United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
WILLIAM I. ARBUCKLE U.S. MAGISTRATE JUDGE
Jones (“Plaintiff”), a state prisoner proceeding
pro se, seeks to recover damages for alleged
violations of the United States Constitution during his
grievance appeal process as a state prisoner. Plaintiff
initiated this matter by filing a Complaint (Doc. 1) on June
21, 2017. In response, Defendants filed a Motion for Judgment
on the Pleadings (Doc. 24). The matter has been referred to
me to prepare a Report and Recommendation. For the reasons
explained below, I RECOMMEND that Defendants' Motion for
Judgment on the Pleadings be GRANTED in favor of Defendants.
FACTUAL AND PROCEDURAL BACKGROUND
to his Complaint, Plaintiff is a state prisoner, confined at
SCI-Somerset. (Doc. 1, ¶ 3). Plaintiff received a
misconduct charge for assault and aggravated assault.
Id. at 19. Defendant Bregman's report stated:
“On April 15, 2015 at 2151 hours, I, Officer Bregman,
was able to positively identify inmate Jones KP-4179
assaulting Sgt. Burggraff on video of a disturbance in south
yard dated April 28, 2015 with a time stamp of approximately
1435. I observed inmate Jones punching Sgt. Burggraff in the
head and then wrestling Sgt. Burggraff to the ground.”
Id. On April 28, 2015, Plaintiff was placed in the
Security Level 5 Housing Unit. Id. at ¶ 26.
Ellenberger is the Hearing Examiner. Id. at ¶
7. At the hearing regarding this misconduct, Defendant
Ellenberger was not permitted to use a video recording of the
incident because the video's time stamp began at 1437
hours and the alleged misconduct occurred at 1435 hours.
Id. at 20. Defendant Ellenberger concluded that a
preponderance of the evidence existed to support the charge
of aggravated assault. Id. at ¶ 21. On May 21,
2015, Plaintiff appealed the decision to the Program Review
Committee, who upheld Defendant Ellenberger's decision.
Id. at ¶ 23.
appealed to Defendant Warden Ferguson, who upheld the Program
Review Committee's decision. Id. Plaintiff
appealed Defendant Warden Ferguson's decision to the
Chief Hearing Examiner, and the Chief Hearing Examiner
remanded the matter back to Defendant Ellenberger.
Id. at ¶¶ 22-23. On remand, Defendant
Ellenberger concluded: “Based on the report presented:
charge #1 Assault and charge #11 Aggravated Assault dismissed
without prejudice.” Id. at ¶ 23.
October 9, 2015, Defendant Bregman issued a second misconduct
report, a recharge on assault: “On April 15, 2015 at
2151 hours, I Officer Bregman, was able to positively
identify inmate Jones KP-4179 assaulting Sgt. Burggraff on
video of a disturbance in south yard dated April 28, 2015
with a time stamp of 1438. I observed inmate Jones punching
Sgt. Burggraff in the head and then wrestling Sgt. Burggraff
to the ground.” Id. at ¶ 24. At the
hearing for that misconduct report, Defendant Ellenberger
concluded: “Based on the report presented: charge #1
Assault dismissed without prejudice.” Id. at
¶ 25. At this time, Plaintiff has not been recharged. On
November 18, 2016, Plaintiff was removed from the Security
Level 5 Housing Unit. Id. at ¶ 26.
21, 2017, Plaintiff filed a Complaint (Doc. 1). As
defendants, Plaintiff named:
(1) John E. Wetzel, Secretary of the Department of
(2) Trevor A. Wingard, Warden of SCI-Somerset;
(3) Tammy Ferguson, Warden of SCI-Benner;
(4) S. Ellenberger, Hearing Examiner at SCI-Benner;
(5) Bregman, Correctional Officer at SCI-Benner;
(6) Bobbi Jo Salamon, Program Review Committee Member at