United States District Court, M.D. Pennsylvania
JOHN E. JONES III JUDGE.
Steven Reid-Douglas (“Mr. Reid-Douglas”) and
Danielle Reid-Douglas (“Mrs. Reid-Douglas” or
“Scott”) (collectively referred to as
“Plaintiffs”), formerly pretrial detainees housed
at the Lycoming County Prison (“LCP”),
Williamsport, Pennsylvania, initiated this civil rights
action pursuant to 42 U.S.C. § 1983 on October 30,
2017. (Doc. 1). The matter is presently
proceeding via an Amended Complaint (Doc. 39) filed
on January 10, 2018.
before the Court is a motion (Doc. 85) pursuant to Federal
Rule of Civil Procedure 56, filed by Defendants Kevin
DeParlos (“DeParlos”), Brad Shoemaker
(“Shoemaker”), Chris Ebner (“Ebner”),
Michael White (“White”), R. Jack McKernan
(“McKernan”), Tony R. Mussare
(“Mussare”), and Richard Mirabito
(“Mirabito”), seeking an entry of summary
judgment on Plaintiffs' remaining claims, Count I
“Violation of First Amendment Right to Intimate
Association” (Doc. 39, pp. 3-7), and Count II
“Retaliation for Exercising First Amendment
Right” (Id. at 10, 11).
in response to Defendants' statement of material facts
asserting that that Plaintiffs have failed to adduce any
evidence that Defendant Ebner violated their First Amendment
rights, Plaintiffs state “[t]his averment is
undisputed; thus, this defendant is voluntarily being
dismissed.” (Doc. 86, ¶¶ 69, 77; Doc. 108, p.
9, ¶¶ 68, 76). The complaint against Defendant
Ebner will be dismissed, with prejudice, pursuant to Federal
Rule of Civil Procedure 41(a)(2).
for disposition is the First Amendment right to intimate
association claim against Defendants DeParlos, Shoemaker,
McKernan, Mussare, and Mirabito, and the First Amendment
retaliation claim against Defendants DeParlos, Shoemaker,
McKernan, Mussare, Mirabito, and White. For the reasons set
forth below, the Court will grant the motion for summary
judgment regarding these remaining claims.
pending is Plaintiffs' motion (Doc. 99) for a protective
order, which will be denied.
Motion for Protective Order
seek a protective order striking personal correspondence
between Plaintiffs that was confiscated on October 26, 2017,
during a search of Mrs. Reid-Douglas's cell. (Doc. 99).
Because the Court will not consider the correspondence in any
manner in deciding the motion for summary judgment, the
motion will be denied as moot.
Motion for Summary Judgment
Standard of Review
judgment “should be rendered 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 judgment as
a matter of law.” Fed.R.Civ.P. 56(c); Turner v.
Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990).
“[T]his standard provides that the mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no
genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (emphasis in original); Brown v.
Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990). A
disputed fact is “material” if proof of its
existence or nonexistence would affect the outcome of the
case under applicable substantive law. Id.; Gray
v. York Newspapers, Inc., 957 F.2 d 1070, 1078 (3d Cir.
1992). An issue of material fact is “genuine” if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. Anderson, 477 U.S.
at 257; Brenner v. Local 514, United Brotherhood of
Carpenters and Joiners of America, 927 F.2d 1283,
1287-88 (3d Cir. 1991).
party moving for summary judgment bears the burden of showing
the absence of a genuine issue as to any material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358,
1366 (3d Cir. 1996). Although the moving party must establish
an absence of a genuine issue of material fact, it need not
“support its motion with affidavits or other similar
materials negating the opponent's claim.”
Celotex, 477 U.S. 317, 323 (1986). It can meet its
burden by “pointing out ... that there is an absence of
evidence to support the nonmoving party's claims.”
Id. at 325.
such a showing has been made, the non-moving party must go
beyond the pleadings with affidavits, depositions, answers to
interrogatories or the like in order to demonstrate specific
material facts which give rise to a genuine issue.
Fed.R.Civ.P. 56; Celotex, 477 U.S. at 324;
Matsushita Elec. Indus. Co. v. Zenith Radio, 475
U.S. 574, 586 (1986) (stating that the non-moving party
“must do more than simply show that there is some
metaphysical doubt as to the material facts”);
Wooler v. Citizens Bank, 274 Fed.Appx. 177, 179 (3d
Cir. 2008). The party opposing the motion must produce
evidence to show the existence of every element essential to
its case, which it bears the burden of proving at trial,
because “a complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial.”
Celotex, 477 U.S. at 323; see also Harter v.
G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
“[T]he non-moving party ‘may not rely merely on
allegations or denials in its own pleadings; rather, its
response must . . . set out specific facts showing a genuine
issue for trial.'” Picozzi v. Haulderman,
2011 WL 830331, *2 (M.D. Pa. 2011) (quoting Fed.R.Civ.P.
56(e)(2)). “Inferences should be drawn in the light
most favorable to the non-moving party, and where the
non-moving party's evidence contradicts the movant's,
then the non-movant's must be taken as true.”
Big Apple BMW, Inc. v. BMW of North America. Inc.,
974 F.2d 1358, 1363 (3d Cir. 1992).
non-moving 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, ” summary judgment is appropriate.
Celotex, 477 U.S. at 322. The adverse party must
raise “more than a mere scintilla of evidence in its
favor” and cannot survive by relying on unsupported
assertions, conclusory allegations, or mere suspicions.
Williams v. Borough of W. Chester, 891 F.2d 458, 460
(3d Cir. 1989). The mere existence of some evidence in
support of the non-movant will not be adequate to support a
denial of a motion for summary judgment; there must be enough
evidence to enable a jury to reasonably find for the
non-movant on that issue. Anderson, 477 U.S. at
Statement of Material Facts
First Amendment Right to Intimate Association
who are legally married, were committed to the Lycoming
County Prison (“LCP”) on June 15, 2017, as
pretrial detainee codefendants charged in a criminal
conspiracy case. (Doc. 86, ¶¶ 1-4; Doc. 108, p. 2,
¶¶ 1-4). Upon commitment, Plaintiffs received a
copy of the Inmate Handbook. (Id. at 7; Doc. 108, p.
2, ¶ 7; Doc. 87, p. 24). The handbook contains the
following inmate mail policy: “Unless authorized by the
prison administration inmates are not permitted to correspond
with other inmates. Sometimes, immediate family members are
permitted to correspond with one another, but must receive
permission before doing so.” (Id. at 5; Doc.
87, p. 21; Doc. 108, p. 19). The policy is memorialized in
LCP Prison Policy 16.1 “Inmate Mail, ” which
states in relevant part: “1. Inmates are not permitted
to correspond with prohibited parties or through a third
party. 2. Inmates are not permitted to correspond with
inmates in other sections of the prison or with inmates in
other correctional institutions without prior permission of
prison administration. This includes Lycoming County Prison
inmates transferred to other county prisons.” (Doc. 86,
¶ 6; Doc. 87, p. 23; Doc. 108, p. 23).
2017, shortly after their incarceration, in accordance with
the above policy, Plaintiffs sought permission to directly
correspond with one another. (Doc. 86, ¶ 8; Doc. 108, p.
3, ¶ 8; Doc. 108, pp. 24-35, 38). The requests were
denied. (Doc. 108, p. 3, ¶ 9; Doc. 108, pp. 24-35, 38,
39). Defendant Shoemaker denied Plaintiffs' requests
based on security concerns and risks associated with
inmate-to inmate correspondence, as well as the concern that
“as co-defendants and alleged co-conspirators they
would be even more likely to communicate about illegal
activity.” (Doc. 86, ¶¶ 23, 30; Doc. 87,
¶ 23; Doc. 108, p. 27-35). He did not find that
Plaintiffs' circumstances warranted an exception to the
policy. (Doc. 86, ¶ 22).
unequivocally dispute “that the circumstances of the
present case did not warrant an exception to Defendant's
[sic] rule. Inasmuch as Plaintiffs had a pending Emergency
Custody Petition pending with regard to the safety of their
children which several weeks after the Plaintiffs'
incarceration the 12 year old son passed away in the care of
the biological father and through the neglect of Children and
Youth Service that was the sole basis of filing such Petition
due to the children facing imminent danger while in the
custody of the biological father as such danger came to pass
on July 3, 2017. Thus, correspondence between the Plaintiffs
was dire in the present case amongst other matters.”
(Doc. 108, p. 4, ¶ 22).
to Defendant Shoemaker, formerly employed as the Deputy
Warden of Operations at LCP, and currently employed as the
Warden at LCP, the inmate mail policy was put into place to
ensure the safety of prison staff and inmates against the
risks associated with inmate-to-inmate communications. (Doc.
86, ¶ 10; Doc. 87, Declaration of Brad Shoemaker
(“Shoemaker Decl.”), pp. 9, 10, ¶ 19)).
“The purpose, rationale, and reasoning behind the
prohibition is to protect the safety and security of the
Prison from the risk that inmates may communicate to: a.
develop and maintain informal organizations, such as gangs,
which pose a threat to the safety and security of Prison
staff and/or other inmates; b. communicate the layout of the
Prison; c. communicate escape plans; d. coordinate the
movement of contraband into and out of the Prison; e.
coordinate violent acts against Prison staff and/or other
inmates; f. communicate the number, movement, and schedule of
Prison staff on shift at a given time; and, g. track the
movements of other inmates.” (Id. at 11;
Id. at 19).
Shoemaker, suggests that, as an alternative to the
inmate-to-inmate correspondence ban, one Plaintiff could
relay information to a friend or relative who could then
relay the information back to the other Plaintiff. (Doc. 86,
¶¶ 33, 34).
to Defendant Shoemaker, monitoring Plaintiffs' letters
would have a negative effect on other inmates and prison
resources; LCP has only one staff member per day who, in
addition to correctional officer duties, is solely
responsible for screening incoming mail for contraband. (Doc.
86, ¶ 16). LCP, which is almost always at its population
capacity of 256 inmates, does not have the manpower, time,
money or training to monitor inmate-to-inmate correspondence
“which would require staff to read, decipher, and
evaluate all potential threats contained or hidden within
said mail.” (Doc. 86, ¶¶ 13-15, 17, 18; Doc.
108, p. 3, ¶ 15). He further notes that
“Correctional Officers at the Prison are already at
their capacity in terms of responsibilities. They are
responsible for covering cell-blocks and operations on a 24
hours a day, 7 days a week, 365 days a year basis, and in
addition they from time to time must cover inmate transports
and hospitalizations. It would be a massive drain on Prison
personnel and Prison resources to allow inmate-to-inmate mail
on the condition that such mail may be carefully screened for
hidden messages.” (Doc. 86, ¶¶ 19, 20).
of the negative impact such a screening process would have,
LCP has no alternative to the policy that generally bans
inmate-to-inmate mail, unless permission is obtained.
(Id. at 21).
dispute that the policy is reasonably related to legitimate
security interest because two prisoners housed at LCP, Kasan
Sanders and Isis Dent, could directly correspond with one
another while housed at LCP. (Doc. 108, p. 3, ¶¶
10, 11). They further “dispute that the policy is
necessary to protect prison staff and inmates from serious
security threats inasmuch as there is no policy regarding
co-defendant or co-defendant spouses.” (Id. at
12). They dispute that it would be a massive drain on prison
personnel and resources to allow monitoring of inmate to
inmate correspondence because, as demonstrated by the
following, it is a function correctional officers already
perform: 1. A declaration of an LCP inmate, Bryan Bacon, who
declares that other inmates, Mr. Tomecki who was housed at
LCP and his wife, Mrs. Tomecki, who was housed at LCP's
Pre-release center, were approved to correspond with one
another. (Doc. 108, Declaration of Bryan Bacon, pp. 36, 37);
2. Memoranda from Defendant Shoemaker, dated February 5,
2018, advising Plaintiffs that their incoming and outgoing
mail will be read and reviewed until further notice based on
interception of third party mail. (Doc. 108, pp. 52, 53);
and, 3. Various inmate requests dated May, June and August
2018, indicating that their third party mail had been
intercepted. (Doc. 108, pp. 3, 4, ¶¶ 14, 21, pp.
First Amendment Retaliation
an established a three-step grievance process, which is set
forth in the Inmate Handbook, and requires the filing of an
initial grievance, an appeal to the Warden, and a final
appeal to the Prison Board. (Doc. 86, ¶ 35; Doc. 108, p.
6, ¶ 34). Mr. Reid-Douglas filed a grievance on November
12, 2017, alleging that misconducts issued on October 13,
2017 and October 26, 2017, were in retaliation for him filing
a mandamus complaint. (Id. at 37; Doc. 108, p. 6,
¶ 36). Defendant Shoemaker denied the grievance on
November 13, 2017. (Id. at 38; Doc. 108, p. 6,
¶ 37). On that same day, Mr. Reid-Douglas filed an
appeal to Defendant DeParlos. (Doc. 108, p. 6, ¶ 38;
Doc. 108, p. 81). LCP has no record of this appeal. (Doc. 86,
¶ 39). Mr. Reid-Douglas received no response to his
appeal. (Doc. 108, p. 6, ¶ 38).
September 13, 2017, Correctional Officer Balliet (“C.O.
Balliet”) witnessed Mrs. Reid-Douglas
“hiding/leaving” notes for Mr. Reid-Douglas
within the prison law library, in violation of prison rules
including, inter alia, “Unauthorized contact
including any form of contact with inmates in isolation or
other cellblocks unless authorized.” (Doc. 86,
¶¶ 41, 42; Doc. 108, p. 7, ¶¶ 41, 42;
Doc. 87, pp. 64, 65). C.O. Balliet reported the incident to
his supervisor, Defendant White, and issued an incident
report. (Doc. 86, ¶ 43; Doc. 108, p. 7, ¶ 43; Doc.
87, pp. 64, ...