United States District Court, M.D. Pennsylvania
RONALD JACKSON, Plaintiff.
JEFFREY BEARD, ET AL., Defendants.
RICHARD P. CONABOY, District Judge.
This pro se civil rights action pursuant to 42 U.S.C. § 1983 was filed by Ronald Jackson (Plaintiff), an inmate presently confined at the State Correctional Institution, Huntingdon, Pennsylvania (SCI-Huntingdon). An eighty-five (85) page at times repetitive and illegible Amended Complaint (not including exhibits) was subsequently filed. See Doc. 66.
By Memorandum and Order dated September 12, 2011, this Court granted a motion to dismiss the Amended Complaint filed by Defendant Physician's Assistant (PA) Kristen Barbacci. See Doc. 86. Remaining Defendants include Secretary Jeffrey Beard, Chief Grievance Officer Dorina Varner, former Chief Grievance Officer Cindy Watson, Office of Professional Responsibility Director James Barnacle, and Hearing Examiner Kristen Reisinger of the Pennsylvania Department of Corrections (DOC).
Plaintiff is also proceeding against the following employees at his prior place of confinement, the State Correctional Institution, Camp Hill, Pennsylvania (SCI-Camp Hill): ex-Superintendents John Palakovich and Donald Kelchner; ex-Deputy Superintendent Richard Southers; Major John Horner; Unit Manager Chris Chambers; Psychological Services Specialist Edward Kalsky; Captain Leggore; Lieutenants Klinedinst, Kazur, McNeal, McElwain, and Simms; Sergeants Swift, Jones, Taylor, Warner, and Eger; and Correctional Officers (COs) Bridwell, Hartman, Brant, Huber, Gerber, Spieles, Weis, Bickert, Clark, Gemberling, Martz, Liddick, and Flinn.
According to the Amended Complaint, Plaintiff was transferred from the State Correctional Institution, Graterford, Pennsylvania (SCI-Graterford) to SCI-Camp Hill on or about October 3, 2007. Upon his arrival, Jackson was placed in the prison's Special Management Unit (SMU). Thereafter a purported conspiracy of SCI-Camp Hill SMU officials allegedly retaliated against the Plaintiff for his initiation of lawsuits and grievances at SCI-Graterford. See Doc. 66, p. 5.
Jackson initially claims that retaliatory actions committed by a conspiracy of SMU officials made it "nearly impossible" to pursue a criminal appeal and civil litigation. See Doc. id., p. 6. Specifically, it is alleged that Correctional Officers Martz and Huber confiscated some of Plaintiff's personal legal and non-legal property upon his arrival at the prison. It is also asserted that those two Defendants subjected him to verbal harassment and interfered with his legal mail. See id. at p. 15-16. On the day he was transferred from SCI-Camp Hill, March 9, 2009, Plaintiff was subjected to a further retaliatory loss of property. See id. at p. 10.
Plaintiff next describes multiple instances of retaliatory deprivation of meal trays and being served with adulterated food, actions which allegedly caused the inmate to suffer significant weight loss. See id. at pp. 18-22, 25. Jackson was also purportedly placed in an unsanitary SMU cell with a leaking toilet, no linen, a blinking security light, no cleaning supplies, with no shoes or clothes but a jumpsuit. See id. at pp. 9, 12, 69-71. Plaintiff additionally indicates that he was not provided with adequate recreation, showers, or access to the mini-law library.
On or about January 26, 2009, Plaintiff states that he was sprayed with a chemical agent for refusing a cell search. Jackson indicates that he was also issued a false misconduct charge as a result of that incident, and he received other alleged false disciplinary charges for events which transpired on March 25, 2008, April 15, 2008, November 16, 2008, and December 2, 2008. See id. at pp. 10, 28, 29, 34-35. Jackson adds that he was denied due process during the resulting disciplinary proceedings as well as with respect to his institutional grievances. There are also claims that he was subjected to retaliatory cell searches (see id. at p. 25) and excessive force (see id. at pp. 30, 64-67, 75-76, 80-3. 81). Finally, there is a claim that Defendant Kolsky failed and/or refused to perform a psychological evaluation of the Plaintiff's mental instability. See id. at pp. 82-85.
Presently pending is the Remaining Defendants' motion requesting entry of summary judgment. See Doc. 120. A review of the docket shows that although Plaintiff was granted an extension of time in which to file an opposing brief as well as permission to file an opposing brief which exceeded the fifteen (15) page limit, an opposing brief and counter statement of material facts have not been filed.
Standard of Review
Summary judgment is proper if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 248. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992). Unsubstantiated arguments made in briefs are not considered evidence of asserted facts. Versarge v. Township of Clinton, 984 F.2d 1359, 1370 (3d Cir. 1993).
Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id . (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322-23. "Such affirmative evidence - regardless of whether it is direct or circumstantial - must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.'" Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
As noted above, Jackson has not filed either an opposing brief or an opposing statement of material facts. In fact, the Plaintiff has not responded in any manner whatsoever to the pending summary judgment motion nor has he sought an enlargement of time in which to do so.
Once the moving party has satisfied its burden of identifying evidence which demonstrates an absence of a genuine issue of material fact, see Childers v. Joseph, 842 F.2d 689, 694 (3d cir. 1988), the nonmoving party is required by Federal Rule of Civil Procedure 56(e) to go beyond the pleadings by way of affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Celotex, 477 U.S. at 324. In relevant part, Rule 56(e) states in relevant part:
If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required in Rule 56(c), the court may:
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show the movant is entitled to it;
When Rule 56(e) shifts the burden of proof to the nonmoving party, that party must produce evidence to show the existence of every element essential to its case which it bears the burden of proving at trial. Celotex, 477 U.S. at 324. If, however, "the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented." Advisory Committee Notes to F.R.C.P. 56(e)(1963 Amend.).
Local Rule 56.1 similarly provides that all material facts set forth in the statement of material facts required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.
Remaining Defendants' initial argument contends that the claims for monetary damages against them in their official capacities must fail. See Doc. 133, p. 28.
The Eleventh Amendment bars all suits against a state and its agencies in federal court that seek monetary damages. Walker v. Beard, 244 Fed.Appx. 439, 440 (3d Cir. 2007); see also A.W. v. Jersey City Public Schools, 341 F.3d 234, 238 (3d Cir. 2003). Likewise, suits brought against state officials acting in their official capacities are to be treated as suits against the employing government agency. Will, 491 U.S. at 70-71; Garden State Elec. Inspection Serv. v. Levin, 144 Fed.Appx. 247, 251 (3d Cir. 2005). As such, Jackson's damage claims brought against the Remaining Defendants in their official capacities are considered to be against the state itself and are barred by the Eleventh Amendment.
Remaining Defendants' second argument contends that Plaintiff has not sufficiently alleged personal involvement in constitutional misconduct by DOC Defendants Secretary Beard, Chief Grievance Officer Varner, Director Barnacle, and former Chief Grievance Officer Watson, as well as SCI-Camp Hill Defendants ex-Superintendents Palakovich and Kelchner, ex-Deputy Superintendent Southers, Major Horner, Captain Leggore, Sergeant Taylor, and CO Clark. See Doc. 133, p. 29.
The summary judgment motion maintains that there are no factual allegations asserted against Defendants Horner or Clark in the Amended Complaint. Second, the claims against Southers, Barnacle, Leggore, Kelchner, Palakovich, Varner and Watson are solely and inadequately based upon their handling of Jackson's institutional grievances. With respect to Barnacle and Leggore, it is argued that those two officials failed to properly investigate a complaint lodged by Jackson. As previously noted the arguments of non-personal involvement are unopposed.
A plaintiff, in order to state an actionable § 1983 civil rights claim, must plead two essential elements: (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that said conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. See Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990).
Furthermore, federal civil rights claims brought under § 1983 cannot be premised on a theory of respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Rather, each named defendant must be shown, via the complaint's allegations, to have been personally involved in the events or occurrences which underlie a claim. See Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976). As explained in Rode:
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.
Rode, 845 F.2d at 1207.
Inmates also do not have a constitutional right to a prison grievance system. See Jones v. North Carolina Prisoners Labor Union, 433 U.S. 119, 137-138 (1977); Speight v. Sims, No. 08-2038, 2008 WL 2600723, at *1 (3d. Cir. Jun 30, 2008)(citing Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001)("[T]he existence of a prison grievance procedure confers no liberty interest on a prisoner.") Consequently, any attempt by Plaintiff to establish liability against the Warden solely based upon the substance or lack of response to his institutional grievances does not by itself support a constitutional due process claim. See also Alexander v. Gennarini, 144 Fed.Appx. 924, 925 (3d Cir. 2005)(involvement in post-incident grievance process not a basis for § 1983 liability); Pryor-El v. Kelly, 892 F.Supp. 261, 275 (D.D.C. 1995) (because prison grievance procedure does not confer any substantive constitutional rights upon prison inmates, the prison officials' failure to comply with grievance procedure is not actionable).
Although the handwritten lengthy Amended Complaint is at times difficult to decipher, this Court agrees that there are no factual assertions set forth therein against either Defendant Horner or Defendant Clark. Accordingly, under the standards announced in Rode, those two Defendants are entitled to entry of dismissal.
This Court also agrees that the claims asserted against Secretary Beard, Chief Grievance Officer Varner, Director Barnacle, and former Chief Grievance Officer Watson, as well as SCI-Camp Hill Defendants ex-Superintendents Palakovich and Kelchner, ex-Deputy Superintendent Southers, and Captain Leggore are based upon either their respective supervisory capacities within the DOC or prison, or their handling of grievances and complaints filed by Jackson. Under either approach, there is no basis for § 1983 liability. The unopposed request that those eight (8) Defendants are entitled to entry of summary judgment will be granted.
Remaining Defendants next assert that summary judgment should be granted in favor of Defendants Psychological Services Specialist Kalsky, Lieutenant Simms, Sergeants Warner and Eger, and COs Spieles and Gemberling on the basis of non-exhaustion of administrative remedies. See Doc. 133, p. 36.
They contend that Plaintiff did not file any grievances regarding (1) the condition of his initial SMU cell which implicates Defendant Spieles; (2) his mental health treatment claim against Defendant Kasky; (3) cell searches and property confiscations which allegedly occurred during October-November, 2007, February 15, March 18, March 28, May 19, July 26, or July 30, 2008; or January 15, 2009; and (4) the November ...