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Johnston v. Wetzel

United States District Court, W.D. Pennsylvania

December 27, 2019

NORMAN JOHNSTON, Plaintiff
v.
JOHN WETZEL, SECRETARY OF THE PENNSYLVANIA DOC and MICHAEL OVERMYER, SUPERINTENDENT SCI FOREST

          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.

         I. Introduction

         The 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 claim.
• 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 essentially meaningless.
• 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 are not.[1]

         II. Material Facts

         The 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.[2] 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.[3] Id. at ¶ 14.

         Upon 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.[4] 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.

         Johnston 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 ¶ 43.

         Between 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.[5] 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 772.

         In or 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.[6] ECF No. 52, ¶ 114.

         III. Procedural History

         Johnston 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.

         On May 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).

         IV. Summary Judgment Standard

         Federal 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).

         When 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).

         Further, 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 Cir. 1992).

         The 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 omitted).

         V. Analysis and Discussion

         Johnston 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.

         A. Statute of Limitations

         Johnston 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.

         The 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).

         The 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 ...


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