Shick v. Pennsylvania Department of Corrections

          MEMORANDUM OPINION

          KIM R. GIBSON UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants' Motion to Dismiss for Failure to State a Claim. (ECF No. 5.) This Motion is fully briefed (see ECF Nos. 6, 21) and is ripe for disposition. For the reasons that follow, Defendants' Motion is GRANTED IN PART and DENIED IN PART.

         I. Background

         Plaintiffs Linda and Russell Shick filed a five-count Complaint against Defendants on December 12, 2018. Plaintiffs are husband and wife. (ECF No. 1 ¶¶ 4-5.) Defendants are the Pennsylvania Department of Corrections ("DOC"), Secretary of Corrections John E. Wetzel, SCI-Albion Superintendent Michael R. Clark, and SCI-Albion hearing officer Ryan Slewiski. (Id. ¶¶ 6-16.)

         Plaintiffs allege that Defendants:

(1) violated Linda Shick's right to procedural due process under the Fourteenth Amendment of the Constitution (id. ¶¶ 96-105);

(2) violated Linda Shick's Eighth Amendment rights by permanently banning her from visiting her incarcerated husband, Russell Shick (id. ¶¶ 106-08);

(3) violated Linda Shick's First Amendment rights by prohibiting her from associating with her husband (id. ¶¶ 109-11);

(4) violated Russell Shick's Fifth and Fourteenth Amendment rights by depriving him of procedural due process (id. ¶¶ 112-24);

(5) violated Russell Shick's Eighth Amendment rights by depriving him of procedural due process and access his wheelchair (id. ¶¶ 125-29); and

(6) violated Russell Shick's First, Sixth, and Fourteenth Amendment rights to counsel by opening and scanning mail containing privileged communications between Russell Shick and his attorney. (Id. ¶¶ 130-39.)

         The Court derives the following facts, which it accepts as true for purposes of deciding the instant Motion to Dismiss, from Plaintiffs' Complaint.

         A. Linda Shick is Accused of Attempting to Smuggle Drugs Through the Mail at SCI-Albion

         On May 11, 2018, DOC officials at SCI-Albion confiscated a piece of mail that Linda Shick sent to her husband, Russell Shick, who is incarcerated at SCI-Albion. (Id. ¶¶ 18-20.) DOC officials confiscated the mail and claimed that it tested positive for the synthetic drug K-2. (Id. ¶¶ 21-25.)

         Plaintiffs maintain that Linda Shick did not attempt to send K-2 to Russell Shick. (Id. ¶¶ 25, 42.) They allege that DOC officials "either intentionally falsely claimed that Mr. Shick's mail tested positive for K-2[, ] that prison officials contaminated the relevant mail, or that the test was a false positive." (Id. ¶ 24.)

         On May 15, 2018, DOC officials searched Mr. Shick's cell, but did not uncover any contraband. (Id. ¶¶ 27-28.)

         B. Russell Shick Files a Grievance About the Confiscation of His Mail and Is Subsequently Moved to the Restricted Housing Unit

         On May 16, 2018, Russell Shick filed an inmate grievance complaining about the confiscation of his mail. (Id. ¶ 29.) He refiled his grievance on May 21, 2018, to include a copy of the "confiscated item receipt" per DOC policy. (Id. ¶¶ 30-32.) The DOC did not timely respond to Mr. Shick's grievance, and requested an extension of time to respond three days after the response period had passed. (Id. ¶¶ 33.) Then, he filed a Notice of Default requesting that the confiscated mail be provided to his attorney. (Id. ¶ 34.)

         On May 25, 2018, a DOC staff member interviewed Mr. Shick about the confiscated mail. (Id. ¶¶ 36-37.) Mr. Shick believed the interview was in connection with his inmate grievance. (Id. ¶ 38.) At the interview, Mr. Shick confirmed that the confiscated mail contained his wife's handwriting. (Id. ¶ 39.) Then, DOC staff took Mr. Shick to a holding cell, where he remained for roughly six hours. (Id. ¶¶ 37, 43.)

         When DOC officials took Mr. Shick to the holding cell, they confiscated his wheelchair, which he uses to deal with a hip condition that requires surgery. (Id. ¶¶ 43-44.) After approximately six hours in the holding cell, DOC officials moved Mr. Shick to the Restricted Housing Unit for "security reasons." (Id. ¶¶ 45-49.)

         C. DOC Officials Hold Hearings on Russell Shick's Allegedly Contaminated Mail and Respond to His Grievance

          On May 26, 2018, Mr. Shick submitted a form-DC-141 Part 11(A)-requesting representation and listing eight staff members as witnesses. (Id. ¶ 60.) Mr. Shick also submitted a request for the DOC to identify the employee who deemed Mrs. Shick's mail to be suspicious, but DOC officials stated that they were not at liberty to provide that information. (Id. ¶ 61.)

         On May 29, 2018, Mrs. Schick appeared before the DOC Program Review Committee to ask for his wheelchair to be returned, but his wheelchair was not returned until June 12, 2018. (Id. ¶¶ 63-65.) Plaintiffs allege that "[i]n violation of DC-ADM 801, i.e. prison policy and protocols, there was no commissioned officer on the [Program Review Committee] panel that day." (Id. ¶ 64.)

         Then, on May 30, 2018, DOC officials held a hearing on the Shicks' allegedly contaminated mail in front of Hearing Examiner Ryan Slewiski. (Id. ¶ 66.) Mr. Shick was not permitted to present witnesses, present witness statements, and the DOC did not produce laboratory results showing that the mail was contaminated. (Id. ¶¶ 67-69.) Slewiski denied Mr. Shick's requests to consult with his attorney, to be represented by an attorney at the hearing, or to submit polygraph examinations to support his defense. (Id. ¶¶ 69-74.) Slewiski determined that Mr. Shick violated prison regulations by possessing drug contraband and sentenced him to sixty days of disciplinary custody. (Id. ¶¶ 77-78.)

         On June 5, 2018, Mr. Shick was scheduled for a review of the Program Review Committee's decision. (Id. ¶ 82.) However, Mr. Shick was not transported to the hearing by DOC staff, so he did not receive a review. (Id.)

         On July 12, 2018, Mr. Shick received a response to his grievance about the confiscation of his mail. (Id. ¶ 84.) A DOC employee named Tamie White informed Mr. Shick that his mail tested positive for K-2. (Id.) A misconduct report indicated that the Shicks' mail was tested using a NARK II Synthetic Cannabinoids drug-detection pouch, which Plaintiffs allege is an unreliable method test method. (Id. ¶¶ 85-89.)

         Finally, Mr. Shick also alleges that the DOC's mail policy prohibits him from receiving privileged communications from his attorney. (Id. ¶¶ 90-95.)

         D. DOC Officials Permanently Ban Linda Shick from Visiting Russell Shick

         On May 25, 2018, Superintendent Clark wrote a letter to Mrs. Shick "that declared that she was permanently banned from visiting Mr. Shick or any other state correctional facility in Pennsylvania." (Id. ¶ 51.) Mrs. Shick was not permitted to visit her husband at SCI-Albion on May 31, 2019. (Id. ¶ 52.)

         Plaintiffs allege that DOC policy authorizes indefinite suspensions of visitation rights, but that it does not authorize permanent bans. (Id. ¶¶ 54-57.) Plaintiffs also allege that DOC policy requires that any person who unlawfully introduced illegal drugs into a state correctional facility must be referred for criminal prosecution, but that Mrs. Shick was never referred for prosecution. (Id. ¶¶ 57-58.)

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