United States District Court, W.D. Pennsylvania
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT; DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
ECF NO. 46, ECF NO. 50
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE.
cross-motions for summary judgment filed by Plaintiff Norman
Johnston (ECF No. 46) and Defendants John Wetzel and Michael
Overmyer (ECF No. 50) present primarily four issues:
• Are Johnston's §1983 claims barred to any
extent by the applicable two-year statute of limitations? The
Court holds that they are not.
• Does the 17-year duration of Johnston's conditions
of solitary confinement distinguish his case from the
otherwise comparable conditions addressed in Peterkin v.
Jeffes, 855 F.2d 1021 (3d Cir. 1988), such that it is
for a jury to determine whether these conditions and their
duration violated Johnston's Eighth Amendment right to be
free from cruel and unusual punishment? The Court holds that
it does and that disputed issues of material fact preclude
summary judgment for Johnston or the Defendants on this
• Did Johnston receive meaningful review of his
continuing solitary confinement consistent with Fourteenth
Amendment due process requirements? The Court holds that
disputed issues of material fact remain for trial as to both
Defendants' responsibility for a process that a
reasonable jury could find to have been pro forma and
• Are the Defendants nevertheless entitled to summary
judgment on Johnston's Eighth and Fourteenth Amendment
claims based on qualified immunity? The Court holds that they
following factual background is largely undisputed. Johnston
was committed to the Pennsylvania Department of Corrections
(DOC) in 1980 following a conviction for homicide. ECF No. 47
¶ 1. He is serving a life sentence. Id. at
¶ 2. While incarcerated at the State Correctional
Institution (SCI) at Huntingdon, he escaped from that
facility on August 1, 1999. Id. at ¶ 3.
Johnston was apprehended twenty days later, re-incarcerated
at SCI-Camp Hill, and placed in solitary
confinement. As a consequence of his escape attempt,
Johnston was placed on disciplinary status and kept in
solitary confinement for eighteen months. Id. at
¶ 7. He remained so confined even after the conclusion
of this eighteen-month period, until February of 2005, when
he was transferred to SCI-Forest. Id. at
¶¶ 8-9. During his incarceration at SCI- Camp Hill,
Johnston was confined to a cell measuring approximately sixty
square feet. Johnston remained in solitary confinement for
approximately six years at that institution. Id. at
his transfer to SCI-Forest in 2005, Johnston was immediately
placed in solitary confinement and housed in a cell that
measured ninety-one square feet, but which provided only
fifty-six square feet of practical space. Id. at
¶ 12. This cell had one narrow, five-inch window.
Id. at ¶ 27. Johnston was isolated in this cell
for twenty-three hours per day, seven days per week, for
approximately eleven years. Id. at ¶ 14. His
cell also contained a light fixture that he claims was left
on twenty-four hours a day. Id. at ¶ 30.
Johnston ate meals alone, was prohibited from speaking with
other inmates, and only permitted to shower three times each
week. Id. at ¶ 31-32. He was given visitation
privileges once a week and had to conduct visits through a
glass partition. Id. at ¶ 33-34.
was allowed time in an "exercise cage" five days
per week for one hour from 2005 until 2012. Id. at
¶ 15. Starting in 2012, he was permitted two hours in
the exercise cage. Id. This cage measured
seventy-five square feet and Johnston was not permitted
access to any exercise equipment. Id. Access to this
outdoor facility was withheld during inclement weather.
Id. at ¶ 18. Johnson was not issued a single
misconduct after April 7, 2013. Id. at ¶ 36.
Approximately four months after filing this action, Johnston
was released from solitary confinement, marking approximately
seventeen years in solitary confinement. Id. at
2003 and 2005, the DOC instituted a program under which it
placed certain inmates on a "Restricted Release
List" or "RRL." Placement on the RRL meant
that the inmate would be subjected to indefinite solitary
confinement. See Johnson v. Wetzel, 209
F.Supp.3d 766, 772 (M.D. Pa. 2016). Only the Secretary of the
DOC could authorize the release of an inmate on the RRL to
re-enter the general prison population. Id. See also
ECF No. 53-7, p. 16 (Wetzel Deposition). Without the
Secretary's express authorization, the inmate would
remain indefinitely in solitary confinement. ECF No. 53-7, p.
39. Until 2012, the DOC Secretary did not review the
inmate's status on the RRL unless the facility's
Superintendent and Deputy Superintendent, along with the
Regional Deputy Secretary and Executive Deputy Secretary,
unanimously agreed that the inmate should be released from
the RRL. Id.; see also Johnson, 207 F.Supp.3d. at
around 2012, the policy changed to include the
Secretary's annual review of an inmate's status on
the RLL. Since 2012, as to each RLL inmate, the Secretary
annually receives a "vote sheet" that records a
vote in favor or against release from solitary confinement
and possible comments from the Superintendent and the Deputy
Superintendent of the inmate's facility as well as from
the Regional Deputy Secretary and the Executive Deputy
Secretary. Following receipt of the vote sheet, the
Secretary, as the sole decisionmaker, then determines whether
an inmate will remain on or be removed from the RRL.
Id. at pp. 41, 43. Between April 7, 2003 and the
present, Johnston was not cited for misconduct or disciplined
for any reason. The only concern ever expressed by a prison
official in support of continuing his status on the RLL that
he was "dangerously manipulative, simply by being so
nice and polite all the time." (2016 Vote Sheet).
Despite this assessment and no meaningful change in
circumstances since it was made, Johnston was released to
General Population at SCI-Forest on March 13,
2017. ECF No. 52, ¶ 114.
initiated this action pro se on November 7, 2016. ECF No. 1.
His Complaint alleged that the conditions and duration of his
confinement violated the Eighth Amendment's prohibition
against cruel and unusual punishment and that the absence of
any meaningful means to challenge that confinement violated
his right to due process of law under the Fourteenth
Amendment. Id. Attorney John F. Mizner entered his
appearance on Johnston's behalf on March 1, 2017. ECF
Nos. 11, 12.
20, 2019, following a lengthy period of discovery, this Court
approved the stipulated dismissal of several defendants. ECF
No. 45. John Wetzel, Secretary of the DOC, and Michael
Overmyer, Superintendent of SCI-Forest, are now the sole
remaining defendants in this action. Both Johnston and
Defendants Wetzel and Overmyer filed cross-motions for
summary judgment, supporting briefs and concise statements of
material facts on May 21, 2019. ECF Nos. 46, 47, 48; ECF Nos.
50, 51, 52. Each filed a response to the opposing party's
concise statement of material facts. See ECF Nos.
59, 60, 61, 62. The parties' cross-motions for summary
judgment are appropriate for simultaneous disposition.
See Swanberg v. PNC Fin. Servs. Grp., Inc. 2016 WL
4493684, at *10 (W.D. Pa. Aug. 26, 2016).
Summary Judgment Standard
Rule of Civil Procedure 56(a) requires the court to enter
summary judgment "if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). Under this standard "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). A disputed fact is
"material" if proof of its existence or
nonexistence would affect the outcome of the case under
applicable substantive law. Anderson, 477 U.S. at
248; Gray v. York Newspapers, Inc., 957 F.2d 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 Bhd. of Carpenters and Joiners of Am., 927 F.2d
1283, 1287-88 (3d Cir. 1991).
determining whether a genuine issue of material fact remains
for trial, the court must view the record and all reasonable
inferences to be drawn therefrom in favor of the nonmoving
party. Moore v. Tartler, 986 F.2d 682 (3d Cir.
1993); Clement v. Consol Rail Corp., 963 F.2d 599,
600 (3d Cir. 1992); White v. Westinghouse Elec. Co.,
862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment,
however, the nonmoving party may not rest on the
unsubstantiated allegations of his or her pleadings. Instead,
once the movant satisfies its burden of identifying evidence
that demonstrates the absence of a genuine issue of material
fact, the nonmoving party must to go beyond his pleadings
with affidavits, depositions, answers to interrogatories or
other record evidence to demonstrate specific material facts
that give rise to a genuine issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).
under Rule 56, a defendant may seek summary judgment by
pointing to the absence of a genuine fact issue on one or
more essential claim elements. The Rule mandates summary
judgment if the plaintiff then fails to make a sufficient
showing on each of those elements. When Rule 56 shifts the
burden of production to the nonmoving party, "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 Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d
court applies the foregoing standards no differently when
reviewing cross-motions for summary judgment. Lawrence v.
City of Phila., 527 F.3d 299, 310 (3d Cir. 2008).
'"Cross-motions are no more than a claim by each
side that it alone is entitled to summary judgment, and the
making of such inherently contradictory claims does not
constitute an agreement that if one is rejected the other is
necessarily justified or that the losing party waives
judicial consideration and determination whether genuine
issues of material fact exist.'" Id.
(quoting Rains v. Cascade Indus., Inc., 402 F.2d
241, 245 (3d Cir. 1968)). If review of cross-motions reveals
no genuine issue of material fact, then judgment may be
granted in favor of the party entitled to judgment in view of
the law and undisputed facts. Iberia Foods Corp. v.
Romeo, 150 F.3d 298, 302 (3d Cir. 1998) (citation
Analysis and Discussion
argues that the Defendants violated the Eighth
Amendment's prohibition against cruel and unusual
punishment by keeping him in solitary confinement for more
than seventeen years and that the Defendants also denied him
his Fourteenth Amendment due process rights by offering him
no meaningful procedure or process to challenge his
confinement conditions. The Defendants raise several
arguments in opposition to Johnston's claims, including
that Johnston's claims are barred by the applicable
statute of limitations, the record is insufficient to support
a claim under either the Eighth or Fourteenth Amendment, and
that the Defendants are-in any event-entitled to qualified
immunity for any constitutional violation.
Statute of Limitations
commenced this action on November 7, 2016. Defendants contend
that the statute of limitations bars Johnston's claim
under 42 U.S.C. § 1983, at least to the extent he seeks
relief for injury that occurred prior to November 7, 2014,
two years prior to his filing date. Because § 1983
provides no independent statute of limitations, federal
courts look to the most analogous limitations period of the
forum state. Dique v. New Jersey State Police, 603
F.3d 181, 185 (3d Cir.2010) (citing Wallace v. Kato,
549 U.S. 384, 387 (2007)). The United States Court of Appeals
for the Third Circuit has determined that the Pennsylvania
state law claim most analogous to a § 1983 claim is a
personal injury action, which is subject to the
Commonwealth's two-year statute of limitations under 42
Pa. Cons. Stat. Ann.§ 5524. Sameric Corp. of
Delaware, Inc. v. City of Phila., 142 F.3d 582, 599 (3d
Cir. 1988); Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d
Cir. 1993). For purposes of calculating the two-year
limitations period, a § 1983 cause of action typically
accrues, and the statute of limitations commences to run,
"when the plaintiff knew or should have known of the
injury upon which [his] action is based."
Sameric, 142 F.3d at 599. Defendants argue that
Johnston was aware of the conditions of his solitary
confinement for well more than two years before he filed his
lawsuit. Johnston counters that the "continuing
violation" doctrine tolled or extended the limitations
period on his claims.
continuing violation doctrine is an "equitable exception
to the timely filing requirement" that applies
"when a defendant's conduct is part of a continuing
practice." West v. Phila. Elec. Co., 45 F.3d
744, 754 (3d Cir. 1995) (superseded in part by statute,
Lilly Ledbetter Fair Pay Act, Pub. L. No.
111-2, 123 Stat. 5 (2009)). This doctrine allows untimely
actions to be considered timely "so long as the last act
evidencing the continuing practice falls within the
limitations period" by instructing the court to
"grant relief for the earlier related acts that would
otherwise be time barred." Brenner, 927 F.2d at
1295. The Court of Appeals for the Third Circuit has held
that "[t]o prevail on a continuing violation theory,
however, the plaintiff must show more than the occurrence of
isolated or sporadic acts ...." Jewett v. Int'l
Tel and Tel Corp., 53 F.2d 89, 91 (3d Cir. 1981). A
"continuing violation is occasioned by continual
unlawful acts, not continual ill effects from an original
violation." Sandutch v. Muraski, 684 F.2d 252,
254 (3d Cir. 1982) (quoting Ward v. Caulk, 650 F.2d
1144, 1147 (9th Cir. 1981)), abrogated on other grounds
by Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997).
Court should consider three factors when determining whether
a defendant's acts constitute a continuing practice or
sporadic incident: (1) subject matter jurisdiction-whether
the violations constitute the same type of discrimination,
tending to connect them in a continuing violation; (2)
frequency-whether the acts are recurring or more in the
nature of isolated incidents; and (3) degree of
permanence-whether the act had a degree of permanence which
should trigger the plaintiffs awareness of and duty to assert
his/her rights and whether the consequences of the act would
continue even in the absence of a continuing intent to