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Mayon v. Cappozza

United States District Court, W.D. Pennsylvania, Pittsburgh.

February 6, 2017

MICKY MAYON, Plaintiff,
v.
MARK CAPOZZA, SUPERINTENDENT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; COLIN FISCHETTI, THERAPEUTIC COMMUNITY COUNSELOR, IN HIS INDIVIDUAL CAPACITY; NATHAN GUSKIEWICZ, CORRECTIONAL OFFICER, IN HIS INDIVIDUAL CAPACITY; SCOTT BOMBERGER, PENNSYLVANIA DEPARTMENT OF CORRECTIONS COUNSELOR, IN HIS INDIVIDUAL CAPACITY; JOSEPH SCHOTT, UNIT MANAGER, IN HIS INDIVIDUAL CAPACITY; CANDICE LACKEY, UNIT MANAGER, IN HER INDIVIDUAL CAPACITY; DONALD BENGELE, CORRECTIONAL OFFICER, IN HIS INDIVIDUAL CAPACITY; AND UNKNOWN MEMBERS OF THE PENNSYLVANIA BOARD OF PROBATION AND PAROLE, IN THEIR INDIVIDUAL CAPACITIES; Defendants,

          MEMORANDUM OPINION [1]

          Cynthia Reed Eddy United States Magistrate Judge

         I. INTRODUCTION

         Presently before the Court is Defendant Colin Fischetti's Motion for Summary Judgment [ECF No. 124] and Defendants Donald Bengele, Scott Bomberger, Mark Capozza, Nathan Guskiewicz, Candice Lackey, and Joseph Schott's Motion for Summary Judgment. [ECF No. 128]. The motions are fully briefed and ripe for disposition. For the reasons that follow, said motions are GRANTED.

         II. BACKGROUND

         Plaintiff Micky Mayon (“Plaintiff” or “Mayon”) a prisoner presently confined at State Correctional Institution (“SCI”) at Fayette and proceeding pro se, initiated this civil rights action on September 5, 2014. [ECF Nos. 1, 5]. Defendants filed Motions to Dismiss [ECF Nos. 34, 38 and 40], which the Court granted in part and denied in part. [ECF No. 55]. On February 23, 2016, the Court granted Defendant King's Motion for Judgment on the Pleadings. [ECF Nos. 60, 90]. The only remaining claims are Plaintiff's Section 1983 First Amendment retaliation claims against the remaining defendants Donald Bengele, Scott Bomberger, Mark Capozza, Nathan Guskiewicz, Candice Lackey, and Joseph Schott, various DOC officials at SCI-Pittsburgh (collectively referred to as the “Corrections Defendants”) and Colin Fischetti (“Defendant Fischetti”), a Therapeutic Counselor at SCI-Pittsburgh. All defendants, except Mark Capozza, are named only in their individual capacities. Mark Capozza, the Superintendent of SCI-Pittsburgh, is named in both his individual and official capacities.

         a. Plaintiff's Allegations

         Mayon is presently a Pennsylvania state prisoner incarcerated at the State Correctional Institution (“SCI”) at Fayette. The allegations which give rise to this Complaint occurred while Mayon was incarcerated at SCI-Pittsburgh, prior to his transfer to SCI-Fayette in March 2014. According to Plaintiff, in order to qualify for parole, Mayon entered a rehabilitative program called Therapeutic Community (“T.C.”). Shortly after enrolling, Mayon “felt the way he was being treated was unfair, ” and he filed numerous administrative grievances.

         Mayon alleges that after filing his grievances, Defendants began to retaliate against him. Mayon asserts numerous instances where he allegedly was retaliated against for filing grievances about his perceived treatment in T.C.. The remaining retaliation claims are: (1) he was forbidden from wearing his tinted eyeglasses in T.C.;[2] (2) he was removed from T.C. and issued a misconduct, which resulted in a two week cell restriction;[3] (3) he was removed from T.C. a second time;[4] (4) he was issued a false misconduct;[5] (5) he was given a negative parole recommendation and he was transferred to SCI-Fayette;[6] (7) he was denied his property from commissary and was “kicked off the F-block;”[7] and (8) he was verbally threatened to stop filing grievances.[8]

         i. Tinted Glasses

         Because the Court finds that Plaintiff has failed to exhaust his claims, only the facts concerning his initial grievance, Grievance 480885, will be recounted. The SCI-Pittsburgh Inmate Handbook Supplement states that “no hats or sunglasses are to be worn on the Unit.” [ECF Nos. 5-34 and 169-1, pp. 11]. On September 27, 2013, Defendant Fischetti confronted Mayon about wearing tinted glasses inside the prison after being instructed to wear clear glasses and gave Mayon a “pullup” for the infraction. [ECF Nos. 5, ¶ 22, 15; 127-4]. On that same date, Mayon filed Grievance 480885 alleging he was being retaliated against for filing grievances by not being permitted to wear his sunglasses and by being threatened by C.O.'s that if he kept filing grievances, there would be a “target on his back.” [ECF No. 127-5]. On October 1, 2013, Mayon refused to attend T.C. activities and received an informal misconduct for refusing to obey an order. [ECF No. 127-6]. The “Informal Resolution” stated that Mayon was given a direct order to be present at all T.C. activities, but continued to “make excuses for his behavior and not follow orders.” Id. On October 2, 2013, Mayon submitted an Inmate's Request to Staff Member stating:

I had [LASIK] eye surgery done in 1997 which made my eyes extremely light-sensitive so sometimes I wear prescription sunglasses. It was never a problem until recently when T.C.2 staff instructed me to not wear my prescription sunglasses in the audit[orium]. Sometimes it's bright in that auditorium so sometimes I need my prescription sunglasses. I need you to confirm my eyes were burned with a laser and give me a medical pass verifying I need prescription sunglasses. . . .

[ECF No. 127-7]. Mayon was directed to “sign up for sick call to have your medical complaint evaluated.” Id. On October 3, 2013, Mayon was discharged from T.C. as a result of the informal misconduct. [ECF No. 127-1]. The correctional Plan Evaluation noted that Mayon “had behavioral issues when asked to follow dress code and regulations for the program.” [ECF No. 127-1].

         Grievance 480885 regarding his tinted glasses and alleged verbal threats was rejected by Defendant Scire on October 11, 2013. [ECF No. 127-8]. On October 31, 2013, Mayon appealed the rejected grievance. [ECF No. 127-9]. In his appeal, Mayon provided the address of the physician he believed had performed the LASIK surgery and requested that he be “placed back in T.C. with my graduation date of mid-December intact.” Id. He also requested that he be given permission to wear his prescription sunglasses. Id. Mayon later submitted two Inmate's Request to Staff Member on December 5, 2013 and December 13, 2013 stating that he had not provided the correct physician name and provided the name of another medical practice. [ECF No. 154 at pp.37-38]. Mayon was again informed that he should sign up for sick call to discuss the issue and to sign a release for medical information. Id. Mayon's appeal of Grievance 480885 was denied and found to be without merit on November 14, 2013. [ECF No. 127-11]. Mayon was informed that he needed to provide a medical excuse for wearing tinted glasses, and although the grievance was found to be without merit, Mayon was informed that he would be given a second opportunity to complete T.C.. Id. A few days later, Mayon withdrew from the program and asserts he did so because he claims that his original misconduct was “bogus.” [ECF Nos. 127-11-12, 152, p. 8].

         In January 2014, Mayon sent an “addendum” to Defendant Capozza apologizing for previously providing the wrong physician information and attached a letter from Premier Eye Care Group. He also stated: “I will have my eyes examined in the future, but not by some SCI Pittsburgh [unreadable]. I fear I'll walk out of the office blind. Not to mention he'd probably lie anyway.” [ECF No. 5-21]. The letter from Premier Eye Care Group verified that Mayon had LASIK in both eyes in 1998 by Dr. Armesto. It further stated that the group had not seen Mayon in over ten years and that it would be reasonable to for him to have an eye appointment. [ECF Nos. 126-16 and 17]. The letter made no mention of a physician's order that Mayon wear dark glasses, nor did Mayon present any such order to defendants or the court. On March 4, 2014, Mayon was transferred to SCI-Fayette.

         ii. Exhaustion

         Because the entirety of this decision rests on exhaustion grounds, the Court will further explicate Plaintiff's exhaustion of his grievance. Plaintiff filed Grievance 480855[9] on September 27, 2013 alleging the following:

Apparantly [sic] the T.C. Program is designed to teach convicts positive behaviors, including refraining from using the grievance system. I was warned on 2 separate occasions by 3 different staff members I would put a “target on my back” by using it. Since these warnings about 3 weeks ago, 1 of the 3 lied on me, then pulled me up, then wrote the consequence which was more severe than other inmates pulled up for the same thing. Also, I had L[ASIK] surgery done in 1997 which made my eyes light-sensitive. So I wear prescription sunglasses to avoid headaches. I informed the T.C. 2 Staff of this but they said they didn't care and then punished me for wearing the prescription sunglasses. I also informed T.C. 2 Staff I wanted to advance to Phase II so I could wear footwear other than state boots which hurt by feet. I completed all assignments for Phase I yet staff refuses to advance me to Phase II. It is retaliation against myself [sic] for writing grievances.

         Grievance 480885 [ECF No. 5-6]. Grievance 480855 was rejected on October 11, 2013 because the issues presented were reviewed and addressed and the Facility Grievance Coordinator indicated that a previous grievance that Mayon claimed have problems with the T.C. staff was withdrawn.

         Plaintiff then appealed this denial on October 31, 2013 to Superintendent/Facility Manager Mark Capozza indicating that Defendant Fischetti forbade him from wearing his tinted glasses in T.C. See 10/31/2013 Appeal to Initial Review [ECF No. 1-11].

         In the Initial Review Response, the Facility Grievance Coordinator Defendant Scire denied Grievance 480885 on November 14, 2013 and found:

To investigate your grievance I interviewed T.C. staff, Security staff and reviewed T.C. procedures. You remained in your cell during afternoon meetings and was [sic] unwilling to attend them when instructed by both treatment and security staff. You were unable to provide a medical excuse for wearing tinted glasses indoors while attending grounds and did inform staff that you do own a pair of clear prescription glasses. You were also not able to provide a medical excuse for breaking dress code by wearing non-state issued boots.
You were not moved into phase 2 of the T.C. Because:
• Your house tool (Push-up Pull-up) ratio was well under the requirement to phase up.
• Your behavior in meetings and in groups was anti-social and anti-authority.
• You refused on several occasions to complete assignments appropriately.
On 11/14/2013 you were reassigned to the T.C.2, however, it is mandatory that you provide a medical excuse for you to be permitted to wear non-state issued boots and tinted glasses[;] there will be no exception to these rules. You should consider yourself to be fortunate; you have been given a second opportunity to complete your prescribed programs. This time be a mature and responsible adult. I find your grievance to be without merit and frivolous. At no time were you being punished by T.C. staff or retaliated against for writing grievances. This grievance is denied.

         Initial Review Response of Grievance 480855 [ECF No. 5-12]. On November 21, 2013, Mayon voluntarily signed himself out of the T.C. Program. See Pa. D.O.C. Correctional Plan [ECF No. 127-12].

         On February 24, 2014, Superintendent/Facility Manager Defendant Capozza denied Mayon's appeal stating:

Be advised, I concur with Ms. Scire's, Facility Grievance Coordinator investigation and response and I regret the delay in my response, though I am confused about what you are appealing. You were removed from the T.C. program after an informal misconduct for refusing to attend programming repeatedly. You remained in your cell during afternoon meetings and were unwilling to attend them when instructed by both treatment and security staff. You were unable to provide a medical excuse for wearing tinted glasses indoors while attending groups and did inform staff that you do own a pair of clear prescription glasses. You were also not able to provide a medical excuse for breaking dress code by wearing non-state issued boots.
You were not moved into phase 2 of the T.C. because:
• Your house tool (Push-up Pull-up) ratio was well under the requirement to phase up.
• Your behavior in meetings and in groups was anti-social and ...

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