintiff's complaint is "based on an indisputably meritless legal theory" it will be dismissed as legally frivolous. Wilson v. Rackmill , 878 F.2d 772, 774 (3d Cir. 1989). Under the circumstances, the court is confident that service of process is not only unwarranted, but would waste the increasingly scarce judicial resources that §1915(d) is designed to preserve. See Roman v. Jeffes , 904 F.2d 192, 195 n. 3 (3d Cir. 1990).

A separate Order will be issued.

Benjamin Smith, Cumberland, MD, pro se.

Dennis Pfannenschmidt, U.S. Attorney's Office, Harrisburg, PA, for Respondents.

MEMORANDUM

JOHN E. JONES III, District Judge.

*1 This matter is before the Court on the Report and Recommendation ("R & R") of Magistrate Judge Thomas M. Blewitt, which recommends that the petition of Benjamin Smith ("Smith" or "Petitioner"), a pro se inmate at the Federal Correctional Institution in Cumberland, Maryland ("FCI-Cumberland"), FN1 for writ of habeas corpus pursuant to 28 U.S.C. § 2241 be denied. (Rec.Doc. 4). Petitioner filed objections to the R & R (Rec.Doc. 10), FN2 but the Respondents have not filed any documentation in opposition to these objections. Nonetheless, the issue is ripe for disposition.FN3 For the reasons set forth below, the Court will deny the obj ections and adopt the R & R in its entirety.

FN1 Although Petitioner is currently an inmate at FCI-Cumberland, the instant matter concerns alleged deprivations of federal rights endured while Petitioner was incarcerated at the United States Penitentiary-Canaan in Waymart, Pennsylvania ("USP-Canaan").
FN2 Also before this Court is Petitioner's Motion for Extension of Time in Which to File Objections to the R & R (Rec.Doc. 9). Since the Petitioner has already filed objections, we shall deny this motion as moot.
FN3 Also before this Court, and ripe for disposition, is Petitioner's Motion to Proceed in Forma Pauperis (Rec.Doc. 3).

I. STANDARD OF REVIEW

When obj ections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b) (1); United States v. Raddatz, 447 U.S. 667, 674-75, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). The court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423 U.S. 261, 275, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir.1984).

II. STATEMENT OF FACTS

Smith filed the instant § 2241 petition FN4 against the named Respondents FN5 on December 20, 2007 (the "Petition"). (Rec.Doc.1). In said Petition, Smith alleges that on June 20, 2005, while incarcerated at USP-Canaan, he was assaulted by a fellow inmate, subsequently quarantined in a special housing unit ("SHU") pending investigation into the incident, and ultimately released from SHU on June 30, 2005 after being cleared of any wrongdoing. ( Id. at 5). On August 8, 2005, Warden Lindsay submitted to Respondent Dodrill a recommendation that Petitioner be transferred from USP-Canaan. ( Id. ). Pursuant to a memorandum authored by John M. Vanyur (the "Vanyur Memo"), the Assistant Director of the Bureau of Prisons, Dodrill denied transfer until Petitioner was placed in a 10-month disciplinary segregated housing program FN6 ("DSP") and maintained a clear record during that time. ( Id. ).

FN4. 28 U.S.C. § 2241 provides that a writ of habeas corpus may issue to anyone whose custody violates the federal Constitution, laws, or treaties. See Zadvydas v. Davis, 533 U.S. 678, 687, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).
FN5. Smith specifically names as Respondents D. Scott Dodrill ("Dodrill"), the Regional Director of the Bureau of Prisoners; Cameron Lindsay ("Lindsay"), Warden at USP-Canaan; Frank Karam ("Karam"), Associate Warden at USP-Canaan; and Frank Lara ("Lara"), Captain of the Guard at USP-Canaan (collectively, "Respondents").
FN6. According to Petitioner, the DSP involved readmittance into the SHU and confinement in a cell for 23 hours per day. (Rec. Doc. 1 at 4).

Smith contends that his placement in the DSP was unwarranted because the Vanyur Memo was intended to prevent inmates from manipulating transfers for their own purposes, whereas his transfer was requested by Warden Lindsay as a result of the assault he sustained.FN7 ( Id. ). Accordingly, the instant Petition requests habeas relief to the extent that we reverse the judgment of Respondent Dodrill and find that the placement of Petitioner in a 10 month DSP violated due process FN8 because he was never given notice, an administrative detention order, FN9 a hearing, or proper review regarding such placement. ( Id. ). In addition to this declaratory relief, Petition requests that $30, 000 in monetary damages be awarded.

FN7 While Smith contends this was the purpose of the Vanyur Memo, he has not attached a copy of same, nor can we locate same through a search of the Bureau of Prison's website. Therefore, we cannot verify the contents or identify the purpose of the Vanyur Memo. However, Smith's complaint to Vanyur regarding the inapplicability of the Vanyur Memorandum, accompanied by the subsequent repeal of the dictates of that memorandum, may indicate that Petitioner has correctly identified its purpose.
FN8 We note that the instant Petition contains due process allegations identical to those found in a complaint filed by Petitioner on June 15, 2007. See July 15, 2007 Complaint, No. 4:07-1079, Rec. Doc. 1. Pursuant to our Order of December 3, 2007, we adopted the Magistrate Judge's R & R to the extent that it recommended that Petitioner's due process claims be dismissed. December 3, 2007 Memorandum and Order, No. 4:07-1079, Rec. Doc. 14, pp. 13-14. We did so without prejudice, so that Petitioner could incorporate such allegations into a habeas corpus petition after exhausting administrative remedies. Id. at p. 14 n. 12. By incorporating his due process claims as the foundation for the instant Petition he has done just that. Since Petitioner mentions his 23 hour per day confinement as a condition of the DSP, we construe his due process claim to allege a deprivation of liberty.
FN9 Smith insinuates that his overtures requesting a detention order, made on or about October 2, 2005, were ignored until approximately December 6, 2005. ( Id. ). He claims to have been discharged from the DSP in January 2006. ( Id. ).

B. THE REPORT AND RECOMMENDATION

*2 Initially, we note that Petitioner's previous Fifth Amendment Due Process claim was made pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), FN10 and was dismissed because it did not implicate a liberty interest. However, we elected to dismiss without prejudice not so that the Petitioner could reassert the Bivens claim in a habeas corpus motion, but so that the Petitioner could incorporate the averments as the basis for the habeas corpus motion. Nonetheless, it appears to us, as it evidently did to Magistrate Judge Blewitt, that Smith used the instant Petition to advance both theories. FN11 Thus, Magistrate Judge Blewitt's February 13, 2008 R & R recommends that both the habeas petition and the due process claim be dismissed. We will address these requests in turn, beginning with the habeas petition.

FN10. Generally, a plaintiff may bring a Bivens claim in federal court when he or she experiences a deprivation of federal constitutional rights at the hands of a federal officer. See generally Bivens, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619.
FN11 Since the document styled "Petition for Habeas Corpus, " (Rec.Doc. 10), in fact contains a petition for habeas corpus and an apparent due process claim, to distinguish between the document as a whole and the specific petition for habeas relief contained therein, we will refer to the former as the "Petition" and to the latter as the "habeas petition."

In quoting Third Circuit precedent, Magistrate Judge Blewitt noted that when an inmate's complaint is to "a condition of confinement such that a finding in [the inmate's] favor would not alter his sentence or undo his conviction, " that circumstance cannot support a petition for habeas corpus. See Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir.2002).FN12 Since a ruling in the Petitioner's favor would not alter his sentence or undo his conviction, FN13 and since the Magistrate Judge concluded that the Petition was not challenging a disciplinary punishment or seeking expungement of his prison record as to his placement in DSP, he determined that the Petition was not a proper habeas petition and therefore recommended its dismissal.

FN12 Rather, the Leamer Court noted that a habeas petition would be supported by attacking "the validity of the continued conviction or the fact or length of the sentence." Leamer, 288 F.3d at 542.
FN13 Indeed, a ruling in Petitioner's favor would not result in a reduction of his prison sentence, nor would it result in his discharge from the DSP, which already occurred in January 2006.

Further, the Magistrate Judge opined that the Petitioner's averments could not meet the standards of a due process liberty claim. Quoting United States Supreme Court precedent, he noted, "The Due Process clause protects a prisoner's right to freedom from restraint [when said restraint]... imposes atypical and significant hardship in relation to the ordinary incidents of prison life." FN14 (Rec. Doc. 4, p. 15 (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995))). The Magistrate Judge proceeded to cite Sandin for the proposition that "discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by the court of law." Id. at 486. Indeed, Magistrate Judge Blewitt acknowledged that inmates who are considered security risks are often removed from the general prison population and placed in a more restrictive custodial environment. See Fraise v. Terhune, 283 F.2d 506 (3d Cir.2002). Cognizant that Petitioner had been in the DSP for approximately seven months, the Magistrate Judge noted that transfers of prisoners from the general population into administrative or disciplinary segregation units for as long as fifteen months were not uncommon when the inmate was deemed a security risk. See Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir.1997).

FN14 The Magistrate Judge contrasted conditions of administrative custody that were found to be violative of the Due Process Clause with those that were constitutional. For example, administrative custody violates the Due Process Clause when, inter alia, it virtually eliminates all human contact, requires the lights be on 24 hours a day, and is indefinite in duration. Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384, 2393, 162 L.Ed.2d 174 (2005). Conversely, administrative custody is constitutional where, inter alia, it promotes prosocial behavior, Francis v. Dodrill, 2005 WL 2216582 * 5 (M.D.Pa.2005), or requires the inmate to live under restricted conditions for a fixed duration without behavioral incidents prior to being reintroduced to the general prison population, see generally Fraise v. Terhune, 283 F.2d 506 (3d Cir.2002).

Since the Petitioner's conditions of confinement were more akin to the conditions in Francis and Fraise than those in Wilkinson, and since the term of confinement in the DSP was less than that in Griffin, the Magistrate Judge concluded that the Petitioner's liberty interests were not violated by his placement in DSP without a hearing, detention order, or the like. Accordingly, Magistrate Judge Blewitt determined not only that Petitioner could not maintain a due process claim, but also that Petitioner's due process assertions could not form the basis of a habeas petition. Rather, instead of supporting a Bivens claim or a habeas corpus petition, the Magistrate Judge noted that Petitioner's allegations might better support a cause of action under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq. FN15 Thus, the Magistrate Judge recommends dismissal of Petitioner's habeas petition and due process claim without prejudice to file an FTCA action after the Petitioner has exhausted his administrative remedies.

FN15 The FTCA permits private parties to sue the United States in a federal court for most torts committed by persons acting on behalf of the United States. See generally 28 U.S.C. § 2671, et seq. In this instance, Magistrate Judge Blewitt observed that Petitioner's claim that the Vanyur Memo was erronesouly applied to him could constitute a negligence claim cognizable under the FTCA.

III. DISCUSSION

*3 On April 14, 2008, Petitioner filed objections to the R & R, (Rec.Doc.10), which we will address and analyze below.

Petitioner appears to assert that the Magistrate Judge based his dismissal of the habeas petition solely on the assumption that the Petition did not challenge a disciplinary punishment in the DSP/SHU or seek expungement of his prison record relating to his participation in the DSP and attendant confinement in the SHU. (Rec. Doc. 10, p. 4 (citing Rec. Doc. 4, p. 5)). Smith then proceeds to assert that the Petition does challenge the disciplinary punishment in the DSP/SHU, which would necessarily result in an expungement of his prison record in that regard. (Rec.Doc. 10, p. 4). Therefore, Petitioner asserts that the R & R in incorrect and that he is entitled to habeas relief. However, Petitioner conflates the Magistrate Judge's reasoning.

As noted in our summary of the R & R, and in contravention to Petitioner's point of view, Magistrate Judge Blewitt's decision to dismiss the habeas petition does not rest exclusively on the assumption that Petitioner was not challenging his confinement nor seeking expungement of his record. In fact, considering that that statement encompasses half a paragraph in a twenty page R & R, it seems like a mere afterthought rather than the crux of the Magistrate Judge's reasoning. Indeed, noting that the habeas petition challenged the conditions of confinement, rather than the validity or execution of the Petitioner's sentence, the bulk of the Magistrate Judge's discussion of the habeas petition focuses on the Leamer case, referenced above. To recapitulate, Leamer held that when a challenge to the conditions of confinement would not, if successful, alter the petitioner's sentence or undo his conviction, the challenge must be brought pursuant to either § 1983 or Bivens, not through a habeas petition. Leamer, 288 F.3d at 542. Indeed, the Third Circuit Court of Appeals followed its Leamer decision with its decision in Bronson v. Demming, 56 Fed.Appx. 551 (3d Cir.2002). The Bronson Court concluded that where a petitioner desired to be released from one type of confinement to another (in that case from a restricted housing unit to the general population) habeas relief was unavailable because neither the fact nor length of petitioner's incarceration would be altered by granting the petition. Id. at 553.

As was the case in Bronson, Petitioner in the instant matter complains of confinement in a restrictive housing unit, asserting that he should have been housed with the general prison population. Similar to Bronson, neither the fact nor term of Petitioner's imprisonment would be altered in the instant matter by a declaration that his placement in the DSP/SHU was unconstitutional or the expungement of his prison record in that regard. Thus, pursuant to the dictates of Leamer and Bronson, we agree with the Magistrate Judge's conclusion that Smith's petition for habeas corpus relief is improper and must be dismissed.

*4 Even if, assuming arguendo, Smith's habeas petition was proper, he would not be successful in obtaining relief on the same because his confinement did not violate the Constitution, laws, or treaties of the United States. Petitioner's position is that his confinement in the SHU violated the liberty interests secured by the Due Process Clause of the Fifth Amendment. In his objections, he opines that the authority cited by the Magistrate Judge in the R & R is inapposite in the instant matter because his case is factually distinguishable. Namely, he posits that the cases cited by Magistrate Judge Blewitt involved the "control of problematic prisoners or the proper discipline of prisoners who committed... misconducts, " and are therefore inapplicable to the instant matter since his confinement in SHU was spawned not by any misconduct on his part, but by the assault he sustained at the hands of a fellow inmate. (Rec.Doc. 10, p. 2). While this statement is not altogether incorrect, Petitioner fails to take cognizance of certain facts that make the instant matter analogous to the authority cited by the Magistrate Judge.

To quickly restate that authority, Sandin stands for the proposition that an inmate's liberty interest is infringed only by an "atypical and significant hardship in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484. Moreover, the Third Circuit has held that transfers of prisoners from the general population into administrative or disciplinary segregation units for as long as fifteen months were not uncommon when the inmate was deemed a security risk. See Griffin, 112 F.3d at 706. While the Petitioner is correct that an investigation into the assault that led to his confinement in SHU revealed that he was not at fault in that particular incident, the investigation also discovered that "his return to the general population at [USP-Canaan] would pose a threat to the safe, secure, and orderly operation of the prison." (Rec.Doc.1, Ex. 2).FN16 Accordingly, since the Petitioner was determined to pose a security risk, the dictates of Sandin and Griffin lead us to believe that his confinement in a segregated housing unit was not violative of the liberty interest secured by the Fifth Amendment. Indeed, such confinement is not at all atypical for inmates determined to pose threats to the security and operation of a prison. See e.g., Sandin, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418; Fraise, 283 F.2d 506; Griffin, 112 F.3d 703; Francis, 2005 WL 2216582.

FN16. This statement was contained in a document sent to Petitioner by Harrell Watts, the Adminsitrator of National Inmate Appeals, in response to Petitioner's complaint that his confinement in the SHU violated his rights. Notably, the Supreme Court of the United States has held that deference should be given to the determinations of prison officials who, in "fine-tuning... the ordinary incidents of prison life, " must necessarily be afforded the ability to appropriately control prison conditions in order to manage a volatile environment. See Sandin, 515 U.S. 482-83. Thus, we pay special deference to the determination that Petitioner's release into the general prison population posed a security threat.

Since Petitioner's claims are not sufficient in supporting either a due process claim or a habeas corpus petition, these actions must be dismissed. However, like the Magistrate Judge, we perceive that Petitioner's allegations may state a viable claim for relief under the FTCA. Thus, we believe that the habeas petition and due process claim should be dismissed without prejudice to file an FTCA claim after the exhaustion of administrative remedies. We therefore adopt the R & R in this extent.FN17

FN17. Magistrate Judge Blewitt explicitly recommends that the four Respondents be dismissed from this action. We find it unnecessary to expressly do so, since our dismissal of Petitioner's claims for relief in their entirety implies that those individuals are no longer respondents in this action.

*5 Finally, the Magistrate Judge has recommended that Petitioner's Motion to Proceed in Forma Pauperis be granted with respect to the filing of the Petition. Since the Petitioner has a mere $49.94 in his personal account, the de minimus nature of his assets militates in favor of the Magistrate Judge's determination. Therefore, we will adopt the Magistrate Judge's R & R in this regard.

IV. CONCLUSION

For the foregoing reasons, the Court will adopt the recommendation of the Magistrate Judge to dismiss Petitioner's habeas petition and due process claim without prejudice to file an FTCA claim after administrative remedies have been exhausted. The Court will also adopt Magistrate Judge Blewitt's recommendation that Petitioner's Motion to Proceed in Forma Pauperis be granted as it relates to this case. An appropriate order in accordance with this memorandum will be entered.

REPORT AND RECOMMENDATION

THOMAS M. BLEWITT, United States Magistrate Judge.

I. Background.

Petitioner, Benjamin Smith, formerly an inmate at the USP-Canaan, and now confined at FCI-Cumberland, MarylandFN1, filed another action with this Court, this time a writ of habeas corpus pursuant to 28 U.S.C. § 2241, on December 20, 2007. (Doc. 1). Further, Petitioner attached Exhibits 1-3 to his habeas petition.FN2

FN1. Petitioner has filed previous civil rights action with this Court. See Civil Nos. 05-2663 and 07-1079, M.D. Pa. For the most part, Petitioner's claims in his present habeas petition are that his Fifth Amendment due process rights were violated due to his 10-month placement in the USP-Canaan Disciplinary Segregated Housing Unit ("SHU") from June 20, 2005 through January 2006. Petitioner seeks declaratory relief, as well as compensatory damages.
In Petitioner's pending civil rights case # 07-1079, M.D. Pa., he raised the same due process claim as he presently raises regarding his challenge to his placement in the SHU on June 20, 2005 at USP-Canaan. The District Court, finding that Petitioner's placement in the SHU did not implicate a liberty interest, dismissed this due process claim raised in Petitioner's No. 07-1079, M.D. Pa., Bivens action without prejudice to assert it in a habeas petition after he exhausted his BOP Administrative remedies. December 3, 2007 Memorandum and Order, No. 07-1079, M.D. Pa., Doc. 14, pp. 13-14, n. 12.
FN2. Petitioner's Exhibits 1-3 in this case, are Dodrill's, Watts' and Lindsay's responses to his grievances about the decision to place him in the SHU and DSP Program at USP-Canaan prior to his transfer.

Petitioner names as Defendants D. Scott Dodrill, BOP Regional Director; Cameron Lindsay, Warden at USP-Canaan; Frank Karam, Associate Warden; and Frank Lara, Captain of the Guard. (Doc. 1, p. 1). In a habeas petition, the only proper Respondent is the person who has custody over Petitioner. See 28 U.S.C. § 2242 and § 2243.FN3 Petitioner does not challenge either the validity or the execution of his sentence.

FN3. We note that the Warden at FCI-Cumberland is the proper Respondent with custody over Petitioner since Petitioner is confined at this prison. Petitioner is no longer an inmate at USP-Canaan located in the M.D. Pa., and thus, this Court does not have jurisdiction over his Petition. See Rumsfeld v. Padilla, 542 U.S. 426, 124 S.Ct. 2711, 2718, 2722, 159 L.Ed.2d 513 (2004) (habeas jurisdiction rests in the district of confinement). We also note, as discussed below, that this case sounds more like an FTCA action.

Petitioner is no longer in the custody of Warden Lindsay since he is confined at FCICumberland. If this was a proper habeas petition, then Petitioner has not named any proper Respondent. Petitioner has also filed a motion for leave to proceed in forma pauperis with respect to his habeas petition, in which it is certified that Petitioner has $49.94 in his prison account. (Doc. 3).FN4

FN4. If this Report and Recommendation is not adopted and this case is construed as a habeas corpus petition, we recommend that Petitioner's in forma pauperis application be denied, and that he should be required to pay the full $5.00 habeas filing fee.

II. Claims of Habeas Petition.

In the present case, Petitioner states that on August 17, 2005, Defendant Dodrill denied his request for a transfer after he was assaulted by another inmate and placed him in a 10-month Disciplinary Segregated Housing Program ("DSP"), where he was confined in the SHU and he was locked down in his cell for 23 hours per day. (Doc. 1, p. 3-4). According to Petitioner's claim (Doc. 1, p. 4) and his Exhibits, Ex. 3, in June 2005, he was assaulted by another inmate and was then placed in the SHU pending an investigation. In August 2005, Defendant Lindsay requested a transfer for Petitioner due to the assault, and Defendant Dodrill denied the request pursuant to a Memorandum of Assistant Bureau of Prisons ("BOP") Director Vanyur. Consequently, Petitioner was made to adhere to the stated Memorandum and was placed into the 10-month DSP program, which was designed to make the inmate sustain a clear conduct record to ensure that inmate transfer requests were legitimate.

*6 Petitioner avers, and his Exhibits show, that Lindsay made the first transfer request for Petitioner in August 2005, and it was denied by Dodrill until Petitioner was placed in a 10-month DSP program and sustained a clear record prior to a transfer. Petitioner's placement in the DSP was in accordance with a Memorandum of BOP Assistant Director Vanyur which was aimed at preventing inmates from manipulating transfers for their own purposes. Exhibit 3 is a December 6, 2005 letter from Defendant Lindsay to Petitioner. It states:

On June 20, 2005, you were assaulted and subsequently placed in the Special Housing Unit pending the completion of an investigation. On August 8, 2005, a transfer request was submitted to the Northeast Regional Office for review. On August 17, 2005, the transfer request was denied pending a sustained period of clear conduct in accordance with Assistant Director J. Vanyur's memorandum.

However, according to Assistant Director J. Vanyur's memorandum, dated November 23, 2005, titled "309/323 Transfer Procedures", the procedures previously issued through his May 11, 2005 memorandum are canceled. Therefore, your unit team will resubmit a transfer request to the Northeast Regional Office for review.

(Doc. 1, Ex. 3).

It appears as though the Vanyur Memorandum and its stated requirement of placing an inmate in the 10-month DSP program prior to granting a transfer request may have been erroneously applied to Petitioner since the request for his transfer was due to the assault on him by another inmate in June 2005, and it was not initiated by Smith for any purpose of his own. (Doc. 1, Ex. 3).

Petitioner claims that after he was placed in the DSP program and housed in the SHU, he addressed Respondents Lindsay, Karam and Lara during their weekly rounds to the SHU about the error of placing him in the SHU since he did not commit any disciplinary infraction that warranted being kept "in the hole." ( Id., p. 5). Petitioner states that on September 5, 2005, Respondent Karam responded to his request for release and stated that he could not do anything for him. Petitioner states that in October 2005, he requested a detention order from Respondent Lara to explain why he was in the SHU, and his request was ignored until December 2005, when he was given a SHU placement review. At this time, Petitioner was offered a return to general population or he was told he would be resubmitted for a transfer. ( Id. ). Petitioner's Exhibit 3 indicates that he was resubmitted for a transfer and he was approved for a transfer in December 2005.

As indicated above, Petitioner's initial August 2005 transfer request made by Lindsay was denied pursuant to Assistant Director Vanyur's Memorandum and Petitioner claims the guidelines required by the Memorandum did not apply to him since he was not trying to manipulate a transfer, but was the victim of an assault. Petitioner states that he wrote a letter to Vanyur in November 2005, and that after this letter, he was discharged from the DSP program in January 2006. Petitioner concludes that he was denied due process before placement into the SHU and DSP program since he was not given notice, an administrative detention order, and a hearing or proper reviews. ( Id. ).

*7 As relief, Petitioner requests:

I would like the Court to reverse the judgment of Mr. D. Scott Dodrill and find that the 10 month disciplinary placement of petitioner in the Disciplinary Segregated Housing Program [DSP] was done in violation of Due Process and established process for prison disciplinary proceedings. If damages may be awarded petitioner requests monetary damages of $30, 000.

Insofar as Petitioner seeks this Court to retroactively reverse the August 2005 decision of Respondent Dodrill and to find that his 10-month placement into the DSP violated his due process rights, Petitioner seeks declaratory relief that this was unconstitutional. Petitioner also seeks monetary damages for his 10-month placement in the DSP.

Petitioner states that he was directed to amend a civil rights action he filed in June of 2007, Civil No. 07-1079, M.D. Pa., and that he was instructed to file a habeas corpus petition. (Doc. 1, p. 3).

As noted, the District Court dismissed without prejudice Smith's due process claim regarding his placement in the SHU at USP-Canaan raised in his Case No. 07-1079, to re-assert it in a habeas corpus petition. However, based on Smith's present Petition, it is clear that he is not challenging a disciplinary punishment in the SHU or seeking expungement of his prison record as to his confinement in the SHU. Rather, Smith is seeking money damages for his past placement in the SHU and DSP program as a result of alleged negligence by BOP officials, who may have erroneously applied the Vanyur Memorandum to Smith's case and to the transfer request made by Lindsay for Smith. It appears as though Smith may have been erroneously placed in the 10-month DSP program as required by the Memorandum, when the Memorandum may not have applied to him. We find that this claim is a tort action against the BOP, and not a proper habeas corpus claim.FN5

FN5. In Smith's 07-1079 Complaint, his due process claim was not fully stated as it is in his Habeas Corpus Petition.

Thus, Petitioner states that prior to his placement in the SHU and the 10-month disciplinary housing program ("DSP"), he was not given any disciplinary report or Administrative detention order, and that he was not given any hearing, or allowed to present evidence as to why he should not have been placed in the SHU for 10 months. (Doc. 1, p. 4). Petitioner states that being a victim of an assault was not a basis to place him in the SHU and the DSP program.

Petitioner's claims in present habeas petition are that his Fifth Amendment due process rights were violated due to his previous 10-month placement in the USP-Canaan Disciplinary Segregated Housing Program from June 20, 2005 through January 2006. Petitioner seeks declaratory relief as well as compensatory damages. Petitioner does not request any relief that would necessarily imply that his duration in prison would be lessened or that he should be released from prison. Nor does Petitioner seek release from the SHU and the DSP, since this occurred over two years ago. Further, Petitioner does not challenge the execution of his sentence.

III. Discussion.

*8 Petitioner essentially claims that his due process rights were violated with respect to his transfer from general population into the SHU after he claimed to have been assaulted by another inmate and with respect to his subsequent placement into the DSP Program for 10 months.FN6

FN6. Petitioner's present case thus challenges, for the most part, his past placement in the DSP Program and his past confinement in the SHU. As discussed below, we find Petitioner's claim is a tort claim against the BOP for negligent application of the Vanyur Memorandum and its requirements to him.

Initially, we find Petitioner's due process claim should be dismissed. Further, to the extent that Petitioner is deemed as claiming that his original transfer requested by Lindsay was erroneously denied in August 2005 by Dodrill, and that he was erroneously made to comply with Vanyur's Memorandum requiring a sustained period of clear conduct prior to a transfer, since he was not trying to manipulate a transfer, and he required a transfer due to the alleged assault on him, this amounts to a tort claim against federal officials that must be filed via a Federal Tort Claim Act ("FTCA") action. Indeed, Dodrill advised Petitioner of this tort claim in his January 11, 2006 Response to Petitioner, Doc. 1, Ex. 1.

The law is clear that negligence is not a basis for a civil rights action. It is well-settled that mere negligence is not an actionable civil rights claim. See Davidsen v. O'Lone, 752 F.2d 817 (3d Cir.1984); Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 677, 88 L.Ed.2d 662 (1986). Thus, insofar as Petitioner claims that his August 2005 transfer request was erroneously denied and that he was erroneously placed in the 10-month DSP Program to show sustained good conduct prior to being granted a transfer, Petitioner must file an FTCA action.

The FTCA, and not a Bivens action, is for negligence claims against employees of the United States. See Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 and § 2680. See also Roberts v. Banks, slip op. p. 6, n. 4FN7, 2007 WL 3096585 (3d Cir.2007) (Non-Precedential). Further, Petitioner must exhaust his Administrative remedies with the BOP by filing a tort claim (SF-95) prior to filing an FTCA action in District Court.FN8 Id., slip op. p. 5, 2007 WL 3096585, * 2. Thus, we shall recommend that Petitioner's Habeas Corpus Petition be dismissed without prejudice to file his claim for negligence against BOP staff in an FTCA action after he exhausts his administrative remedies. We also find that the erroneous placement of Petitioner in the DSP program does not amount to a due process claim and does not rise to the level of a Constitutional violation.

FN7. The Banks Court noted, "The District Court correctly construed Banks' negligence claim under the FTCA, noting that it could not consider his negligence claim under Bivens, because negligence is not the basis of a constitutional claim. See Bivens, 403 U.S. at 392 (recognizing an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights)." 2007 WL 3096585, * 2, n. 4.
FN8. The provisions of the FTCA govern all claims against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment. 28 U.S.C. § 2675(a). Petitioner here is seeking damages for his 7 month erroneous placement in the DSP program. Thus, Petitioner is seeking to sue the United States for negligent conduct of federal employees occurring during his incarceration in federal prison. With respect to any FTCA claim, the only proper party Defendant is the United States, and not the individually named employees of the BOP. See 28 U.S.C. § 2679(b) and (d)(1). Thus, no individual employee of the BOP can be included in an FTCA action, and only the United States can be named as Defendant. See Banks, supra, slip op. p. 6, 2007 WL 3096586, * 2.

To the extent that Petitioner is seeking money damages for his alleged erroneous placement into the DSP for 10 months and claims that it violated his due process rights, this claim sounds more like a civil rights action rather than a habeas petition, since the grant of relief will not shorten Petitioner's term of confinement. Nor will Petitioner's success on his claim cause him to be released from SHU confinement since he was released from the SHU in January 2006. ( Id., p. 5). Insofar as Petitioner is raising a due process claim, as discussed below, we find that it should be dismissed.

*9 To the extent that Petitioner is challenging his prior erroneous placement into the DSP Program and seeks money damages for this negligent conduct, this is an FTCA claim. Petitioner is not challenging the duration of his confinement in prison, and he does not seek an order directing the BOP to release him from prison or from the SHU. (Doc. 1, p. 4). Thus, Petitioner is not raising a habeas claim, and his petition should be dismissed without prejudice to file his negligence claim via an FTCA action.FN9

FN9. Of course, Smith must exhaust his Administrative remedies with the BOP by filing an SF-95 tort claim as Dodrill directed him to do in January 2006. (Doc. 1, Ex. 1).

The Third Circuit in Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir.2002), stated:

whenever the challenge ultimately attacks the core of habeas'-the validity of the continued conviction or the fact or length of the sentence-a challenge, however denominated and regardless of the relief sought, must be brought by way of a habeas corpus petition. Conversely, when the challenge is to a condition of confinement such that a finding in plaintiff's favor would not alter his sentence or undo his conviction, an action under § 1983 is appropriate. (Emphasis added).

Thus, Petitioner's challenge to the duration of his past confinement in the SHU and erroneous placement into the DSP program, and his request for money damages, would not result in a release from confinement. This is not a claim to be raised a habeas corpus petition. Nor does it amount to a due process Constitutional claim to be raised in a civil rights action since no liberty interest of Petitioner was implicated. Rather, it must be raised in an FTCA action. A ruling in the Petitioner's favor on this claim would certainly not alter his confinement, i.e., would not cause his immediate release from incarceration. Nor would it cause his release from the SHU since he was discharged from the DSP program in January 2006.

Further, as in our Report and Recommendation screening Smith's 07-1079 Complaint, we again do not find that Petitioner has stated a viable due process claim with respect to his 10-month placement in the DSP.

Petitioner states that on August 6, 2005, Lindsay directed that he be transferred from USP-Canaan after the assault on Petitioner, and that Dodrill denied this request on August 17, 2005. Petitioner states that he was then placed in the 10-month DSP pursuant to Vanyur's Memorandum. Petitioner claims that his 10-month placement into the DSP without receiving written notice of the reasons, a hearing, an opportunity to present evidence, a written decision, and an opportunity to appeal the decision to place him in the program violated his due process rights and he seeks compensatory damages for this disciplinary confinement. Petitioner was released from the program in January 2006, and subsequently transferred out of USP-Canaan.

Petitioner claims that the three USP-Canaan Respondents, Lindsay, Karam, and Lara, are liable since they failed to address the error of his placement in the DSP program when he told them about it. Petitioner states that then in November 2005, he wrote Vanyur and explained to him why Vanyur's Memorandum did not apply to him, and how he was erroneously placed in the 10-month DSP program prior to granting him a transfer. Petitioner states that Vanyur then rescinded his placement in the 10-month DSP program. Petitioner claims that prior to his placement in the 10-month DSP program he was denied due process. ( Id., p. 5).

*10 Since we again find no Constitutional due process claim is stated by Petitioner with respect to his 10-month DSP program placement, we shall recommend that the stated due process claim against the four Respondents be dismissed. See Meekins v. Beard, 2007 WL 675358 (M.D.Pa.). Further, Petitioner had no Constitutional right with respect to any particular custody classification in prison, i.e. general population as opposed to SHU confinement while he was placed in the DSP program. See Wilson v. Horn, 971 F.Supp. 943, 947 (E.D.Pa.1997).

It is now well-settled by this Court that a prisoner's placement into a program similar to the DSP program, namely, the SMU program, without procedural due process safeguards does not state a Constitutional claim. As this Court recently stated in Meekins, supra at * 3:

"This court has repeatedly found no liberty interest with respect to claims that due process rights have been violated by not giving an inmate a hearing prior to placement in the SMU upon transfer to SCI-Camp Hill. See Spencer v. Kelchner , Civ. No. 3:06-1099, 2007 WL 88084 slip op. at * 10-* 12 (M.D.Pa. Jan. 9, 2007) (Kosik, J.); Francis v. Dodrill, 2005 WL 2216582 (M.D.Pa., Sept.12, 2005); Stotts v. Dodrill, Civil No. 04-0043 (M.D.Pa., Feb. 7, 2005). In these cases, the court has found that an inmate's placement in the SMU does not implicate his due process rights. In their motion to dismiss, Defendants also argue that Plaintiff's due process rights were not implicated as his confinement in the SMU does not constitute an atypical and significant hardship."

Petitioner describes the restrictive conditions in the SHU he had to endure, i.e. 23 hour per day lock down. (Doc. 1, p. 4). Petitioner claims that the process in which he was placed into the DSP program violated his Fifth Amendment due process rights. As discussed below, we again find no Fifth Amendment due process claim is stated.

Specifically, Petitioner alleges that his transfer from general population and 7-month placement (from June 20, 2005 through January 2006) by Respondents into the DSP program violated his Fifth Amendment due process rights because he did not receive advance written notice, a Administrative order, did not receive a hearing, was not allowed to present evidence, and had no appeal rights to challenge this restrictive confinement. Petitioner seeks monetary damages (i.e., compensatory) of $30, 000 for his placement in the DSP program. As his request for injunctive relief, Petitioner seeks the Court to retroactively reverse Dodrill's August 2005 decision regarding his placement in the DSP program. ( Id., p. 4).FN10 Again, we fail to see how this case is a habeas case since even if the court granted Petitioner's relief request to retroactively reverse Dodrill's August 2005 decision regarding his placement in the DSP program, Petitioner would not be released from prison any sooner, he would not be released from the SHU, and his term of confinement would not be shortened. Further, there is no disciplinary hearing decision to reverse or expungement of any disciplinary sentence requested.

FN10. We again note that the decision to place Petitioner in the DSP program seems to have been in error. Thus, the appropriate action is an FTCA suit.

*11 We give preliminary consideration to the Petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the U.S. District Courts, 28 U.S.C. foll. § 2254 (1977) (applicable to § 2241 petitions under Rule 1(b)). See Patton v. Fenton, 491 F.Supp. 156, 158-59 (M.D.Pa.1979).FN11

FN11. Rule 4 provides in relevant part: "If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified."

Specifically, we find that Petitioner's Fifth Amendment Due Process claim fails to state a cognizable § 1331 claim. We also find that, insofar as Petitioner claims that he was negligently placed in the DSP program by erroneous application of the Vanyur Memorandum to him and his situation as an assault victim, Petitioner must file an Administrative remedy SF-95 with the BOP, and then an FTCA action.

As discussed, we do not find any Constitutional due process claim that the Petitioner has asserted against the Respondents. Simply because these Respondents were alleged to be involved in Petitioner's transfer and placement into the SHU and DSP program, and they ignored his requests to be released from it does not state a due process violation, since Petitioner had no liberty interest implicated with respect to his DSP placement.

As discussed, we do not find any cognizable Fifth Amendment Due Process Constitutional claims asserted against any of the Respondents. This Court has recently decided two very similar cases to Petitioner's. As stated, Meekins, 2007 WL 675358, is one such case. Spencer v. Ravana, 2007 WL 88084 (M.D.Pa.), is the other.

Petitioner alleges that Respondents, through their various positions with the prison and the BOP, were responsible for his transfer to the SHU and placement in the DSP program, and that they were involved in ignoring his requests for discharge from his placement in the DSP program. Petitioner alleges that his placement into the DSP program occurred without affording his due process rights. Further, to the extent that Petitioner claims that Respondents violated his due process rights by not giving him notice and a hearing prior to transferring him to the DSP program when he was at USP-Canaan, and their approval or acquiescence in placing him in the DSP, we find that this Court has repeatedly found no liberty interest with respect to such claims.

We conclude that, based on this Court's stated recent cases, as well as Francis v. Dodrill, 2005 WL 2216582 (M.D.Pa.) and Stotts v. Dodrill, Civil No. 04-0043 (M.D.Pa.), Petitioner's placement in the DSP did not implicate a protected liberty interest and his due process rights. Therefore, we shall recommend that Petitioner's Fifth Amendment Due Process claim be dismissed as against all Respondents.

Petitioner alleges that the stated Respondents violated his due process rights by placing him in the DSP without first being given notice, a hearing, and the right to appeal. This Court has consistently held that placement in a Special Management Unit does not give rise to atypical and significant hardships, and that it does not implicate due process of law. Thus, placement in the DSP program likewise does not implicate due process of law.

*12 Petitioner claims that he has been made to suffer atypical hardship without due process due to his immediate placement in the DSP program after his transfer directed by Lindsay was denied in August 2005, and that he was deprived of his liberty in the DSP without a hearing. Petitioner claims that the Vanyur Memorandum was erroneously applied to him which required his 10-month placement in the DSP program to show he could remain infraction free prior to his transfer request being considered. Petitioner claims that the Memorandum was erroneously applied to him since his transfer was requested by Lindsay due to the assault on him by another inmate, and not due to any attempt by him to manipulate the BOP's transfer rules. Petitioner seems to claim that the procedural safeguards of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), were not followed in his case. Petitioner claims that his placement in the DSP constitutes an atypical and significant hardship and implicates his due process rights.

We find that this Court, in the stated cases, has considered similar claims and has found that an inmate's placement in the similar SMU program did not implicate an inmate's due process rights. See Francis, supra at * 3.

Based on this Court's decisions in Francis v. Dodrill, 2005 WL 2216582 (M.D.Pa.), and Stotts v. Dodrill, Civ. No. 04-0043, M.D. Pa., FN12 as well as Meekins, supra , and Spencer, supra , we find that our Petitioner's placement in the DSP does not implicate his due process rights.

FN12 In Stotts, this Court found that federal inmates' placement in the SMU following a riot incident did not violate their due process rights, that inmates' placement in the SMU was not punitive in nature, and that inmates were not entitled to the procedural safeguards.

As this Court in Francis stated:

The defendants also argue that Francis' placement in the SMU does not implicate his due process rights. We agree. A due process liberty interest "in avoiding particular conditions of confinement may arise from state policies or regulations." Wilkinson v. Austin, 545 U.S. 209, ___, 125 S.Ct. 2384, 2393, 162 L.Ed.2d 174 (2005). The Due Process Clause protects a prisoner's right to "freedom from restraint, which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship in relation to the ordinary incidents of prison life." Id. at 2394 (quoting Sandin v. Connor, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)).

The proper focus for determining whether prison conditions give rise to a due process liberty interest is the nature of the conditions, not mandatory language in prison regulations. Sandin, 515 U.S. at 484. In Sandin, an inmate was charged with violating prison regulations. Id. at 475. At a hearing, the hearing committee refused the inmate's request to present witnesses. Id. The committee found the inmate guilty and sentenced him to disciplinary segregation. Id. The inmate sought review, and a deputy administrator found some of the charges unfounded and expunged his disciplinary record. Id. at 476. Thereafter, the inmate filed suit pursuant to 42 U.S.C. § 1983 for a deprivation of procedural due process during the disciplinary hearing. Id. The Tenth Circuit found that he had a protected liberty interest because it interpreted the prison regulations to require that the committee find substantial evidence of misconduct before imposing segregation. Id. at 477. The Supreme Court reversed, finding no liberty interest. Id. at 484. In doing so, it rejected an approach that focused on whether the prison regulations "went beyond issuing mere procedural guidelines and has used language of an unmistakably mandatory character' such that the incursion on liberty would not occur absent specified substantive predicates.'" Id. at 480 (quoting Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). The Court found this approach undesirable because it created a disincentive for prison administrators to codify prison management procedures and because it "led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone." Id. at 482. Thus, the Court held liberty interests "will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force... nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484. In applying this test, the Court observed, "[discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law." Id. at 485. The Court then found that the inmate's disciplinary segregation "did not present a dramatic departure from the basic conditions of Conner's indeterminate sentence" because the conditions of disciplinary segregation were similar to those faced in administrative and protective custody. Id. at 486.

*13 In Wilkinson v. Austin, 545 U.S. 209, ___, 125 S.Ct. 2384, 2393, 162 L.Ed.2d 174,

162 L.Ed.2d 174 (2005), the Court applied the Sandin test and found that the plaintiff's due process rights were implicated when he was placed in a program where: almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day, but only in a small indoor room... [P]lacement... is indefinite and, after an initial 30 day review, is reviewed just annually.... [P]lacement disqualifies an otherwise eligible inmate for parole consideration.

Id. at 2394-95.

The court found that these harsh conditions "give rise to a liberty interest in their avoidance."

Id. at 2395.

Fraise v. Terhune, 283 F.2d 506 (3d Cir.2002) applied the Sandin test and found that avoiding placement in the Security Threat Group Management Unit (STGMU) in the New Jersey prison system is not a protected liberty interest. Inmates who the prison deemed members of groups that posed a security threat were placed in the STGMU. Id. at 509. "An inmate assigned to the STGMU remains in maximum custody until the inmate successfully completes a three-phase behavior modification program." Id. at 511. The Court found that despite the additional restrictions, prisoners have no liberty interest in avoiding placement in the STGMU. Id .; see also Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir.1997) (finding that additional restrictions in administrative custody for a period of fifteen months does not deprive prisoners of protected liberty interests).

We find that the conditions in the [USP-Lewisburg] SMU do not remotely approach the severity of the conditions Wilkinson found to give rise to a protected liberty interest, and are comparable to the conditions in cases such as Sandin, Fraise, and Griffin, which found no protected liberty interest.

Id., pp. *3-*4.

The Francis Court concluded that the restrictions in the SMU in federal prison were no greater than the restrictions placed on the inmate in Griffin. Id. * 5. In our case, Petitioner Smith does not allege any greater restrictions in the DSP program at USP-Canaan than were placed on the inmates in Francis.

The Francis Court then stated:

Inmates have no due process right to a facility of their choosing. Young v. Quinlan, 960 F.2d 351, 358 n. 16 (3d Cir.1992). The Bureau of Prisons retains sole discretion over where to place an inmate. 18 U.S.C. § 3621. Inmates do, however, have a liberty interest in avoiding transfer to facilities where the conditions impose "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484. This is not such a transfer. We find that these conditions and the conditions overall in the SMU are reasonable and proportionate to those in other prisons in the federal system and across the country and do not impose an atypical and significant hardship in relation to the ordinary incidents of prison life. Using restrictions to promote prosocial behavior falls within the parameters of a sentence imposed by a court of law. While Francis clearly would prefer not to be housed in the SMU, his preference is not a liberty interest protected by the Due Process Clause.

*14 Id.

Further, the Court in Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir.1997), stated:

Applying the precepts of Sandin to the circumstances before us, we conclude that the conditions experienced by Griffin in administrative custody did not impose on him "atypical and significant hardship, " that he was thus deprived of no state created liberty interest, and that he failure to give him a hearing prior to his transfer to administrative custody was not a violation of the procedural due process guaranteed by the United States Constitution.

The Griffin Court concluded that, considering the reasons to transfer inmates from general population to administrative custody, such as inmates deemed to be security risks, stays in administrative custody for many months (i.e. as long as 15 months) are not uncommon. Id. at p. 708. Thus, the Griffin Court held that the inmate Griffin's transfer to and confinement in administrative custody "did not deprive him of a liberty interest, and that he was not entitled to procedural due process protection." Id.

Moreover, this Court in Francis, supra at * 2, stated that "A violation of the Due Process Clause involves the following three elements: 1) the claimant must be deprived of a protectable interest; 2) that deprivation must be due to some governmental action; and 3) the deprivation must be without due process.'" (citation omitted). The Francis Court, as stated, found that placement of its Plaintiff, a federal inmate at USP-Lewisburg, in the SMU did not implicate his due process rights. Id. * 3. Based on Griffin and Francis, as well as Meekins and Spencer, Petitioner Smith's placement in the SHU and DSP program from June 2005 through January 2006, about 7 months, does not give rise to a protected liberty interest. See Keys v. Commonwealth of Pennsylvania Department of Corrections, et al., 3:CV-07-0338, M.D. Pa. Therefore, we will recommend that Petitioner Smith's Fifth Amendment Due Process claim be dismissed as against all Respondents.

Thus, we shall recommend that the stated four Respondents be dismissed. We shall recommend that Petitioner's Habeas Corpus Petition be dismissed without prejudice to re-file his negligence claim in an FTCA action after Petitioner exhausts his BOP administrative remedies. Additionally, we will recommend that Petitioner's Fifth Amendment Due Process claim be dismissed.FN13

FN13. Notwithstanding Smith's pro se status, we do not recommend that he be permitted to amend his Complaint regarding his due process claim for which we recommend dismissal, since we find that, based on well-settled case law, he fails to state such a claim. Thus, we find futility of any amendment of this claim, and we shall not recommend Petitioner be granted leave to amend his action with respect to the due process claim that is found subject to dismissal. See Forman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1982); Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.2000) (The futility exception means that a complaint, as amended, would fail to state a claim upon which relief can be granted); Alston v. Parker, 363 F.3d 229, 236 (3d Cir.2004).

IV. Recommendation.

Based on the foregoing, it is respectfully recommended that Smith's Habeas Corpus Petition be dismissed and that the stated four Respondents be dismissed. It is also recommended that Petitioner's negligence claim raised in his Habeas Corpus Petition be dismissed without prejudice to file it in an FTCA action after Petitioner exhausts his Administrative remedies. Additionally, it is recommended that Petitioner's Fifth Amendment Due Process claim be dismissed. Further, we recommend that Petitioner's in forma pauperis motion be granted solely with respect to the filing of this action. M.D.Pa., 2009.

Ravanna Spencer, Camp Hill, PA, pro se.

MEMORANDUM AND ORDER

EDWIN M. KOSIK, United States District Judge.

*1 AND NOW, THIS 9th DAY OF JANUARY, 2007, IT APPEARING TO THE COURT THAT:

1. Plaintiff, Ravanna Spencer, an inmate confined at the State Correctional Institution at Camp Hill, commenced the instant civil rights action pursuant to 42 U.S.C. § 1983 on May 31, 2006. An amended complaint was filed on August 21, 2006;

2. The matter was assigned to Magistrate Judge Thomas M. Blewitt;

3. On September 7, 2006, the Magistrate Judge filed a thirty-one (31) page Report and Recommendation, wherein he recommended that:

Based on the foregoing, it is respectfully recommended that Plaintiff's action as against Defendants Kelchner, Beard and Law be dismissed. Specifically, we find that Defendants Kelchner and Beard lack sufficient personal involvement in this case. We find that Defendant Law, by denying Plaintiff's grievance, is not sufficiently involved in the case. We also find no conspiracylaim is stated as to Defendant Law. We find that Plaintiffs Fifth Amendment Due Process claim with respect to his placement in the SMU should be dismissed, and that his Fourteenth Amendment Equal Protection claim as against all Defendants should be dismissed. Further, we find that Plaintiff's claims as against the Defendants in their official capacities should be dismissed to the extent that he seeks money damages. We find that Defendants Southers and Whaling should be dismissed. We find that Plaintiff has stated a First Amendment retaliation claim against Defendant Newton, and that he has stated Eighth Amendment claims against Defendants Newton, Kalsky and Kahn. Finally, it is recommended that this case be remanded to the undersigned for further proceedings.

5. While plaintiff requested an extension of time in which to file objections to the Report and Recommendation, which was granted by the court, no objections were filed to the Report and Recommendation;

AND, IT FURTHER APPEARING THAT:

6. If no objections are filed to a Magistrate Judge's Report and Recommendation, the plaintiff is not statutorily entitled to a de novo review of his claims. 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 1985). Nonetheless, the usual practice of the district court is to give "reasoned consideration" to a Magistrate Judge's report prior to adopting it. Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.1987);

7. We have reviewed the Magistrate Judge's Report and we find the factual and legal analysis to be thorough and accurate. Therefore, we will adopt his recommendations in their entirety.FN1

FN1 We note that subsequent to the filing of the Report and Recommendation several additional filings have been made by the plaintiff. We refer these subsequent filings to the Magistrate Judge for disposition.

ACCORDINGLY, IT IS HEREBY ORDERED THAT:

1. The Report and Recommendation of Magistrate Judge Thomas M. Blewitt dated September 7, 2006 (Document 22) is adopted in its entirety; and

2. The above-captioned action is remanded to the Magistrate Judge for further proceedings.

REPORT AND RECOMMENDATION

THOMAS M. BLEWITT, United States Magistrate Judge.

Plaintiff, Ravanna Spencer, an inmate at the State Correctional Institution at Camp Hill, Pennsylvania, originally filed this § 1983 civil rights action, pro se, on May 31, 2006. (Doc. 1). Plaintiff also filed a motion for leave to proceed in forma pauperis. (Doc. 8). Plaintiff simultaneously filed a Motion to Appoint Counsel, which the Court denied on June 22, 2006. (Docs. 2 & 11). Plaintiff's original 15-page Complaint named twenty-two (22) Defendants employed in various capacities by the Pennsylvania Department of Corrections. On June 16, 2006, Plaintiff filed a Motion to Amend his Complaint in order to add new defendants and add new claims not contained in his original lengthy Complaint. (Doc. 7).

*2 Upon our initial review of Plaintiff's original Complaint under the Prison Litigation Reform Act of 1995 (the "PLRA"), we found that it contained many unrelated claims against numerous Defendants, in violation of Fed.R.Civ.P. 20(a). We found that Plaintiff's original Complaint did not appear to properly state the personal involvement of each and every named Defendant with the numerous unrelated claims. Nor did we find Plaintiff's original Complaint to be in compliance with Fed.R.Civ.P. 8. We found Plaintiff's original pleading to be completely unmanageable, and it was impossible for Defendants to intelligently respond to it.

Plaintiff claimed, in part, that he received improper medical treatment for his mental health problems (Eight Amendment); that he was improperly placed in the Special Management Unit ("SMU"); that he was deprived of meals; that he was threatened by Corrections Officers ("CO's") and made fun of (Eighth Amendment); that he was denied due process with respect to his grievances (Fifth Amendment); that he was deprived of yard time and showers without due process since his bed was not made; that he was retaliated against for filing grievances (First Amendment); that excessive force was used on him in transporting him to his cell (Eighth Amendment); that he was cut when restraints were put on him; and that he was deprived of his personal property while in a strip cell wearing a suicide smock. Plaintiff's numerous unrelated claims spanned from March 2006 through May 2006. (Doc. 1).

Thus, on June 22, 2006, we directed Plaintiff to file an Amended Complaint in conformity with Rules 8 and 20(a) of the Federal Rules of Civil Procedure. (Doc. 12). We also gave Plaintiff direction as to how to file his amended complaint and specifically directed that Plaintiff's amended complaint should be limited with respect to only defendants and claims that arise out of the same transaction or occurrence or series of transactions or occurrences, and that have questions of law or fact common to all Defendants and claims. We further directed Plaintiff to file separate actions as to any Defendants and claims that do not share common legal and factual questions and that do not arise out of the same transactions or occurrences.

In violation of the Court's June 22, 2006 Order, Plaintiff filed another Motion for Leave to File an Amended Complaint on July 25, 2006. (Doc. 16). Plaintiff's proposed amended complaint named 29 Defendants and, like his original pleading, contained 70 paragraphs of mostly unrelated claims against numerous Defendants spanning a time period from January 2006 to the present. In fact, Plaintiff's proposed amended pleading, instead of narrowing his claims and Defendants to those that were related and arose out of the same transactions or occurrences, added new claims and new Defendants, and covered a longer period of time than his original pleading did. Plaintiff's proposed amended complaint also contained many of the same claims and Defendants as his original Complaint, and it added new claims and new Defendants. As we stated in our prior Order, it simply would not be possible for the 29 Defendants to respond to the myriad of claims against them in the proposed amended complaint, which do not arise out of the same transactions or occurrences. Therefore, we denied Plaintiff's Motion to file an Amended Complaint (Doc. 16), and we directed Plaintiff to file a proper amended compliant in conformance with Rule 8 and Rule 20(a). (Doc. 17).

*3 Plaintiff filed a second Motion for Leave to File an Amended Complaint on August 21, 2006. (Doc.18). Plaintiff also filed a Memorandum of Law. (Doc. 19). Attached to Plaintiff's Memorandum are exhibits related to grievances Plaintiff filed with the prison. Plaintiff's Motion for Leave to Amend is essentially his amended complaint. We shall grant Plaintiff's Motion for Leave to File an Amended Complaint by separate Order, and direct that the Motion be docketed as his amended complaint. (Doc. 18).FN1 We shall also direct the Clerk of Court to change the caption to Plaintiff v. Donald Kelchner, since Sgt. Maxwell is not named in the Plaintiff's amended complaint. We shall also direct the Clerk of Court to remove the names of all Defendants that were named in Plaintiff's original Complaint (Doc. 1), but who were not named in Plaintiff's Amended Complaint. (Doc. 18).

FN1. We note that attached to the Motion for Leave to File an Amended Complaint is an Order to Show Cause for an Injunction and/or a TRO. (Doc. 18). Plaintiff also attached to his Motion an explanation of his supporting exhibits that are attached to his Memorandum. If Plaintiff wishes to file an injunction motion with this Court, he must file it in conformity with Local Rule 7.1, M.D. Pa., along with a supporting brief under Rule 7.5

We now screen Plaintiff's amended pleading under the PLRA.

II. Allegations of Amended Complaint.

In the present case, Plaintiff alleges that on January 11, 2006, he was transferred from another prison to SCI-Camp Hill. Plaintiff states that Defendants Jeffery Beard, Secretary of Pennsylvania Department of Corrections ("DOC"); Donald Kelchner, Superintendent at SCI-Camp Hill; Counselor Whaling; Richard Southers, Unit Manager; Andrew Newton, Psychiatrist; Muhammed Khan, Psychiatrist; and Edward Kalsky, psychologist, were aware that he was supposed to go to a Special Need Unit ("SNU") at the prison.FN2 However, Plaintiff indicates that he was placed in the SMU (Special Management Unit) instead of the SNU. (Doc. 18, ¶ 13.). Plaintiff states that "on January 13, 2006 I mistakenly signed a "SNU" Special Needs Unit treatment plan when this is not a "SNU" but rather a(SMU) Special Management Unit which is a control unit and is not suitable for a mentally disabled person such as myself...." Plaintiff states that on January 13, 2006, he filed a grievance and that he was denied "his remedy to exhaust." (Id.). Thus, Plaintiff indicates that he has not exhausted his administrative remedies, seemingly based on futility. ( Id., ¶¶'s 13., 21.).FN3

FN2 All of the Defendants except for Beard are employed at SCICamp Hill.
FN3 It is well-settled that the Plaintiff must exhaust his administrative remedies prior to filing a civil rights suit. Id. at 230. In Porter v. Nussle, 534 U.S. 516, 532 (2002), the Supreme Court reiterated that the exhaustion requirement under § 1997e(a) applies to all actions regarding prisons conditions, including § 1983 actions or actions brought pursuant to any other federal law. The Porter Court held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Id. However, Defendants have the burden to plead exhaustion as an affirmative defense. See Ray v. Kertes, 285 F.3d 287, 295 (3d Cir.2002).

Plaintiff avers that a few days afer his grievance, Defendant Dr. Newton took him off of his medication as retaliation for his grievance, and that because he was not weaned off of his medication he suffered "excessive bowel movement I couldn't sleep my body was hurting, " and that he suffered other physical and mental pain. ( Id., ¶ 14.). Plaintiff states that he then filed another grievance against Defendant Newton. We find that Plaintiff has stated a First Amendment retaliation claim against Defendant Newton for allegedly improperly taking him off of his medication due to his grievance.

Plaintiff states that Defendant Dr. Khan saw him for his monthly review on March 8, 2006, and alleges that Dr. Kahn put his mental health history on the "tier." Plaintiff seemingly claims that Dr. Kahn made his mental health history known to the other inmates on Plaintiff's cell block. Plaintiff states that he pleaded with Dr. Kahn to stop and states that the doctor could have taken him into a room for privacy, but the doctor did not. As a result, Plaintiff states that "everybody on the block humiliated me even the guards which eventually led up to me trying to commit suicide.... " Plaintiff states that this conduct by Dr. Kahn also caused him to feel emotional pain and humiliated, embarrassed and depressed. Plaintiff filed a grievance on March 22, 2006 against Dr. Kahn, and states that after he tired to commit suicide, "they took all of my property they took the grievance and I never got it back...." ( Id., ¶ 15.).

*4 Plaintiff avers that Defendant Dr. Newton again took him off of his medication and states that he tired to file another grievance. Plaintiff states that it was rejected since he was told that he already had filed one on that issue. Plaintiff states that they took his grievance "because as a result of Doctor Newton neglect I tried to commit suicide again." ( Id., ¶ 16.).

Plaintiff claims that in April 2006, Dr. Newton and Defendant Psychologist Kalsky came to his door and similar to Dr. Kahn's conduct, they "put my mental health history out there so the whole pod could hear and the same process happened people began to humiliate me again.... " Plaintiff states that he filed another grievance over this incident. ( Id., ¶ 17.).

Plaintiff states that Defendant Teresa M. Law, medical grievance coordinator at SCI-Camp Hill, denied his mental health grievance "saying that I don't have any mental health issues after she already had her signature on a response that said I was diagnose with a anti-social personality disorder." Plaintiff concludes that Defendant Law "was in concert with the mental health department in denying me mental health treatment." ( Id., ¶ 18.).

Plaintiff claims that Defendant Kelchner denied his grievance and said he did not have a mental health issue. ( Id., ¶ 19.).

As to Defendant Beard, Plaintiff only states that he violated his Constitutional rights because he knew of the treatment Plaintiff was receiving and he refused to stop his officers. ( Id., ¶ 22.). Plaintiff states that he made Defendant Kelchner and Beard aware of his situation when they came to the SMU on May 22, 2006. ( Id., ¶¶ 23.).

Plaintiff sues all of the Defendants in their individual and official capacities. ( Id., ¶ 11.). As relief, Plaintiff seeks compensatory and punitive damages as well as injunctive relief. ( Id., ¶'s 35.-41.).

Plaintiff cannot recover monetary damages against Defendants in their official capacities.FN4 Also, to the extent that Plaintiff seeks compensatory and punitive damages, each in the sum of "$1, 000, 000 to $3, 000, 000, " such amounts should be stricken.FN5

FN4 Insofar as Plaintiff's attempt to sue the Defendants in their official capacities seeking monetary damages, he cannot do so. The Amended Complaint, to the extent it is against all of the Defendants in their official capacities (Doc. 18, p. 3, ¶ 11.), and to the extent that it seeks monetary damages, should be dismissed on the grounds that such an action is barred by the Eleventh Amendment. The Eleventh Amendment applies to claims asserted in federal court under 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332, 342 (1979). It prohibits suits brought in federal court against a state or where the state or its agency is the real party in interest, and in which the relief sought has an impact directly on the state itself. Pennhurst State Schools and Hospital v. Halderman, 465 U.S. 89 (1984); Allegheny County Sanitary Authority v. United States Environmental Protection Agency, 732 F.2d 1167 (3d Cir.1984). Based on the above, the Plaintiff's Amended Complaint against the Pennsylvania Department of Corrections Defendants, to the extent it names them in their official capacities, seeking monetary relief is barred by the Eleventh Amendment and, thus, this claim is subject to dismissal.
As stated, to the extent that the Plaintiffs seek monetary damages, the Defendants are immune under the Eleventh Amendment in their official capacities. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1991); Howlett v. Rose, 496 U.S. 356, 365 (1990). We believe that payment of any money judgment rendered against the Defendants, who are indisputably employees working for a prison within the Pennsylvania DOC (Doc. 18, pp. 2-3), would have to be paid out of the Pennsylvania State Treasury. Further, the Pennsylvania DOC, which employs the Defendants, receives its funding from the state and does not enjoy any measure of autonomy. See Bolden v. Southeastern Pennsylvania Transp. Auth., 953 F.2d 807, 818 (3d Cir.1991).
FN5 Plaintiff's request for a specific amount of monetary damages should be stricken. Since Plaintiff seeks unliquidated damages, he cannot claim a specific sum of relief. Pursuant to Local Rule 8.1, M.D. Pa., Plaintiff's request for specific monetary damages of $1 million to $3 million should be stricken from his Amended Complaint. See Stuckey v. Ross, Civil No. 05-2354, M.D. Pa., 1-9-06 Order, J. McClure.

We find that Defendants Beard, Kelchner and Law should be dismissed and that Plaintiff's Fourteenth Amendment Equal Protection claim should be dismissed. We find that Defendants Southers and Whaling should be dismissed. We find that Plaintiff's claim that his due process rights were violated since he was placed in the SMU without a hearing should be dismissed. We find that Plaintiff has stated a First Amendment retaliation claim against Defendant Newton, as well as Eighth Amendment claims against Defendants Newton, Kalsky and Kahn.

With respect to the two (2) named supervisory Defendants in the Amended Complaint, i.e., Superintendent Kelchner and DOC Secretary Beard, we find that Plaintiff does not sufficiently allege their personal involvement and that their alleged conduct does not amount to a constitutional violation. Plaintiff merely alleges that these supervisory Defendants refused to address his complaints that he was not getting the proper treatment, and that Kelchner denied his grievance and said that Plaintiff did not have a mental health issue. ( Id., ¶'s 19. & 22.-23.). Plaintiff avers that the supervisory Defendants were aware of his improper treatment, and by failing to take corrective action they violated his due process and equal protection rights. (Id.). We find that the stated two supervisory Defendants should be dismissed since their personal involvement is lacking in the retaliation Plaintiff alleges Defendant Newton took in taking him off of his medication. Nor does Plaintiff allege that either of the supervisory Defendants participated in any decision to place him in the SMU, or to reveal his mental health issues to other inmates in his pod. Plaintiff does not allege that these two Defendants personally deprived him medical care or that they caused him to suffer any emotional or physical problems. Further, during all relevant times, Plaintiff was being treated by the prison psychiatric medical staff, and the two supervisory Defendants, who are non-physicians, cannot be held liable for the doctors' findings that Plaintiff did not have a mental health problem requiring medication.

III. PLRA.

*5 As stated, the Plaintiff has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. 8). The Prison Litigation Reform Act of 1995, FN6 (the "Act"), obligates the Court to engage in a screening process when a prisoner wishes to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.FN7 Specifically, Section 1915(e)(2), which was created by § 805(a)(5) of the Act, provides:

FN6 Pub.L. No. 104-134, 110 Stat. 1321 (April 26, 1996).
FN7 The Plaintiff completed an application to proceed in forma pauperis and authorization to have funds deducted from his prison account. The court then issued an administrative order directing the warden to commence deduction of the full filing fee due the court from the Plaintiff's prison trust fund account.

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that (A) the allegation of poverty is untrue; or (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

In reviewing the Complaint under 28 U.S.C. § 1915(e)(2)(B), we have determined that the Plaintiff is unable to maintain his action as against Defendants Kelchner and Beard. Specifically, we find that Defendants Kelchner and Beard lack sufficient personal involvement in this case. We find that Defendant Law by denying Plaintiff's grievance is not sufficiently involved in this case. We also find no conspiracy claim is stated as to Defendant Law. We find that Plaintiff's Fifth Amendment Due Process claim with respect to his placement in the SMU should be dismissed, and that his Fourteenth Amendment Equal Protection claim should be dismissed. Further, we find that Plaintiffs claims as against all of the Defendants in their official capacities should be dismissed to the extent that he seeks money damages. We find that Defendants Southers and Whaling should be dismissed. We find that Plaintiff has stated a First Amendment retaliation claim against Defendant Newton, and Eighth Amendment claims against Defendants Newton, Kalsky and Kahn.

IV. Motion to Dismiss Standard.

In considering whether a pleading states an actionable claim, the court must accept all material allegations of the complaint as true and construe all inferences in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A complaint should not be dismissed for failure to state a claim unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 44-46 (1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988). A complaint that sets out facts which affirmatively demonstrate that the plaintiff has no right to recover is properly dismissed without leave to amend. Estelle v. Gamble, 429 U.S. 97, 107-108 (1976).

V. Section 1983 Standard.

In a § 1983 civil rights action, the Plaintiff must prove the following two essential elements: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct complained of deprived the Plaintiff of rights, privileges or immunities secured by the law or the Constitution of the United States. Parratt v. Taylor, 451 U.S. 527 (1981); Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir.1993).FN8

FN8 Section 1983 is not a source of substantive rights. Rather, it is a means to redress violations of federal law by state actors. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002).

*6 Named as Defendants are eight (8) DOC individuals, seven (7) of whom are employed at SCI-Camp Hill. Since Defendants that are individually named in Plaintiff's Complaint have been stated above, we shall not reiterate their names.

It is well established that personal liability under section 1983 cannot be imposed upon a state official based on a theory of respondeat superior. See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 1546 F.2d 1077, 1082 (3d Cir.1976); Parratt, supra . It is well settled in the Third Circuit that personal involvement of defendants in alleged constitutional deprivations is a requirement in a § 1983 case and that a complaint must allege such personal involvement. Id. Each named defendant must be shown, through the complaint's allegations, to have been personally involved in the events or occurrences upon which Plaintiff's claims are based. Id. As the Court stated in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1998):

A defendant in a civil rights action must have personal involvement in the alleged wrongs.... [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity. (Citations omitted).

A civil rights complaint must state time, place, and responsible persons. Id. Courts have also held that an allegation seeking to impose liability on a defendant based on supervisory status, without more, will not subject the official to section 1983 liability. See Rode, 845 F.2d at 1208; Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985) (per curiam) (a mere "linkage in the prison chain of command" is not sufficient to demonstrate personal involvement for purposes of section 1983).

VI. Discussion.

A. Defendants Beard, Kelchner and Law

As discussed, we do not find any Constitutional claims that the Plaintiff has asserted against the two supervisory Defendants, Beard and Kelchner, and against the medical grievance coordinator, Defendant Law.

These Defendants are not alleged to have personally violated any of the Plaintiff's constitutional rights. Plaintiff only mentions these Defendants as failing to take corrective action to stop the abuses he alleges were committed by the other Defendants. Plaintiff does not state that Defendants Kelchner and Beard placed him in the SMU, failed to give him his medication, and denied him medical care. There are no allegations which create any personal liability as to the stated Defendants. These Defendants are not alleged to have participated in any violations of Plaintiff's rights. Since there is insufficient personal involvement alleged on the part of these three Defendants in any constitutional violation, they should also be dismissed. Rizzo, supra ; Parratt, supra . Pursuant to Rizzo, supra , the supervisory Defendants cannot be held liable based on respondeat superior in this case. Thus, Defendants Beard, Kelchner and Law should be dismissed from this case.

*7 Moreover, a prison official's response or lack thereof to an inmate's Administrative remedies is not sufficient alone to hold the official liable in a civil rights action. The law is well-settled that there is no constitutional right to a grievance procedure. See Jones v. North Carolina Prisoners' Labor Union, Inc. 433 U.S. 119, 137-138 (1977). This very Court has also recognized that grievance procedures are not constitutionally mandated. See Chimenti v. Kimber, Civil No. 3:CV01-0273, slip op. at p. 18 n. 8 (March 15, 2002) (Vanaskie, C.J.), reversed in part, C.A. No. 03-2056 (3d Cir. June 8, 2005) (Non-Precedential). Even if the prison provides for a grievance procedure, as the DOC does, violations of those procedures do not amount to a civil rights cause of action. Mann v. Adams, 855 F.2d 639, 640 (9th Cir1988), cert denied, 488 U.S. 898 (1988); Hoover v. Watson, 886 F.Supp. 410, 418 (D.Del.1995), affd 74 F.3d 1226 (3d Cir.1995). See also Burnside v. Moser, Civil No. 04-2485, 12-16-04 Order, p. 3, J. Muir, M.D. Pa. (Even "[i]f the state elects to provide a grievance mechanism, violations of its procedures do not... give rise to a [constitutional] claim.") (citations omitted). Thus, even if the prison official allegedly failed to process the prisoner's grievances, no constitutional claim is stated. Burnside, supra.

As the Court stated in Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985) (per curiam) a mere "linkage in the prison chain of command" is not sufficient to demonstrate personal involvement for purposes of section 1983. Permitting supervisory liability where a defendant, after being informed of the violation through the filing of grievances, reports or appeals, failed to take action to remedy the alleged wrong is not enough to show that the defendant has the necessary personal involvement. Rizzo, supra . Allowing only a letter sent to an official to be sufficient to impose supervisory liability would permit an inmate to subject defendants to potential liability in any case in which the prisoner merely transmitted correspondence to the official. Id. Thus, several courts have held that "it is well-established that an allegation that an official ignored a prisoner's letter of protest and request for an investigation of allegations made therein is insufficient to hold that official liable for the alleged violations." Greenwaldt v. Coughlin, 1995 WL 232736, at *4 (S.D.N.Y.Apr.19, 1995) (citations omitted); accord Rivera v. Goord, 119 F.Supp.2d 327, 344 (S.D.N.Y.2000) (allegations that inmate wrote to prison officials and was ignored insufficient to hold those officials liable under section 1983); Woods v. Goord, 1998 WL 740782, at *6 (S.D.N.Y. Oct. 23, 1998) ("Receiving letters or complaints... does not render [prison officials] personally liable under § 1983."); Watson v. McGinnis, 964 F.Supp. 127, 130 (S.D.N.Y.1997) ("The law is clear that allegations that an official ignored a prisoner's letter are insufficient to establish liability.") (citations omitted). The Second Circuit Court has stated that "if mere receipt of a letter or similar complaint were enough, without more, to constitute personal involvement, it would result in liability merely for being a supervisor, which is contrary to the black-letter law that § 1983 does not impose respondeat superior liability." Walker v. Pataro, 2002 WL 664040, at *12 (S.D.N.Y. Apr. 23, 2002).

*8 Nor has Plaintiff stated a First Amendment retaliation claim against Defendants Beard, Kelchner and Law. Plaintiff only alleges that Defendant Dr. Newton retaliated against him by taking him off of his medication due to his grievance about being placed in the SMU which is not suitable for a mentally disabled person. In Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001), the Court stated that "a prisoner litigating a retaliation claim must show that he suffered some adverse action' at the hands of the prison officials." To establish a retaliation claim, the Plaintiff must also show that there exists a causal nexus between the Plaintiff's constitutionally protected conduct and the adverse action. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996). We find that this nexus does not exist with respect to our two supervisory Defendants and with respect to Defendant Law.

Plaintiff alleges that Defendant Law somehow conspired with the prison mental health department to deny him mental health treatment. ( Id., p. 4, ¶ 18.).FN9 Plaintiff fails to state a conspiracy claim against Defendant Law.

FN9 Since we again recommend that Plaintiff's Eighth Amendment improper medical care claim against Defendants Newton, Kahn and Kalsky proceed, we shall not detail Plaintiffs allegations in his Amended Complaint against them.

The Third Circuit in Jones v. Maher, Appeal No. 04-3993 (3d Cir.2005), slip op. p. 5, stated that broad and conclusory allegations in a conspiracy claim are insufficient to state a viable claim. (Citation omitted). Also, the United States District Court for the Middle District of Pennsylvania, in Flanagan v. Shively, 783 F.Supp. 922, 928-29 (M.D.Pa.1992), aff'd. 980 F.2d 722 (3d Cir.1992), cert. denied 510 U.S. 829 (1993), stated as follows:

Bare conclusory allegations of "conspiracy" or "concerted action" will not suffice to allege a conspiracy. The plaintiff must expressly allege an agreement or make averments of communication, consultation, cooperation, or command from which such an agreement can be inferred. In Waller v. Butkovich, 584 F.Supp. 909, 931 (D.C. N.C. 1984), the district court outlined the pleading requirements in a conspiracy action.

In most cases, a bare conclusory allegation of conspiracy' or concerted action' will not suffice. The plaintiffs must expressly allege an agreement or make averments of communication, consultation, cooperation, or command' from which such an agreement can be inferred...

(Citation omitted.)... Allegations that the defendants' actions combined to injure the plaintiffs are not a sufficient basis from which to imply a conspiracy... (Citation omitted.)

Additionally, the plaintiffs must make specific factual allegations connecting the defendant to the injury'... (Citations omitted.)...

The Plaintiff fails to state a conspiracy claim against Defendant Law, in that he does not allege an agreement between her and the remaining psychiatrist and psychologist Defendants to deliberately treat his mental health ailments improperly. There is no allegation that Defendant Law played any role in the decision to remove Plaintiff from his medication or to treat his mental health problems improperly. We find that Plaintiff's bare conclusory allegations of conspiracy against Defendant Law are inadequate to allege a conspiracy claim. See Flanagan, supra .

*9 Further, since the Plaintiff was being treated by the prison medical staff, Dr. Newton, Dr. Kahn and Psychologist Kalsky, Defendants Beard, Kelchner and Law, non-physicians, cannot be held liable under Durmer v. O'Carroll, 991 F.2d. 64, 69 (3d Cir.1993).

Specifically, Plaintiff alleges that Defendants psychiatrist and psychologist violated his Eighth Amendment rights by not properly treating his mental health problems and by taking him off of his medication. Plaintiff indicates that he disputes the Defendant doctors' finding that he did not have a mental health problem requiring medication. The Plaintiff has failed to state a viable claim against Defendants Beard, Kelchner and Law, since they were not physicians, and he was receiving his medical treatment from the prison psychiatrists and psychologist, even though he disagreed with the treatment rendered and felt that his mental health problems were not being adequately treated.

Any claim that Defendants Beard, Kelchner and Law were deliberately indifferent to the Plaintiff's serious medical needs must fail. The stated Defendants, non-physicians, cannot be found deliberately indifferent to the Plaintiff's serious medical needs, as the Plaintiff acknowledges that he was under the care of the mental health doctors. Durmer, 991 F.2d. at 69 (3d. Cir.1993). The decisions how to treat Plaintiff and with what medication were made by the treating Defendant doctors. We recognize that in the case of Devern v. SCI-Graterford, 2004 WL 1552000 * 1 (E.D.Pa.), the Court limited Durmer and held that a "non-physician supervisor may be liable under § 1983 if he had knowledge or reason to know of medical mistreatment." In our case, the Plaintiff does not assert that Defendants Beard, Kelchner and Law were involved with the decisions how to treat Plaintiff and with what medication. Nor is it alleged that these Defendants knew that Plaintiff's treatment by the medical staff was improper or inadequate. Further, it is not alleged that these Defendants knew that the finding of the medical staff that Plaintiff did not have a mental health problem was improper or rendered to deny him medication.

Plaintiff attempts to make the stated Defendant responsible for the conduct of the treating doctors whom he admits was providing him with care. Liability in a § 1983 case may only be based on the Defendant's personal involvement in conduct amounting to a constitutional violation. Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir.1976); Rizzo v. Goode, 423 U.S. 362 (1976). There is no claim that Defendants Beard, Kelchner and Law had any direct involvement in Plaintiff's denial of medical treatment claim or that they had knowledge of any medical mistreatment. As stated, all of the actions taken with respect to Plaintiff's mental health care were performed by the Defendant doctors. Beard, Kelchner and Law are not alleged to have been involved in prescribing Plaintiff any medication or in taking him off of it. Nor are they alleged to have played any role in diagnosing Plaintiff with a mental disorder and later finding that he did not have one. Plaintiff cannot hold the non-physician Defendants liable on the basis of respondeat superior, as he tries to do in this case. Id.

*10 Our conclusion is supported by this very Court's decision in Chimenti v. Kimber, Civil No. 01-0273 (M.D.Pa.2002), aff'd. in part Third Circuit Appeal No. 03-2056 (6-8-05). In Chimenti, as in this case, the Plaintiff was under the care of the prison's medical staff and the Commonwealth Defendants were not physicians, nor were they involved in his care. The Court held that under Durmer, there was no basis for an Eighth Amendment claim against any of the Commonwealth Defendants. Id. at pp. 17-18.

B. Defendants Southers and Whaling

Plaintiff alleges that Defendant Southers, as unit manager of the SMU, was responsible for the welfare of inmates in the SMU, and that Defendant Whaling, as the SMU counselor, was to make sure the inmates in the SMU received proper counseling. (Doc. 18, p. 3, ¶'s 7.-8.). Plaintiff vaguely alleges that these Defendants mistreated him by not making sure he received the proper treatment and counseling in the SMU. Based on the above discussion, insofar as Plaintiff was being treated by the prison medical staff for his mental health problems, we find that there is no Eighth Amendment claim stated as against Defendants Southers and Whaling under Durmer.FN10

FN10 Indeed, Plaintiff's claim against Defendants Southers and Whaling is contingent on his claim that the Defendant doctors misdiagnosed him as not having a mental health problem and as not requiring medication.

C. Due Process Claim

Further, to the extent that Plaintiff claims that Defendants Beard, Kelchner, Southers and Whaling violated his due process rights by not giving him a hearing prior to placing him in the SMU upon his transfer to SCI-Camp Hill, we find that this Court has repeatedly found no liberty interest with respect to such claims. (Doc. 18, p. 5, ¶ 28.).

We conclude that, based on this Court's recent cases, including Francis v. Dodrill, 2005 WL 2216582 (M.D.Pa.) and Stotts v. Dodrill, Civil No. 04-0043 (M.D.Pa.), Petitioner's placement in the SMU does not implicate his due process rights. Therefore, we shall recommend that this claim be dismissed as against Defendants Beard, Kelchner, Southers and Whaling.

Plaintiff states that he is challenging his placement in the Special Management Unit at SCI-Camp Hill. Plaintiff claims that the SMU is not suitable for an inmate such as he, i.e., "a mentally disabled person." (Doc. 18, p. 3, ¶ 13.). Plaintiff states that on January 13, 2006, he was supposed to go to the SNU and not the SMU due to his mental health issues. However, Plaintiff states that he was placed in the SMU, which is a control unit and not suitable for him. Plaintiff alleges that the stated Defendants violated his due process rights by placing him in the SMU without first being given a hearing. (Doc. 18, pp. 5-6, ¶ 28.). This Court has consistently held that placement in the Special Management Unit does not give rise to atypical and significant hardships and does not implicate due process of law.

Thus, Plaintiff claims that he has been made to suffer atypical hardship without due process due to his immediate placement in the SMU upon his transfer to SCI-Camp Hill in January 2006, since he was deprived of his liberty in the SMU without a hearing. ( Id .). Plaintiff seems to claim that the procedural safeguards of Wolff v. McDonnell, 418 U.S. 539 (1974), were not followed in his case. (Id.). Plaintiff seems to claim that his placement in the SMU constitutes an atypical and significant hardship and implicates his due process rights. (Id.).

*11 We find that this Court, in the stated cases, has considered similar claims and has found that an inmate's placement in the SMU does not implicate his due process rights. See Franics, supra at * 3.

Based on this Court's decisions in Francis v. Dodrill, 2005 WL 2216582 (M.D.Pa.), and Stotts v. Dodrill, Civ. No. 04-0043, M.D. Pa., FN11 we find that our Plaintiffs placement in the SMU does not implicate his due process rights. As this Court in Francis stated:

FN11. In Stotts, this Court found that federal inmates' placement in the SMU following a riot incident did not violate their due process rights, that inmates' placement in the SMU was not punitive in nature, and that inmates were not entitled to the procedural safeguards.

The defendants also argue that Francis' placement in the SMU does not implicate his due process rights. We agree. A due process liberty interest "in avoiding particular conditions of confinement may arise from state policies or regulations." Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384, 2393, 162 L.Ed.2d 174 (2005). The Due Process Clause protects a prisoner's right to "freedom from restraint, which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship in relation to the ordinary incidents of prison life." Id. at 2394 (quoting Sandin v. Connor, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)).

The proper focus for determining whether prison conditions give rise to a due process liberty interest is the nature of the conditions, not mandatory language in prison regulations. Sandin, 515 U.S. at 484. In Sandin, an inmate was charged with violating prison regulations. Id. at 475. At a hearing, the hearing committee refused the inmate's request to present witnesses. Id. The committee found the inmate guilty and sentenced him to disciplinary segregation. Id. The inmate sought review, and a deputy administrator found some of the charges unfounded and expunged his disciplinary record. Id. at 476. Thereafter, the inmate filed suit pursuant to 42 U.S.C. § 1983 for a deprivation of procedural due process during the disciplinary hearing. Id. The Tenth Circuit found that he had a protected liberty interest because it interpreted the prison regulations to require that the committee find substantial evidence of misconduct before imposing segregation. Id. at 477. The Supreme Court reversed, finding no liberty interest. Id. at 484. In doing so, it rejected an approach that focused on whether the prison regulations "went beyond issuing mere procedural guidelines and has used language of an unmistakably mandatory character' such that the incursion on liberty would not occur absent specified substantive predicates.'" Id. at 480 (quoting Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). The Court found this approach undesirable because it created a disincentive for prison administrators to codify prison management procedures and because it "led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone." Id. at 482. Thus, the Court held liberty interests "will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force... nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484. In applying this test, the Court observed, "[discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law." Id. at 485. The Court then found that the inmate's disciplinary segregation "did not present a dramatic departure from the basic conditions of Conner's indeterminate sentence" because the conditions of disciplinary segregation were similar to those faced in administrative and protective custody. Id. at 486.

*12 In Wilkinson v. Austin, 545 U.S. 209, ___, 125 S.Ct. 2384, 2393, 162 L.Ed.2d 174 (2005), the Court applied the Sandin test and found that the plaintiff's due process rights were implicated when he was placed in a program where:

almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day, but only in a small indoor room... [P]lacement... is indefinite and, after an initial 30 day review, is reviewed just annually.... [P]lacement disqualifies an otherwise eligible inmate for parole consideration.

Id. at 2394-95.

The court found that these harsh conditions "give rise to a liberty interest in their avoidance."

Id. at 2395.

Fraise v. Terhune, 283 F.2d 506 (3d Cir.2002) applied the Sandin test and found that avoiding placement in the Security Threat Group Management Unit (STGMU) in the New Jersey prison system is not a protected liberty interest. Inmates who the prison deemed members of groups that posed a security threat were placed in the STGMU. Id. at 509. "An inmate assigned to the STGMU remains in maximum custody until the inmate successfully completes a three-phase behavior modification program." Id. at 511. The Court found that despite the additional restrictions, prisoners have no liberty interest in avoiding placement in the STGMU. Id. ; see also Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir.1997) (finding that additional restrictions in administrative custody for a period of fifteen months does not deprive prisoners of protected liberty interests).

We find that the conditions in the [USP-Lewisburg] SMU do not remotely approach the severity of the conditions Wilkinson found to give rise to a protected liberty interest, and are comparable to the conditions in cases such as Sandin, Fraise, and Griffin, which found no protected liberty interest.

Id., pp. *3-*4.

The Francis Court concluded that the restrictions in the SMU in federal prison were no greater than the restrictions placed on the inmate in Griffin. Id. *5. In our case, Plaintiff does not allege any greater restrictions in the SMU at SCI-Camp Hill than were placed on the inmates in Francis.

The Francis Court then stated:

Inmates have no due process right to a facility of their choosing. Young v. Quinlan, 960 F.2d 351, 358 n. 16 (3d Cir.1992). The Bureau of Prisons retains sole discretion over where to place an inmate. 18 U.S.C. § 3621. Inmates do, however, have a liberty interest in avoiding transfer to facilities where the conditions impose "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484. This is not such a transfer. We find that these conditions and the conditions overall in the SMU are reasonable and proportionate to those in other prisons in the federal system and across the country and do not impose an atypical and significant hardship in relation to the ordinary incidents of prison life. Using restrictions to promote prosocial behavior falls within the parameters of a sentence imposed by a court of law. While Francis clearly would prefer not to be housed in the SMU, his preference is not a liberty interest protected by the Due Process Clause.

*13 Id.

Further, the Court in Griffin v. Vaughn, 112 F.3d 703 706 (3d Cir.1997), stated:

Applying the precepts of Sandin to the circumstances before us, we conclude that the conditions experienced by Griffin in administrative custody did not impose on him "atypical and significant hardship, " that he was thus deprived of no state created liberty interest, and that he failure to give him a hearing prior to his transfer to administrative custody was not a violation of the procedural due process guaranteed by the United States Constitution.

The Griffin Court concluded that, considering the reasons to transfer inmates from general population to administrative custody, such as inmates deemed to be security risks, stays in administrative custody for many months ( i.e. as long as 15 months) are not uncommon. Id. at p. 708. Thus, the Griffin Court held that the inmate Griffin's transfer to and confinement in administrative custody "did not deprive him of a liberty interest, and that he was not entitled to procedural due process protection." Id.

Moreover, this Court in Francis, supra at *2, stated that "A violation of the Due Process Clause involves the following three elements: 1) the claimant must be deprived of a protectable interest; 2) that deprivation must be due to some governmental action; and 3) the deprivation must be without due process.'" (citation omitted). The Francis Court, as stated, found that placement of its Plaintiff, a federal inmate at USP-Lewisburg, in the SMU did not implicate his due process rights. Id. *3. Based on Griffin and Francis, our Plaintiff's placement in the SMU for eight (8) months does not give rise to a protected liberty interest.

D. Fourteenth Amendment Equal Protection Claim

Plaintiff asserts that his Fourteenth Amendment right to equal protection was violated by Defendants since he was not being given the proper treatment due to his mental disability. (Doc. 18, pp. 5-6). Plaintiff avers that Defendants treated him differently than similarly situated inmates who did not have mental health problems. We find that the § 1983 Equal Protection claims should be dismissed because the Plaintiff has failed to allege that Defendants purposely discriminated against him on the basis of his race, gender, or nationality. There is no claim that Defendants were motivated by a discriminatory intent with respect to Plaintiff's allegations. In fact, Plaintiff alleges that he was taken off of his medication at the outset by Defendant Dr. Newton because this Defendant was retaliating against Plaintiff for his complaint that the prison staff should not have placed him the SMU since it was not suitable for him. (Doc. 18, ¶'s 13-14). Plaintiff clearly did not claim a discriminatory motive for Dr. Newton's alleged conduct. Additionally, we do not find that Plaintiff has properly stated that he and any other inmates were similarly situated for purposes of an equal protection claim.

*14 The elements of a § 1983 Equal Protection claim require Plaintiff to state Defendants intended to discriminate against him, and later to prove this by either direct or circumstantial evidence. See Pa. v. Flaherty, 983 F.2d 1267 (3d Cir.1993) (Intent is a prima facie element of a § 1983 equal protection claim of discrimination) (citing Washington v. Davis, 426 U.S. 229 (1976). See also Williams v. Pa. State Police, 108 F.Supp.2d 460, 471 (E.D.Pa.2000) ("to prevail on a § 1983 claim, a plaintiff must prove that the Defendant intended to discriminate") (citation omitted).

The Equal Protection Clause does not require that all persons be treated alike, but instead, a plaintiff must show that the differential treatment to those similarly situated was unreasonable, or involved a fundamental interest or individual discrimination. Tigner v. Texas, 310 U.S. 141, 147 (1940); Price v. Cohen, 715 F.2d 87, 91 (3d Cir.1983), cert. denied, 465 U.S. 1032 (1984). It is well-settled that a litigant, in order to establish a viable equal protection claim, must show an intentional or purposeful discrimination. Snowden v. Hughes, 321 U.S. 1, 8 (1944); Wilson v. Schillinger, 761 F.2d 921, 929 (3d Cir.1985), cert. denied, 475 U.S. 1096 (1986); E & T Realty v. Strickland, 830 F.2d 1107, 1113-14 (11th Cir.1987), cert. denied 485 U.S. 961 (1988). This "state of mind" requirement applies equally to claims involving (1) discrimination on the basis of race, religion, gender, alienage or national origin, (2) the violation of fundamental rights, and (3) classifications based on social or economic factors. See, e.g., Britton v. City of Erie, 933 F.Supp. 1261, 1266 (W.D.Pa.1995), aff'd, 100 F.3d 946 (3d Cir.1996); Adams v. McAllister, 798 F.Supp. 242, 245 (M.D.Pa.), aff'd. 972 F.2d 1330 (3d Cir.1992).

As the Court in Barnes Foundation v. Township of Lower Merion, 942 F.Supp. 970, 983 (E.D.Pa.1997), stated:

The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution provides that "No State shall... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV, § 1. The Equal Protection Clause announces the "fundamental principle" that "the State must govern impartially, " New York City Transit Auth. v. Beazer, 440 U.S. 568, 587, 99 S.Ct. 1355, 1367, 59 L.Ed.2d 587 (1979), and "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985).

Plaintiff has failed to allege any facts from which it can be concluded that our Defendants engaged in intentional or purposeful discrimination or that he was treated differently by Defendants than similarly situated persons on the basis of his race, nationality or gender. In short, Plaintiff does not allege any discrimination with respect to his placement in the SMU or with respect to his treatment he received there. There is no cognizable equal protection claim stated. Plaintiff has failed to allege any facts from which it can be concluded that Defendants engaged in intentional or purposeful discrimination or that he was treated differently than similarly situated individuals on the basis of his race, religion, gender, alienage, or national origin.

*15 Additionally, the Plaintiff has not stated any specific acts taken by Defendants to show any discriminatory animus attributable to the stated Defendants. Thus, we shall recommend that Plaintiff's Fourteenth Amendment claims as against all Defendants be dismissed.

F. Defendants Newton, Khan and Kalsky

We find that Plaintiff has stated a First Amendment retaliation claim against Defendant Dr. Newton, and that he has stated Eighth Amendment claims against Defendants Newton, Khan and Kalsky.

"A prison official's deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825 (1994) citing Helling v. McKinney, 509 U.S. 25 (1993); Wilson v. Seiter, 501 U.S. 294 (1991); Estelle v. Gamble, 429 U.S. 97 (1976). An inadequate medical care claim, as we have here, requires allegations that the prison official acted with "deliberate indifference to serious medical needs" of the plaintiff, while a prisoner. Estelle, 429 U.S. at 104 (1976); Unterberg v. Correctional Medical Systems, Inc., 799 F.Supp. 490, 494-95 (E.D.Pa.1992). The official must know of and disregard an excessive risk to inmate health or safety. Farmer, 511 U.S. at 837. "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. "The question... is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial risk of serious damage to his future health.'" Farmer, 511 U.S. at 843.

In order to state a viable Eighth Amendment claim, a prisoner must demonstrate that the Defendant was deliberately indifferent to his medical needs and that those needs were serious. Estelle, 429 U.S. at 106.

Mere disagreement as to the proper medical treatment does not support a claim of an Eighth Amendment violation. Monmouth County Correctional Institution Inmates v. Lensaro, 834 F.2d 326 (3d Cir.1987), cert. denied, 486 U.S. 1006 (1988); see also Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir.1993) ([T]he law is clear that simple medical malpractice is insufficient to present a constitutional violation."). As such, "[a] distinction must be made between a case in which the prisoner claims a complete denial of medical treatment and one where the prisoner has received some medical attention and the dispute is over the adequacy of the treatment." Nottingham v. Peoria, 709 F.Supp. 542, 547 (M.D.Pa.1988) citing United States ex. rel . Walker v. Fayette County, 549 F.2d 573, 575 n. 2 (3d Cir.1979).FN12

FN12. We note that, to an extent, our Plaintiff disputes the Defendant doctors' finding that he did not have a mental health issue despite being diagnosed at his previous prison before his transfer to SCI-Camp Hill that he had a mental health diagnosis, i.e. anti-social personality disorder, and required medication. (Doc. 18, p. 4). Insofar as Plaintiff disputes the doctors' diagnosis of his mental condition and the doctors' medical decision that he did not require medication, this is not an actionable Eighth Amendment claim.

In the case of Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir.1987), the court addressed whether the Plaintiff's alleged injuries rose to the level of being sufficiently serious for the purpose of establishing an Eighth Amendment violation. The Monmouth County case stated that:

*16 "A medical need is serious, ' in satisfaction of the second prong of the Estelle test, if it is one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention." Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J.1979), aff'd, 649 F.2d 860 (3d Cir.1981); accord Laaman v. Helgemoe, 437 F.Supp. 269, 311 (D.N.H.1977). The seriousness of an inmate's medical need may also be determined by reference to the effect of denying the particular treatment. For instance, Estelle makes clear that if unnecessary and wanton infliction of pain, ' 429 U.S. at 103 , 97 S.Ct. at 290, results as a consequence of denial or delay in the provision of adequate medical care, the medical need is of the serious nature contemplated by the eighth amendment. See Id. at 105, 97 S.Ct. at 291. In addition, where denial or delay causes an inmate to suffer a life-long handicap or permanent loss, the medical need is considered serious. ( Citations omitted )."

Monmouth County, 834 F.2d at 347(3d Cir.1987).

We find that Plaintiff has met the first hurdle of Estelle, i.e., Defendants were deliberately indifferent to his medical needs, as he alleges that Defendants Newton, Kahn and Kalsky denied him required medical care and that they placed him in jeopardy amongst his fellow inmates by disclosing his mental health condition to them.

In Monmouth, supra, 834, F.2d at 347, the Court said that a medical need is serious if the delay or denial of health care results in "wanton infliction of pain, lifelong handicap or permanent loss." Here Plaintiff alleges sufficient physical and emotional suffering, and he claims that it was as a result of any of our Defendants' non-treatment. Taking all of the allegations of Plaintiff as true, as we must at this juncture, he states legally sufficient Eighth Amendment claims against Defendants Newton, Kahn and Kalsky in this case. Thus, we shall recommend that this case proceed with respect to these three Defendants since the Plaintiff has alleged deliberate indifference to his serious medical condition under the Eighth Amendment as against them. Therefore, we shall recommend that Plaintiff's Eighth Amendment claims against Defendants Newton, Kahn and Kalsky proceed.

V. Recommendation.

Based on the foregoing, it is respectfully recommended that Plaintiff's action as against Defendants Kelchner, Beard and Law be dismissed. Specifically, we find that Defendants Kelchner and Beard lack sufficient personal involvement in this case. We find that Defendant Law, by denying Plaintiff's grievance, is not sufficiently involved in this case. We also find no conspiracy claim is stated as to Defendant Law. We find that Plaintiff's Fifth Amendment Due Process claim with respect to his placement in the SMU should be dismissed, and that his Fourteenth Amendment Equal Protection claim as against all Defendants should be dismissed. Further, we find that Plaintiff's claims as against the Defendants in their official capacities should be dismissed to the extent that he seeks money damages. We find that Defendants Southers and Whaling should be dismissed. We find that Plaintiff has stated a First Amendment retaliation claim against Defendant Newton, and that he has stated Eighth Amendment claims against Defendants Newton, Kalsky and Kahn. Finally, it is recommended that this case be remanded to the undersigned for further proceedings.

NOTICE

*17 NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated September 7, 2006.

Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within ten (10) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

Albert Dantzler, Labelle, PA, pro se.

Mariah Passarelli, Office of the Attorney General, Pittsburgh, PA, for Defendants.

REPORT AND RECOMMENDATION

AMY REYNOLDS HAY, United States Magistrate Judge.

I. RECOMMENDATION

*1 It is respectfully recommended that the Defendants' motion for summary judgment be granted.

II. REPORT

A. Relevant Procedural History

This case has been the subject of prior proceedings, including a report that recommended dismissal of all but three of Plaintiff's claims, Dkt. [27]. The report was adopted by the District Court. Dkt. [33]. Familiarity with those prior proceedings and report are presumed. The only three remaining claims are: (1) that Albert Dantzler ("Plaintiff') was deprived of procedural due process when he was placed in the Special Management Unit ("SMU") and the Long Term Segregation Unit ("LTSU"), (2) that the conditions of those placements amounted to cruel and unusual punishment in violation of the Eighth Amendment and (3) that his placement and his being continued therein violated his equal protection rights because white inmates were allegedly treated better than he in being let out of the LTSU more quickly than black inmates. Because Plaintiff has failed to show that he had a liberty interest to remain free from those constraints and/or because he has failed to show that the process he was provided was inadequate, Defendants are entitled to summary judgment on the procedural due process claim. In addition, because Plaintiff has failed to adduce evidence that the conditions of these placements deprived him of the minimal civilized measure of life's necessities, Defendants are entitled to summary judgment as to his Eighth Amendment claim as well. Finally, because he has failed to show he was similarly situated with the other inmates allegedly treated better than he, his equal protection claim fails to survive summary judgment.

Defendants filed a summary judgment motion, Dkt. [56], a brief in support, Dkt. [57], and a statement of facts. Dkt. [58]. Appended to the motion were evidentiary materials. Plaintiff filed a response in opposition to the Defendants' summary judgment motion, Dkt. [70], with appended evidentiary material; in addition, Plaintiff filed a brief in opposition, Dkt. [71].

B. Applicable Legal Standard

Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, "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). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial ... or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, it must be determined "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir.1990), cert. denied, 501 U.S. 1218 (1991), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-52.

C. Discussion

1. Procedural Due Process

*2 The Fourteenth Amendment provides in relevant part that "nor shall any State deprive any person of life, liberty, or property, without due process of law." The "due process of law" essentially requires that the government provide a person notice and opportunity to be heard in connection with the deprivation of life, liberty or property. Zappan v. Pennsylvania Board of Probation and Parole, 152 Fed.Appx. 211, 220 (3d Cir.2005) ("The essential requirements of any procedural due process claim are notice and the opportunity to be heard."). Hence, to establish a prima facie case of a procedural due process violation, a plaintiff must establishFN1 (1) the existence of a liberty or property interest (2) that the state deprived the person of and (3) that the deprivation was accomplished without procedural protections of notice and an opportunity to be heard. See Rusnak v. Williams, 44 Fed.Appx. 555, 558 (3d Cir.2002) ("Procedural due process claims, to be valid, must allege state sponsored deprivation of a protected interest in life, liberty or property. If such an interest has been or will be deprived, procedural due process requires that the governmental unit provide the individual with notice and a reasonable opportunity to be heard.") (citation omitted); Castro Rivera v. Fagundo, 310 F.Supp.2d at 434 (listing elements of prima facie case).

FN1. It is clear that Plaintiff has the burden. See, e.g., Smith v. City of Unadilla, 510 F.Supp.2d 1335, 1346 (M.D.Ga.2007) ("A plaintiff who asserts that a procedural due process violation has occurred, bears the initial burden of establishing that a protected property interest exists."); Castro Rivera v. Fagundo, 310 F.Supp.2d 428, 434 (D.Puerto Rico 2004) ("It is not sufficient that a deprivation has occurred. Plaintiff's carry the burden of pointing to the lack of constitutionally sound proceedings at the state level. Rumford, 970 F.2d at 999. Plaintiff's must present evidence that the state does not have available review mechanisms comporting with minimum due process requirements."), aff'd. 129 Fed.Appx. 632 (1st Cir.2005).

For present purposes, our procedural due process analysis involves a two step inquiry: the first question to be asked is whether the complaining party has a protected liberty or property interest within the contemplation of the Due Process clause of which he has been deprived and, if so, the second question is whether the process afforded the complaining party to deprive him of that interest comported with constitutional requirements. Shoats v. Horn 213 F.3d 140, 143 (3d Cir.2000).

Defendants argue that Plaintiff has failed to establish that his placement in the SMU and/or LTSU deprived him of a liberty interest. Dkt. [57] at 5 to 6. Alternatively they point out that Plaintiff received all of the process to which he was entitled even if his placement involved a liberty interest. Dkt. [57] at 7 to 15.

A protected liberty interest may arise from one of two sources: (1) directly from the Fourteenth Amendment's due process clause itself or (2) from state law. Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983).

There is no liberty interest created directly by the Fourteenth Amendment that prevents an inmate from being subjected to programs such as the SMU and/or the LTSU. See Sandin v. Conner 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) ("Conner asserts, incorrectly, that any state action taken for a punitive reason encroaches upon a liberty interest under the Due Process Clause even in the absence of any state regulation"); Stephany v. Wagner, 835 F.2d 497, 499 (3d Cir.1987) ("the Due Process Clause does not give a prisoner a liberty interest in remaining in the general prison population").

*3 Nevertheless, Plaintiff appears to attempt to bring himself within a class of cases that hold involuntary psychiatric treatment implicates a liberty interest that is derived directly from the Due Process clause. Dkt. [71] at 6 to 7. The class of cases has its origins to a great extent in the Supreme Court's decision of Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), which Plaintiff cites. Dkt. [71] at 7. In that case, a prisoner was transferred to a hospital for the mentally ill and involuntarily subjected to treatment including use of psychoactive drugs. See, e.g., Miller v. Vitek, 437 F.Supp. 569, 572 (D.Neb.1977) ("Patients there, including inmates transferred from the Penal Complex, are frequently required to participate in behavior modification programs and to take whatever medication may be prescribed for them.") (emphasis added).FN2 Some prisoners so transferred brought suit alleging a violation of their procedural due process rights contending that they had a liberty interest in not being so transferred without some pre transfer process of notice and an opportunity to be heard. The Supreme Court agreed, holding that

FN2. The Miller decision is the case in the District Court that eventually resulted in the Supreme Court decision in Vitek v. Jones .

the District Court was convinced that characterizing Jones as a mentally ill patient and transferring him to the Lincoln Regional Center had "some stigmatizing" consequences which, together with the mandatory behavior modification treatment to which Jones would be subject at the Lincoln Center, constituted a major change in the conditions of confinement amounting to a "grievous loss" that should not be imposed without the opportunity for notice and an adequate hearing. We agree with the District Court.

Vitek v. Jones 445 U.S. 480, 488, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980). The Court in Vitek found that the liberty interest was both a state created liberty interest and a liberty interest directly created by the Due Process clause. See, e.g., Kritenbrink v. Crawford, 457 F.Supp.2d 1139, 1149 n. 6 (D.Nev.2006) ("The Supreme Court in Vitek found that classifying a prisoner as mentally ill and transferring him to a mental hospital for mandatory behavior modification treatment implicated a state-created liberty interest as well as a liberty interest arising from the Due Process Clause itself."). In finding a state created liberty interest, the Supreme Court engaged in the now rejected (as explained below) Hewitt -type methodology of looking for mandatory language in state regulations. Accordingly, the Vitek Court's holding with respect to the state created liberty analysis is superceded by Sandin. Hence, we need address only the Vitek holding as to a liberty interest directly created by the Due Process clause. We find Vitek and its line of cases to be distinguishable insofar as the Court found that transfer to a mental hospital combined with involuntary psychiatric treatment that the court characterized as "behavior modification" implicated a liberty interest.

Plaintiff seizes on the term of "behavior modification" from Vitek, as well as upon the concession by a DOC official that "by definition, behavior modification is utilized in the LTSU." Dkt. [70-19] at 2. Plaintiff argues that because Vitek held that transfer to a mental hospital that engaged in behavior modification implicated a liberty interest created directly by the Due Process clause, his transfer to the LTSU which utilizes "behavior modification" likewise implicates a liberty interest. The problem with Plaintiff's argument is the logical problem known as equivocation, i.e., simply because the same words were used the same meanings must be indicated. However, as noted by one court: "the problem in discussing behavior modification' is that the term is defined in a number of different ways. He explained that In its broadest sense, virtually every program in the Bureau of Prisons is designed to change or modify behavior." Clonce v. Richardson, 379 F.Supp. 338, 343 (W.D.Mo.1974).FN3 The court finds that the "behavioral modification" referred to in Vitek, was of the kind that necessarily involved psychiatric treatment, including, but not limited to the involuntary administration of psychotropic drugs. See, e.g., Vitek v. Jones, 445 U.S. at 494 ("But here, the stigmatizing consequences of a transfer to a mental hospital for involuntary psychiatric treatment, coupled with the subjection of the prisoner to mandatory behavior modification as a treatment for mental illness, constitute the kind of deprivations of liberty that requires procedural protections.") (emphasis added). See also Cooper v. Garcia, 55 F.Supp.2d 1090, 1101 (S.D.Cal.1999) ("In Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552, (1980), the Court found the prisoner plaintiff's liberty interest was affected by virtue of him being classified as mentally ill which mandated that he be transferred to a mental hospital for involuntary psychiatric treatment (mandatory behavior modification).").

FN3. To the extent that the holding of the court in Clonce is inconsistent with the holding herein, the Court notes Clonce is not mandatory authority and hence is only persuasive authority. As such, it is authoritative only to the extent persuasive and this court is not persuaded by its reasoning.

*4 In contrast, the behavior modification at issue here, for all that the record evidence shows, is a carrot and stick approach, i.e., Plaintiff's negative behaviors are negatively reinforced or "punished" by a substantial loss of privileges upon his transfer to the LTSU and Plaintiff is encouraged to engage in good behavior by the incentive of granting greater privileges as he continues to engage in positive behaviors. Such behavior modification appears throughout the penal system, such as, for example, the stick of incarceration at a greater security classification and/or higher security prison with the carrot of greater privileges in lower security prisons or the carrot of parole should the inmate conduct himself properly. The use of such behavior modification techniques as those utilized in the LTSU simply do not constitute a liberty interest within the contemplation of Vitek because the behavior modification there and the behavior modification at issue herein are substantially different. See, e.g., Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir.1997) ("The liberty interest implicated by the establishment of the SOTP [i.e., a type of behavior modification program] is not merely the requirement that sex offenders complete the specified treatment program. If that were all that was at stake, we could probably not say that a liberty interest had been created, given the fact that prisons frequently maintain treatment and behavioral modification programs (such as anger management or alcohol abuse classes) that have long withstood legal challenge."); Love v. McKune, 33 Fed.Appx. 369 (10th Cir.2002);FN4 Barkus v. Kaiser, 229 F.3d 1162 (Table), 2000 WL 1346226 (10th Cir.2000) (unpublished) (inmate's thirty-three day placement in behavior modification program [i.e., carrot and stick approach] that restricted his television and movement privileges did not impose significant hardship on inmate sufficient to create a liberty interest); Jones El v. Berge, No. 00-C-421-C, 2001 WL 34379611, at *16 (W.D.Wis. Aug. 14, 2001) (holding that the plaintiff's in a class action on behalf of inmates at the Wisconsin supermax prison failed to state a claim for violations of their procedural due process rights, notwithstanding allegations that "the solitary confinement, denial of privileges, additional regulations and restrictions on protected and discretionary activities, the limitation on educational and employment opportunities, the lack of access to legal materials and legal counsel and the behavior modification program at Supermax impose an atypical and significant hardship on plaintiff's in relation to the ordinary incidents of prison life in the Wisconsin prison system.... [P]risoners do not have a liberty interest in remaining out of segregation status so long as that period of confinement does not exceed the remaining term of their incarceration.").5 Accordingly, Plaintiff has no liberty interest, as a matter of law, arising directly from the Due Process clause that prevents his placement in the SMUFN6 and/or the LTSU. Hence, the only other source of a liberty interest could arise from state law.

FN4. In Love v. McKune, the Court held that requiring involuntary participation in a behavior modification program described below, did not violate due process:
The "involuntary behavior modification system" referred to is Internal Management Policy and Procedure (IMPP) 11-101, adopted by the Kansas Department of Corrections in January 1996. "IMPP 11-101 implements a statewide incentive level system which ties inmate privileges to participation in programs and good behavior." Pool v. McKune, 267 Kan. 797, 987 P.2d 1073, 1076 (Kan.1999). Under the system, incarcerated inmates are assigned to one of four levels (Intake Level through Level III) and, in turn, are provided with a corresponding level of privileges (e.g., television ownership, handicrafts, participation in organizations, use of outside funds, canteen expenditures, incentive pay, visitation). In order to be assigned to a higher level and obtain more privileges, inmates must "generally remain[ ] free of offenses and demonstrat[e] a willingness to participate in recommended programs." Stansbury v. Hannigan, 265 Kan. 404, 960 P.2d 227, 230 (Kan.1998). An inmate may be assigned to a lower level, and in turn lose privileges, for a variety of reasons, including commission of disciplinary offenses or refusal to participate in a recommended program. Id., 960 P.2d at 237.
Id. at 370, 960 P.2d 227.
FN5. The specific holding of Jones 'El v. Berge with respect to there being no liberty interest implicated by a transfer to a super max prison may be suspect in light of the subsequent Supreme Court decision in Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) but it continues to be persuasive authority for the proposition that mere behavior modification such as the carrot and stick approach, which necessarily excludes use of psychiatric treatment, does not implicate a liberty interest.
FN6. Unlike with the LTSU, Plaintiff points to no evidence that the SMU utilizes behavior modification. Nevertheless, the very nature of the program permits a reasonable inference that the SMU does do so. Even so, again the behavior modification utilized in the SMU is the same as that in the LTSU, a carrot and stick approach with respect to increasing and decreasing privileges. Such does not implicate a liberty interest created by the Due Process clause.

*5 Addressing the issue of state created liberty interests, the United States Supreme Court in Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) made a sea change in the analysis courts had used prior to the Sandin decision. Prior to Sandin, the courts were instructed to determine whether the State had issued regulations or rules and whether in those promulgations the State had used "language of an unmistakably mandatory character" such that the incursion on liberty would not occur "absent specified substantive predicates." Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 74 L.Ed.2d 675. (1983). However, in Sandin, that methodology was rejected. Sandin, 515 U.S. at 483-84 n. 5.FN7 In Sandin the Supreme Court "abrogated the methodology of parsing the language of particular regulations." Wilkinson, 545 U.S. at 222-23. (describing the Court's holding in Sandin ). "After Sandin, it is clear that the touchstone of the inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive conditions of confinement is not the language of regulations regarding those conditions." Id. at 223 ( quoting Sandin, 515 U.S. at 484).

FN7. Despite this rejection of the Hewitt methodology, Plaintiff appears to continue to rely thereon in his arguments, asserting that state regulations and rules gave him a liberty interest apparently in having certain state mandated procedures followed. See, e.g., Dkt. [71] at 6 (invoking Prison Policy 2.1.2 and 45 Pa.C.S.A. §§ 1201-0821) and at 21 (invoking 37 Pa.Code 93.10 and 93.11(b)). However, the Court of Appeals for the Third Circuit has specifically rejected this notion. As the Court of Appeals for the Third Circuit explained:
The fact that Pennsylvania regulations provide for hearings after transfer to administrative custody is not relevant to a determination of whether federal procedural due process is required. See Hewitt v. Helms, 459 U.S. 460, 470, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (The mere fact that Pennsylvania has created a careful procedural structure to regulate the use of administrative segregation does not indicate the existence of a protected liberty interest.). The process afforded by state law is not relevant in determining whether there is a state created right that triggers due process protection. Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). ("The State may choose to require procedures for reasons other than protection against deprivation of substantive rights, of course, but in making that choice, the State does not create an independent substantive right.")
Griffin v. Vaughn, 112 F.3d 703, 709 n. 3 (3d Cir.1997). Not only does the State's creation of procedures before a certain deprivation can occur, fail to establish that Plaintiff has a liberty interest in what he was deprived of, but in addition, Plaintiff has no constitutional liberty interest in the Defendants following the procedures allegedly mandated by state law. River Park, Inc. v. City of Highland Park, 23 F.3d 164, 166 (7th Cir.1994) ("the Constitution does not require state and local governments to adhere to their procedural promises"); Wilson v. Formigoni, 42 F.3d 1060, 1066 (7th Cir.1994) ("[S]tate-created procedural requirements do not, standing alone, constitute protected liberty or property interests or create substantive entitlements.") (citations omitted). Hence, neither the deprivation nor the failure to follow state mandated procedures deprive Plaintiff of a liberty interest here.

Rather than searching state prison regulations or laws for mandatory language, the Sandin court directed that we are to analyze the nature of the deprivation to determine if a liberty interest is implicated. Specifically, the Sandin Court held that a state government "may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." 515 U.S. at 483. The meaning of these words or this test is not self evident. Skinner v. Cunningham, 430 F.3d 483 (1st Cir.2005) ("The hardship test has itself become the source of major disagreement."). The test apparently requires a determination of what constitutes the ordinary incidents of prison life, which has been referred to as the "baseline" or "base for comparison, "FN8 so as to determine whether a particular deprivation can be said to be atypical and significant. See, e.g., Wilkinson v. Austin, 545 U.S. at 223 ("In Sandin 's wake the Courts of Appeals have not reached consistent conclusions for identifying the baseline from which to measure what is atypical and significant in any particular prison system. This divergence indicates the difficulty of locating the appropriate baseline, an issue that was not explored at length in the briefs."). Rather than resolve this question, the Supreme Court provided no guidance by refusing to do so. Id. ("We need not resolve the issue here, however, for we are satisfied that assignment to OSP imposes an atypical and significant hardship under any plausible baseline.").FN9 Hence, as of June 13, 2005, the date Wilkinson was decided, it is unclear from the Supreme Court what the baseline of comparison is to be under Sandin, and consequently how to determine a liberty interest under Sandin, nearly more than ten years after Sandin was decided.

FN8. Sealey v. Giltner, 197 F.3d 578, (2d Cir.1999) ("The District of Columbia Circuit uses the most restrictive' conditions of administrative confinement as the base for comparison....").
FN9. Although not wishing to establish a baseline, the Court appeared to necessarily exclude one potential baseline by implication. Whereas Mechum seemed to establish that a prisoner has no liberty interest to be housed in any prison in the state, including the most secure one in the state, Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (no liberty interest arising from Due Process Clause itself in transfer from low to maximum security prison, because confinement in any state institution is within normal limits or range of custody which the conviction has authorized the state to impose), Wilkinson seems to overrule that insofar as Ohio prisoners apparently had a liberty interest not to be housed in the supermax prison without some procedural due process protections. Hence, by implication, it appears that the baseline for Sandin's test of atypicality, at least in Ohio and perhaps elsewhere, cannot be the conditions of the most secure prison in the state.

*6 The Court of Appeals for the Third Circuit has provided some guidance regarding this issue. Among the first attempts to address this issue, the Court of Appeals stated that "the baseline for determining what is atypical and significant' - the ordinary incidents of prison life' - is ascertained by what a sentenced inmate may reasonably expect to encounter as a result of his or her conviction in accordance with due process of law." Griffin v. Vaughn, 112 F.3d 703, 706 & n. 2 (3d Cir.1997). Unfortunately, there are several difficulties with this formulation. One may be that it is tautological. Defining a liberty interest for purposes of determining whether certain procedures are constitutionally required by saying that a deprivation does not constitute a liberty interest if it constitutes a deprivation that a prisoner may reasonably expect in accordance with due process of law appears to be a tautology, i.e., defining a word by using that same word or a form of the same word.FN10 Even if not tautological, what is apparently required or permitted by such a formulation is quite open ended and provides little practical guidance. However, even if the formulation does not, the precise holding of Griffin perhaps provides more guidance; from Griffin we know that a prisoner placed in the conditions of Administrative Custody for a period of 15 months does not implicate a liberty interest. See id. FN11

FN10. The formulation may not be a tautology if the formulation means in accordance with "substantive due process" i.e., in accordance with fundamental fairness as opposed to "procedural due process."
FN11. The Circuit Court's other statements on this issue have varied. Compare Learner v. Fauver, 288 F.3d 532, 546 (3d Cir.2002) ("under Sandin a court must assess whether administrative segregation, or its concomitant conditions, constitute an atypical and significant hardship' by comparing the circumstances of Leamer's placement with those of others within comparable confinement"); Shoats v. Horn, 213 F.3d 140, 144 (3d Cir.2000) (in determining what constitutes an atypical and significant hardship for those in disciplinary confinement, the question is "whether the conditions of his confinement in disciplinary segregation were significantly more restrictive than those imposed upon other inmates in solitary confinement."). Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir.1997) ("It is thus apparent that in the penal system to which Griffin was committed with due process of law, it is not extraordinary for inmates in a myriad of circumstances to find themselves exposed to the conditions to which Griffin was subjected."). Griffin appears to reject that assertion that the base of comparison is with the conditions of the inmates in the general population of the single prison where the prisoner plaintiff's deprivation took place. Id., at 706 n. 2.

Perhaps as a consequence of the fluidity of the test for atypicality, the Court of Appeals has also emphasized that this is a fact intensive inquiry. Wilkins v. Bittenbender, ___ Fed.Appx. ___, 2007 WL 708993, *2 (3d Cir.2007) ("In order to do so [i.e., determine whether a deprivation is atypical and significant], a court should perform a fact-specific inquiry evaluating the duration of disciplinary confinement and the conditions of that confinement in relation to other prison conditions.'") (quoting Mitchell v. Horn, 318 F.3d 523, 531 (3d Cir.2003)).

Significantly, for purposes of deciding this motion for summary judgment, it is a Plaintiff's burden to establish the existence of a liberty interest. Zigmund v. Foster, 106 F.Supp.2d 352, 360 (D.Conn.2000) ("The plaintiff bears the burden of demonstrating the existence and infringement of a protected liberty or property interest."). Hence, it is Plaintiff's burden to adduce evidence that the conditions he faced were both atypical and significant hardships in relation to the ordinary incidents of prison life. Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.1996) ("To prevail, Frazier must establish... that the confinement or restraint creates an atypical and significant hardship' under Sandin "); Vasquez v. Coughlin, 2 F.Supp.2d 255, 260 (N.D.N.Y.1998) ("Plaintiff has the burden of proving that the conditions of his confinement constituted an atypical, significant hardship in relation to the ordinary incidents of prison life in order to recover damages under 42 U.S.C. section 1983."); Keel v. Dovey, 459 F.Supp.2d 946, 955 (C.D.Cal.2006) ("Plaintiff has failed to carry her burden of raising a triable issue of material fact on whether her placement in Ad Seg qualifies as an atypical and significant hardship[ ]... when compared to the burdens of ordinary prison life'") (some internal quotation marks omitted). Accord Wilkins v. Bittenbender, ___ Fed.Appx. ___, 2007 WL 708993 at *2 (3d Cir.2007) ("Nor has he [i.e., the prisoner-plaintiff] provided any evidence that the conditions during his stay in administrative segregation involved atypical or significant hardship.").

*7 Instantly, although Plaintiff offered evidence of the type of deprivations he encountered in the SMU and the LTSU, he has offered no evidence at all with respect to the atypicality of the hardships that he suffers.FN12 Howeve, without a base of comparison, there is no evidence to establish the atypicality of the hardships. Indeed, there is support in the record to indicate that the conditions plaintiff ascribes to the LTSU are identical to the conditions under which plaintiff was previously housed in the SMU at SCI-Greene and, furthermore, that those conditions are not significantly different from conditions in the RHU, which could constitute some evidence that the conditions of the LTSU and/or SMU are not so atypical as to come within Sandin 's protections. Dkt.[71] at 17" (both the LTSU and SMU are no more secure than an RHU in a normal L-5 unit. As is determined from (Exhibit 7 p. 3) neither unit offers anything that is not offered in the RHU."). Indeed, Plaintiff has provided no evidence of the frequency with which prisoners face restrictions/deprivations similar to the restrictions/deprivations of the SMU and or the LTSU nor, in the case of the SMU, any evidence of the numbers of prisoners who face such restrictions/deprivations. In fact, under the reasoning of Shoats v. Horn, in order to succeed, it appears that Plaintiff must show that his conditions were harsher than the conditions of others throughout Pennsylvania's correctional facilities who are in solitary confinement. Shoats v. Horn, 213 F.3d 140, 144 (3d Cir.2000) (in determining what constitutes an atypical and significant hardship for those in disciplinary confinement, the question is "whether the conditions of his confinement in disciplinary segregation were significantly more restrictive than those imposed upon other inmates in solitary confinement."). See also Wagner v. Hanks, 128 F.3d 1173 (7th Cir.1997) (State prison inmate's due process claim based on inmate's placement in disciplinary segregation was to be evaluated by comparing conditions of inmate's confinement with conditions of segregation in state's entire prison system, not just inmate's individual prison.). Because Plaintiff offers no evidence that his conditions in the SMU and/or the LTSU were "significantly more restrictive than those imposed upon other inmates in solitary confinement" pursuant to Shoats or any evidence as to the likelihood and frequency and duration of stays in conditions like those of the LTSU were visited upon other prisoners, Plaintiff has failed to establish that the conditions he faces are an atypical and significant hardship. Thus, Plaintiff has failed to establish by evidence that he has been deprived of a liberty interest at all.

FN12. He did offer evidence of the small numbers of prisoners who are are placed in the LTSU, at any one given time, at least with respect to the number of prisoners placed in the LTSU at SCI-Fayette. Dkt. [70-11] at 2, ("Only one-tenth of 1 percent of the state's 40, 000 inmates live in the LTSU cells at the new State Correctional institution-Fayette, in Luzerne County..."). However, even if there is only a small number of prisoners who actually live in the special program called the LTSU, absent evidence that the conditions in the program are radically different from the conditions in, say, for example, the Administrative Custody, and Plaintiff fails to point to such evidence, Plaintiff has failed to establish the atypicality of the conditions of the LTSU and hence that he was deprived of a liberty interest.

Furthermore, the court takes judicial notice that the conditions of the SMU and LTSU do not appear to be significantly different from those found in the AC as described in Griffin v. Vaughn .

Nor do Plaintiff's allegations of other inmates throwing feces and bodily fluids in the SMU and/or LTSU establish atypicality in the absence of information concerning the frequency of exposure of other inmates in solitary confinement or even in general population to these conditions. The same holds true of Plaintiff's complaints about being exposed to inmates who allegedly were mentally ill that were housed in the LTSU or SMU. As such, Plaintiff has failed to establish the deprivation of a liberty interest.

*8 Alternatively, even if Plaintiff did establish a genuine issue of material fact with respect to the existence of a liberty interest, he has failed to show that the process that he did receive in connection with his being deprived of being in general population or being deprived of being in the RHU was constitutionally inadequate.

The Defendants adduced evidence of all of the process he received. Namely, Plaintiff received many misconducts between July 1999, the date whereon Plaintiff entered into DOC's custody and in or about December 2001, when Plaintiff was recommended for placement in the SMU. Plaintiff was not transferred to the SMU until February 19, 2002. Dkt. [57] at 8 to 9. It is undisputed that Plaintiff received notice and an opportunity to be heard regarding the multiple disciplinary charges most of which he was found guilty of.

Furthermore, it is undisputed that Plaintiff was transferred to the SMU on February 19, 2002, Dkt. [56-2] at 31, and that less than three full days later, on February 22, 2002, Plaintiff was given an opportunity to meet with a SMU Review team, where he was specifically informed of the way in which to progress through the SMU and ultimately gain release to the general population and was provided an opportunity to be heard by them. Dkt. [56-2] at 31. He received thirty day reviews thereafter wherein his status was reviewed to determine his progress and whether he should be promoted to higher levels of privileges. In fact, several times he was so promoted but because of his subsequent behavior, he was repeatedly demoted. After several such demotions, Plaintiff was transferred back to the RHU on March 24, 2004, for failure to successfully complete the SMU. Dkt. [57] at 10. In addition, during his stay in the SMU, Plaintiff also received reviews every 60 days by the PRC, Dkt. [56-3] at 2 to 19, to which he was invited to attend and be heard. This is sufficient process so as to satisfy the procedural due process clause. See, e.g., Shoats v. Horn, 213 F.3d 140, 144 (3d Cir.2000) (periodic reviews by PRC of placement in Administrative Custody for 8 years satisfied due process).FN13

FN13. Plaintiff does aver that he was not allowed to attend his annual review nor permitted to appeal it. Dkt. [70-15]. Even if this is true, it does not establish that he was denied procedural due process in light of the other process he received which the record establishes, such as the PRC reviews and 30 day unit reviews, even if, as Plaintiff contends, he did not receive copies of the written decisions from the 30 day unit reviews. Nor does procedural due process require that Plaintiff be able to appeal from a 30 day unit review.

After Plaintiff was transferred back to the RHU based on his failure in the SMU, the process to have Plaintiff transferred to the LTSU was begun almost immediately, Dkt. [56-3] at 35 to 38. On January 4, 2005, Plaintiff was given notice that "you have been received from SCI-Greene as an administrative transfer for placement into the Long Term Segregation Unit. You currently are on Administrative Custody and will be placed on LTSU Level 4 for a 90 day assessment, you will remain housed in the LTSU at SCI-Fayette until completion of the program." Dkt. [56-3] at 26. The notice specifically referenced DC-ADM 802 Article VI., Section A, subsection 1a.FN14 Because there was no room for Plaintiff in the LTSU, he was put on a waiting list, Dkt. [56-3] at 38, and was not formally placed in the LTSU until January 4, 2005. Dkt. [57] at 12. Once there, the following day, he met with the PRC for his initial review. Dkt. [56-3] at 10, and the PRC recorded the following on the PRC review sheet: "He was told by the committee that he needs to comply with rules and regulations of the LTSU program. He is now in the assessment phase. He was told to get no misconducts, keep his cell clean, show up for his 30-day reviews, be respectful to staff and he will get through the program. His next 90-day review is scheduled for 03/30/05." Id. It is undisputed that he received these 60 or 90 day reviews until January 2, 2007 when the LTSU was transitioned in to an SMU because DOC phased out the LTSU. The procedures the Defendants point to establish that, assuming Plaintiff was deprived of a liberty interest by his placement in the SMU from February 22, 2002 until to March 24, 2004, and/or in the LTSU from January 2, 2005 until January 2, 2007, such "deprivations" were not accomplished without the process required by the procedural due process requirements of the Constitution.FN15

FN14. The Court takes judicial notice of the fact that DC-ADM 802 Article VI., Section A, subsection 1a (issued March 8, 2004), provided at that time as follows:
VI. PROCEDURES
A. Reasons for transfer to Administrative Custody
1. An inmate may be transferred from general population to Administrative Custody by order of the shift commander for the following reasons(s):
a. The inmate is a danger to some person(s) in the institution who cannot be protected by alternate measures
FN15. This is true notwithstanding that Plaintiff avers that "I was never informed of why I was being put in the LTSU." Dkt. [70-2] at 2, ¶ 9, because in the second sentence thereafter, Plaintiff acknowledges that "As with the SMU, the LTSU did not tell me why I was housed there other than my alleged behavior, with nothing written." Id., at ¶ 11 (emphasis added). Plaintiff was given notice of the reason for his placement in both the SMU and the LTSU, i.e., his behavior. Morever, it is apparent from Plaintiff's own evidence, that he did receive written copies of his PRC reviews. Dkt. [70-16] at 4 (Plaintiffs Inmate Request to Staff wherein Plaintiff wants to know "why on my PRC sheet" a person named Galluci appears). In addition, despite Plaintiff's averment that "before or after being placed in said unit [i.e. SMU], Plaintiff was never given any notice, chance to be heard or appeal such placement" Dkt. [70-2] at 2, ¶ 5, the documentary evidence indicates that Plaintiff received 30 day reviews by the unit team, Dkt. [56-2] at 31 to 59 and Plaintiff's own evidence establishes that at least in the LTSU, Plaintiff attended these 30 day reviews. Dkt. [70-24] at 2. Such conclusory allegations in Plaintiff's affidavits, without more, in the face of such documentary evidence, are insufficient to create a genuine issue of material fact See, e.g. , Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (the non-moving party may not defeat a properly supported summary judgment motion by simply substituting the "conclusory allegations of the complaint or answer with conclusory allegations of an affidavit."); Seddon v. Maytag Corp., No. 04-CV-4058, 2005 WL 2030629, *3 (S.D.Ill. Aug. 23, 2005) ("The Court will not credit a self-serving and contradictory affidavit that is clearly and inherently inconsistent with documentary evidence presented by the same party."); Matter of Bevill, Bresler & Schulman, Inc., 94 B.R. 817, 822 n. 4 (D.N.J. 1989) ("While on summary judgment Hawthorne is entitled to all reasonable inferences from the facts it alleges, Herbst's allegations here have been contradicted by documentary evidence and therefore cannot be accepted as true.").

*9 To the extent that Plaintiff complains that he was required to have received pre-deprivation notice and an opportunity to be heard, i.e., he was required by procedural due process to received notice that he was being placed in the LTSU before actually being placed therein and an opportunity to be heard prior to being placed therein, Plaintiff is mistaken.FN16 Assuming that he was required by procedural due process to be given notice and an opportunity to be heard prior to being deprived of a liberty interest, he would be required to show when he was deprived of a liberty interest so as to enable us to determine when the pre-deprivation process was required. Knowing as we do that 15 months in AC did not deprive a prisoner of a liberty interest, pursuant to Griffin v. Vaughn , and knowing that the conditions of the AC are not dramatically different from those of the LTSU, the fact that Plaintiff was in the LTSU for only one day, i.e., from January 4, 2005 to January 5, 2005, when Plaintiff met with the PRC who gave him notice of the reasons for his being placed in the LTSU and an opportunity to be heard, we hold as a matter of law that such a short duration of exposure to the conditions of the LTSU did not deprive him of a liberty interest and hence, he did in fact receive notice and an opportunity to be heard prior to the deprivation of any liberty interest. At best, Plaintiff might be able to show that after a greater length of time, for example, 15 months a la Griffin, in the LTSU he was deprived of a liberty interest, but prior to that time, he had received much process and several explanations of why he was initially placed there and continued there and given several opportunities to be heard as to those explanations. This is sufficient. Hence, Plaintiff has failed to show that even if he were deprived of a liberty interest at some point in time after being in the LTSU, such was not accomplished without the procedures required by procedural due process.FN17

FN16. See, e.g., Dkt. [71] at 22 ("Plaintiff was not given notice or reason for transfer [to the LTSU.] I was not given [a] chance to be heard except after placement, which surely violated Plaintiffs due process rights."); Dkt. [70-18] at 3.
FN17. Thus the fact that DOC may have subsequently amended its procedures to provide notice and an opportunity to be heard prior to transfer to the LTSU, does not mean that Plaintiff's transfer to the LTSU without such pre-transfer notice violated his due process rights especially in light of the fact that Plaintiff was not deprived of any liberty interest when he was actually given notice and an opportunity to be heard within one day after being transferred into the LTSU, a time so short that no liberty interest could conceivably have been deprived. The same may be said of his placement in the SMU, wherein less than 3 days after his placement there, the SMU Unit team met with him.

This is true notwithstanding Plaintiff's complaints that the process was perfunctory given that, just as in the process he received while in the SMU, the process actually worked to provide Plaintiff with approvals for greater privileges only to have those privileges again removed upon Plaintiff's subsequent failures to comply with prison rules.

Accordingly, on this record no reasonable jury could find for the Plaintiff on his procedural due process claim.

2. Equal Protection

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV, § 1. In order to establish an equal protection claim, plaintiff must show that: (1) the person, compared with others similarly situated, was selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person. See Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir.1995). Essentially, to demonstrate an equal protection violation, an inmate has the burden of proving under the second prong the existence of purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Official action does not violate the Equal Protection Clause solely because it results in a disproportionate impact; proof of discriminatory intent or purpose is required to show a violation. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1977); Stehney v. Perry, 101 F.3d 925, 938 (3d Cir.1996). Discriminatory purpose implies more than intent as volition or intent as awareness of consequences; it implies that the decision maker selected a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. Hernandez, 500 U.S. at 360.

*10 Here, the Defendants have pointed out that the record lacks evidence that the white individuals to whom Plaintiff points are similarly situated to him. Dkt. [57] at 18 to 23. The Defendants are correct and Plaintiff has failed to carry his burden to show that the white inmates and black inmates were similarly situated. For example, the Defendants have established that at least two of the four white prisoners Plaintiff points to were never even in the LTSU or SMU and that another white inmate was transferred out of the LTSU only after having spent nearly four years and five months there, which is three years longer than Plaintiff spent in the LTSU and, furthermore, Defendants note that this white inmate was released from the LTSU only after having gone nine months without a misconduct charge.

In addition, this court notes that at best, Plaintiff's arguments seek to establish that simply because there appears to be some disparate impact occurring, i.e., black inmates are not released from the LTSU as frequently or as quickly as white inmates, then equal protection is denied, i.e., there is intentional racial discrimination. However, the facts that Plaintiff points to at most would establish disparate impact and, without more, (and indeed, Plaintiff has pointed to nothing more in the record), Plaintiff's equal protection claim fails because there is no evidence to show that the decision maker selected a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. Accordingly, the Defendants are entitled to summary judgment on the equal protection claim.

3. Eighth Amendment

Plaintiff complains that his Eighth Amendment rights are being violated by the conditions of the SMU and/or the LTSU because, inter alia, fellow inmates throw feces and flood their cells with dirty toilet water. Defendants contend that Plaintiff has failed to adduce evidence to support the objective prong of an Eighth Amendment claim.

The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Supreme Court has explained that analysis of a violation of the Eighth Amendment involves a two pronged inquiry: 1) an objective inquiry into the qualitative nature of the harm suffered by the victim of the alleged punishment and 2) a "subjective inquiry" into the mind of the person inflicting the harm. See Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Accord Sims v. Artuz, 230 F.3d 14, 21 (2d Cir.2000) ("A claim of cruel and unusual punishment in violation of the Eighth Amendment has two components-one subjective, focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect.") (citing Hudson v. McMillian, 503 U.S. 1, 7-8, 112 S.Ct. 995, 117 L.Ed.2d 156, (1992)). The Court of Appeals for the Third Circuit has explained the objective element as requiring proof that "the deprivation was sufficiently serious to fall within the Eighth Amendment's zone of protections.... If not our inquiry is at an end." Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir.2000), cert. denied, 531 U.S. 821 , 121 S.Ct. 63, 148 L.Ed.2d 29 (2000) (citations omitted). Only if the harm suffered is sufficiently serious does the court then turn to analyze the subjective element which the Third Circuit has described as determining whether the prison "officials acted with a sufficiently culpable state of mind. In other words, we must determine if they were motivated by a desire to inflict unnecessary and wanton pain." Id. (citations omitted).

*11 Although the "objective component of a cruel-and-unusual-punishment claim focuses on the harm done." Sims v. Artuz, 230 F.3d at 21, the Third Circuit has cautioned that "not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny." Fuentes v. Wagner, 206 F.3d at 344 (quoting Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)) (internal quotes omitted). In determining whether a harm "was sufficiently serious to fall within the Eighth Amendment's zone of protections", Fuentes v. Wagner, 206 F.3d at 344, the Third Circuit has described the inquiry as whether the prisoner has been deprived of the "minimal civilized measure of life's necessities." Young v. Quinlan, 960 F.2d 351, 359 (3d Cir.1992), superseded by statute on other grounds, (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). Proving that one has been deprived of the minimal civilized measure of life's necessities requires proof that one has been denied "basic human needs, such as food, clothing, shelter, sanitation, medical care and personal safety" from physical assault. Griffin v. Vaughn, 112 F.3d at 709.

Turning to the subj ective component, the Supreme Court has held that "deliberate indifference to serious... needs of prisoners constitutes the unnecessary and wanton infliction of pain... proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (internal quotations omitted). The Court has held that "deliberate indifference" occurs when a prison "official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). As a corollary of the deliberate indifference standard, mere negligence by prison staff and officials is not sufficient to state an Eighth Amendment violation. Estelle, 429 U.S. at 105-06.

Plaintiff complains about conditions of his confinement while in the LTSU, alleging that there were mentally ill inmates housed therein who make excessive noise and that some of the inmates smeared their feces in the cells and that they threw feces as well as bodily fluids around. Plaintiff also notes that LTSU inmates are required to change cells every thirty days in the LTSU and that this requires him to go into cells where bodily excretions have been thrown around. Plaintiff alleges that such conditions violated the Eighth Amendment.

The difficulty with these allegations and evidence is that Plaintiff fails to adduce evidence of the length of exposure to some of these conditions, such as for example, how long the bodily excretions are permitted to remain until they are cleaned. Certainly length of exposure to unsanitary conditions is one consideration in determining the objective prong of the Eighth amendment. Davis v. Scott, 157 F.3d 1003, 1004 (5th Cir.1998) (inmate being placed in cell that was "just filthy with blood on the walls and excretion on the floors and bread loaf on the floor" for three days did not meet the objective component of the Eighth Amendment) (some internal quotes omitted); Whitnack v. Douglas County, 16 F.3d 954, 958 (8th Cir.1994) ("the intolerable conditions lasted not more than 24 hours before the availability of adequate cleaning supplies would make them tolerable."); Banks v. Beard, 2006 WL 2192015, *11 (W.D.Pa. Aug.1, 2006) ("he does not allege that any particular unsanitary conditions remained for an inordinate period of time. Accordingly, Plaintiff has failed to raise conditions that will satisfy the objective component of an Eighth Amendment claim."); Qawi v. Howard, 2000 WL 1010281, *3 (D.Del. July 7, 2000) ("For example, in [ Smith v.] Copeland [, 87 F.3d 265, 268 (8 Cir.1996)], the Eighth Circuit Court of Appeals held that an inmate's confinement in a cell for four days with an overflowing toilet, during which time he was made to endure the stench of [his] own feces and urine, ' did not rise to the level of an Eighth Amendment violation."). Given the absence of any evidence regarding the length of time that exposure to these conditions lasts, it does not appear that Plaintiff satisfies the requirement that he produce evidence supporting the objective component of the Eighth Amendment. See Hutto v. Finney, 437 U.S. 678, 687, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (noting that unpleasant conditions of confinement "might be tolerable for a few days and intolerably cruel for weeks and months").

*12 Furthermore, in the LTSU, a place for the worst of the worst, it is not possible to control such random inmate behavior fully, hence, the only thing possible is for the Defendants to remediate these conditions after they have occurred. Plaintiff adduces no evidence that these conditions are not remediated, or if not remediated in a timely manner that the Defendants had actual knowledge that such conditions were not remediated in a timely manner. Thus, Plaintiff fails to establish the subjective prong of his Eighth Amendment claim.

As such, the Defendants are entitled to summaryjudgment on this record.

4. Qualified Immunity

Although the Court has concluded that Plaintiff has failed to establish any violation of his constitutional rights, because we cannot know whether a higher court will disagree as to this conclusion, we reach the issue of qualified immunity as an alternative basis, in light of the Defendants' invocation of this defense.FN18

FN18. The Complaint seeks not only money damages but also injunctive relief. To the extent that a higher court would find an actual violation of the Constitution, the defense of immunity would only apply to the damages claim and not to prospective injunctive relief. Morse v. Frederick, ___ U.S. ___, ___, 127 S.Ct. 2618, 2642, 168 L.Ed.2d 290 (2007) (Breyer, J., concurring) ("A qualified immunity' defense applies in respect to damages actions, but not to injunctive relief."). Since the LTSU has been eliminated, the injunctive relief would only be applicable to Plaintiff's placement in the SMU, where he is apparently currently being housed.

The Moving Defendants have invoked the qualified immunity defense. The Court of Appeals

has explained that a qualified immunity analysis must begin with this threshold question: do the facts alleged, viewed in the light most favorable to the party asserting the injury, show that the officer's conduct violated a constitutional right? Saucier [v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)]. If the plaintiff fails to allege the violation of a constitutional right, no further inquiry is necessary. If, however, the alleged facts show that there was a constitutional violation, then the next step is to ask whether the right was clearly established. See id. In other words, a court must consider "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id . (citing Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). This inquiry, the Court noted, "must be undertaken in light of the specific context of the case, not as a broad general proposition." Id. If a court concludes that an officer's conduct did violate a clearly established constitutional right, then it must deny him the protection afforded by qualified immunity.

Curley v. Klem, 298 F.3d 271, 277 (3d Cir.2002), abrogation on other grounds recognized in , Curley v. Klem, 499 F.3d 199 (3d Cir.2007).

Given the confusing state of the law "with respect to liberty interests and the baseline of comparison and the fact that we must consider atypicality on such a fact sensitive inquiry which includes the duration of the deprivation and the fact that the Defendants surely did not know at the time that they placed Plaintiff in either the SMU and/or the LTSU how long he would be in thereFN19 it would not have been clear to a reasonable official in the Defendants' position that Plaintiff was entitled to any pre-deprivation, or more properly, a pre-placement hearing. Nor would it have been clear to a reasonable official that the process which they did afford Plaintiff was constitutionally inadequate.FN20 Accordingly, they are entitled to qualified immunity for the procedural due process claim.

FN19. Plaintiff's own evidence establishes this. See, e.g., Dkt. [70-10] at 4 ("The [LTSU] program is designed to last up to 36 months, but we have had inmates who have been in it less and inmates who've been in it longer[.]").
FN20. To the extent that Plaintiff attempts to rely on Bronson v. Horn, No. 3:01-CV-26 (M.D.Pa.) for the proposition that the law was clearly established that a prisoner is entitled to due process protections prior to placement in the LTSU or the SMU, Dkt. [71] at 8, the court is not convinced. Assuming that an unpublished District Court case is sufficient to satisfy "clearly established law, " but see Anderson v. Romero, 72 F.3d 518, 525 (7th Cir.1995) ("But we agree with the Second Circuit that district court decisions cannot clearly establish a constitutional right."), the single unpublished memorandum that held due process requires a hearing prior to placement in the LTSU was not rendered until August 16/17, 2005. See id. (Dkt.350) (Available on PACER). At best, this memorandum could establish entitlement to a hearing prior to placement in the LTSU. However, Plaintiff had already been placed in the LTSU without a pre-placement hearing on January 4, 2005, some eight months earlier. So it was not clearly established at the time of Plaintiff's placement that he was entitled to any process prior to placement in the LTSU. Morever as the memorandum addressed only the LTSU, it established no law with respect to the SMU.

*13 Similarly, given the facts as alleged, and the evidence adduced, even if a higher court determines that the Defendants violated the equal protection clause, it would not have been clear to reasonable defendants that the adverse actions taken against the black inmates and the allegedly positive actions taken toward the white inmates violated the equal protection clause of the Constitution where officials in the shoes of the Defendants could have reasonably believed that the inmates pointed to by Plaintiff were not similarly situated so as to require similar treatment especially in light of the evidence of record.FN21

FN21. For an analysis of the interplay between constitutional torts requiring a state of mind showing, such as equal protection requiring intentional discrimination and the doctrine of qualified immunity, see Auriemma v. Rice, 910 F.2d 1449, 1452 (7th Cir.1990) (en banc) ("The objective determination in these [qualified immunity] cases requires that courts not consider intent when making the final determination at summary judgment of whether the law is clearly established."); Rakovich v. Wade, 850 F.2d 1180, 1189, 1210 (7th Cir.1988) (en banc).

Lastly, the Defendants are also entitled to qualified immunity on the Eighth Amendment claims given that reasonable officials in the Defendants' shoes could have believed that the efforts to remediate any conditions related to inmate behavior concerning bodily excretions and noise making would establish that they were not being deliberately indifferent to Plaintiff's needs. Accordingly, Defendants are entitled to qualified immunity on the Eighth Amendment claims as well. See, e.g., Rivera v. Pa. Dept. Of Corrections, 837 A.2d 525 (Pa.Super.2003) (finding no Eighth Amendment violations in the conditions of the LTSU similar to those alleged herein); Elliott v. Beard, 2006 WL 4404771, *5 (W.D.Pa. Sep 27, 2006) ("Plaintiffs conditions of confinement claims resemble those set forth in Rivera, which were found not to constitute cruel and unusual punishment. As Defendants point out, the conditions complained about by Plaintiff are the result of the actions of other LTSU inmates, not Defendants. Plaintiff does not allege that Defendants do not respond to such actions. Thus, Plaintiff has failed to allege a violation of his Eighth Amendment rights with respect to the conditions of confinement in the LTSU.").

III. CONCLUSION

In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b) (1)(B) & (C), and Local Rule 72.1.4 B, the parties are allowed ten (10) days from the date of service to file written objections to this report. Any party opposing the obj ections shall have seven (7) days from the date of service of the objections to respond thereto. Failure to timely file objections may constitute a waiver of any appellate rights.

Freddie Francis, Lewisburg, PA, Pro Se.

Jennifer Clark, U.S. Attorney's Office, Scranton, PA, for Defendants.

ORDER

MUNLEY, J.

*1 Before the court for disposition are a motion for summary judgment filed by Defendants D. Scott Dodrill, Joeseph Smith, T.R. Snziezk, and Barbara Clay, as well as Plaintiff Freddie Francis' cross motions for summary judgment. These matters have been fully briefed and are ripe for disposition. For the following reasons, we will grant the defendants' motion for summary judgment and enter judgment on their behalf.

I. Background

Francis is a federal prisoner incarcerated at the United States Prison at Lewisburg, Pennsylvania ("USP-Lewisburg"). On August 2, 2004, he filed a complaint instituting the present action against D. Scott Dodrill, the Regional Director of the Bureau of Prisons, Joseph Smith, the USP-Lewisburg Warden, T.R. Sniezk, the Assistant Warden, and Captain Becky ClayFN1 (collectively "Defendants"). Francis alleges that he was improperly transferred to USP-Lewisburg's Special Management Unit ("SMU"). He was transferred because of his involvement with a gang, although he claims he was never involved in gang activity. He was not provided with notice or a hearing prior to his transfer. He claims that the SMU program is run without a proper policy or without congressional authorization. He alleges that his placement in the SMU program violates his Fifth Amendment due process rights, and constitutes cruel and unusual punishment in violation of his Eight Amendment rights.

FN1. The Complaint identifies her as "Barbara, " but he refers to her in her briefs as Becky. We will refer to her as Becky because the defendants note this is her correct name.

II. Standard

Granting summary judgment is proper 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 judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n. 4 (3d Cir.1997) (citing FED. R. CIV. P. 56(c)). "[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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original).

In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir.1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.

III. Discussion

*2 The defendants present three grounds for their motion. First, they argue that Francis fails to produce evidence of their personal involvement in the alleged constitutional violations. Second, they argue that Francis's placement in the SMU does not implicate his due process rights because it is not a punitive unit. Third, they argue that they are entitled to qualified immunity. Francis has filed cross motions for summary judgment. We will grant summary judgment for the defendants on the first two arguments, and thus need not address qualified immunity.

A. Personal Involvement

Francis claims that his placement in the SMU violates his constitutional rights under the Cruel and Unusual Punishment Clause and the Due Process Clause. A claim for violations of constitutional rights is actionable pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and is the federal counterpart to 42 U.S.C. § 1983.FN2 To state a claim for a violation of the Cruel and Unusual Punishment Clause, a prisoner must demonstrate that "he has been deprived of the minimal civilized measure of life's necessities'... and that a prison official acted with deliberate indifference in subjecting him to that deprivation." Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir.1997) (quoting Young v. Quinlan, 960 F.2d 351, 359 (1992)). A violation of the Due Process Clause involves the following three elements: "1) the claimant must be deprived' of a protectable interest; 2) that deprivation must be due to some government action; and 3) the deprivation must be without due process." Cospito v. Heckler, 742 F.2d 72, 80 (3d Cir.1984). To establish liability under Bivens, a plaintiff must demonstrate that the defendants were personally involved in the deprivation of his rights, and the theory of respondeat superior is not a basis for liability. See Rode v. Dellarciprete, 845 F.2d 1195, 1208 (3d Cir.1988) ("A defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.").FN3

FN2. "Every person who... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law." 42 U.S.C. § 1983.
FN3. We recognize Rode involved a suit pursuant to 42 U.S.C.1983, and to date, no precedent binding on this Court has held that respondeat superior liability is unavailable in a Bivens claim. See Young v. Quinlan, 960 F.2d 351, 358 (3d Cir.1991) (recognizing that the Supreme Court has not addressed this issue, but noting that "most jurisdictions have decided against the applicability of respondeat superior liability in Bivens suits."). The Third Circuit, however, has established that respondeat superior liability is not available for 42 U.S.C. § 1983 claims, Rode, 845 F.2d at 1208, and Bivens claims are merely the federal counterpart of § 1983 suits, Paton v. La Prade, 524 F.2d 862, 871 (3d. Cir.1975). Furthermore, the Supreme Court has recognized that "the Courts of Appeals have unanimously rej ected the contention... that the doctrine of respondeat superior is available against a municipal entity under a Bivens-type action." Jett v. Dallas Independent School Dist., 491 U.S. 701, 735, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989).

Francis has produced no evidence that Defendants Becky Clay, D. Scott Dodrill, or T.R. Snziezck were involved in his placement in the SMU, and instead relies on the doctrine of respondeat superior. Francis' exhibits contain no allegations regarding these individual defendants, and his evidence does not reference them in any way. Thus, we find that Francis has not created a genuine issue of material fact that these defendants violated his constitutional rights, and we will grant summary judgment. Francis has, however, submitted a letter from Defendant Warden Joseph Smith, providing that his placement in the SMU would be reevaluated. Thus, he has created a genuine issue of material fact that Smith had sufficient personal involvement in his placement in the SMU, and we will not grant summary judgment for Smith on this ground.FN4

FN4. This evidence is not sufficient, however, to withstand summary judgment on Francis' First Amendment claim. Francis' complaint refers to the First Amendment, but he does not allege nor produce sufficient facts that any defendant was personally involved in retaliating against him for engaging in any First Amendment protected activity. Therefore, we will grant summary judgment on the First Amendment claim for all defendants.

B. Due Process

*3 The defendants also argue that Francis' placement in the SMU does not implicate his due process rights. We agree. A due process liberty interest "in avoiding particular conditions of confinement may arise from state policies or regulations." Wilkinson v. Austin, 545 U.S. 209, ___, 125 S.Ct. 2384, 2393, 162 L.Ed.2d 174 (2005). The Due Process Clause protects a prisoner's right to "freedom from restraint, which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship in relation to the ordinary incidents of prison life." Id. at 2394 (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)).

The proper focus for determining whether prison conditions give rise to a due process liberty interest is the nature of the conditions, not mandatory language in prison regulations. Sandin, 515 U.S. at 484. In Sandin, an inmate was charged with violating prison regulations. Id. at 475. At a hearing, the hearing committee refused the inmate's request to present witnesses. Id. The committee found the inmate guilty and sentenced him to disciplinary segregation. Id. The inmate sought review, and a deputy administrator found some of the charges unfounded and expunged his disciplinary record. Id. at 476. Thereafter, the inmate filed suit pursuant to 42 U.S.C. § 1983 for a deprivation of procedural due process during the disciplinary hearing. Id. The Tenth Circuit found that he had a protected liberty interest because it interpreted the prison regulations to require that the committee find substantial evidence of misconduct before imposing segregation. Id. at 477. The Supreme Court reversed, finding no liberty interest. Id. at 484. In doing so, it rejected an approach that focused on whether the prison regulation went "beyond issuing mere procedural guidelines and has used language of an unmistakably mandatory character' such that the incursion on liberty would not occur absent specified substantive predicates." ' Id. at 480 (quoting Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). The Court found this approach undesirable because it created a disincentive for prison administrators to codify prison management procedures and because it "led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone." Id. at 482. Thus, the Court held liberty interests "will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force... nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484. In applying this test, the Court observed, "[d]iscipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law." Id. at 485. The Court then found that the inmate's disciplinary segregation "did not present a dramatic departure from the basic condition's of Conner's indeterminate sentence" because the conditions of disciplinary segregation were similar to those faced in administrative and protective custody. Id. at 486.

*4 In Wilkinson v. Austin, 545 U.S. 209, ___, 125 S.Ct. 2384, 2393, 162 L.Ed.2d 174 (2005) the Court applied the Sandin test and found that the plaintiff's due process rights were implicated when he was placed in a program where:

almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day, but only in a small indoor room....[P]lacement... is indefinite and, after an initial 30 day review, is reviewed just annually....[P]lacement disqualifies an otherwise eligible inmate for parole consideration.

Id. at 2394-95.

The court found that these harsh conditions "give rise to a liberty interest in their avoidance."

Id. at 2395.

Fraise v. Terhune, 283 F.3d 506 (3d Cir.2002) applied the Sandin test and found that avoiding placement in the Security Threat Group Management Unit (STGMU) in the New Jersey prison system is not a protected liberty interest. Inmates who the prison deemed members of groups that posed a security threat were placed in the STGMU. Id. at 509. "An inmate assigned to the STGMU remains in maximum custody until the inmate successfully completes a three-phase behavior modification program." Id. at 511. The Court found that despite the additional restrictions, prisoners have no liberty interest in avoiding placement in the STGmU. Id .; see also Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir.1997) (finding that additional restrictions in administrative custody for a period of fifteen months does not deprive prisoners of protected liberty interests).

We find that the conditions in the SMU do not remotely approach the severity of the conditions Wilkinson found to give rise to a protected liberty interest, and are comparable to the conditions in cases such as Sandin, Fraise, and Griffin, which found no protected liberty interest. The SMU program is "designed to teach inmates self-discipline, prosocial values, and to facilitate [inmates'] ability to successfully coexist with members of other geographical, cultural, and religious backgrounds." (Def. Ex. 2, SMU Inmate Handbook at 1). If inmates follow the program, they will complete it in twelve to eighteen months. ( Id. ). As they progress through the program, their restrictions decrease until they return to the general population. ( Id. ) Failure to comply with the program results in greater restrictions and increased duration of the program. ( Id. ) Inmates are restricted to one telephone call per thirty days, and may be visited by members of their immediate family only. ( Id. at 2). They may shower three times per week and are issued razors when they shower. (Id. at 3). They are permitted hygenie items and supplies such as toothbrushes, toilet paper, writing paper, and pencils, which are issued by the custody staff. ( Id. ). Prisoners are issued three pairs of boxer shorts, three t-shirts, two towels, three pairs of socks, two sheets, one pillowcase, one blanket, and a mattress. ( Id. ). They are limited to one haircut per month. ( Id. ). Inmates are allowed five hours of recreation per week, which they do with a partner. ( Id. at 4). They may retain legal materials so long as they fit within one cubic foot. ( Id. ). They also may retain basic educational materials. ( Id. at 4-5). Every twenty-one days the prisoners are moved to a new cell. ( Id. at 5). Significantly, the disciplinary system in the SMU is nearly identical to that of the rest of the prison system. The disciplinary system for the entire Bureau of Prisons contains the same categories of offenses, the same prohibited acts, the same punishments, and the same procedures as those in the SMU. Compare Id. at 5-18, with 28 C.F.R. § 541.13-19.

*5 Francis submits evidence that inmates in his block are permitted to shower only three days per week whereas other inmates shower every day. (Pl.Ex. 4, Francis Decl. ¶ 3). He also provides that he is permitted to go to the commissary only every other week, whereas other inmates go every week. ( Id. ). Inmates in his block are placed in restraints whenever outside of their cells, whether they are showering, going for recreation, or going to the health services department. ( Id. ). Francis confirms that inmates who refuse to cooperate remain in administrative custody for longer periods of time and receive increased restrictions and decreased privileges. ( Id. ). He has produced no other evidence regarding adverse conditions in the SMU. Furthermore, he has produced no evidence nor even argued that his transfer to the SMU somehow resulted in a loss of good conduct time credits or otherwise altered his sentence.

We find that the restrictions in the SMU are no greater than those in Griffin, 112 F.3d at 708, which the court found unextraordinary. Like the SMU, the "RHU" inmates in Griffin were restricted to three showers, three shaves, and five hours of recreation per week. Id. at 707. They were allowed to retain legal materials so long as they fit in a records box and one religious text. Id. They were provided with a jumpsuit, footwear, and basic toiletries. Id. Other than these items, they were prohibited from possessing property. Id. The duration and restrictions of the program were adjusted based on the inmates behavior and cooperation. Id. We find these conditions entirely consistent with the conditions in the SMU.FN5

FN5. We also find that these conditions do not constitute cruel and unusual punishment. A prisoner suffers cruel and unusual punishment if "he has been deprived of the minimal civilized measure of life's necessities'... and... a prison official acted with deliberate indifference in subjecting him to that deprivation." Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir.1997). The SMU clearly provides the minimum civilized measure of life's necessities.

Inmates have no due process right to a facility of their choosing. Young v. Quinlan, 960 F.2d 351, 358 n. 16 (3d Cir.1992). The Bureau of Prisons retains sole discretion over where to place an inmate. 18 U.S.C. § 3621. Inmates do, however, have a liberty interest in avoiding transfer to facilities where the conditions impose "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484. This is not such a transfer. We find that these conditions and the conditions overall in the SMU are reasonable and proportionate to those in other prisons in the federal system and across the country, and do not impose an atypical and significant hardship in relation to the ordinary incidents of prison life. Using restrictions to promote prosocial behavior falls within the parameters of a sentence imposed by a court of law. While Francis clearly would prefer not to be housed in the SMU, his preference is not a liberty interest protected by the Due Process Clause. Accordingly, we find no genuine issue of material fact that Francis has no liberty interest in avoiding placement in the SMU, and we will grant summary judgment for the defendants. An appropriate order follows.

AND NOW, to wit, this 12th day of September 2005, Defendants' motion for summary judgment (Doc. 20) is hereby GRANTED and Plaintiff's motions for summary judgment (Doc. 24, 26) are hereby DENIED. The Clerk of Courts is hereby directed to enter judgment on behalf of the defendants and to close this case in this district.

Only the Westlaw citation is currently available. United States District Court, W.D. Pennsylvania. Abdul BROWN, Plaintiff, v. Jeffrey BEARD; William Stickman; Fred Maue; Lance Couturier; Donald Williamson; Mike Zaken; Harry Wilson; George Reposky; Adam Crumb; Scott Nickelson; Charles Dobrzynski; Robert Holman; Lee Johnson; John Meeker; Correctional Officer Cummings; Ken Ketcher, Defendants. Civil Action No. 07-637. March 21, 2011.

Raymond N. Sanchas, Juvenile Court Project, Pittsburgh, PA, for Plaintiff.

Douglas B. Barbour, Office of Attorney General, Pittsburgh, PA, for Defendants.

MEMORANDUM ORDER

LISA PUPO LENIHAN, United States Magistrate Judge.

*1 Plaintiff, Abdul Brown, a Pennsylvania prisoner, commenced this action on May 14, 2007 pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983 complaining about the conditions of his confinement in the Special Management Unit (SMU) in the State Correctional Institution at Fayette (SCI-Fayette). Plaintiff alleges a variety of Eighth Amendment claims and challenges his placement and confinement in the SMU pursuant to the Fourteenth Amendment, arguing that he was placed there without due process and in violation of his equal protection rights. Further, Plaintiff contends that his placement in the SMU is predicated upon a retaliatory animus born of his history of grievances and litigation against the DOC. In addition, Plaintiff alleges that several defendants used excessive force against him in the course of a cell extraction that occurred on December 12, 2005. Plaintiff also claims that, in retaliation for a grievance he filed on February 6, 2006, several defendants began spreading a rumor that he was a "snitch, " which resulted in verbal harassment from other inmates. Brown further alleged that Defendants denied him food in retaliation for previous lawsuits. Brown sought declaratory, injunctive and monetary relief.

On July 23, 2008, following discovery, Defendants filed a motion for summary judgment (ECF No. 63). The Court then ordered Plaintiff to file his response to the motion by September 5, 2008. On July 30, 2008, Plaintiff filed a motion to extend that deadline because he had been transferred from his state facility to a federal facility without his legal materials. The District Court granted his motion and extended the deadline for a response until November 5, 2008. After that deadline passed, Plaintiff filed a motion for a further extension, alleging that he had been transferred from the federal facility back to his state facility without the legal materials that had been forwarded to him at the federal facility. Plaintiff's Motion was granted and he was given until January 30, 2009 to file his response (ECF No. 75).

On January 21, 2009, nine days before his response was due, Brown filed an affidavit pursuant to Fed.R.Civ.P. 56(f) (ECF No. 76) and a motion for the appointment of counsel (ECF No. 77). In the affidavit, Brown asserted that he could support his claims with affidavits by fellow prisoners who since had been transferred out of the SMU but that DOC policy forbade him from corresponding with them. He also asserted that Defendants had refused to produce his psychological evaluations and information regarding his transfer to SMU (in particular, the petition setting forth the reasons for the transfer). The District Court did not specifically address Brown's Rule 56(f) affidavit but on January 22, 2009, it ordered Defendants to respond to the motion for appointment of counsel as follows.

Plaintiff has filed another request for appointment of counsel. Although prior requests were denied, this request centers on his ability to receive documents that he believes are necessary in order to prosecute his case, i.e., documents regarding his mental health history, his transfer petition and relevant procedure manuals. Defendants are ORDERED to respond to this motion no later than 2/5/09 with an explanation of what was requested by Plaintiff and what responses were provided by Defendants, whether Defendants believe these documents to be relevant to Plaintiff's case and, if so, how this issue could be remedied short of appointment of counsel if that is possible.

*2 On February 6, 2009, Defendants filed their Response (ECF No. 80) wherein they acknowledged that they had refused, on confidentiality grounds, to produce Brown's psychiatric evaluations and certain information regarding his transfer to SMU. They agreed, however, to produce a redacted version of the SMU transfer petition. The record does not disclose whether they ever did so. On February 9, 2009, the Court denied Brown's motion for counsel.

Following review of Defendants' Response to Plaintiffs motion, the Court agrees that his mental health records are not relevant to Plaintiff's claims and providing that information to him places his mental health counselors in jeopardy, and may also negatively impact his mental health treatment. He has been provided with significant information regarding his confinement to the SMU and will be able to adequately respond to any summary judgment motion. Should this case survive summary judgment and proceed to trial, the Court will revisit Plaintiff's request for the appointment of counsel.

On February 24, 2009, the parties consented to the jurisdiction of a magistrate judge (ECF No. 85). On March 10, 2009, the Defendants' motion for summary judgment was granted (ECF No. 87).

On May 12, 2009, Plaintiff filed a Motion for Status of Case (ECF No. 88) requesting a copy of the docket entries. On May 19, 2009, he filed a Brief in Opposition nunc pro tunc to Defendants' Motion for Summary Judgment (ECF No. 89), which contained several exhibits. On May 22, 2009, he filed a Motion to Alter or Amend the Judgment (ECF No. 92) wherein he asserted that he had never received a copy of the summary judgment order. He also argued that he had not filed a response to the pending motion for summary judgment because he believed that his Rule 56(f) affidavit put summary judgment on hold. The only substantive relief he requested in his motion was for the District Court to consider his nunc pro tunc opposition to defendants' summary judgment motion. On May 23, 2009, the Court entered the following text order.

The Motion for Summary Judgment at issue was filed in July 2008. Plaintiff was ordered to respond by Sept. 5, 2008. Two extensions were requested and granted and Plaintiff's response was finally due on 1/30/09. No response was ever received and the summary judgment motion was ruled upon on March 9, 2009. At this late date Plaintiff is asking to be able to communicate with other prisoners and for the judgment to be altered. Plaintiff had 8 months to file a response. He blatantly disregarded numerous court orders to do so. He was advised that if he did not respond the motion would be ruled upon. At this late date, with no explanation for the long delay, the Court sees no reason to reopen this case. The clerk is ordered to provide Plaintiff with a copy of the Order and Judgment filed on 3/9/09, although a copy was previously sent to Plaintiff at his address of record by the Court.

On May 29, 2009, Plaintiff file a timely appeal from this order (ECF No. 94).

*3 On March 22, 2010, the Court of Appeals for the Third Circuit issued its non-precedential opinion regarding Brown's appeal (ECF No. 104). In that Opinion, the Court of Appeals directed this Court to grant Plaintiff's Rule 60(b) motion, consider his opposition brief, and conduct such other proceedings as may be required.

On June 16, 2010, pro bono counsel was appointed for Plaintiff. He requested, and was granted, time to conduct discovery. Following the close of discovery he was ordered to file a response to Defendants' Motion for Summary Judgment. Plaintiff, through counsel, now has filed a response and the motion for summary judgment is ripe for review by this Court.

A. Standard of Review

Presently pending is Defendants' Motion for Summary Judgment (ECF No. 63). Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. Rule Civ. Proc. 56(c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (party can move for summary judgment by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case."). The moving party bears the initial burden of identifying evidence that demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the non-moving party must set forth "... specific facts showing that there is a genuine issue for trial ..." or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The inquiry, then, involves determining "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Plaintiff v. Grabowski, 922 F.2d 1097, 1111 (3d Cir.1990), cert. denied, 501 U.S. 1218 (1991) (quoting Anderson, 477 U.S. at 251-52). If a court concludes that "the evidence is merely colorable... or is not significantly probative, " then summary judgment may be granted. Anderson, 477 U.S. at 249-50.

B. Undisputed Material Facts

On December 28, 2006, Plaintiff was placed in a restricted housing unit known as the Special Management Unit (SMU) at the State Correctional Institution at Fayette, Pennsylvania. Prior to his transfer, he was confined in the Long Term Segregation Unit (LTSU), which was discontinued in February of 2007. The conditions of confinement in the LTSU was discussed by the United States Supreme Court in Banks v. Beard, 548 U.S. 521, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006) as follows.

*4 The LTSU is the most restrictive of the three special units that Pennsylvania maintains for difficult prisoners. The first such unit, the "Restricted Housing Unit, " is designed for prisoners who are under disciplinary sanction or who are assigned to administrative segregation. The second such unit, the "Special Management Unit, " is intended for prisoners who "exhibit behavior that is continually disruptive, violent, dangerous or a threat to the orderly operation of their assigned facility." The third such unit, the LTSU, is reserved for the Commonwealth's "most incorrigible, recalcitrant inmates."

LTSU inmates number about 40. Most, but not all, have "flunked out" of the SMU program. To qualify, they must have met one or more of the following conditions: failure to "complete" the SMU program; "assaultive behavior with the intent to cause death or serious bodily injury"; causing injury to other inmates or staff; "engaging in facility disturbance(s)"; belonging to an unauthorized organization or "Security Threat Group"; engaging in criminal activity that "threatens the community"; possessing while in prison "weapons" or "implements of escape"; or having a history of "serious" escape attempts, "exerting negative influence in facility activities, " or being a "sexual predator." The LTSU is divided into two levels. All inmates are initially assigned to the most restrictive level, level 2. After 90 days, depending upon an inmate's behavior, an individual may graduate to the less restrictive level 1, although in practice most do not.

The RHU, SMU, and LTSU all seriously restrict inmates' ordinary prison privileges. At all three units, residents are typically confined to cells for 23 hours a day, have limited access to the commissary or outside visitors, and (with the exception of some phases of the SMU) may not watch television or listen to the radio.

Banks, 548 U.S. at 525-526 (internal citations omitted).

A prisoner confined in restricted housing in Pennsylvania is reviewed weekly by his/her counselor and every thirty days by the Unit Management Team.FN1 These reviews are documented in the DC-14, Cumulative Adjustment Record. Prisoners are reviewed by the Program Review Committee (PRC)FN2 every ninety days. The PRC's decision to continue the inmate in AC status or release him/her to population is documented on a DC-141, Part 4 with a copy provided to the inmate. A qualified psychologist or psychiatrist conducts an interview and assessment of inmates remaining in AC status for more than 30 calendar days. Thereafter, a mental health assessment is completed at least every 90 calendar days. When an inmate is being recommended for transfer to a Special Housing Unit (SMU, SSNU) the PRC reviews the recommendation with the inmate and inform him/her of the reason(s) for the transfer recommendation. The inmate is given the opportunity to respond to the rationale given and object to his/her placement in a Special Housing Unit, if he/she so desires. The inmate may appeal the recommendation for Special Housing Unit transfer to the Facility Manager/designee and Central office.

FN1. The Unit Management Team consists of the individuals assigned to operate a housing unit with the responsibilities for security, risk management, conducting informal resolutions of misconducts, and program delivery. DC-ADM 802, Administrative Custody Procedures Manual Glossary of Terms.
FN2. The Program Review Committee is a committee consisting of three staff members who conduct Administrative and Disciplinary Custody Hearings, periodic reviews, make decisions regarding continued confinement in a Security Level 5 Housing Unit, and hear all first level appeals of misconducts. The committee shall consist of a Deputy Superintendent (who shall serve as the chairperson), a Commissioned Officer, and one staff member from the following classifications: Corrections Classification and Program Manager (CCPM), Unit Manager, School Principal, Alcohol and Other Drugs Treatment Specialist Supervisor or Inmate Records Office Supervisor. The Facility Manager may designate other staff as committee members; however, if such designations are made, they must be in writing and the Facility Manager must maintain a list of all designees. Whenever a PRC is convened, at least one member of the committee must be a staff member who is not directly involved in the administration of the Security Level 5 Housing Unit in which the inmate is currently housed. DC-ADM 802, Administrative Custody Procedures Manual Glossary of Terms.

*5 Plaintiff was transferred to the SMU predominantly based on his failure to adjust to prison life as documented in his lengthy misconduct history. Specifically, since he entered the jurisdiction of the DOC in August 1998 through December 28, 2006, Plaintiff had incurred a total of 128 misconducts (ECF No. 63-2). Of these, Plaintiff was charged fourteen times for Assault, 24 times with Possession of Contraband, 36 times with Refusing to Obey an Order, and twice for Arson.

The PRC review dated December 28, 2006, sets forth the following as the basis for Plaintiff's transfer to the SMU.

Initial Reason for Confinement

lnmate Brown was received from SCI-Greene's RHU on 2/26/04 and placed in the LTSU (A645202) according to DC-ADM 802, Article IV, Section A, Subsection 1.a. He arrived here from SCI-Greene with Disciplinary Custody [DC] time expiring 02/23/13. He will be placed on LTSU Level 4 for 90 days at which time his level will be determined by the Unit Management Team. Inmate level changed to Level 3 on 5/20/04. On 11/03/04 he RECD 30 days DC (A61 5086) for # 33, and # 35. On 01/24/05 he RECD 20 days DC (A708901) for # 33. On 02/18/05 he RECD a consec.45 days DC (A708918) for # 38, a consec. 45 days DC (A708919) for # 38, and a consec. 150 days DC (426358) for # 1, # 15, # 33. On 03/21/05 he RECD a consec. 45 days DC (A71 7919) for # 38, a consec. 45 days DC (437113) for # 38, and a consec. 150 days DC (A671104) for # 1, # 15. On 04/05/05 he RECD 30 days concurrent (A671169) for # 35. On 04/25/05 he RECD a consec. 90 days DC (A671154) for # 36, and a concurrent 30 days DC (A671158) for # 36, # 51. On 05/09/05 he RECD a consec. 60 days DC (A671177) for # 36. On 08/30/05 he RECD a consec. 60 days DC (A61 51 56) for # 36. On 09/26/05 he RECD a consec. 90 days DC (A705385) for # 1, # 35. On 10/17/05 he RECD a consec. 90 days DC (A68781 3) for # 36, a consec. 60 days DC (A687823) for # 33, # 35, and a consec. 45 days DC (A687817) for # 38. On 11/07/05 he RECD a consec. 60 days DC (A687830) for # 15. On 12/20/05 he RECD a consec. 60 days DC (A717964) for # 36, # 38, a consec. 90 days DC (A717966) for # 35, # 38, a consec. 90 days DC (A717968) for # 1, and a consec. 75 days DC (A756943) for # 33, # 35. On 03/03/06 he RECD a consec. 30 days DC (A687872) for # 33, # 35. On 03/22/06 he RECD 30 days DC (A570204) for # 35, # 41. On 03/31/06 he RECD a consec. 60 days DC (A754396) for # 15, # 33, a consec. 60 days DC (A767936) for # 15, # 35, a consec. 20 days DC (A767938) for # 35, a consec. 30 days DC (A767943) for # 33, # 35, and a consec. 20 days DC (A767936) for # 33. On 04/10/06 he RECD a consec. 30 days DC (A744354) for # 15, # 33, and a consec. 60 days DC (A756603) for # 15, # 33. On 04/12/06 he RECD a consec. 90 days DC (A612941) for # 17, # 40. On 05/30/06 he RECD a consec. 75 days DC (A756661) for # 36, and a consec. 60 days DC (A756642) for # 15, # 33, # 35. On 06/05/06 he was ATA to SCI-Graterford. On 10/25/06 he returned to SCI-Fayette. On 11/29/06 he RECd a consec. 45 days DC (A90861 9) for # 31, # 36.

PRC Comments

*6 Inmate Brown refused to attend his SMU placement hearing. He had an opportunity to agree/object with his placement into the SMU but refused. He is being placed in the SMU during the LTSU transition. His next regularly scheduled review will be held on 02/15/07. ECF No. 63-1, p. 23.

Plaintiff challenged his placement in the SMU by filing grievance no. 174565 (ECF No. 63-1, p. 24). The response to this grievance provides as follows.

COMPLAINT: Inmate Brown is alleging that his placement in the SMU is unlawful due to the following reasons: He was not evaluated prior to placement, He was not afforded due process prior to placement, the SMU placement decision was based on the 6.5.1 policy, which hasn't been properly promulgated and thus null and void, mentally ill inmates are prohibited by law and DOC policy from being housed in the SMU, he has been denied twice previously for the SMU due to Brown having behavioral instability and periodic exacerbations of his chronic adjustment disorder issues and severe borderline personality disorder. Inmate Brown is seeking to be immediately removed from the SMU, mentally assessed and compensated in the amount of $500, 000.
FINDING OF FACT: The Executive Deputy Secretary reviewed your transfer petition and approved your placement in the SMU. Your behavior, to include misconducts, DC time, disruptive incidents, etc, and your current psychological evaluation were reviewed, which means that a thorough evaluation was completed prior to your placement in the SMU. You were afforded due process by attending your PRC hearing and being informed of the reasoning for your placement, which you then had the opportunity to respond to the rationale and object, if appropriate. Regarding your contention that the 6.5.1 is null and void, that is incorrect. The Policy was reviewed/approved by Dr. Jeffrey Beard, Secretary of Corrections. To address your two mental illness issues, the Chief Psychiatrist/Psychologist reviewed your current psychological evaluation and approved your placement in the SMU.
DECISION: This grievance is without merit.

ECF No. 63-1, p. 25.

Plaintiff appealed this decision to Superintendent Harry Wilson claiming that he was not given any prior notice of why he was being called for his PRC hearing on an irregular date, i.e., not the date he usually was assigned and that he did not get a copy of his DC-141 part 4. The Superintendent denied this appeal as follows.

After a careful evaluation of the attached grievance, it is the determination of this Superintendent that the action and response provided by the investigating staff will be upheld. I find the issues raised at the first-level appeal were addressed appropriately and responsibly by staff at the initial review.

I find no argument of merit enclosed in your appeal; your placement in the SMU Program is not unlawful. Department policy 6.5.1 stipulates that you receive reason for your placement in the SMU Program. You did, you received a DC-141 Part III documenting that your placement was a result of the LTSU Program transitioning into an SMU Program, your behavior to include misconducts, DC-Time, disruptive incidents, etc. and your current psychological evaluation was reviewed. The Executive Deputy Secretary reviewed and approved your transfer petition and approved your placement into the SMU Program. This was also explained to you at your PRC hearing on December 28, 2006, during which you had the opportunity to question the Committee regarding your aforementioned placement, however you refused to attend.

*7 In conclusion, to address your two mental health issues, the Chief Psychiatrist/Psychologist reviewed your current psychological evaluation and approved your placement in the SMU Program as well. There is no merit to your accusations, Department policy was followed in regards to the procedures in your SMU placement your request to be compensated and appeal is denied.

ECF No. 63-1, p. 28.

Plaintiff filed a final appeal, which was denied as follows.

Dear Mr. Brown:

This is to acknowledge receipt of your appeal to final review of the above numbered grievance.

In accordance with the provisions of DC-ADM 804, effective January 3, 2005, 1 have reviewed the entire record of this grievance; including your initial grievance, the grievance officer's response, your appeal from initial review and the superintendent's response. I have also carefully reviewed the issues you raise to final review. Upon completion of this review, it is the decision of this office to uphold the responses provided by staff at the institutional level. There is no evidence to support your claim that your placement in the SMU is unlawful. Your placement in the SMU was reviewed by the appropriate Department of Correction's (DOC) staff and was determined to be appropriate based on a number of factors. Your request to be removed from the SMU and compensated in the amount of $500.000.00 is unwarranted and, therefore, denied.

The responses provided at the institutional level are appropriate and in accordance with Department of Corrections' policies and procedures. Accordingly, your appeal to final review must be denied.

ECF No. 63-1, p. 31.

On December 12, 2005, Plaintiff smashed his cell door windows and ripped a metal plate off the wall inside his cell. Plaintiff was also observed threatening to assault staff with a mixture of urine and feces which he intended to throw out of his cell. In response to this situation, defendant Reposkey assembled a cell extraction team and reported to Plaintiff's cell. In addition to the notes of the ensuing exchange, which defendant Reposky prepared immediately thereafter, the cell extraction was videotaped FN3 by a non-defendant corrections officer commencing with the assembly of the extraction team, which the court has now reviewed for a second time. In briefing the cell extraction team, defendant Reposky stated that Plaintiff had been medically cleared for the use of Oleoresin Capsicum (O.C.) (essentially mace or pepper spray), as well as the EBID. The extraction team was accompanied by two nurses-one of whom was defendant Ketcher-for the purposes of ensuring Plaintiff's continued well-being during the extraction. Defendant Reposky and the extraction team approached Plaintiff's cell, whereupon they discovered that Plaintiff had covered the window in the door with a towel. After Plaintiff refused several direct orders to remove the towel and submit himself to be handcuffed, defendant Reposky administered a two-second burst of O.C. through the food aperture in Plaintiff's cell door. Plaintiff threw the aforementioned mixture of urine and feces at defendant Reposky as he opened the food aperture. This initial dose of O.C. appears to have had no effect on Plaintiff, who can be heard speaking clearly-even shouting-at the officers even after its application. After being convinced to dispose of a second cup of urine and feces mixture, Plaintiff voluntarily submitted himself to be handcuffed and was removed from the cell without further incident.

FN3 The cell extraction was videotaped pursuant to DOC policy (Exhibit 8).

*8 Plaintiff was thereafter placed in a holding cell area so that the requisite strip search could be performed. At this time, Plaintiff was laughing and taunting the Corrections Officers and threatening "y'all gonna pay for this." After he refused several direct orders regarding the search, O.C. was used for a second time by defendant Reposky. Once the strip search was completed, Plaintiff's eyes were washed by Nurse Ketcher. Plaintiff then was placed in a restraint chair and secured. Once Plaintiff was secure therein, his eyes were once again washed by Nurse Ketcher and the restraints were checked. Upon his complaints of shortness of breath, Nurse Ketcher administered Plaintiff's inhaler. Defendant Johnson placed the EBID shield on the ground to assist with securing Plaintiff in the restraint chair. Officer Haines-who is not a defendant in this case-used the hand-held EBID on Plaintiff when he began resisting the application of the restraints. Plaintiff was placed in the restraint chair at approximate 10:30 a.m. and was removed at approximately 6:30 p.m.

C. Liability under 42 U.S.C. § 1983

Plaintiff's Complaint seeks to assert liability against Defendants pursuant to 42 U.S.C. § 1983. To state a claim under 42 U.S.C. § 1983, a plaintiff must meet two threshold requirements. He must allege: 1) that the alleged misconduct was committed by a person acting under color of state law; and 2) that as a result, he was deprived of rights, privileges, or immunities secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).

To establish personal liability against a defendant in a section 1983 action, that defendant must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). Accordingly, individual liability can be imposed under section 1983 only if the state actor played an "affirmative part" in the alleged misconduct. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988); Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir.1986). Personal involvement by a defendant can be shown by alleging either personal direction or actual knowledge and acquiescence in a subordinate's actions. Rode, 845 F.2d at 1207.

The issues at bar concern whether Defendants have violated any of Plaintiff's constitutional rights. His claims are discussed separately below.

D. First Amendment-Retaliation

Plaintiff claims that Defendants retaliated against him by placing him in the SMU, denying him food and by labeling him a snitch. It is well settled that retaliation for the exercise of a constitutionally protected right may violate the protections of the First Amendment, which is actionable under section 1983. Rauser v. Horn, 241 F.3d 330 (3d Cir.2001); White v. Napo leon, 897 F.2d 103, 112 (3d Cir.1990). However, merely alleging the fact of retaliation is insufficient; in order to prevail on a retaliation claim, a plaintiff must show three things: (1) the conduct which led to the alleged retaliation was constitutionally protected; (2) that he was subjected to adverse actions by a state actor (here, the prison officials); and (3) the protected activity was a substantial motivating factor in the state actor's decision to take the adverse action. See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Anderson v. Davila, 125 F.3d 148, 163 (3d Cir.1997).

*9 A plaintiff can satisfy the second requirement by demonstrating that the "adverse" action "was sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights." See Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir.2000). The third factor, "motivation, " may be established by alleging a chronology of events from which retaliation plausibly may be inferred. Tighe v. Wall, 100 F.3d 41, 42 (5th Cir.1996); Goff v. Burton, 91 F.3d 1188 (8th Cir.1996); Pride v. Peters, 72 F.3d 132 (Table), 1995 WL 746190 (7th Cir.1995). If the plaintiff proves these three elements, the burden shifts to the state actor to prove that it would have taken the same action without the unconstitutional factors. Mt. Healthy, 429 U.S. at 287. "This means that, once a prisoner demonstrates that his exercise of a constitutional right was a substantial or motivating factor in the challenged decision, the prison officials may still prevail by proving that they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest." Rauser, 241 F.3d at 334.

Because retaliation claims can be easily fabricated, district courts must view prisoners' retaliation claims with sufficient skepticism to avoid becoming entangled in every disciplinary action taken against a prisoner. See Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir.1996); Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.1995), cert. denied, 516 U.S. 1084 , 116 S.Ct. 800, 133 L.Ed.2d 747 (1996); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995). Finally, allegations of de minimis acts of retaliation do not state a claim under § 1983. Thaddeus-Xv. Blatter, 175 F.3d 378, 397 (6th Cir.1999); Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001) (holding that a de minimis retaliatory act is outside the ambit of constitutional protection).

A prisoner's ability to file grievances and lawsuits against prison officials is a protected activity for purposes of a retaliation claim. See Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir.1981) (retaliation for exercising right to petition for redress of grievances states a cause of action for damages arising under the constitution); Woods, 60 F.3d at 1165 (prison officials may not retaliate against an inmate for complaining about a guard's misconduct). Plaintiff claims that the retaliation was the result of his filing grievances and complaints. Thus, he has alleged the first element of a retaliation claim.

With respect to the second element, the Plaintiff alleges that he was placed in the SMU, denied food trays and was labeled a snitch. Only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation. This objective inquiry is not static across contexts; it must be tailored to the different circumstances in which retaliation claims arise. Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir.1999) ("Prisoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens, before a [retaliatory] action taken against them is considered adverse.").

*10 With regard to his first two allegations, this Court may conclude that Plaintiff has alleged the second element of a retaliation claim, i.e., that he was subjected to "adverse" action. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2002) (holding that prisoner's allegation that he was falsely charged with misconduct in retaliation for filing complaints against a correctional officer sufficiently alleged a retaliation claim); Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir.2000) (holding that an allegation that a prisoner was kept in administrative segregation to punish him for filing civil rights complaints stated a retaliation claim).

It is unclear, however, whether Plaintiff's third allegation that he was labeled a snitch, can satisfy the second element of a retaliation claim. See Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001) ("Absent some factual showing that the comments by the prison officials actually risked inciting other inmates against Dawes, we are unwilling simply to assume that prison inmates would be incited, without more, to attack "one of their own" who was labeled an "informant" and a "rat" for complaining to prison supervisors about a prison guard's conduct."); McDowell v. Sherrer, 2008 WL 4542475, *22 (D.N.J.2008) (same); Snyder v. McGinnis, 2004 WL 1949472 (W.D.N.Y. Sept.4, 2004). The Court need not decide this issue, however, as Plaintiff's has not shown the third factor required to make out a retaliation claim.

In this regard, the third element of a retaliation claim requires the Plaintiff to show that the protected activity was a substantial motivating factor in the state actor's decision to take the adverse action. This "motivation" factor may be established by alleging a chronology of events from which retaliation plausibly may be inferred. Tighe v. Wall, 100 F.3d 41, 42 (5th Cir.1996); Goffv. Burton, 91 F.3d 1188 (8th Cir.1996); Pride v. Peters, 72 F.3d 132 (Table), 1995 WL 746190 (7th Cir.1995). It is Plaintiff's burden to prove that the Defendants were motivated by retaliation. Hannon v. Speck, 1988 WL 131367, at *4 (E.D.Pa. Dec.6, 1988) ("In bringing a § 1983 action alleging such retaliation, an inmate faces a substantial burden in attempting to prove that the actual motivating factor... was as he alleged.") (internal quotes and citation omitted), affd, 888 F.2d 1380 (3d Cir.1989) (Table).

With respect to his first retaliation claim, i.e., that he was placed in the SMU, the record evidence does not establish the essential third element, i.e., that the protected activity was a substantial motivating factor in the state actor's decision to take the adverse action. In this regard, DOC records indicate that Plaintiff was placed in the SMU due to his disruptive behavior and extensive and violent misconduct history (ECF. No. 63-1, 63-3). Plaintiff has not submitted any evidence to refute this. Because this demonstrates that the state actors would have taken the same action without the unconstitutional factors, Plaintiff can not prevail on his first retaliation claim and Defendants are entitled to summary judgment as to this claim.

*11 In his second claim, Plaintiff alleges that he was denied food trays by Defendants Holman and Cummings (Comply 44). Plaintiff does not attach any evidence to support this claim and does not provide any information as to when this allegedly occurred. Nor has Plaintiff submitted any evidence indicating when Defendants Holman and Cummings allegedly became aware of his prior litigation or his filing of grievances such as to establish any motivating In this regard, Plaintiff has failed to provide the court with any probative evidence establishing the crucial link between his previous litigation and Defendants alleged retaliatory actions. See Lauren W. ex rel. Jean W. v. Deflaminis, 480 F.3d 259, 267 (3d Cir.2007) (to show a causal connection, a plaintiff must prove "either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link"); Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir.2003) (holding that the temporal proximity between the protected conduct and the alleged retaliatory action must be "unusually suggestive" before the court will infer a causal link) (citing Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir.1997)).

Brown is quite aware that it is his responsibility to come forward with evidence in support of his claims in response to defendants' motion for summary judgment. See Brown v. Pennsylvania Dept. of Corrections 290 Fed.App'x 463, 466 (3d Cir.2008). Here, Plaintiff has failed to provide a precise chronology of events; consequently, no reasonable jury could infer causation. While "timing plus other evidence may be an appropriate test where the temporal proximity is not so close as to be unduly suggestive, '" Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir.2000), Plaintiff has not offered other evidence in support of his retaliation claim. Thus, he has not demonstrated any causation between his protected activities and Defendants' alleged actions in refusing him meal trays.FN4

FN4 It is patently clear that not every allegedly adverse action is sufficient to support a claim of retaliation. See, e.g., Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir.2000) (holding that a retaliation claim cannot rest on the logical fallacy of post hoc, ergo propter hoc, literally, "after this, therefore because of this.").

Moreover, Defendants have attached records showing that Plaintiff repeatedly refused his meal trays (ECF No. 63-3, pp. 35-36). Plaintiff has not submitted any evidence to refute the accuracy of these records. Thus, Defendants are entitled to summary judgment as to Plaintiff's second retaliation claim.

With regard to his third claim, in his Complaint, he states that he was labeled a snitch for filing the February 6, 2006 Grievance No. 143257. Yet, in that Grievance, he complains that Holman, Meeker, Dobrynski and Crumb labeled him a snitch and wrote the word snitch on his property box. The affidavits he filed in support of this claim show that the alleged name calling was done prior to the filing of his grievance. See ECF No. 89-5, p. 2; ECF No. 89-6, p. 2. Because he allegedly was labeled a snitch before he filed this grievance, Plaintiff can not show that the protected activity of filing the grievance on February 6, 2006 was the substantial motivating factor in the state actor's decision to take the adverse action. Consequently, Defendants are entitled to summary judgment as to this claim.

E. The Eighth Amendment

*12 Plaintiff makes several allegations that invoke liability under the Eighth Amendment, which provides as follows.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
U.S. Const. amend. VIII.

The Eighth Amendment protects individuals against the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. This protection, enforced against the states through the Fourteenth Amendment, guarantees incarcerated persons humane conditions of confinement. In this regard, prison officials must ensure that inmates receive adequate food, clothing, shelter and medical care, and must "take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)).

Notwithstanding, not every injury raises constitutional concerns. A prison official violates the Eighth Amendment only when two requirements are met. The inmate must show that: 1) he suffered a risk of "serious" harm; and 2) prison officials showed "deliberate indifference" to such risk. Id., 511 U.S. at 834. The first element is satisfied when the alleged "punishment" is "objectively sufficiently serious." Id. In determining whether a prisoner has alleged a risk that is objectively serious, a court must consider not only the seriousness of the potential harm and the likelihood that the harm will actually occur, but evidence that unwilling exposure to that risk violates contemporary standards of decency. In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate. Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). The second criterion, deliberate indifference, requires an inmate to show that the prison official had a sufficiently culpable state of mind.

The Supreme Court clarified this deliberate indifference standard in Farmer as follows.

We hold instead that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. This approach comports best with the text of the Amendment as our cases have interpreted it. The Eighth Amendment does not outlaw cruel and unusual "conditions"; it outlaws cruel and unusual "punishments." An act or omission unaccompanied by knowledge of a significant risk of harm might well be something society wishes to discourage, and if harm does result society might well wish to assure compensation.... But an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.

*13 Farmer, 511 U.S. at 837-838 (emphasis added).

1. Conditions of Confinement

Plaintiff first alleges that the conditions of his confinement in the SMU violated the Eighth Amendment prohibition against cruel and unusual punishment. Plaintiff fails to allege any facts to demonstrate that the conditions of his confinement in the SMU deprived him of any basic human need such as food, clothing, shelter, sanitation, medical care or personal safety. Neither classification nor confinement to segregation, either administrative or punitive, implicates the Cruel and Unusual Punishment Clause of the Eighth Amendment unless the conditions themselves are cruel and unusual. Hutto v. Finney, 437 U.S. 678, 686, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Spaight v. Coughlin, 104 F.3d 350 (Table), 1996 WL 518507 (2d Cir.1996), cert. denied, 519 U.S. 1121, 117 S.Ct. 972, 136 L.Ed.2d 855 (1997); Young v. Quinlan, 960 F.2d 351, 363 (3d Cir.1992); Sheley v. Dugger, 833 F.2d 1420, 1428-29 (11th Cir.1987); Gibson v. Lynch, 652 F.2d 348, 352 (3d Cir.1981) ("administrative segregation and solitary confinement do not, in and of themselves, constitute cruel and unusual punishment") (citing Hutto ), cert. denied, 462 U.S. 1137 , 103 S.Ct. 3123, 77 L.Ed.2d 1375 (1983).

The Constitution does not mandate comfortable prisons. Rhodes, 452 U.S. at 349. Prisons housing "persons convicted of serious crimes cannot be free of discomfort." Id . Accord Griffin v. Vaughn, 112 F.3d 703 (3d Cir.1997) (restrictive conditions in administrative custody in the Pennsylvania state correctional institutions, in and of themselves, do not violate the Eighth Amendment).

Plaintiff claims that the SMU is a severely hostile environment and that Defendants have confined him there in order to conduct psychiatric research and that his confinement in the SMU is exacerbating his mental illness. As stated, the SMU is a place where the worst of the worst are confined. Plaintiff has submitted no evidence to support his claims that Defendants are conducting psychiatric research as part of the LTSU and/or SMU programs. The behavior modification utilized in these programs is a carrot and stick approach, i.e., Plaintiff's negative behaviors are negatively reinforced or "punished" by a substantial loss of privileges and Plaintiff is encouraged to engage in good behavior by the incentive of granting greater privileges as he continues to engage in positive behaviors. Such behavior modification appears throughout the penal system, i.e., the stick of incarceration at a greater security classification and/or higher security prison with the carrot of greater privileges in lower security prisons or the carrot of parole should the inmate conduct himself properly.

The well-established rule is that discipline reasonably maintained in state prisons is not under the supervisory direction of Federal courts. Ford v. Board of Managers of the New Jersey State Prison, 407 F.2d 937 (3d Cir.1969).

But so long as incarceration as a form of punishment continues, we are required perforce to recognize that, archaic and indefensible though it may be, its objective is to circumscribe certain activities and opportunities not only available in, but also characteristic of, an open societal setting. And, unpleasant as it is to contemplate the physical restrictions of a settled environment', we must also recognize that even those rights which survive penal confinement may be diluted by peculiar institutional requirements of discipline, safety, and security.

*14 Gittlemacker v. Prasse, 428 F.2d 1, 3-4 (3 Cir.1970).

It is only when confinement becomes so foul, so inhuman, and so violative of the basic concepts of decency that a federal court should interfere with prison officials who purportedly have the experience and expertise in matters of prison discipline. Plaintiff has failed to evidence conditions that satisfy the objective component of an Eighth Amendment claim with respect to the conditions alleged in the SMU. Consequently, Defendants are entitled to summary judgment as to this claim. Accord Dantzler v. Beard 2007 WL 5018184, *10 (W.D.Pa. Dec.6, 2007); Woods v. Abrams, 2007 WL 2852525, 13 (W.D.Pa. Sept.27, 2007); Elliott v. Beard, 2006 WL 4404771, *5 (W.D.Pa. Sep 27, 2006).

2. Denial of Food

Plaintiff claims that Defendants denied him his meal trays in violation of the Eighth Amendment. While the Eighth Amendment requires prison officials to provide adequate nutrition to convicted prisoner, only extreme deprivations state a violation of the Eighth Amendment. Hudson v. McMillan, 503 U.S. 1, 8-9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). The conditions presenting the risk must be "sure or very likely to cause serious illness and needless suffering, " and give rise to "sufficiently imminent dangers." Helling v. McKinney, 509 U.S. 25, 33, 34-35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). In order to prevail on such a claim there must be a "substantial risk of serious harm, " an "objectively intolerable risk of harm" that prevents prison officials from pleading that they were "subjectively blameless for purposes of the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 842, 846, and n. 9, 114 S.Ct. 1970 , 128 L.Ed.2d 811 (1994).

Here, Plaintiff does not provide any evidence concerning when, or how often, these alleged sporadic denials occurred. Inasmuch as Plaintiff does not presently contend that he was denied consecutive meals, nor that he suffered any ill effects from these supposed occasional denials, Defendants are entitled to summary judgment as to this claim. Cf. Ford v. Brd. of Mgrs of New Jersey State Prison, 407 F.2d 937, 939-940 (3d Cir.1969) (no Eighth Amendment claim where prisoner fed four slices of bread and one pint of water three times a day with a full meal every three days).

3. Excessive Force

Next, Plaintiff alleges that Defendants used excessive force during a cell extraction that occurred on December 12, 2005. The Cruel and Unusual Punishments Clause of the Eighth Amendment protects inmates against the application of excessive force by correctional officers. See Whitley v. Albers, 475 U.S. 312, 318-19, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). What is required to prove an Eighth Amendment violation "varies according to the nature of the alleged constitutional violation." Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). In an excessive force claim, the core judicial inquiry is "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Factors relevant to this inquiry include: the need for application of force; the relationship between that need and the amount of force used; the threat reasonably perceived by the responsible officials; and any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7 (citations omitted). The extent of any resulting injury, while material to the question of damages and informative as to the likely degree of force applied, is not in and of itself a threshold requirement for proving this type of Eighth Amendment claim. Wilkins v. Gaddy, ___ U.S. ___, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010).

*15 The facts surrounding the cell extraction are set forth on pages 12 and 13 herein.

The fact that prison authorities employ the use ofrestraint chairs, body restraints or taser guns does not, in and of itself, allege a violation of the Eighth Amendment. See, e.g., Fuentes v. Wagner 206 F.3d 335, 345 (3d Cir.2000) (defendants entitled to summary judgment with regard to use of restraint chair where there was no evidence that prison officials placed him in the chair maliciously and sadistically to cause harm); Dixon v. Toole, 225 Fed.App'x 797, 799 (11th Cir.2007) (no Eighth Amendment violation with respect to four point restraints where prisoner suffered no physical injury); Parks v. Williams 157 Fed.App'x 5, 6 (9th Cir.2005) (same); Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir.2004) (holding that a "single use of the taser gun causing a one-time shocking" against a "hostile, belligerent, and uncooperative" arrestee in order to effectuate the arrest was not excessive force in the totality of the circumstances); Jasper v. Thalacker, 999 F.2d 353, 354 (8th Cir.1993) (using stun gun to subdue an unruly inmate did not violate Eighth Amendment where plaintiff failed to prove that the officers used the stun gun "sadistically or maliciously" to cause harm); Caldwell v. Moore, 968 F.2d 595, 602 (6th Cir.1992) (use of stun gun against disruptive prisoner to restore discipline and order does not violate Eighth Amendment); Michenfelder v. Sumner, 860 F.2d 328, 336 (9th Cir.1988) (policy of allowing use of taser guns on inmate who refuses to submit to a strip search does not constitute cruel and unusual punishment). Prisons are hostile environments, the use of restraint chairs and the like may be the only way for prison officials to control prisoners such as Brown who simply will not abide by the prisons rules. As long as such measures are utilized in an humane manner, it is not for the federal courts to interfere in prison discipline.

With respect to the event depicted on the videotape, it is clear that the force applied was not so excessive as to present a cognizable Eighth Amendment claim. Plaintiff's actions in destroying his cell created the confrontation; force was applied for reasonably short periods necessary to subdue Plaintiff. Contrary to Plaintiff's assertions, the use of the stun gun and chemical agent does not prove that the amount of force was excessive. Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir.1984) ("The use of mace, tear gas or other chemical agent of the like nature when reasonably necessary... to subdue recalcitrant prisoners does not constitute cruel and inhuman punishment, " even if the inmate is handcuffed). Moreover, the brief application of the EBID was reasonably necessary to control Plaintiff while he was being strapped into the restraint chair. See Hunter v. Young, 238 Fed.App'x 336, 339 (10th Cir.2007) (finding use of taser gun not objectively unreasonable); Jeffers v. Gomez, 267 F.3d 895, 910-11 (9th Cir.2001) (a prison security measure that is undertaken for the protection of prison officials and the inmate population is constitutional when it is applied in good-faith). Consequently, Defendants are entitled to summary judgment as to the force used up until the time he was secured in the restraint chair as demonstrated on the videotape.

*16 Plaintiff also alleges that, during the time period not depicted on the videotape, he was shocked with the EBID by Defendant Johnson after he was restrained and incapable of being a threat to anyone. This allegation may support a claim of excessive force. See, e.g., McDowell v. Sheerer, 374 Fed.App'x 288 (3d Cir.2010; Smith v. Mensinger, 293 F.3d 641, 648 (3d Cir.2002); Brooks v. Kyler, 204 F.3d 102 (3d Cir.2000). Thus, this claim remains assuming Plaintiff can demonstrate that he fully exhausted this claim as required by the PLRA.

4. Failure to Provide Medical Treatment

Plaintiff also asserts an Eighth Amendment claim alleging failure to provide medical treatment for his mental illness. He claims that his disruptive behavior is due to his mental condition, bi-polar disorder and low Global Assessment Function of 55, and that his confinement in the SMU is exacerbating his mental illness. To state an Eighth Amendment violation in the context of medical treatment, an inmate must show prove two elements: 1) plaintiff was suffering from a "serious medical need, " and 2) prison officials were deliberately indifferent to the serious medical need. Gamble v. Estelle, 439 U.S. 897, 99 S.Ct. 260, 58 L.Ed.2d 245 (1978).

The first showing requires the court to objectively determine whether the medical need was "sufficiently serious." A medical need is "serious" if it is one that has been diagnosed by a physician as mandating treatment, or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention. Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir.1990), cert. denied, 500 U.S. 956 , 111 S.Ct. 2266, 114 L.Ed.2d 718 (1991); Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir.1987), cert. denied, 486 U.S. 1006 , 108 S.Ct. 1731, 100 L.Ed.2d 195 (1988).

The second prong requires a court subjectively to determine whether the officials acted with a sufficiently culpable state of mind. Deliberate indifference may be manifested by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, a denial of prescribed medical treatment, or a denial of reasonable requests for treatment that results in suffering or risk of injury. Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir.1993).

a. Serious Medical Need

In the case at bar, the Plaintiff claims that he did not receive adequate medical care for his mental health illness. A plaintiff alleging constitutionally inadequate medical treatment must submit medical evidence of a "serious medical need" sufficient to satisfy the objective component of the test. Boring v. Kozakiewicz, 833 F.2d 468 (3d Cir.1987), cert. denied, 485 U.S. 991 , 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988). In Boring, the Court of Appeals for the Third Circuit determined that, because plaintiffs failed to produce expert testimony that their injuries were "serious, " they failed to meet their burden of proof. The court explained that expert testimony would not necessarily be required in situations where the seriousness of injury or illness would be apparent to a lay person, e.g., a gunshot wound. Boring, 833 F.2d at 473 (citing City of Revere v. Massachusetts General Hosp., 463 U.S. 239, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983)). With respect to an ulnar nerve injury and migraine headaches, however, the Court concluded that a fact finder would not be able to determine that the condition was "serious" because the need for treatment did not appear to be "acute." Id. With respect to a scalp condition and complaints about dental care, the Court found that the complaints merely reflected a disagreement over the proper method of treatment. In so concluding, the Court noted that "courts will not second-guess the propriety or adequacy of a particular course of treatment [which] remains a question of sound professional judgment.'" Id. (quoting Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.1979)). Finally, with respect to a prior knee injury, the Court found that the evidence did not establish an acute condition.

*17 As laymen, the jury would not be in a position to decide whether any of the conditions described by plaintiffs could be classified as "serious." In these circumstances, the district court properly required expert medical opinion and in its absence properly withdrew the issue from the jury.

Boring, 833 F.2d at 474 (citations omitted).

Here, Plaintiff has not included any evidence to whatsoever to substantiate the existence of any serious medical need with regard to his alleged mental illness. Moreover, as Defendants point out, the record evidence belies his contentions in this regard. Plaintiff has received regular examinations and reviews by the mental health staff. During each of these reviews, a Mental Health Contact Note is created by the Psychological/Psychiatric Support Staff (PSS) member (ECF No. 63-3, pp. 24-36). Plaintiff's Mental Health Contact Notes provide that he is psychologically stable. These notes further provide that Plaintiff has attempted to manipulate a psychological recommendation to leave the LTSU and that he "oscillates between wanting to be mentally ill and not wanting to be mentally ill, " and "does not play the mentally ill game well" (ECF No. 63-3, p. 30).

As with the medical complaints in Boring, a lay person would not be able to conclude that Plaintiff's unsubstantiated allegations of mental illness constituted a "serious medical need" sufficient to invoke the Gamble standard without expert testimony or evidence. Thus, Plaintiff has failed to meet his burden of demonstrating a genuine issue of fact about whether Defendants ignored a critical or escalating medical situation or that their actions posed a substantial risk of serious harm. Because evidence of this nature is required in order for an inmate's claim to succeed, Plaintiff's failure to meet this burden is fatal to his case.

b. Deliberate Indifference

Moreover, even if the court were to conclude that Plaintiff has demonstrated the existence of a serious medical need, a finding this Court specifically does not make, he has failed to demonstrate that Defendants were deliberately indifferent to it. The "deliberate indifference" standard for purposes of liability under section 1983 is a stringent standard of fault requiring proof that a defendant disregarded a known or obvious consequence of his action. Board of County Commissioners of Bryan County v. Plaintiff, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). The defendant must be both aware of facts from which the inference could be drawn that a substantial harm exists and he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). An official is not deliberately indifferent if "he fails to alleviate a significant risk that he should have identified." Id. Moreover, deliberate indifference to a serious medical need of a prisoner is distinguishable from a negligent diagnosis or treatment of a medical condition; only the former conduct violates the Eighth Amendment. Medical malpractice may give rise to a tort claim in state court but does not necessarily rise to the level of a federal constitutional violation. Kost v. Kozakiewicz, 1 F.3d 176, 185 (3d Cir.1993); Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir.1993).

*18 The Supreme Court explained the difference between negligence and constitutional claims in Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1978). In that case, the prisoner, Gamble, was injured when a bale of cotton fell on him while he was unloading a truck. He went to the unit hospital where a medical assistant checked him for a hernia and sent him back to his cell. He returned to the hospital where he was given pain pills by an inmate nurse and then was examined by a doctor. The following day, his injury was diagnosed as a lower back strain; he was prescribed a pain reliever and a muscle relaxant. Over the course of several weeks, Gamble was seen by several doctors who prescribed various pain relievers and provided him with medical work excuses. Ultimately, despite his protests that his back hurt as much as it had the first day, medical staff certified Gamble to be capable of light work. During the next two months, Gamble received a urinalysis, blood test, blood pressure measurement, and pain and blood pressure medication. Subsequently, a medical assistant examined Gamble and ordered him hospitalized for treatment of irregular cardiac rhythm.

The Supreme Court held that Gamble's allegations failed to state a claim upon which relief could be granted against the defendant, both in his capacity as a treating physician and as the medical director of the Corrections Department.

Gamble was seen by medical personnel on 17 occasions spanning a 3-month period.... They treated his back injury, high blood pressure, and heart problems. Gamble has disclaimed any objection to the treatment provided for his high blood pressure and his heart problem; his complaint is "based solely on the lack of diagnosis and inadequate treatment of his back injury." The doctors diagnosed his injury as a lower back strain and treated it with bed rest, muscle relaxants and pain relievers. Respondent contends that more should have been done by way of diagnosis and treatment, and suggests a number of options that were not pursued. The Court of Appeals agreed, stating: "Certainly an x-ray of (Gamble's) lower back might have been in order and other tests conducted that would have led to appropriate diagnosis and treatment for the daily pain and suffering he was experiencing." But the question whether an X-ray or additional diagnostic techniques or forms of treatment is indicated is a classic example of a matter for medical judgment. A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice, and as such the proper forum is the state court under the Texas Tort Claims Act.

Gamble, 427 U.S. at 107 (internal citations omitted).

Plaintiff's allegations, like Gamble's, do not state a constitutional violation, a prerequisite for recovery under 42 U.S.C. § 1983. The record evidence reveals that the Defendants acted responsibly in attending to his medical needs. He was seen by psychiatric staff on a monthly basis and was determined to be stable. While an intentional refusal to provide any medical treatment to an inmate suffering from a serious medical need manifests deliberate indifference and is actionable under the Eighth Amendment, the Eighth Amendment does not require that a prisoner receive every medical treatment that he requests or that is available elsewhere. A disagreement as to the appropriate choice of medical treatment does not give rise to a constitutional violation because the "right to be free from cruel and unusual punishment does not include the right to the treatment of one's choice." Layne v. Vinzant, 657 F.2d 468, 473 (1st Cir.1981). Mere disagreements over medical judgment do not state Eighth Amendment claims as there are typically several acceptable ways to treat an illness. Young v. Quinlan, 960 F.2d 351, 358 n. 18 (3d Cir.1992); White v. Napoleon, 897 F.2d 103, 110 (3d Cir.1990).

*19 Taken as true, the Plaintiff's allegations and the record evidence simply do not show that Defendants acted with deliberate indifference to his serious medical needs for purposes of imposing liability under the Eighth Amendment's prohibition against cruel and unusual punishment. Specifically, there is nothing that suggests that Defendants knew that Plaintiff faced a substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to abate it. Thus, the Defendants are entitled to judgment as a matter of law with respect to this claim. See Brown v. Pennsylvania Dept. of Corrections 290 Fed.App'x 463, 467 (3d Cir.2008) ("The record establishes that Brown has not been deprived of medical care in the LTSU"); Sides v. Law 283 Fed.App'x 930 (3d Cir. June 30, 2008) (corrections officials' failure to afford mental health treatment to an inmate while he was housed in a special management unit (SMU) did not constitute deliberate indifference to his medical needs, so as to violate the Eighth Amendment, even though he had an anti-social personality disorder).

In paragraph 45 of his Complaint, Plaintiff claims that Nurse Ketcher should not have approved the use of OC due to his asthmatic condition. First of all, it was Dr. Harper, not Nurse Ketcher, who approved the use of OC. As Dr. Harper is not a Defendant in this action, there is no basis to impose liability for the approval of the OC. Second, Plaintiff's eyes were washed out twice and his inhaler administered despite the fact that he did not appear to suffer any respiratory ill effects from the OC. Thus, there is no basis to conclude that either the approval or the use of the OC violated Plaintiff's Eighth Amendment rights.

F. Fourteenth Amendment

1. Procedural Due Process

Plaintiff claims that Defendants' actions in placing him in the SMU and/or LTSU violated his rights under the Due Process Clause of the Fourteenth Amendment because he was not provided with notice or a hearing. The Due Process Clause does not protect every change in the conditions of confinement having a substantial adverse impact on a prisoner. Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). The Due Process Clause shields from arbitrary or capricious deprivation only those facets of a convicted criminal's existence that qualify as "liberty interests." Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The types of protected liberty interests are not unlimited. The interest must rise to more than an abstract need or desire and must be based on more than a unilateral hope. Rather, an individual claiming a protected interest must have a legitimate claim of entitlement to it. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (citation omitted).

Thus, the threshold question presented by Petitioner's claim is whether Defendants' actions impacted a constitutionally-protected liberty interest. A liberty interest may arise either from the Due Process Clause itself, or from a statute, rule, or regulation. Hewitt, 459 U.S. at 466.

a. Liberty Interest Inherent in Due Process Clause

*20 A liberty interest inherent in the Constitution arises when a prisoner has acquired a substantial, although conditional, freedom such that the loss of liberty entailed by its revocation is a serious deprivation requiring that the prisoner be accorded due process. Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Interests recognized by the Supreme Court that fall within this category include the revocation of parole, Morrissey, 408 U.S. at 471, and the revocation of probation, Gagnon, 411 U.S. at 778. The Due Process Clause, however, does not create an inherent liberty interest to remain free from administrative segregation. See, e.g., Hewitt, 459 U.S. at 468; Wolff, 418 U.S. at 556; Montayne v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976); Sheehan v. Beyer, 51 F.3d 1170, 1175 (3d Cir.1995); Layton v. Beyer, 953 F.2d 839, 845 (3d Cir.1992). Accordingly, Plaintiff can succeed under the Due Process Clause only if state law or regulation has created a constitutionally-protected liberty interest in remaining free from administrative detention.

b. Liberty Interest Created by Law or Statute

In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) the Supreme Court dramatically narrowed the range of liberty interests created by law and regulation. Prior to Sandin, courts reviewed the specific language of the pertinent law or regulation to determine whether the language was unmistakably mandatory in character such that it created a liberty interest. The Supreme Court announced a new rule in Sandin for determining whether a prisoner had a protected liberty interest created under statute or regulation by shifting the focus of inquiry from the specific language of the law or regulation to whether the deprivation suffered by the prisoner imposes an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 483 (emphasis added).

Every court that has addressed this issue in Pennsylvania has determined that prisoners do not have a liberty interest in remaining free from confinement in the SMU or similar housing. See, e.g., Smith v. Dodrill, 2009 WL 62175 (M.D. Pa. Jan 8, 2009); Spencer v. Kelchner, 2007 WL 88084 (M.D.Pa. Jan.9, 2007); Dantzlerv. Beard 2007 WL 5018184 (W.D.Pa. Dec.6, 2007); Francis v. Dodrill, 2005 WL 2216582 (M.D.Pa. Sept.12, 2005). Cf. Johnson v. Hill, 910 F.Supp. 218, 220 (E.D.Pa.1996) (holding that, absent a state-created liberty interest that does not exist in Pennsylvania, prisoner placement is a matter of prison administration and a prisoner has no constitutional right to be placed in any particular cell or housing unit).

Notwithstanding, long-term confinement in restricted housing may be sufficiently atypical and significant to create a protected liberty interest. See Shoats v. Horn, 213 F.3d 140 (3d Cir.2000). Here, Plaintiff has been confined in restricted housing since at least 2004. Thus, the Court concedes that he has demonstrated a protected liberty interest. However, it is well settled in Pennsylvania that periodic review of inmates indefinitely confined in administrative confinement comports with due process requirements. Shoats 213 F.3d at 144; Delker v. McCullough, 103 Fed.App'x 694 (3d Cir.2004); McKeithan v. Beard, 322 Fed.App'x 194, 199 (3d Cir.2009) (holding that prisoner's due process claim failed because he received periodic reviews while in the LTSU); Brown v. Pa. Dep't of Corrections, 290 Fed.App'x 463, 465-66 (3d Cir.2008) (same); Dantzler v. Beard , Civ. No. 05-1727, 2008 WL 744740, at *1 (W.D.Pa. Mar. 18, 2008) (same for LTSU and SMU). The Court of Appeals for the Third Circuit repeatedly has affirmed the holding in Shoats that post-transfer periodic review comports with due process requirements for prisoners serving lengthy sentences who are housed in restrictive administrative custody for indefinite periods of time. See, e.g., Gans v. Rozum, 267 Fed.App'x 178, 180-81 (3d Cir.2008) (prisoner in administrative custody status for eleven years); Williams v. Sebek, 299 Fed.App'x 104, 107 (3d Cir.2008) (holding that inmate's continued confinement in administrative custody for five and one-half years did not require a remedy because the record showed that he was receiving the required periodic reviews of his status by the program review committee); Brown v. D.O.C. Pa., 265 Fed.App'x 107, 110 (3d Cir.2008) (same); Bowen v. Ryan, 248 Fed.App'x 302, 304 (3d Cir.2007) (prisoner in administrative custody status for twenty years on restricted release status).

*21 In the current action, Plaintiff complains about his placement in the SM U.Specifically, he states that he did not receive advance notice that his PRC review, which was scheduled for a different date than he anticipated, was for the purpose of transferring him from the LTSU to the SMU. However, Plaintiff is well aware that "due process does not require prior notice of a transfer where the post-transfer periodic review of an inmate's placement in segregation provides the inmate with a meaningful opportunity to challenge the grounds of his continued segregation." Brown, 290 Fed.App'x at 465. The record shows that Plaintiff has received reviews by the Program Review Committee (PRC) every 90 days, and by his unit team every 30 days, since at least October, 2005 (ECF No. 63-2, pp. 2-21). Moreover, Plaintiff was provided an opportunity to meet with the PRC upon notification of his transfer from the LTSU to the SMU but he refused to attend this meeting (ECF No. 63-2, p. 23). Finally, Plaintiff filed a grievance regarding his SMU placement, which was reviewed and answered at all three levels (ECF No. 63-2, pp. 24-31). He has failed to submit any valid evidence showing that such reviews did not provide him a meaningful opportunity to challenge the grounds of his continued segregation. See Brown v. Pennsylvania Dept. of Corrections, 290 Fed.App'x at 466 ("Brown's affidavit, submitted in response to defendants' motion, does not support a conclusion that his reviews were a sham."). Accordingly, Defendants are entitled to summary judgment as to Plaintiff's procedural due process claim.

2. Equal Protection

In his Complaint, Plaintiff further asserts that he was denied equal protection. The Equal Protection Clause provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV, § 1. "This is not a command that all persons be treated alike but, rather, a direction that all persons similarly situated should be treated alike.'" Artway v. Attorney General of State of N.J., 81 F.3d 1235, 1267 (3d Cir.1996) (quoting City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)). See also United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (Equal Protection Clause prohibits decision to prosecute based on an unjustifiable standard such as race, religion, or other arbitrary classification).

To demonstrate an equal protection violation, an inmate has the burden of proving the existence of purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Official action does not violate the Equal Protection Clause solely because it results in a disproportionate impact; proof of discriminatory intent or purpose is required to show a violation. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1977); Stehney v. Perry, 101 F.3d 925, 938 (3d Cir.1996). Discriminatory purpose implies more than intent as volition or intent as awareness of consequences. It implies that the decision maker selected a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. Hernandez, 500 U.S. at 360. An inmate must offer evidence specific to his own case that would support an inference that unlawful considerations played a part in the adverse decision. McCleskey, 481 U.S. at 293.

*22 Plaintiff has failed to allege any facts from which it can be concluded that Defendants engaged in intentional or purposeful discrimination or that he was treated differently than similarly situated persons on the basis of his race, nationality or gender. In short, Plaintiff does not show any discrimination with respect to his placement in the SMU or with respect to his treatment he received there. There is no cognizable equal protection claim stated. Additionally, the Plaintiff has not stated any specific acts taken by Defendants to show any discriminatory animus attributable to Defendants. Thus, Defendants are entitled summary judgment as to this claim. Accord Spencer v. Kelchner , Civil No. 3:06-1099, 2007 WL 88084, at *13-15 (M.D.Pa. Jan.9, 2007); Dantzler v. Beard , Civil No. 05-1727, 2007 WL 5018184, at *9-10 (W.D.Pa. Dec.6, 2007).

G. Conspiracy

In his Amended Complaint, Plaintiff makes several accusations of conspiracy. In order to demonstrate a conspiracy, "a plaintiff must show that two or more conspirators reached an agreement to deprive him or her of a constitutional right under color of state law.'" Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 700 (3d Cir.1993) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). Plaintiff has concluded that Defendants and others conspired to violate his rights yet, with regard to the claims discussed above, he has failed to evidence any facts showing an agreement or plan formulated and executed by the Defendants to achieve this conspiracy. Plaintiff cannot rely on unsupported claims of conspiracy. Without a factual showing which gives some substance to the conspiracy claims, Plaintiff's conspiracy claim amounts to nothing more than mere conjecture and bare speculation. The law is clear that bare allegations of wrongdoing by a Defendant, without any substantiating proof of an unlawful agreement, are insufficient to sustain a conspiracy claim. Gometz v. Culwell, 850 F.2d 461, 464 (8th Cir.1988) (citations omitted). Also, to survive a motion for summary judgment, the Plaintiff must establish that there is a genuine issue of material fact regarding the question of whether the Defendants entered into an illegal conspiracy which caused the Plaintiff to suffer a cognizable injury. Massachusetts School of Law at Andover v. American Bar Association, 107 F.3d 1026, 1039 (3d Cir.), cert. denied, 522 U.S. 907 , 118 S.Ct. 264, 139 L.Ed.2d 191 (1997). In other words, to successfully counter the Defendants' motions for summary judgment, Plaintiff must provide specific evidence establishing that the Defendants agreed among themselves to act against him either unlawfully or for an unlawful purpose. Vieux v. East Bay Regional Park Dist., 906 F.2d 1330, 1343 (9th Cir.), cert. denied, 498 U.S. 967 , 111 S.Ct. 430, 112 L.Ed.2d 414 (1990).

Here, Plaintiff has failed to introduce into this record any evidence which shows an agreement or plan formulated and executed by Defendants or anyone else which rises to the level of a conspiracy. At a minimum, absent some modicum of proof which tends to reveal the existence of an agreement which is designed to deny the constitutional rights of the Plaintiff, he cannot maintain his conspiracy claim. In sum, Plaintiff's allegations, standing alone, are patently insufficient for a reasonable jury to return a verdict in his favor. See Schowengerdt v. United States, 944 F.2d 483 (9th Cir.1991) (allegations in a complaint which are based on inference and speculation cannot defeat a motion for summary judgment on a conspiracy claim), cert. denied, 503 U.S. 951 , 112 S.Ct. 1514, 117 L.Ed.2d 650 (1992); D.R., a minor v. Middle Bucks Area Vocational School, 972 F.2d 1364 (3d Cir.1992) (the Plaintiffs failed to show that the Defendants engaged in a conspiracy to interfere with the Plaintiffs' civil rights); City of Omaha Betterment Association v. City of Omaha, 883 F.2d 650 (8th Cir.1989) (evidence was insufficient to support a finding that an employer and a local union conspired to deny an employee a promotion because of her gender); Gometz v. Culwell, 850 F.2d at 464 (summary judgment should have been granted regarding against allegations of a conspiracy purportedly engaged in between prison officials because no credible evidence supported the conspiracy claim); Oatess v. Norris, 431 Pa.Super. 599, 637 A.2d 627 (1994) (inmate's response to officers' motion for summary judgment in 1983 civil rights action alleging a conspiracy was not sufficient to establish the existence of a genuine issue of material fact).

*23 Because the evidence which is included in the record is insufficient to raise a genuine issue of material fact, the Defendants' Motions for Summary Judgment will be granted as to this claim as well. An appropriate order follows.

AND NOW, this 21st day of March, 2011;

IT IS HEREBY ORDERED that Plaintiff's Motion to Alter Judgment (ECF No. 92) is GRANTED.

IT IS FURTHER ORDERED that the Order granting Defendants' Motion for Summary Judgment (ECF No. 87) and Judgement in favor of Defendants (ECF No. 86) are VACATED.

IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment (ECF No. 63) is GRANTED EXCEPT as to Plaintiff's claim that Defendant Johnson used the EBID after he was fully restrained and incapable of being a threat.


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