MILTON v. UNITED STATES DEPARTMENT OF JUSTICE BUREAU OF PRISONS et al

Filing 66

MEMORANDUM (Order to follow as separate docket entry. Signed by Honorable Yvette Kane on 3/28/17. (rw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GREGORY A. MILTON,
Plaintiff
v.
UNITED STATES BUREAU OF
PRISONS, et al.,
Defendants

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No. 1:13-cv-02673
(Judge Kane)

MEMORANDUM
Before the Court are Plaintiff Gregory A. Milton’s motion for reconsideration of this
Court’s December 21, 2015 Order dismissing the complaint for failure to prosecute (Doc. No. 61)
and Defendants’ motion to dismiss and for summary judgment (Doc. No. 33). For the following
reasons, the Court will grant Plaintiff’s motion for reconsideration as unopposed and grant
Defendants’ motion to dismiss and for summary judgment.
I.

BACKGROUND
On January 18, 2013, Plaintiff Gregory A. Milton, an inmate at the United States

Penitentiary at Beaumont, Texas, filed a complaint in the United States District Court for the
District of Columbia against the Federal Bureau of Prisons (“BOP”), and several individuals
employed by that agency pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1977). (Doc. No. 1.) The individuals
named as defendants are as follows: (1) Charles L. Samuels, Jr., former Director of the BOP; (2)
John Doe, Internal Affairs Director of the BOP; (3) John/Jane Does, Internal Affairs Staff;1 (4)

1

Plaintiff alleges that the John and Jane Doe Defendants were deliberately indifferent “to
his complaint that was referred to the Office of Internal Affairs and the Office of Inspector
General.” (See Doc. No. 1 at 8.) This Court’s review of the record reveals Plaintiff has not yet
provided the identities of the John and Jane Doe Defendants. It is clear that Plaintiff has had a
1 

N.L. Norwood, former Director of the Northeast Regional Office of the BOP; (5) Michael Nalley,
former Director of the North Central Regional Office of the BOP; (6) Todd W. Cerney,
Disciplinary Hearing Officer (“DHO”) at the United States Penitentiary at Allenwood, White
Deer, Pennsylvania (“USP-Allenwood”); (7) Carl M. Miedich, DHO at the United States
Penitentiary at Florence, Colorado (“USP-Florence”); (8) George Nye, Lieutenant at USPAllenwood; (9) Craig Johnson, Correctional Officer at USP-Allenwood; (10) M. Reeves,
Correctional Officer at USP-Allenwood; (11) T. Boatman, Correctional Officer at USPAllenwood; and (12) C. Duran-Poland, Correctional Officer at USP-Florence. (Id.)
The complaint asserts claims of denial of due process arising out of three disciplinary
proceedings held at USP-Allenwood and one rehearing proceeding held at USP-Florence. (Id. at
3-8.) (citing Wolff v. McDonnell, 418 U.S. 539 (1974)). First, in January 2011, Plaintiff was
charged with prohibited acts 297 (use of the telephone for abuses other than illegal activity) and
3052 (possession of anything not authorized for retention or receipt by the inmate) (“January 2011
charges”). (Id. at 3.) During the February 22, 2011 disciplinary hearing before Defendant Cerney
on the January 2011 charges, Plaintiff alleges that he was denied the right to call several witnesses,
denied the ability to present evidence, subjected to charges that were enhanced without notice, and
informed that his staff representative, Defendant Johnson, was chastised by Defendant Nye for
providing “too much” assistance as a staff representative. (Id. at 4.) Plaintiff was sanctioned
based on the January 2011 charges. (Id.)

reasonable opportunity to identify the John and Jane Doe Defendants. Those defendants will be
terminated from this action.
2
According to the declaration of Defendant Johnson, at the end of the February 22, 2011
disciplinary hearing, the DHO amended the code 297 charge “to that of ‘Conduct Disruptive to the
Orderly Running of the Facility, most like Possession of a Hazardous Tool, Code 199/108.’” (Doc.
No. 40-1 at 15.) Plaintiff was found to have committed prohibited act 199/108. (Id. at 27.)
2 

Second, Plaintiff was charged on March 3, 2011 with prohibited act 297 (use of the
telephone for abuses other than illegal activity) (“March 2011 charge”). (Id.) Prior to the
corresponding disciplinary hearing before Defendant Cerney, Plaintiff allegedly requested that
certain evidence be presented but his staff representative Defendant Reeves did not respond to the
request and Plaintiff was found to have committed the charge. (Id. at 5.) Third, on June 9, 2011,3
Plaintiff was charged with prohibited acts 299/203 (conduct which disrupts or interferes with the
security or orderly running of the institution) and 305 (possession of anything not authorized for
retention or receipt by the inmate, and not issued to him through regular channels) (“June 2011
charges”). (Id. at 5-6.) As to the June 2011 charges, Plaintiff claims, inter alia, that his staff
representative, Defendant Boatman, failed to obtain most of the evidence he requested in advance
of the disciplinary hearing. (Id.) Plaintiff was found to have committed the 299/203 charge.
Subsequently, after Plaintiff was transferred from USP-Allenwood to USP-Florence, Plaintiff was
granted a rehearing on the June 2011 charges. During the rehearing at USP-Florence before
Defendant Miedich, staff representative Defendant Duran-Poland allegedly failed to obtain
evidence in advance of the rehearing at USP-Florence and Plaintiff was again found to have
committed the 299/203 charge. (See id. at 6; see also Doc. Nos. 40 ¶ 208; 56 at 7.)
In his complaint, Plaintiff also alleges that: (1) Defendant Nye initially hindered his
attempt to file a complaint with the Office of Inspector General and prevented the mailing of a
letter to former United States Attorney General Eric Holder; and (2) Defendants Samuels,
Norwood and Nalley violated his rights by failing to “formally train” staff representatives. (Id. at

3

The complaint states “June 9, 2012” instead of June 9, 2011. Upon review of the record,
it is clear the charges were brought on June 9, 2011. (Doc. No. 40 ¶ 202; 56 at 7.)
3

3 

3, 5-6.) Plaintiff requests nominal and punitive damages from the BOP4 and the individual
defendants. (Id.) He also requests injunctive relief, including the expungement of his disciplinary
record.
On April 4, 2013, the United States District Court for the District of Columbia transferred
the above-captioned action to the United States District Court for the Middle District of
Pennsylvania. (Doc. No. 13.) On January 15, 2015, Defendants filed a motion to dismiss and for
summary judgment. (Doc. No. 33.) A brief in support of that motion, a statement of material
facts, and accompanying evidentiary materials were filed on January 29, 2015. (Doc. Nos. 40,
41.) After granting Plaintiff two extensions of time to respond to Defendants’ motion to dismiss
and for summary judgment (Doc. No. 48; see Doc. No. 51), this Court dismissed Plaintiff’s
complaint for failure to prosecute and for failure to comply with a court order on December 21,
2015 (Doc. Nos. 53, 54).
Thereafter, on December 22, 2015, Plaintiff filed a declaration in opposition and a
“counterstatement of material facts.” (Doc. Nos. 55, 56.) On December 23, 2015, the Court
granted Plaintiff 28 days to file a motion for reconsideration of the Dismissal Order. (Doc. No.
60.) On January 19, 2016, Plaintiff filed a motion for reconsideration. (Doc. No. 61.) Plaintiff
was subsequently granted additional time to file a brief in support on or before June 6, 2016.

4

Plaintiff appears to be suing each Defendant in both the Defendant’s individual and
official capacities. The Federal Government and its agencies are not subject to suit absent a
waiver of sovereign immunity. See FDIC v. Meyer, 510 U.S. 471, 483 (1994); Kentucky v.
Graham, 473 U.S. 159, 166 (1985). Although Bivens recognizes a personal-capacity cause of
action for damages against federal officials for violation of rights protected by the United States
Constitution, Bivens does not operate as a waiver of sovereign immunity for actions against the
United States and its agencies. Id. A Bivens action will lie only against named federal officers or
agents in their personal, individual capacities. Id. Consequently, Plaintiff’s claims for damages
against the BOP and its employees in their official capacities will be dismissed.
4 

(Doc. No. 63.) On June 2, 2016, Plaintiff filed a brief in support of his motion for reconsideration.
(Doc. No. 64.) Defendants have not filed a brief in opposition to Plaintiff’s motion for
reconsideration. Accordingly, Plaintiff’s motion for reconsideration will be granted as unopposed
pursuant to Local Rule 7.6. The Court limits its analysis to the merits of Defendants’ motion to
dismiss and for summary judgment.
II.

LEGAL STANDARD
A.

Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in
whole or in part, for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). Although Federal Rule of Civil Procedure 8(a)(2) requires “only a short and plain
statement of the claim showing that the pleader is entitled to relief,” a complaint may nevertheless
be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it “fail[s] to state a claim upon
which relief can be granted.” See Fed. R. Civ. P. 12(b)(6).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts “to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the pleaded factual content allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at 556). A court must accept as true
all factual allegations in the complaint and all reasonable inferences that can be drawn from them,
viewed in the light most favorable to the plaintiff. See In re Ins. Brokerage Antitrust Litig., 618
F.3d 300, 314 (3d Cir. 2010).

5 

All civil complaints must set out “sufficient factual matter” to show that the claim is
facially plausible, or they risk dismissal. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir. 2009). To determine the sufficiency of a complaint, the United States Court of Appeals for
the Third Circuit has identified the following steps a district court must take when determining the
sufficiency of a complaint under Rule 12(b)(6): (1) identify the elements a plaintiff must plead to
state a claim; (2) identify any conclusory allegations contained in the complaint “not entitled” to
the assumption of truth; and (3) determine whether any “well-pleaded factual allegations”
contained in the complaint “plausibly give rise to an entitlement for relief.” See Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (citation and quotation marks omitted).
B.

Summary Judgment

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). “[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). A factual dispute is material if it might affect the outcome of the suit under the
applicable law, and is genuine only if there is a sufficient evidentiary basis that would allow a
reasonable fact finder to return a verdict for the non-moving party. Id. at 248-49. Thus, where no
material fact is in dispute, the moving party need only establish that it is entitled to judgment as a
matter of law. Id. at 248. Conversely, where there is a dispute as to an issue of material fact, the
moving party must establish that the factual dispute is not a genuine one. Id.

6 

The party moving for summary judgment bears an initial burden of identifying evidence
that it believes demonstrates the absence of a genuine issue of material fact. Conoshenti v. Pub.
Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has carried
this initial burden, “the nonmoving party must come forward with specific facts showing that there
is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986) (internal quotation marks omitted). If the 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 warranted. Celotex, 477 U.S.
at 322. With respect to the sufficiency of the evidence that the non-moving party must provide, a
court should grant summary judgment where the non-movant’s evidence is merely colorable,
conclusory, or speculative. Anderson, 477 U.S. at 249-50. There must be more than a scintilla of
evidence supporting the non-moving party and more than some metaphysical doubt as to the
material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986).
In determining whether there is a genuine issue of material fact, the court must view the
facts and all reasonable inferences in favor of the nonmoving party. Moore v. Tartler, 986 F.2d
682 (3d Cir. 1993); Clement v. Consolidated Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White
v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). In deciding a motion for summary
judgment, the court need not accept allegations that are merely conclusory in nature, whether they
are made in the complaint or a sworn statement. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888
(1990). Moreover, the court’s function is not to make credibility determinations, weigh evidence,

7 

or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply
“determine whether there is a genuine issue for trial.” Id.
III.

DISCUSSION
In their motion to dismiss and for summary judgment, Defendants assert the following

arguments: (1) Plaintiff’s due process claims in connection with the June 2011 charges are barred
by Heck v. Humphrey’s favorable termination rule (Doc. No. 41 at 19); (2) the Court lacks
personal jurisdiction over Defendants Samuels, Nalley, Duran-Poland, and Miedich and the
United States District Court for the Middle District of Pennsylvania is not the proper venue as to
those Defendants (id. at 20);5 (3) respondeat superior cannot form “the basis for Bivens liability
against Defendants Samuels, Nalley and Norwood” (id. at 23); (4) Plaintiff fails to adequately

5

Defendants argue that this Court lacks personal jurisdiction over Defendants Samuels,
Nalley, Duran-Poland, and Miedich. Plaintiff does not address the matter of personal jurisdiction
(Doc. No. 55), and admits the portion of Defendants’ statement of material facts that concerns
personal jurisdiction (Doc. No. 56 at 7). “If an issue is raised as to whether a court lacks personal
jurisdiction over a defendant, the plaintiff bears the burden of showing that personal jurisdiction
exists.” Marten v. Godwin, 499 F.3d 290, 295-96 (3d Cir. 2007) (citing Gen. Elec. Co. v. Deutz
AG, 270 F.3d 144, 150 (3d Cir. 2001)). Here, as to specific jurisdiction, the allegations Plaintiff
raises against Defendants Duran-Poland and Miedich all relate to when Plaintiff was housed in
Colorado at USP-Florence. (See Doc. No. 1 at 1, 6.) As for Defendant Samuels, Plaintiff’s
allegations concern the training of staff representatives in general, not with contacts that relate to
or arise out of out of the Commonwealth of Pennsylvania. (Id. at 8.) Second, as to general
jurisdiction, the parties do not dispute that Defendants Duran-Poland and Miedich do not reside,
work, have business dealings, or own property in Pennsylvania. (Doc. No. 40 ¶¶ 211-214; 56 at
7.) There is also no dispute that Defendant Samuels “did not reside, work, or own property” in
Pennsylvania at any time period alleged in the complaint. (Doc. No. 40 ¶¶ 215-216; 56 at 7.)
Although Plaintiff has not satisfied its burden of showing that personal jurisdiction exists, the
Court declines to transfer the above-captioned action as to Defendants Samuels, Duran-Poland and
Miedich because, even if personal jurisdiction existed, Plaintiff’s claims against Defendant DuranPoland and Miedich will be dismissed pursuant to the favorable termination rule and Plaintiff’s
claims against Defendant Samuels and Nalley will be dismissed for failure to adequately allege
supervisory liability.

8 

allege a First Amendment denial of access to the courts claim (id. at 25); (5) Plaintiff was not
denied due process in the preparation and conduct of the disciplinary proceedings in connection
with the January 2011 and March 2011 charges (id. at 27); and (6) Defendants are entitled to
qualified immunity (id. at 32). The Court first addresses whether Plaintiff’s due process claims
relating to the June 2011 charges are barred by Heck v. Humphrey’s favorable termination rule.
A.

Favorable Termination Rule

Defendants argue that Plaintiff’s Fifth Amendment due process claims relating to the June
2011 charges are barred by the favorable termination rule. (Doc. No. 41 at 19-20.) Plaintiff does
not address the favorable termination rule in his declaration in opposition (Doc. No. 55), and
admits to the section of Defendants’ statement of material facts relating to the June 2011 charges
(Doc. No. 56 at 7).
In Heck v. Humphrey, the United States Supreme Court held, in pertinent part, as follows:
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983.
512 U.S. 477, 486-87 (1994) (footnote omitted). In Edwards v. Balisok, the Supreme Court
extended Heck “to prison disciplinary sanctions, holding that a prisoner cannot bring a suit under
§ 1983 where the success of that suit would ‘necessarily imply the invalidity of the deprivation of
his good-time credits.’” Schreane v. Seana, 506 F. App’x 120, 123 (3d Cir. 2012) (quoting
Edwards v. Balisok, 520 U.S. 641, 646-48 (1997)). The Heck rule also applies to “requests for

9 

equitable and declaratory relief” and to claims asserted under Bivens. Id. (internal citations
omitted).
Here, Plaintiff challenges the July 28, 2011 disciplinary hearing at USP-Allenwood before
Defendant Cerney and the April 5, 2012 disciplinary rehearing at USP-Florence before Defendant
Miedich. (See Doc. No. 1 at 5-6.) The two hearings were conducted in connection with the June
2011 charges against Plaintiff. (Id.) Specifically, Plaintiff alleges that Defendant Boatman failed
to assist him in obtaining evidence before July 28, 2011 hearing and that Defendant Duran-Poland
failed to obtain information for April 5, 2012 rehearing. (See id. at 5-6.) Plaintiff seeks money
damages from Defendants and “injunctive relief in the form of expungement of his disciplinary
record.” (Id. at 8-9.)
Upon review of the record, there is no dispute that the July 28, 2011 hearing and the April
5, 2012 rehearing resulted in the loss of twenty seven days of good conduct time. (Doc. No. 40 ¶¶
204, 209; 56 at 7.) Accordingly, Plaintiff’s claims that relate to the June 2011 charges necessarily
imply the “the invalidity of the punishment imposed” because (1) Plaintiff challenges two
disciplinary proceedings that resulted in the loss of good time credits, see Schreane, 506 F. App’x
at 123; (2) the “loss of good conduct time affects the duration of [Plaintiff’s] confinement”
Wilkins v. Bittenbender, No. 06-2827, 2007 WL 708993, at *1 (3d Cir. Mar. 7, 2007) (citing
Edwards, 520 U.S. at 646-48)). Plaintiff’s appeals of the April 5, 2012 rehearing were denied
(Doc. Nos. 40 ¶ 210; 56 at 7), and Plaintiff has not come forward with evidence showing that the
hearings have since been found unlawful or otherwise invalidated. Therefore, Plaintiff’s Fifth

10 

Amendment due process claims related to the June 2011 charges are barred under Heck and will
be dismissed. See Schreane, 506 F. App’x at 123.
In accordance with Third Circuit’s jurisprudence, the Court will dismiss Plaintiff’s due
process challenge, regarding the June 2011 charges, without prejudice to Plaintiff challenging his
“loss of his good time credits through the filing of a federal habeas corpus petition pursuant to 28
U.S.C. § 2241.” Schreane, 506 F. App’x at 123. However, the Court declines to grant Plaintiff
leave to amend to reassert his due process challenge in an amended complaint as futile and, as a
consequence, will dismiss Defendants Boatman, Duran-Poland, and Miedich whose conduct
alleged in the complaint was limited to either the July 28, 2011 disciplinary hearing or the April 5,
2012 disciplinary rehearing. (See Doc. No. 1 at 6.)
B.

Access to the Courts and Mail Tampering

Defendants also argue that Plaintiff’s complaint fails to adequately allege a denial of
access to the courts claim. (Doc. No. 41 at 25.) Defendants contend that Plaintiff failed to allege
“an actual injury as he does not identify any legal matter that was obstructed or negatively
impacted due to the alleged ‘tampering’ or ‘delay’ of the mail at issue.” (Id. at 26.)
The Third Circuit has held that prisoners “‘do not forfeit their First Amendment right to
use of the mails,’ and that a ‘pattern and practice of opening properly marked incoming [legal]
mail outside an inmate’s presence infringes communication protected by the right to free speech.’”
Jones v. Brown, 461 F.3d 353, 358 (3d Cir. 2006) (quoting Bieregu v. Reno, 59 F.3d 1445, 1452
(3d Cir. 1995)). However, “courts have also found that mere isolated incidents of opening legal
mail outside of an inmate’s presence, without evidence of an improper motive, [are] insufficient to

11 

establish a First Amendment violation.” Booze v. Wetzel, No. 1:13-CV-2139, 2016 WL 4191041,
at *4 (M.D. Pa. Apr. 5, 2016) (Carlson, M.J.) (collecting cases).
Here, in his complaint, Plaintiff alleges that Defendant Nye prevented the mailing of a
letter to former United States Attorney General Eric Holder. The complaint also asserts that
Defendant Nye “initially hindered” the mailing of a separate letter to the Office of Inspector
General (“OIG”). (Doc. No. 1 at 6-7.) The Court will dismiss Plaintiff’s claims related to the
alleged prevention or hindering of the mailing of two letters for two reasons. First, if the Court
were to construe Plaintiff’s claims as asserting a violation of his mail privileges and to accept the
allegations as true, Plaintiff’s claims fail to adequately allege a First Amendment violation. Edney
v. Haliburton, 658 F. App'x 164, 167 (3d Cir. 2016) (“An isolated incident of mail tampering is
generally insufficient to state a First Amendment violation.”) (citing Davis v. Goord, 320 F.3d
346, 351 (2d Cir. 2003)). Plaintiff’s allegation that one letter was prevented from being sent and
that a second letter was “initially hindered” does not permit this Court to reasonably infer the
existence of a pattern or practice of mail interference. Davis, 320 F.3d at 351.
Second, if the Court were to infer that both letters were legal mail and that Plaintiff seeks
to allege a denial of access to the courts claim, Plaintiff’s allegations do not survive Rule 12(b)(6)
because Plaintiff has failed to allege that the interferences caused an actual injury. See Watson v.
Sec’y Pennsylvania Dep’t of Corr., 567 F. App’x 75, 77-78 (3d Cir. 2014) (“A prisoner making an
access-to-the-courts claim is required to show that the denial of access caused actual injury.”).
Plaintiff does not identify a legal claim or preceding that was negatively impacted by the alleged
interference. (Doc. No. 1 at 6-7.) In fact, the OIG appears to have received the “initially

12 

hindered” letter because Plaintiff alleges that the OIG apparently referred the matter to the BOP’s
Office of Internal Affairs. (See id.) Accordingly, the Court will dismiss Plaintiff’s claims related
to the alleged interference with Plaintiff’s mail for failure to state a claim and deny Plaintiff leave
to amend his claims related to the two letters as futile.6
C.

Misconduct Charges and Disciplinary Hearings.

The Court next turns to Plaintiff’s allegations that Defendants Nye, Johnson, Reeves and
Cerney violated Plaintiff’s due process rights in connection with the January 2011 and March
2011 charges. Defendant maintains that Plaintiff was afforded due process during the two
disciplinary hearings at USP-Allenwood corresponding to the January 2011 and March 2011
charges. (Doc. No. 41 at 31.) Plaintiff asserts that he “was not allowed the protections of his
Wolff rights” (Doc. No. 1 at 4),7 and responds, in his declaration in opposition, that he “was not
allowed to present witnesses or documentary and video evidence he sought to be presented
through his Rep[resentative] or otherwise” (Doc. No. 55).
An inmate “facing the deprivation of a constitutionally cognizable liberty interest
following an administrative hearing has a due process right to certain procedural protections.

6

For the foregoing reasons, even if the Court were to assume both letters were legal mail
and to accept that one letter was prevented from being mailed and a second letter was delayed in
its mailing, the Court is unpersuaded that Plaintiff could cure the pleading defects in his First
Amendment mail tampering or First Amendment denial of access to the courts claim.
7
Plaintiff also alleges that his rights under Brady were violated by Defendants Johnson,
Reeves, Boatman, Duran-Poland, Cerney, Miedich, and Nye. (Doc. No. 1 at 7.) Upon review of
the case law, the Court is unpersuaded that Brady applies to prison disciplinary hearings. See,
e.g., Kenney v. Barron, 239 F. App’x 494, 495 (11th Cir. 2007) (“We have never held that the
principles of Brady extend to prison disciplinary hearings . . . .); Wise v. Carpenter, 838 F.2d 469
(4th Cir. 1988) (“Brady's broad disclosure requirements simply cannot be reconciled with the
needs and exigencies of the institutional environment.”).

13 

Specifically, at a prison disciplinary hearing, due process requires that the inmate: (1) appear
before an impartial decision-making body; (2) be given not less than 24 hours written notice of the
charges against him; (3) be afforded the opportunity to call witnesses and present documentary
evidence; (4) be permitted assistance from an inmate representative; and (5) receive a written
decision explaining the decision-maker’s conclusions.” Crosby v. Piazza, 465 F. App’x 168, 17172 (3d Cir. 2012) (citing Wolff v. McDonnell, 418 U.S. 539, 563-71 (1974)). “However, an
inmate’s due process rights are not triggered unless the prison ‘imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.’” Id. (quoting Sandin v.
Conner, 515 U.S. 472, 484 (1995)).
“Lesser restraints on a prisoner’s freedom are deemed to fall ‘within the expected
perimeters of the sentence imposed by a court of law.’” Mitchell v. Horn, 318 F.3d 523, 531 (3d
Cir. 2003) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). For example, courts within this
Circuit have found no merit in procedural due process claims involving disciplinary segregation.
See Smith v. Messinger, 293 F.3d 641, 653 (3d Cir. 2002) (seven months in disciplinary
segregation is insufficient to trigger a due process violation); Griffin v. Vaughn, 112 F.3d 703,
706-708 (3d Cir. 1997) (no liberty interest avoiding fifteen month placement in administrative
custody because said confinement was not atypical); see also Ayers v. Campbell, 267 F. App’x
176, 177 (3d Cir. 2008) (loss of privileges, including visitation, for eight months not an atypical
and significant hardship).
First, as to the January 2011 charges, Plaintiff’s was accused of the use on 18 occasions of
a cell phone which was surreptitiously introduced into the prison. (See Doc. No. 40 ¶¶ 15-16, 19;

14 

see Doc. No. 56 at 2.) The parties do not dispute that Defendant Cerney imposed sixty days
disciplinary segregation, twenty-four months loss of telephone privileges, and twenty-four months
loss of email privileges. (Doc. Nos. 40 ¶ 93; 40-1 at 27; 56 at 5.) In fact, Plaintiff responds that
“[a]lthough Plaintiff was sanctioned with sixty (60) days disciplinary segregation, he was never
placed in the Special Housing Unit (SHU) and was released back to general population.” (Doc.
No. 56 at 5.) There is no dispute that Plaintiff was not sanctioned with a loss of good time credits
in connection with the January 2011 charges. (Doc. No. 40-1 at 71.)
Second, as to the March 2011 charge, Plaintiff was accused of soliciting another inmate to
call an individual and pass information on Plaintiff’s behalf to that individual. Similarly, as to that
charge, Plaintiff admits that he received thirty days disciplinary segregation, six months loss of
telephone privileges and six months loss of email privileges. (Doc. No. 40 at 31; Doc. No. 56 at
7.) There is no dispute that Plaintiff was not sanctioned with a loss of good time credits in
connection with the March 2011 charge. (Doc. No. 40-1 at 99.) Therefore, as a matter of law,
Plaintiff’s due process rights were not triggered by the disciplinary segregation, loss of telephone
privileges, and loss of email privileges Plaintiff received for the January 2011 and March 2011
charges because those sanctions do not impose atypical and significant hardship on Plaintiff. See,
e.g., Passe v. Grondolsky, No. 09-1209, 2010 WL 1539821, at *7 (D.N.J. Apr. 14, 2010).
Alternatively, even if Plaintiffs’ due process rights were triggered, there is no dispute that
Plaintiff: (1) appeared before “impartial decision-making body;” (2) received written notice of the
January 2011 and March 2011 charges twenty-four hours prior to the hearing (Doc. Nos. 40 ¶¶ 4041; 40-1 at 37, 66, 68, 97; 56 at 4; 56-1 at 34); (3) was permitted assistance from staff

15 

representatives Johnson and Reeves; and (4) received a written statement detailing the evidence
and reasons for the disciplinary sanctions (Doc. Nos. 40 ¶¶ 100-104, 198-201; 56 at 5, 7).
As to Plaintiff’s opportunity to call witnesses and present evidence, there is a dispute about
Plaintiff’s request, prior to the February 22, 2011 hearing, that Defendant Johnson call witnesses
and acquire copies of surveillance videos. (Doc. Nos. 40 ¶¶ 21-31, 37, 44-47, 54-55; 55 at 2-3; 56
at 2-3.) Specifically, Plaintiff asserts that he was denied his request to call as witnesses the
eighteen or nineteen “unknown” persons “he allegedly called on the cell phone.” (See Doc. No.
56 at 2, 4.) Plaintiff also states that he requested in writing a copy of the surveillance videos and
the appearance of Defendant Nye as a witness. (Id. at 2.) In his declaration, Defendant Johnson
stated that he does “not recall” Plaintiff requesting “‘19 unknown’ witnesses to appear” and that
Plaintiff’s surveillance video request was overly broad and irrelevant. (Doc. No. 40-1 at 12-13.)
“Although Wolff affords inmates an opportunity to call witnesses in their defense, it does
not guarantee them the unfettered right to call any witness or present any evidence they wish,
regardless of its relevance or necessity.” Reyes v. Zickefoose, No. 1:14-CV-1065, 2016 WL
26053, at *4 (M.D. Pa. Jan. 4, 2016) (Jones, J.) (citing Wolff, 418 U.S. at 566-67). BOP’s policy
provides the “DHO will call witnesses who have information directly relevant to the charge(s) and
who are reasonably available.” See 28 C.F.R. § 541.8.f.2. Therefore, the Court finds no genuine
issue of material fact over whether Plaintiff was afforded procedural protections under Wolff,
given the lack of relevance of calling nineteen unknown individuals, the lack of necessity of
obtaining copies of surveillance videos, and the lack of necessity of calling Defendant Nye as a
witness when his “statement was adequately summarized in the incident report” Defendant Nye

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wrote. (Doc. Nos. 40 ¶¶ 69-70; 40-1 at 38-41.) Accordingly, summary judgment will be entered
in favor of Defendants Nye, Johnson, Reeves, and Cerney on Plaintiff’s due process claims
relating to the January 2011 and March 2011 charges.
D.

Personal Involvement of Defendants Samuels, Nalley and Norwood.

The Court next turns to Defendants’ argument that Defendants Samuels, Nalley and
Norwood had insufficient personal involvement. Plaintiff responds that there “is a material
dispute as to the fact that there is no training program for staff reps charged with assisting federal
inmates with the exercise of their due process rights under Wolff v. McDonnell and BOP
policy.” (Doc. No. 55 at 3.)
“[C]ourts have frequently held that, in the absence of evidence of supervisory knowledge
and approval of subordinates’ actions, a plaintiff may not maintain an action against supervisors
based upon the misdeeds of their subordinates.” Mutschler v. Downs, No. 3:15-CV-02015, 2016
WL 4689048, at *4 (M.D. Pa. Mar. 21, 2016). “It is also well-settled in the Third Circuit that
personal involvement of defendants in alleged constitutional deprivations is a requirement in a
civil rights case and that a complaint must allege such personal involvement.” Maxton v. Pigos,
No. 1:13-CV-1213, 2013 WL 2896839, at *3 (M.D. Pa. June 12, 2013) (citing Sutton v. Rasheed,
323 F.3d 236, 249-250 (3d Cir. 2003)).
Here, Plaintiff seeks to impose liability on Defendants Samuels, Nalley and Norwood
based on their alleged “decision not to formally train any particular BOP employee concerning
their legal duty as a staff rep in a DHO proceeding” and based on the contention that their “callous
and reckless disregard of the supervisory authority in the BOP” resulted in staff representatives not

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knowing their duties. (Doc. No. 1 at 8.) Plaintiff’s complaint fails adequately allege that
Defendants Samuels, Nalley and Norwood were personally involved in the alleged constitutional
violations.
Accordingly, this Court will dismiss Plaintiff’s claims against Defendants Samuels, Nalley
and Norwood for failure to adequately allege their supervisory liability. The Court will also
decline to grant Plaintiff leave to amend his complaint given that Plaintiff has failed to
successfully allege any constitutional violation against the individual, subordinate Defendants.
See Cardenas v. Lewis, 66 F. App’x 86, 90 (9th Cir. 2003) (citing Quintanilla v. City of Downey,
84 F.3d 353, 355 (9th Cir. 1996)).
IV.

CONCLUSION
For the foregoing reasons, the Court will grant Plaintiff’s motion for reconsideration as

unopposed and grant Defendants’ motion to dismiss and for summary judgment.

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