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Williams v. Varano

United States District Court, M.D. Pennsylvania

March 31, 2015

DAVID A VARANO, ET AL., Defendants




La-qun Rasheed Williams, an inmate presently confined at the Greene State Correctional Institution, Waynesburg, Pennsylvania (SCI-Greene) filed this pro se civil rights action. Plaintiff's proposed supplemental allegations were accepted by Order dated February 5, 2013.

By Memorandum and Order dated March 8, 2013, Plaintiff's second motion to amend his Complaint was granted and Correctional Officer Yoder was substituted for Defendant John Doe 1. See Doc. 35. In addition, the Memorandum and Order entered sua sponte dismissal in favor of Defendant SCI-Coal Twp and granted in part Defendants' motion seeking partial dismissal of the Complaint. See id. Dismissal was granted with respect to Williams' damage claims brought against Defendants in their official capacities and in favor of Defendants Attorney Debra Rand, Grievance Coordinators Kandis Dascandi, Trisha Kelley, and Dorina Varner. In addition, dismissal was granted in favor of Defendants Klembara, Jellen, Tripp, Symons, and Behney on the basis of failure to allege personal involvement solely with respect to the allegations raised in the Original Complaint. The Memorandum and Order of March 8, 2013 also dismissed Plaintiff's procedural due process claims relating to disciplinary proceedings which did not result in a loss of good conduct time or otherwise extend the duration of his confinement.

However, Williams' retaliation claims regarding denials of due process during misconduct proceedings which did not result in a loss of good conduct time were allowed to proceed. Finally, Plaintiff's allegations of denials of due process during misconduct proceedings which resulted in a loss of good conduct time were also dismissed without prejudice to any right the inmate had to challenge those proceedings via a federal habeas corpus petition.[1]

A March 31, 2014 Memorandum and Order construed Remaining Defendants' motion for summary judgment as seeking entry of partial summary judgement and partially granted their request. See Doc. 112. Specifically, summary judgment was granted with respect to Williams' claims of conspiracy and his unexhausted claim for monetary damages regarding his allegation that an inmate with a history of assaultive behavior was placed in a recreation cage near the Plaintiff on November 4, 2011. However, the motion for partial summary judgment was denied with respect to Plaintiff's supplemental allegations (Doc. 15); his access to the courts claim; and his retaliation claims.

Plaintiff's Allegations

Remaining Defendants are the following officials at Plaintiff's prior place of confinement, the State Correctional Institution, Coal Township, Pennsylvania (SCI-Coal Twp.): Superintendent David Varano; Deputy Superintendent Ronda Ellett; Majors George Miller, Michael Miller; Captain Charles Stetler; Unit Manager Tripp; Lieutenants J.B. Burns and Symons; Sergeants Green, Claudfelter, and Batiuk; Hearing Examiner Kerns-Barr; Correctional Officers A.A. Kitchen, Klembara, Kepner, Wiseman, Allen, Yoder, and Emrich; Tammy Behney, and two (2) John Does. Also named as a Defendant is Mail Inspector Therese Jellen of the Pennsylvania Department of Corrections (DOC).

According to the Complaint, on June 5, 2011, while Plaintiff was assigned to the SCI-Coal Twp. Restricted Housing Unit (RHU), Defendants Emerich and Kitchen retaliated against him over his prior filing of a federal lawsuit and institutional grievances by serving him a meal tray which contained a dead mouse. See Doc. 1, ¶ 27. In a related claim, Williams indicates that he was issued a falsified misconduct on August 10, 2011 which alleged that he had fabricated his claim of being served a dead mouse. Williams further claims that he was denied due process during the ensuing disciplinary proceedings.

Plaintiff's second retaliation claim contends that on August 13, 2011 he was transferred to a disciplinary custody cell "so that his television, radio, and phone calls could be taken." Doc. 1, ¶ 40. Williams indicates that he was told in November 2011 that those items would be returned to him if he withdraw his pending federal law suit. See Doc. 15, ¶ 167. A third instance of retaliation occurred on September 18, 2011 when Williams was purportedly served a food tray by Defendants Wiseman and Enrich which had a dirty wash cloth in his food. See id. at ¶ 52.

The next contention of retaliation alleges that Sergeant Greene deliberately placed an inmate with a history of assaultive behavior[2] in a recreation cage near the Plaintiff so that the prisoner could throw human waste at Williams. See id. at ¶ 63. On November 4, 2011, Defendants including Kepner engaged in retaliation by putting Plaintiff in harm's way by similarly ordering him into a recreation cage next to Inmate Besciglia. When Williams tried to refuse, he was threatened with the issuance of a misconduct charge. After Plaintiff reluctantly agreed to enter the recreation cage he was purportedly attacked for a third time by Inmate Besciglia. After Williams filed a grievance, Defendant Kepner purportedly responded by issuing him a fabricated disciplinary charge. The Complaint again asserts that Plaintiff's due process rights were violated during the ensuing misconduct proceedings.

The Complaint maintains that CO Kitchen engaged in further retaliation by confiscating and intentionally destroying Plaintiff's personal legal materials and that there was interference and destruction with the inmate's outgoing legal mail. Plaintiff further indicates he was subjected to verbal threats by Defendant Klembara, issuance of a retaliatory falsified disciplinary charge, and confiscation of personal property during February 2012. See Doc. 15, ¶¶ 168-75. During that same time period, Defendant Behney allegedly discarded some of Williams' personal legal property and Plaintiff was subjected to a retaliatory hard cell placement. While in the hard cell, Plaintiff allegedly received a food tray with a razor blade in his food. See id. at ¶ 183.

Presently pending is Remaining Defendants' second motion for summary judgment. See Doc. 144. The opposed motion is ripe for consideration.


Remaining Defendants claim entitlement to entry of summary judgment on the grounds that: (1) the access to the court claim cannot proceed because Plaintiff has failed to prove an actual injury; (2) the claims of retaliatory fabricated misconduct charges lack merit since Williams was convicted of those charges; (3) the due process claim against Hearing Examiner Kerns-Barr lacks merit; (4) the confiscation of Plaintiff's personal property and disciplinary confinement were consistent with the results of his misconduct proceedings; (5) no reasonable jury could find in Plaintiff's favor on the food tampering claims against Kitchen, Emerich, Wiseman, and Kepner; (6) the verbal harassment claims against Defendants Klembara, Symons, and Batnick do not rise to the level of a constitutional violation; (7) Defendants Greene and Klepner are entitled to summary judgment regarding the contentions that they deliberately placed Williams at risk of assault by another prisoner; (8) there are no assertions of personal involvement by Varano, Ellett, G. Miller, M. Miller, Stetler, Tripp, Burns, Dascani. Kelley, Allen, Varner, and Yoder in any constitutional misconduct; (9) the claims that the DOC failed to follow some of its own policies are inadequate; and (10) Plaintiff failed to exhaust his administrative remedies with respect to his the allegations of property destruction and interference with mail by Jellen and Behney.

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)).

Access to the Courts

Plaintiff maintains that CO Kitchen confiscated and intentionally destroyed his personal legal materials (two legal boxes and seven law books). Doc. 1, ¶ 102. Williams adds that the confiscated material included an anticipated PCRA petition dealing with newly discovered evidence.[3] See id. at ¶ 112. The Complaint also contends and that there was interference and destruction with respect to his outgoing legal mail. >See id. at ¶ 148.

Prisoners enjoy a constitutional right of meaningful access to the law libraries, legal materials, or legal services. Bounds v. Smith, 430 U.S. 817, 821-25 (1977). Inmates have a right to send and receive legal mail which is uncontroverted and implicates both First and Sixth Amendment concerns, through the right to petition the government and the right of access to the courts. "When legal mail is read by prison employees, the risk is of a chill, ' rendering the prisoner unwilling or unable to raise substantial legal issues critical of the prison or prison employees." Proudfoot v. Williams, 803 F.Supp. 1048, 1052 (E.D. Pa. 1992).

The United States Supreme Court in Lewis v. Casey, 518 U.S. 343, 351-54 (1996), clarified that an inmate plaintiff, in order to set forth a viable claim under Bounds, must demonstrate that a non-frivolous legal claim had been frustrated or was being impeded. A plaintiff must also allege an actual injury to his litigation efforts. Under the standards mandated by Lewis, in order for an inmate to state a claim for interference with his legal work, he must demonstrate that he has suffered actual injury. See Oliver v. Fauver, 118 F.3d 175, 177-78 (3d Cir. 1997) (concluding that Lewis effectively requires a showing of actual injury where interference with legal mail is alleged).

The Complaint asserts that as a result of the alleged interference he was unable to timely file a PCRA action in apparent satisfaction of the Lewis actual injury requirement. See Doc. 1, ¶ ¶ 112, 113. Remaining Defendants argue that the Lewis requirement has not been met. They note that Plaintiff was convicted of multiple charges in 1997 and thereafter sentenced to an aggregate 35-85 term of imprisonment. Second, Williams filed a counseled PCRA action which was denied almost 4 years before the alleged interference by Defendant Kitchen.

It is also noted that Petitioner filed another PCRA action on January 16, 2014 which was summarily dismissed. Moreover, Plaintiff has filed motions in state court requesting that the Commonwealth preserve exculpatory evidence, filings which clearly undermine his contention that he was in possession of exculpatory evidence. The undisputed record shows the following: Plaintiff has pursued multiple unsuccessful challenges to his state criminal conviction; he has not provided the Court with sufficient evidence describing the alleged exculpatory evidence in his possession; and he has not established how he would safisfy the PCRA's timeliness requirement. Therefore, the Lewis requirement ...

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