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Tillery v. Wetzel

United States District Court, M.D. Pennsylvania

August 22, 2017

MAJOR GEORGE TILLERY, Plaintiff
v.
JOHN WETZEL, et al., Defendants

          MEMORANDUM

          A. RICHARD CAPUTO, UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Presently before the Court are two motions to dismiss the Complaint filed by Pennsylvania Department of Corrections (DOC) Defendants[1] and those employed by the contract medical care providers at SCI-Mahanoy and SCI-Frackville.[2] (ECF Nos. 12 and 21.)

         For the reasons that follow, the DOC Defendants' motion will be granted in part and denied in part, while the medical Defendants' motion to dismiss will be granted.

         II. Background

         Pro se Plaintiff, Major George Tillery, a sixty-seven year old African-American inmate presently housed at the Frackville State Correctional Institution (SCI-Frackville), in Frackville, Pennsylvania. Mr. Tillery is serving a life sentence without parole. He has been housed in various state and federal prisons over the past thirty years, including USP-Leavenworth, SCI-Camp Hill's Special Management Unit, and New Jersey's Management Control Unit.[3] (ECF No. 1, Compl.) He has served more than twenty years in solitary confinement. (Id., ¶ 43.)

         In March 2010, Mr. Tillery returned to the Pennsylvania DOC and was housed at SCI-Forest, a maximum security facility and placed on the Restricted Release List (RLL). (Id., ¶ 33.) While there he participated in the RLL Step Down program. (Id., ¶ 40.) Upon his successful completion of the program, and with Secretary Wetzel's approval, on April 30, 2014, Mr. Tillery was transferred to SCI-Mahanoy's Restricted Housing Unit (RHU) under administrative custody. (Id., ¶ 40.) At the time of his transfer, Mr. Tillery had been misconduct free for eleven years. (Id.)

         A. Events at SCI-Mahanoy

         On May 14, 2014, two weeks after his arrival at SCI-Mahanoy, he was released to general population and placed on cellblock DB. (Id., ¶ 42.) John Kerestes was SCI-Mahanoy's Superintendent when Plaintiff arrived at the facility. Superintendent Kerestes previously served as the Deputy Superintendent at SCI-Frackville when Mr. Tillery was housed there in 2002 but eventually transferred out after he was accused of organizing inmates to attack officers. (Id., ¶ 41.)

         (1) Employment

         In November 2014, at the suggestion of Major Damore, supervisor of all unit managers at SCI-Mahanoy, Mr. Tillery was selected to become a Peer Specialist. Peer Specialists, including Mr. Tillery, were paid to participate in a ten day training program at the DOC's Central Office. (Id., ¶ 47.) His job as a Peer Specialist required him to be on-call twenty four hours a day to assist prison staff with a problem with a prisoner or otherwise assisting other prisoners, particularly the elderly and mentally ill. In his role as Peer Specialist, Mr. Tillery met monthly with Maj. Damore and unit managers to discuss prisoner problems. (Id., ¶ 49.) He received approximately seventy dollars a month as compensation. (Id., ¶ 47.)

         On February 25, 2015, Maj. Damore removed Mr. Tillery from his position as Peer Specialist in retaliation for his advocating for himself and other inmates. Maj. Damore also moved him from cellblock DB to cellblock CB on the other side of the prison. Maj. Damore told him the move was to give him a “new start.” (Id., ¶¶ 61 - 62.) On March 5, 2015, Mr. Tillery filed Grievance 555752 (ECF No. 22-1, p. 12), asserting he was removed from his job in retaliation for “saying bad things about the prison, ” and advising Maj. Damore of “Ms. Griffin's racial views.” (Id.) He claims he was removed by Maj. Damore who did not follow DC-ADM 816 when removing him from his position. (Id.) George Beaver, SCI-Mahanoy's Corrections Employment Vocational Coordinator responded to the grievance on March 11, 2015. (Id., p. 13.) He wrote that

[o]n February 25, 2015 you attended a Support Team Hearing on your current housing unit C-B, which was conducted by Major Damore (Mjr. Unit Managment); for being a disruptive influence to both inmates and staff on your previous housing unit D-B. Per policy DC-ADM 816, Inmate Compensation Manual; Section 1 -General Procedures; Subsection B, #6. No inmate has a right to be assigned or continue in any specific work assignment. And a Support Team Hearing is the same as an informal disciplinary action. Your pay rate was reduced to 2d ($.29), and will be reinstated once you are placed in a block job. You were removed from your assignment as a Certified Peer Support through your own actions.

(Id.) (emphasis in original). On March 26, 2015, Superintendent Kerestes upheld Mr. Beaver's denial of the grievance. (Id., p. 16.) Mr. Tillery's initial appeal to the Secretary's Office of Inmate Grievances & Appeals (SOIGA) was returned on April 17, 2015, without resolution due to Plaintiff's failure to supply a signed and dated legible copy of his initial grievance. (Id., p. 23.) On June 9, 2015, Keri Moore signed the SOIGA resolution of this grievance on Dorina Varner's behalf. (Id., p. 11.) SOIGA denied Mr. Tillery's appeal. (Id.)

         (2) Mental Health & Medical Issues

         As with most senior citizens, Mr. Tillery has numerous medical issues: hypertension; poor circulation; degenerative arthritis in his leg and back; episodes of labored breathing and chest pain; a failing liver with an intrahepatic stint; and untreated Hepatitis C. He has also had his gall bladder removed. In the past he was provided an additional mattress, orthopedic shoes, a back brace as well as medication for these ailments. (Id., ¶ 34.)

         As a condition of his release from the Step Down Program, and his entry into general population, Mr. Tillery was to receive mental health aftercare. Yet, his requests for the same were ignored by Ms. Griffin, his Unit Manager (UM), “who didn't want prisoners from RLL to be complaining about prison conditions.” (Id. at ¶ 44.) On August 26, 2014, Mr. Tillery filed grievance 524682, to obtain weekly psychological sessions.[4]

         In December 2014, Mr. Tillery developed a skin rash covering his lower extremities. At first he purchased hydrocortisone cream from the prison commissary to treat it. When the rash became worse, and he learned other inmates on the block had the same rash, he went to sick call. He was given another cream, triamcinolone, as treatment. (Id., ¶¶ 50 - 51.) On January 31, 2015, Mr. Tillery filed Grievance 549714, “object[ing] to the lack of diagnosis and improper treatment” of his ongoing skin rash. (Id., ¶ 52.) On February 24, 2015, Nurse Karen Holly denied Grievance 549714. She also disputed Mr. Tillery's assertion of a “rash epidemic” on the housing unit and asked for his proof of the same. CHCA Steinhart and Superintendent Kerestes upheld Nurse Kelly's “hostile” grievance response. (Id., ¶ 58.) On March 11, 2015, Mr. Tillery filed Grievance 556111 complaining of Dr. Lisiak and RN Holly's “deliberate indifference” to his continuing painful skin rash. (Id., ¶ 68.) It was denied as frivolous. (Id.)

         (3) Mumia Abu-Jamal

         Mr. Tillery noticed another inmate, Mumia Abu-Jamal, suffering from the same rash and not looking well. He urged this inmate to seek medical assistance. (Id., ¶ 53.) On or about February 18, 2015, in his role as a Peer Specialist, Plaintiff approached Superintendent Kerestes, and told him Mumia Abu-Jamal “looked as if he was going to die and needed to be taken to the hospital.” (Id., ¶ 54.) Superintendent Kerestes told him to mind his own business and take care of himself. (Id.) He also shared his concern that older inmates were getting misconducts for sleeping through count and that there was an undiagnosed and untreated skin rash in the cellblock. (Id., ¶ 55.) Two days later Maj. Damore “berated” Mr. Tillery for having spoken Supt. Kerestes and said that “he should have just come to [him].” (Id., ¶ 57.)

         On March 30, 2015, Mr. Abu-Jamal was rushed to an outside hospital in diabetic shock. He returned to the facility on April 2, 2015. (Id., ¶ 69.) “It became publicaly known that Tillery had advocated for Mumia Abu-Jamal and warned Kerestes that Abu-Jamal needed to go to the hospital.” (Id., ¶ 73.)

         (4) Lt. Clark's Searches of Mr. Tillery's Cell

         On February 18, 2015, Lt. Clark conducted an “investigative” cell search of Plaintiff's cell. His cell was left in shambles and some of his legal materials were removed. A few day later “most of” his legal materials were returned. Plaintiff filed grievance 554099 concerning this event. (Id., ¶ 56.) Lt. Clark searched Mr. Tillery's cell again on February 25, 2015 “by accident.” (Id., ¶ 59.) Meanwhile, UM Griffin threatened Plaintiff “with [a] designation as a 'Muslim combatant' if he kept filing grievances.” (Id., ¶ 60.) On March 10, 2015, Lt. Clark conducted another search of Plaintiff's cell, allegedly random, that left it in shambles. (Id., ¶ 63.) Mr. Tillery filed Grievance 556125 on March 12, 2015 alleging that while the DOC had the right to conduct cell searches, Lt. Clark's searches “were conducted to deprive him of legal materials and to harass him.” (Id., ¶ 63 and 66.) Plaintiff also filed a “criminal complaint” against Lt. Clark “for theft of his personal property and submitted it to [Maj.] Damore.” (Id., ¶ 64.) Lt. Clark then threatened to search Plaintiff's cell whenever he was on duty because Mr. Tillery had filed “state charges” against him. (Id., ¶ 65.) Mr. Tillery was told that the justification for the cell searches was that he was designated an “escape risk”. (Id., ¶ 67.)

         (5) Transfer from SCI-Mahanoy to SCI-Frackville

         On April 8, 2015, Mr. Tillery was transferred from SCI-Mahanoy to SCI-Frackville without advance notice. He was not permitted to pack his personal effects or legal papers. (Id., ¶ 74.) He had not received any misconducts while at SCI-Mahanoy. (Id., ¶ 75.) He was told SCI-Mahanoy initiated “an administrative swap.” (Id., ¶ 76.) Captain Downs, SCI-Frackville's Intelligence Officer, initially objected to the transfer as Mr. Tillery's prior stay at SCI-Frackville “didn't work.” (Id., ¶ 77.) Mr. Tillery's legal counsel was scheduled to meet with him, at SCI-Mahanoy, on April 9, 2015 and received no advance notice that he had been moved to SCI-Frackville. (Id., ¶ 78 - 81.)

         On April 8, 2015, Mr. Tillery's legal counsel emailed “DOC Counsel” and Superintendent Kerestes that he was improperly classified as an escape risk and that his periodic cell searches were not justified. (Id., ¶ 80.) On April 13, 2015, Plaintiff's legal counsel mailed a copy of the letter to Superintendent Tritt. (Id., ¶ 82.) Counsel asserted that the cell searches and transfer were in retaliation for client's filing of grievances, misclassification as an escape risk and for his speaking out on behalf of Mr. Abu-Jamal. (Id., ¶ 82.)

         B. Events at SCI-Mahanoy

         (1) Improper Classification

         Mr. Tillery requested Superintendent Tritt to correct the erroneous information in his file that labeled him an “escape risk”. Superintendent Tritt advised him that SCI-Frackville was a “new slate” and that he would have to wait until March 2016 to conduct a security classification review. (Id., ΒΆ 84.) Mr. Tillery ...


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