Jackson v. Beard et al

Filing 140

MEMORANDUM (Order to follow as separate docket entry) For the reasons discussed above, Remaining Defendants motion for summary judgment (Doc. 120) is granted. An appropriate Order will enter.re 120 MOTION for Summary JudgmentSigned by Honorable Richard P. Conaboy on 3/24/15. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

RONALD JACKSON,

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Plaintiff
v.
JEFFREY BEARD, ET AL.,
Defendants

CIVIL NO. 3:CV-09-2129
(Judge Conaboy)

_________________________________________________________________
MEMORANDUM
Background
This pro se civil rights action pursuant to 42 U.S.C. §
1983 was filed by

Ronald Jackson (Plaintiff), an inmate presently

confined at the State Correctional Institution, Huntingdon,
Pennsylvania (SCI-Huntingdon).

An eighty-five (85) page at times

repetitive and illegible Amended Complaint (not including exhibits)
was subsequently filed.

See Doc. 66.

By Memorandum and Order dated September 12, 2011, this Court
granted a motion to dismiss the Amended Complaint filed by
Defendant Physician’s Assistant (PA) Kristen Barbacci.
86.

See Doc.

Remaining Defendants include Secretary Jeffrey Beard, Chief

Grievance Officer Dorina Varner, former Chief Grievance Officer
Cindy Watson, Office of Professional Responsibility Director James
Barnacle, and Hearing Examiner Kristen Reisinger of the
Pennsylvania Department of Corrections (DOC).
Plaintiff is also proceeding against the following employees
at his prior place of confinement, the State Correctional
Institution, Camp Hill, Pennsylvania (SCI-Camp Hill): ex1

Superintendents John Palakovich and Donald Kelchner; ex-Deputy
Superintendent Richard Southers; Major John Horner; Unit Manager
Chris Chambers; Psychological Services Specialist Edward Kalsky;
Captain Leggore; Lieutenants Klinedinst, Kazur, McNeal, McElwain,
and Simms; Sergeants Swift, Jones, Taylor, Warner, and Eger; and
Correctional Officers (COs) Bridwell, Hartman, Brant, Huber,
Gerber, Spieles, Weis, Bickert, Clark, Gemberling, Martz, Liddick,
and Flinn.
According to the Amended Complaint, Plaintiff was
transferred from the State Correctional Institution, Graterford,
Pennsylvania (SCI-Graterford) to SCI-Camp Hill on or about October
3, 2007.1

Upon his arrival, Jackson was placed in the prison’s

Special Management Unit (SMU).2

Thereafter a purported conspiracy

of SCI-Camp Hill SMU officials allegedly retaliated against the
Plaintiff for his initiation of lawsuits and grievances at SCIGraterford. See Doc. 66, p. 5.
Jackson initially claims that retaliatory actions committed
by a conspiracy of SMU officials made it “nearly impossible” to
pursue a criminal appeal and civil litigation.

See Doc. id., p. 6.

Specifically, it is alleged that Correctional Officers Martz and
Huber confiscated some of Plaintiff’s personal legal and non-legal
property upon his arrival at the prison.

It is also asserted that

those two Defendants subjected him to verbal harassment and

1. Jackson indicates that he was transferred from SCI-Camp Hill on
or about March 9, 2009. See Doc. 66, p. 5.
2.

The SMU houses prisoners who are disruptive and or violent.
2

interfered with his legal mail.3

See id. at p. 15-16.

On the day

he was transferred from SCI-Camp Hill, March 9, 2009, Plaintiff was
subjected to a further retaliatory loss of property.

See id. at p.

10.
Plaintiff next describes multiple instances of retaliatory
deprivation of meal trays and being served with adulterated food,
actions which allegedly caused the inmate to suffer significant
weight loss.

See id. at pp. 18-22, 25.

Jackson was also

purportedly placed in an unsanitary SMU cell with a leaking toilet,
no linen, a blinking security light, no cleaning supplies, with no
shoes or clothes but a jumpsuit.

See id. at pp. 9, 12, 69-71.

Plaintiff additionally indicates that he was not provided with
adequate recreation, showers, or access to the mini-law library.
On or about January 26, 2009, Plaintiff states that he was
sprayed with a chemical agent for refusing a cell search.

Jackson

indicates that he was also issued a false misconduct charge as a
result of that incident, and he received other alleged false
disciplinary charges for events which transpired on March 25, 2008,
April 15, 2008, November 16, 2008, and December 2, 2008.
at pp. 10, 28, 29, 34-35.

See id.

Jackson adds that he was denied due

process during the resulting disciplinary proceedings as well as
with respect to his institutional grievances.

There are also

claims that he was subjected to retaliatory cell searches (see id.
at p. 25) and excessive force (see id. at pp. 30, 64-67, 75-76, 80-

3. The Amended Complaint includes additional assertions of verbal
harassment attributed to other Defendants.
3

81).4

Finally, there is a claim that Defendant Kolsky failed

and/or refused to perform a psychological evaluation of the
Plaintiff’s mental instability.

See id. at pp. 82-85.

Presently pending is the Remaining Defendants’ motion
requesting entry of summary judgment.

See Doc. 120.

A review of

the docket shows that although Plaintiff was granted an extension
of time in which to file an opposing brief as well as permission to
file an opposing brief which exceeded the fifteen (15) page limit,
an opposing brief and counter statement of material facts have not
been filed.
Discussion
Standard of Review
Summary judgment is proper 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 a judgment as a matter of law.”

Fed. R. Civ.

P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d
Cir. 2001).

A factual dispute is “material” if it might affect the

outcome of the suit under the applicable law.
Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty

A factual dispute is

“genuine” only if there is a sufficient evidentiary basis that
would allow a reasonable fact-finder to return a verdict for the

4. The Amended Complaint also includes allegations that there was
deliberate indifference to his medical needs. See Doc. 66, p. 5253. However, none of the Remaining Defendants were on the prison’s
medical staff and the claims are directed against PA Barbacci or a
non-defendant, PA Jonsey.
4

non-moving party.

Id. at 248.

The court must resolve all doubts

as to the existence of a genuine issue of material fact in favor of
the non-moving party.

Saldana, 260 F.3d at 232; see also Reeder v.

Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Unsubstantiated arguments made in briefs are not considered
evidence of asserted facts.

Versarge v. Township of Clinton, 984

F.2d 1359, 1370 (3d Cir. 1993).
Once the moving party has shown that there is an absence of
evidence to support the claims of the non-moving party, the nonmoving party may not simply sit back and rest on the allegations in
its complaint.
(1986).

See Celotex Corp. v. Catrett, 477 U.S. 317, 324

Instead, it must “go beyond the pleadings and by [its] own

affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is
a genuine issue for trial.”

Id. (internal quotations omitted); see

also Saldana, 260 F.3d at 232 (citations omitted).

Summary

judgment should be granted where a 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.”

Celotex, 477 U.S. at 322-23.

“‘Such affirmative evidence

– regardless of whether it is direct or circumstantial – must
amount to more than a scintilla, but may amount to less (in the
evaluation of the court) than a preponderance.’”

Saldana, 260 F.3d

at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458,
460-61 (3d Cir. 1989)).

5

As noted above, Jackson has not filed either an opposing
brief or an opposing statement of material facts.

In fact, the

Plaintiff has not responded in any manner whatsoever to the pending
summary judgment motion nor has he sought an enlargement of time in
which to do so.
Once the moving party has satisfied its burden of
identifying evidence which demonstrates an absence of a genuine
issue of material fact, see Childers v. Joseph, 842 F.2d 689, 694
(3d cir. 1988), the nonmoving party is required by Federal Rule of
Civil Procedure 56(e) to go beyond the pleadings by way of
affidavits, depositions, answers to interrogatories or the like in
order to demonstrate specific material facts which give rise to a
genuine issue.

Celotex, 477 U.S. at 324.

In relevant part, Rule

56(e) states in relevant part :
If a party fails to properly support an assertion of
fact or fails to properly address another party’s
assertion of fact as required in Rule 56(c), the
court may:
(2) consider the fact undisputed for purposes of the
motion;
(3) grant summary judgment if the motion and
supporting materials–-including the facts
considered undisputed–-show the movant is entitled
to it;
When Rule 56(e) shifts the burden of proof to the nonmoving party,
that party must produce evidence to show the existence of every
element essential to its case which it bears the burden of proving
at trial. Celotex, 477 U.S. at 324.

If, however, "the evidentiary

matter in support of the motion does not establish the absence of a
genuine issue, summary judgment must be denied even if no opposing
6

evidentiary matter is presented." Advisory Committee Notes to
F.R.C.P. 56(e)(1963 Amend.).
Local Rule 56.1 similarly provides that all material facts
set forth in the statement of material facts required to be served
by the moving party will be deemed to be admitted unless
controverted by the statement required to be served by the opposing
party.
Official Capacities
Remaining Defendants’ initial argument contends that the
claims for monetary damages against them in their official
capacities must fail.

See Doc. 133, p. 28.

The Eleventh Amendment bars all suits against a state and
its agencies in federal court that seek monetary damages.

Walker

v. Beard, 244 Fed. Appx. 439, 440 (3d Cir. 2007); see also A.W. v.
Jersey City Public Schools, 341 F.3d 234, 238 (3d Cir. 2003).
Likewise, suits brought against state officials acting in their
official capacities are to be treated as suits against the
employing government agency.

Will, 491 U.S. at 70-71; Garden State

Elec. Inspection Serv. v. Levin, 144 Fed. Appx. 247, 251 (3d Cir.
2005).

As such, Jackson’s damage claims brought against the

Remaining Defendants in their official capacities are considered to
be against the state itself and are barred by the Eleventh
Amendment.5
5.
To the extent that Plaintiff is seeking injunctive relief
against the individual defendants in their official capacities,
such requests are not barred by the Eleventh Amendment. See
Pennsylvania Federation of Sportsmen’s Clubs, Inc. v. Hess, 297
(continued...)
7

Personal Involvement
Remaining Defendants’ second argument contends that
Plaintiff has not sufficiently alleged personal involvement in
constitutional misconduct by DOC Defendants Secretary Beard, Chief
Grievance Officer Varner, Director Barnacle, and former Chief
Grievance Officer Watson, as well as SCI-Camp Hill Defendants exSuperintendents Palakovich and Kelchner, ex-Deputy Superintendent
Southers, Major Horner, Captain Leggore, Sergeant Taylor, and CO
Clark.6

See Doc. 133, p. 29.
The summary judgment motion maintains that there are no

factual allegations asserted against Defendants Horner or Clark in
the Amended Complaint.

Second, the claims against Southers,

Barnacle, Leggore, Kelchner, Palakovich, Varner and Watson are
solely and inadequately based upon their handling of Jackson’s
institutional grievances.

With respect to Barnacle and Leggore, it

is argued that those two officials failed to properly investigate a
complaint lodged by Jackson.

As previously noted the arguments of

non-personal involvement are unopposed.
A plaintiff, in order to state an actionable § 1983 civil
rights claim, must plead two essential elements:

(1) that the

conduct complained of was committed by a person acting under color
of state law, and (2) that said conduct deprived the plaintiff of a

5. (...continued)
F.3d 310, 323 (3d Cir. 2002).
6. While the caption of Remaining Defendants’ argument indicates
that it is being asserted in part on behalf of Sergeant Taylor, the
body of the argument is silent with respect to said defendant.
8

right, privilege, or immunity secured by the Constitution or laws
of the United States.

See Groman v. Township of Manalapan, 47 F.3d

628, 638 (3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d
1135, 1141-42 (3d Cir. 1990).
Furthermore, federal civil rights claims brought under §
1983 cannot be premised on a theory of respondeat superior.
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Rode

Rather, each

named defendant must be shown, via the complaint's allegations, to
have been personally involved in the events or occurrences which
underlie a claim.

See Rizzo v. Goode, 423 U.S. 362 (1976); Hampton

v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976).

As

explained in Rode:
A defendant in a civil rights action must have
personal involvement in the alleged wrongs. . .
. [P]ersonal involvement can be shown through
allegations of personal direction or of actual
knowledge and acquiescence. Allegations of
participation or actual knowledge and
acquiescence, however, must be made with
appropriate particularity.
Rode, 845 F.2d at 1207.
Inmates also do not have a constitutional right to a prison
grievance system.

See Jones v. North Carolina Prisoners Labor

Union, 433 U.S. 119, 137-138 (1977); Speight v. Sims, No. 08-2038,
2008 WL 2600723, at *1 (3d. Cir. Jun 30, 2008)(citing Massey v.
Helman, 259 F.3d 641, 647 (7th Cir. 2001)(“[T]he existence of a
prison grievance procedure confers no liberty interest on a
prisoner.”) Consequently, any attempt by Plaintiff to establish
liability against the Warden solely based upon the substance or
9

lack of response to his institutional grievances does not by itself
support a constitutional due process claim.

See also Alexander v.

Gennarini, 144 Fed. Appx. 924, 925 (3d Cir. 2005)(involvement in
post-incident grievance process not a basis for § 1983 liability);
Pryor-El v. Kelly, 892 F. Supp. 261, 275 (D.D.C. 1995) (because
prison grievance procedure does not confer any substantive
constitutional rights upon prison inmates, the prison officials'
failure to comply with grievance procedure is not actionable).
Although the handwritten lengthy Amended Complaint is at
times difficult to decipher, this Court agrees that there are no
factual assertions set forth therein against either Defendant
Horner or Defendant Clark.

Accordingly, under the standards

announced in Rode, those two Defendants are entitled to entry of
dismissal.7
This Court also agrees that the claims asserted against
Secretary Beard, Chief Grievance Officer Varner, Director Barnacle,
and former Chief Grievance Officer Watson, as well as SCI-Camp Hill
Defendants ex-Superintendents Palakovich and Kelchner, ex-Deputy
Superintendent Southers, and Captain Leggore are based upon either
their respective supervisory capacities within the DOC or prison,
or their handling of grievances and complaints filed by Jackson.
Under either approach, there is no basis for § 1983 liability.

The

7. This conclusion is bolstered by Plaintiff’s failure to address
the lack of personal involvement argument.
10

unopposed request that those eight (8) Defendants are entitled to
entry of summary judgment will be granted.8
Administrative Exhaustion
Remaining Defendants next assert that summary judgment
should be granted in favor of Defendants Psychological Services
Specialist Kalsky, Lieutenant Simms, Sergeants Warner and Eger, and
COs Spieles and Gemberling on the basis of non-exhaustion of
administrative remedies.

See Doc. 133, p. 36.

They contend that Plaintiff did not file any grievances
regarding (1) the condition of his initial SMU cell which
implicates Defendant Spieles; (2) his mental health treatment claim
against Defendant Kasky; (3) cell searches and property
confiscations which allegedly occurred during October-November,
2007, February 15, March 18, March 28, May 19, July 26, or July 30,
2008; or January 15, 2009; and (4) the November 20, 2007 incident
during which tobacco juice was spit in his cell by a correctional
officer.

See id. at p. 34.

It is also asserted that Jackson failed to file grievances
to final review regarding his claims of: (1) confiscation of
personal property in June, 2008; (2) mail tampering including the
claims against Defendants Simms, Eger, Spieles, Warner, and
Gemberling; and (3) denial of access to the courts.

See id.

Section 1997e(a) of title 42 U.S.C. provides:

8. Given that the eighty (80) page handwritten Amended Complaint
is often difficult to read, if Plaintiff can point to any factual
allegation showing personal involvement by those officials, he may
seek reconsideration of this determination.
11

No action shall be brought with respect to
prison conditions under Section 1979 of
the Revised Statutes of the United States
(42 U.S.C. 1983), or any other federal
law, by a prisoner confined in any jail,
prison, or other correctional facility
until such administrative remedies as are
available are exhausted.
Section 1997e(a) requires administrative exhaustion
“irrespective of the forms of relief sought and offered through
administrative avenues.”

Porter v. Nussle, 122 S.Ct. 983, 992

(2002); Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001).

Claims

for monetary relief are not excused from the exhaustion
requirement.

Nyhuis v. Reno, 204 F.3d 65, 74 (3d Cir. 2000).

Dismissal of an inmate’s claim is appropriate when a prisoner has
failed to exhaust his available administrative remedies before
bringing a civil rights action.
2d 838, 843 (E.D. Pa. 2000).

Ahmed v. Sromovski, 103 F. Supp.

“[E]xhaustion must occur prior to

filing suit, not while the suit is pending.”

Tribe v. Harvey, 248

F.3d 1152, 2000 WL 167468, at *2 (6th Cir. 2000)(citing Freeman v.
Francis, 196 F.3d 641, 645 (6th Cir. 1999)); Oriakhi v. United
States, 165 Fed. Appx. 991, 993 (3d Cir. 2006).
An inmate is not required to specifically plead or
demonstrate exhaustion in his or her complaint.
549 U.S. 199, 216 (2007);

See Jones v. Bock,

see also Ray v. Kertes, 285 F.3d 287 (3d

Cir. 2002)(a prisoner does not have to allege in his complaint that
he has exhausted administrative remedies).

Rather, pursuant to the

standards announced in Williams v. Runyon, 130 F.3d

568, 573 (3d

Cir. 1997), it is the burden of a defendant asserting the defense

12

of non-exhaustion to plead and prove it.9

The United States

Supreme Court in Jones noted that the primary purpose of the
exhaustion requirement is to allow prison officials to address
complaints before being subjected to suit, reducing litigation to
the extent complaints are satisfactorily resolved, and improving
litigation that does occur by leading to the preparation of a
useful record.
The administrative exhaustion mandate also implies a
procedural default component.
(3d Cir. 2004).

Spruill v. Gillis 372 F.3d 218, 222

As explained by the Third Circuit Court of

Appeals, a procedural default rule “prevents an end-run around the
exhaustion requirement.”

Id. at 230.

It also ensures “prisoner

compliance with the specific requirements of the grievance system”
and encourages inmates to pursue their administrative grievances
“to the fullest.”

Id.

Similarly, the Supreme Court has observed

that proper exhaustion of available administrative remedies is
mandatory, meaning that prisoners must comply with the grievance
system’s procedural rules, including time limitations.

Woodford v.

Ngo, 548 U.S. 81 (2006).
A Consolidated Inmate Grievance Review System has been
established by the DOC.10

Section V of DC-ADM 804 (effective

December 8, 2010) states that “every individual committed to its

9.
In Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003), the
United States Court of Appeals for the Third Circuit similarly
stated that “[f]ailure to exhaust administrative remedies is an
affirmative defense for the defendant to plead.”
10.

The DOC’s grievance system has been periodically amended.
13

custody shall have access to a formal procedure through which to
seek the resolution of problems or other issues of concern arising
during the course of confinement.”

It adds that the formal

procedure shall be known as the Inmate Grievance System and
provides a forum of review and two (2) avenues of appeal.

Section

VI ("Procedures") of DC-ADM 804 provides that, after attempted
informal resolution of the problem, a written grievance may be
submitted to the Facility Grievance Coordinator within fifteen (15)
working days after the events upon which the claims are based, but
allowances of extensions of time will be granted under certain
circumstances.
An appeal from the Grievance Coordinator's Initial Review
decision may be made in writing within ten (10) working days to the
Facility Manager or Superintendent.

A final written appeal may be

presented within fifteen (15) working days to the Secretary’s
Office of Inmate Grievances and Appeals (SOIGA).

A prisoner, in

seeking review through the DOC grievance system, may include
reasonable requests for compensation or other legal relief normally
available from a court.

However, an improperly submitted grievance

will not be reviewed.
In support of their non-exhaustion argument, Remaining
Defendants have submitted a declaration under penalty of perjury by
SOIGA Grievance Review Officer Tracy Williams.

See Doc. 131-7.

Williams states that with respect to the claims raised in this
action, Plaintiff filed a total of fifty-one (51) grievances,
thirty (30) of which were appealed to SOIGA.
14

See id. at ¶ 15.

Twenty (20) of the Plaintiff’s SOIGA appeals were considered on
their merits and as such were fully exhausted.
However, the remaining ten (10) final SOIGA appeals were
rejected without a merits consideration for failure of Jackson to
provide required documentation or being untimely, illegible or
overly broad.

Copies of the relevant DOC policies, administrative

appeals by Jackson, and the administrative dispositions of the
Plaintiff’s grievances and appeals have also been submitted for
review.
A review of the undisputed record, especially the
declarations submitted under penalty of perjury by non-defendant
correctional officials, shows that the Remaining Defendants have
satisfied their burden under Williams of establishing that
Jackson’s allegations against Defendants Psychological services
Specialist Kalsky, Lieutenant Simms, Sergeants Warner and Eger, COs
Spieles and Gemberling were not administratively exhausted and that
there is no basis for a determination that exhaustion should be
excused.
The Amended Complaint generally claims that all of
Plaintiff’s pending claims were exhausted.

Jackson does not

contend that he was denied access to the administrative remedy
process and has not demonstrated any basis as to why he should be
excused from the exhaustion requirement.

However, the Plaintiff

has not opposed this summary judgment argument or otherwise
contradicted the supporting evidence of non-exhaustion.

Plaintiff

has equally failed to satisfy his summary judgment obligation of

15

coming forward with affirmative evidence to establish a genuine
issue of material fact with respect to the issue of whether there
was failure to comply with the exhaustion requirement.
Pursuant to the standards set forth in Rule 56(e) and Local
Rule 56.1, entry of summary judgment in favor of Remaining
Defendants Psychological Services Specialist Kalsky, Lieutenant
Simms, Sergeants Warner and Eger, COs Spieles and Gemberling on the
basis of non-exhaustion of administrative remedies is warranted.
See DiGiacomo v. Singleton, 402 Fed. Appx. 679, 681 (3d Cir.
2010)(in opposing summary judgment supported by affidavits nonmoving party may not rely on allegations in his own pleading but
rather by affidavits or as otherwise provided Rule 56(e) must set
out specific facts showing a genuine issue for trial); Clark v.
Clabaugh, 20 F.3d 1290, 1294

(3d Cir. 1994)(Rule 56(e) makes clear

that a nonmoving party is required to present more than mere
allegations in their pleadings when opposing a properly supported
summary judgment motion).
Retaliation
Plaintiff contends that he was subjected to retaliatory cell
searches/confiscations of property and falsified disciplinary
reports.

The Remaining Defendants next argue that those

allegations do not set forth a viable retaliation claim because
Jackson has failed to show a connection between his exercise of a
protected right and the purported retaliatory actions.
133, p. 37.

16

See Doc.

To establish a Section 1983 retaliation claim, a plaintiff
bears the burden of satisfying three (3) elements.

First, a

plaintiff must prove that he was engaged in a constitutionally
protected activity.
2001).

Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.

Second, a prisoner must demonstrate that he “suffered some

‘adverse action’ at the hands of prison officials.”

(Id.)(quoting

Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)).

This

requirement is satisfied by showing adverse action “sufficient ‘to
deter a person of ordinary firmness’ from exercising his First
Amendment rights.”
235 (3d Cir. 2000)).

(Id.)(quoting Suppon v. Dadonna, 203 F.3d 228,
Third, a prisoner must prove that “his

constitutionally protected conduct was ‘a substantial or motivating
factor’ in the decision to discipline him.”

Rauser, 241 F.3d at

333-34(quoting Mount Healthy Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977)).
The mere fact that an adverse action occurs after either a
complaint or grievance is filed is relevant, but not dispositive,
for the purpose of establishing a causal link between the two
events.
2005).

See Lape v. Pennsylvania, 157 Fed. Appx. 491, 498 (3d Cir.
Only where the facts of a particular case are “unusually

suggestive” of a retaliatory motive will temporal proximity,
standing alone, support an inference of causation.

Krouse v.

American Sterlizer Co., 126 F.3d 494, 503 (3d Cir. 1997).
Once Plaintiff has made a prima facie case, the burden
shifts to Defendants to prove by a preponderance of the evidence
that they “would have made the same decision absent the protected
17

conduct for reasons reasonably related to penological interest.”
Carter v. McGrady, 292 F.3d 152, 158 (3d. Cir. 2002)(internal
quotation and citation omitted).

When analyzing a retaliation

claim, it must be recognized that the task of prison administrators
and staff is difficult, and the decisions of prison officials
require deference, particularly where prison security is concerned.
Rauser, 241 F.3d at 334.
As noted in Allah, a prisoner litigating a retaliation claim
need not prove that he had an independent liberty interest in the
privileges that he was denied.

Thus, the relevant inquiry is not

whether the alleged retaliatory conduct was unconstitutional.

On

the contrary, Plaintiff only needs to establish that he was
subjected to adverse action in retaliation for his engagement in
constitutionally protected conduct.
Remaining Defendants argue that the Amended Complaint does
not present facts which could arguably support a claim under Rauser
that the SCI-Camp Hill Defendants intentionally subjected him to
adverse actions as a consequence for pursuing a constitutionally
protected activity, filing a lawsuit, while he was previously
confined at SCI-Graterford. See Doc. 133, p. 39.

Based upon a

review of the Amended Complaint, this Court agrees that Jackson has
failed to set forth facts which could adequately support a claim
that he was being retaliated against for initiating a lawsuit
before he was transferred to SCI-Rockview.

As pointed out by a

declaration submitted under penalty of perjury by Remaining
Defendant Huber, he was not aware of any lawsuits initiated by

18

Jackson at SCI-Graterford prior to the prisoner’s arrival at SCICamp Hill.

See Doc. 131-4, ¶ 15.

Additionally a declaration by SMU Unit Manager Chambers
states that neither he nor any member of his staff were advised of
any litigation initiated by Jackson at SCI-Graterford when he
arrived at the prison.

See Doc. 131-1, ¶ 31.

Chambers adds that a

copy of Plaintiff’s transfer petition which accompanied the inmate
from SCI-Graterford also provided no information regarding
Plaintiff’s involvement in litigation against official at his
former place of incarceration.

See id.

The United States Supreme Court in Hudson v. Palmer, 468
U.S. 517 (1984), established that inmates have no privacy rights in
their cells, consequently, there is no constitutional prohibition
against prison officials conducting unauthorized cell searches.
Id. at 525-26; Rambert v. Durant, No. Civ. A. 95-5636, 1996 WL
253322 *2 (E.D. Pa. May 10, 1996); Gilmore v. Jeffes, 675 F. Supp.
219, 221 (M.D. Pa. 1987).

However, it has also been held that

while the Fourth Amendment's prohibition on unreasonable searches
does not apply in prison cells, it does not mean that searches
which constitute "calculated harassment unrelated to prison needs"
are permissible.

Hudson, 468 U.S. at 530; Prisoners' Legal Ass'n

v. Roberson, 822 F. Supp. 185, 189 (D.N.J. 1993); Proudfoot v.
Williams, 803 F. Supp. 1048, 1051 (E.D. Pa. 1992) (stating that
searches conducted for “calculated harassment” may constitute an
Eighth Amendment violation).

"Nor does it mean that prison

19

attendants can ride roughshod over inmates' property rights with
impunity."

Hudson 468 U.S. at 530.

Remaining Defendants have also submitted a copy of the SCICamp Hill SMU policy as well as Unit Manager Chambers’ declaration
which provides that because of their assaultive and disruptive
backgrounds SMU inmates are strip searched each time they leave
their cells and on their return.

They are also moved to another

cell every ninety (90) days, are limited to the amount of property
they can possess in their cell at one time, subject to random
security searches every thirty (30) days and security inspections
every day and every time the inmate leaves the cell.

See Doc.131-

1. ¶ 17.
In addition to not opposing this summary judgment argument,
Plaintiff does not allege any facts showing that he was subjected
to more cell searches, body searches, cell reassignments, or held
to a more stringent code of conduct than his fellow SMU prisoners.
Based upon the undisputed supporting evidence submitted by
Remaining Defendants, their unopposed request for entry of summary
judgment with respect to those assertions of retaliation will be
granted.
An alleged false misconduct charge does not by itself
qualify as a violation of the Eighth Amendment.

See Booth v.

Pensce, 354 F. Supp.2d 553, 558-59 (E.D. Pa. 2005).

Rather, due

process is satisfied when an inmate is afforded to be heard and to
defend against an allegedly falsified or baseless misconduct

20

charge.

See Smith v. Mensinger, 293 F.3d 641, 653-54 (3d Cir.

2002).
The filing of a disciplinary charge, although not otherwise
actionable under § 1983, is actionable if done in retaliation for
an inmate's filing of a grievance pursuant to established
procedures.

Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989);

see also Newsom v. Norris, 888 F.2d 371, 377 (6th Cir. 1989)
(filing of false disciplinary charges is not a constitutional
violation unless charges were filed in retaliation for the exercise
of a constitutional right).
Once again, the undisputed declarations under of penalty by
SCI-Camp Hill SMU correctional staff show that any disciplinary
actions taken against the Plaintiff were not a retaliatory measure
but rather due to the fact that Plaintiff’s conduct was often in
violation of SMU procedure and prison rules.

As noted by Unit

Manager Chambers at the time of his arrival at SCI-Camp Hill on
October 3, 2007 the Plaintiff already had accumulated disciplinary
custody time extending to July 19, 2008.11

See Doc. 131-1, ¶ 29.

Thereafter, Plaintiff continued to verbally harass and threaten
correctional staff, refuse orders, and make inappropriate at times
obscene physical gestures towards staff.

As a result, he was

issued 15 misconduct charges while in the SCI-Camp Hill SMU.

For

instance, declarations under penalty of perjury by CO Jared Weis
(Doc. 131-12) and Kimberly Sensenig (Doc. 131-18) provide that they

11. DOC Chief Hearing Examiner/Assistant Counsel Jaime Boyd states
that Plaintiff had received 58 misconduct charges prior to his
placement in the SCI-Camp Hill SMU. See Doc. 131-13, ¶ 21.
21

each separately issued Jackson misconduct charges for using abusive
language and refusing to obey an order.
Based upon the undisputed records and declarations submitted
by Remaining Defendants, a viable claim of retaliatory falsified
misconduct charges has not been stated and their unopposed summary
judgment argument will be granted.
Grievance/Misconduct Procedures
The summary judgment motion next contends that any due
process claim relating to the disposition of institutional
grievances by the Remaining Defendants including Unit Manager
Chambers must fail because the inmate did not enjoy a
constitutional right to a grievance procedure.
43.

See Doc. 133, p.

They additionally argue any claims against Hearing Examiner

Reisinger based on her handling of Plaintiff’s misconduct hearing
must also fail.

See id.

As previously discussed herein, this Court agrees that
prisoners have no constitutionally protected right to a grievance
procedure.

See Jones, 433 U.S. at 137-38 (1977)(Burger, C.J.,

concurring) (“I do not suggest that the [grievance] procedures are
constitutionally mandated.”); Speight, No. 08-2038, 2008 WL 2600723
at *1.

Although prisoners do have a constitutional right to seek

redress of their grievances from the government, that right is the
right of access to the courts which is not compromised by the
failure of prison officials to address an inmate’s grievance.

See

Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (federal grievance
regulations providing for administrative remedy procedure do not

22

create liberty interest in access to that procedure).

Pursuant to

those decisions, any attempt by Plaintiff to establish liability
based upon the handling of his administrative grievances or
complaints does not support a constitutional claim.

See

also Alexander, 144 Fed. Appx. at 925 (involvement in post-incident
grievance process not a basis for § 1983 liability); Pryor-El, 892
F. Supp. at 275.
With respect to the due process claims against Hearing
Examiner Reisinger, the Fourteenth Amendment prohibits the states
from depriving “any person of life, liberty, or property, without
due process of law.” U.S. Const. amend. XIV, § 1.

In order to

determine whether a due process violation has occurred, an initial
determination must be made that a protected liberty interest exists
and, if so, the next step is to define what process is mandated to
protect it.

See

Sandin v. Conner, 515 U.S. 472, 484 (1995).

A

protected liberty interest may be created by either the Due Process
Clause itself or by state law.

Id.

Due process requirements apply

only when the prison officials’ actions impose “an atypical and
significant hardship on the inmate in relation to the ordinary
incidents of prison life.”

Id. at 484.

Conversely, there can be

no due process violation where there is no protected liberty
interest.
The Supreme Court in Sandin stated that "[d]iscipline by
prison officials in response to a wide range of misconduct" is
expected as part of an inmate's sentence.

Sandin, 515 U.S. at 485.

The Third Circuit Court of Appeals relying on the Sandin principles

23

has found no merit in due process claims presented regarding short
term institutional disciplinary custody placement.

See Torres v.

Fauver, 292 F.3d 141, 150-51 (3d Cir. 2002)(placement in
segregation as a disciplinary sanction did not implicate a
protected liberty interest); Smith v. Mensinger, 293 F.3d 641, 645,
654 (3d Cir. 2002)(seven (7) months of disciplinary confinement did
not implicate liberty interest).
Likewise, the Court of Appeals for the Third Circuit in
Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997) applied Sandin and
concluded that placement in administrative custody without any type
of due process hearing for a period of fifteen (15) months was not
an atypical and significant hardship.

The Court of Appeals

elaborated that the inmate's "commitment to and confinement in
administrative custody did not deprive him of a liberty interest
and that he was not entitled to procedural due process protection."
Id. at 708.

It added that the prisoner’s prolonged confinement in

administrative custody was not cruel and unusual punishment.
at 709.

Id.

Moreover, an inmate placed in administrative custody

pursuant to a legitimate penological reason could "be required to
remain there as long as that need continues."

Id.

Upon his arrival at SCI-Camp Hill, Plaintiff was already
serving disciplinary custody time.

As noted earlier, DOC Chief

Hearing Examiner/Assistant Counsel Jaime Boyd states that Plaintiff
received 58 misconduct charges prior to even being placed in the
SCI-Camp Hill SMU.

See Doc. 131-13, ¶ 21.

A declaration under

penalty of perjury by DOC Chief Hearing Examiner/Assistant Counsel

24

Jaime Boyd provides that while in the SCI-Camp Hill SMU Plaintiff
received 15 additional misconduct charges.

See Doc. 131-13, ¶ 21.

Defendant Reisinger presided over 12 of those misconduct
proceedings.12

The total period of disciplinary custody imposed be

Reisinger with respect to those matters was 885 days.
Although 885 days admittedly represents a prolonged period
of disciplinary custody, in Young v. Beard, 227 Fed. Appx. 138, 141
(3d Cir. 2007), the Court of Appeals for the Third Circuit
concluded that an aggregate sanction of 930 days in disciplinary
custody was within acceptable constitutional parameters.

Moreover,

given that the sanctions were imposed as the result of 12 separate
disciplinary charges against a prisoner who amassed a staggering 73
misconducts while incarcerated, the amount of disciplinary custody
time imposed is not excessive under Sandin and Young.
Moreover, Plaintiff has not sufficiently presented facts
showing that he was subject to conditions in disciplinary
confinement that satisfy the Sandin requirement.

Based upon those

factors and Plaintiff’s failure to oppose this summary judgment
argument, this Court finds that the Remaining Defendants are
entitled to entry of summary judgment with respect to Jackson’s
claims that he was subjected to improper placements in both the SMU
for either disciplinary or administrative reasons because the
magnitude of his disciplinary placement did not implicate a

12. Three of Jackson’s disciplinary proceedings during the
relevant time period were presided over by other hearing examiners.
25

protected liberty interest.13

The request for entry of summary

judgment with respect to the due process claims will be granted.
Access to the Courts
Plaintiff alleges that upon his arrival at SCI-Camp Hill
several items of personal legal materials were improperly
confiscated.

It is also alleged that there was interference with

his legal mail, his access to the SMU mini-law library was
restricted and that other items of legal materials were taken,
damaged, or read during subsequent periodic cell searches.

Jackson

vaguely indicates that he required the confiscated materials in
order to properly pursue a criminal appeal as well as a civil

13. Moreover, based upon a review of the undisputed record,
Hearing Examiner Reisinger’s actions satisfied the requirement
Wolff v. McDonnell, 418 U.S. 539, 563-73 (1974), and
Superintendent, Massachusetts Correctional Inst. at Walpole v.
Hill, 472 U.S. 445, 453-56 (1985).
In Wolff, the Supreme Court recognized that "prison
disciplinary proceedings are not part of a criminal prosecution,
and the full panoply of rights due a defendant in such proceedings
does not apply." Id. at 556. Nonetheless, the Supreme Court held
that a prisoner facing serious institutional sanctions is entitled
to some procedural protection before penalties can be imposed. Id.
at 563-71. The Supreme Court set forth five requirements of due
process in a prison disciplinary proceeding: (1) the right to
appear before an impartial decision-making body; (2) twenty-four
hour advance written notice of the charges; (3) an opportunity to
call witnesses and present documentary evidence, provided the
presentation of such does not threaten institutional safety or
correctional goals; (4) assistance from an inmate representative,
if the charged inmate is illiterate or if complex issues are
involved; (5) a written decision by the fact finders as to the
evidence relied upon and the rationale behind their disciplinary
action. Id. An additional procedural requirement was set forth in
Hill--the Court held that there must be some evidence which
supports the conclusion of the disciplinary tribunal.
26

rights action which he filed regarding aspects of his prior
confinement at SCI-Graterford.14
Remaining Defendants assert that any injury suffered by
Plaintiff to any litigation effort “was due to his own failure.”
Doc. 133, p. 46. They add that the undisputed record shows that the
Plaintiff himself destroyed some of his own legal papers in an
effort to hinder a cell extraction.

Moreover, there are no facts

alleged which could establish that the actions attributed to any
Remaining Defendant caused Plaintiff to suffer an injury to a nonfrivolous legal effort.

As noted above, Jackson has not opposed

this argument.
Prisoners enjoy a constitutional right of meaningful access
to the law libraries, legal materials, or legal services.
v. Smith, 430 U.S. 817, 821-25 (1977).

Bounds

Inmates have a right to

send and receive legal mail which is uncontroverted and implicates
both First and Sixth Amendment concerns, through the right to
petition the government and the right of access to the courts.
"When legal mail is read by prison employees, the risk is of a
'chill,' rendering the prisoner unwilling or unable to raise
substantial legal issues critical of the prison or prison
employees."

Proudfoot v. Williams, 803 F. Supp. 1048, 1052 (E.D.

Pa. 1992).
The United States Supreme Court in Lewis v. Casey, 518 U.S.
343, 351-54 (1996), clarified that an inmate plaintiff, in order to

14. Jackson indicates that he lost two key defendants in his civil
rights action because of the October 18, 2007, confiscation of a
legal envelope.
27

set forth a viable claim under Bounds, must demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded.

A

plaintiff must also allege an actual injury to his litigation
efforts.

Under the standards mandated by Lewis, in order for an

inmate to state a claim for interference with his legal work, he
must demonstrate that he has suffered actual injury.

See Oliver v.

Fauver, 118 F.3d 175, 177-78 (3d Cir. 1997)(concluding that Lewis
effectively requires a showing of actual injury where interference
with legal mail is alleged).
A declaration under penalty of perjury by Property Officer
Adam Huber provides that SMU inmates are only allowed to retain one
box of written materials in their cells.

See Doc. 131-4, ¶ 4.

The

remaining property must be placed in four record center boxes of
property which are held in the SMU storage room.
also only permitted to store up to 10 books.

SMU prisoners are

Any excess property

is either mailed out or destroyed.
Huber states that upon Plaintiff’s arrival at the SCI-Camp
Hill SMU his property was inventoried.

Inmate Jackson was in

possession of items that were deemed to be contraband including tax
forms, altered playing cards, a broken television antenna, and an
excessive amount of books.15

Huber avers that no religious or legal

materials were confiscated.

See id. at ¶ 25.

15. It was also determined that he had excess sneakers and
toilerty items. As a result a pair of his sneakers were
confiscated and at Jackson’s direction were destroyed. See id. at
¶ 18.
28

It is undisputed that when he arrived at SCI-Camp Hill,
Plaintiff had a civil rights action, Jackson v. Beard, No. 07-CV2164, pending in the United States District Court for the Eastern
District of Pennsylvania.

He also had a criminal appeal, Jackson

v. DiGuglielmo, No. 07-1066,

pending in the United States Court of

Appeals for the Third Circuit.
Jackson was housed in the SCI-Camp Hill SMU from October 3,
2007, to March 9, 2009.

A review of the docket from his Eastern

District civil rights case shows that during said period Plaintiff
made multiple filings in that matter, including a July 18, 2008,
submission of an amended complaint.16

Jackson’s action remained

pending in the eastern District until September 29, 2009, and there
is no indication that he suffered any adverse action as a result of
any of the actions attributed to the Remaining Defendants in this
action.

This determination is bolstered by the fact that Plaintiff

has not even opposed the pending summary judgment motion.
Second, with respect to the federal court challenge to his
criminal conviction, Jackson’s request for a certificate of
appealability was dismissed by the Third Circuit Court of Appeals
on October 2, 2007, on the basis that his action was an
unauthorized second or successive habeas corpus petition.

Since

this adverse decision was entered the day before Jackson even
entered the SCI-Camp Hill SMU, the requirements of Lewis were
clearly not satisfied.

Based upon an application of Lewis to the

undisputed facts, the unopposed request for summary judgment will

16.

See Doc. 131-6.
29

be granted with respect to Plaintiff’s denial of access to the
courts claims.
Excessive Force
Remaining Defendants’ next argument maintains that they are
also entitled to entry of summary judgment in regards to the
assertions of excessive force since the force exercised against the
Plaintiff was appropriate under the circumstances and because
Jackson suffered little to no injury.

See Doc. 133, p. 48.

A correctional officer's use of force in order to constitute
cruel and unusual punishment, must involve the "unnecessary and
wanton infliction of pain."
(1986).

Whitley v. Albers, 475 U.S. 312, 319

“It is obduracy and wantonness, not inadvertence or error

in good faith, that characterize[s] that conduct prohibited by the
Cruel and Unusual Punishment Clause, whether the conduct occurs in
connection with establishing conditions of confinement, supplying
medical needs, or restoring official control over a tumultuous
cellblock.”

Id.

In a later ruling, the United States Supreme Court
recognized that the use of force may constitute cruel and unusual
punishment even if the prisoner does not sustain "significant"
injuries.

Hudson v. McMillian, 503 U.S. 1, 9 (1992).

The core

judicial inquiry is “whether force was applied in a good faith
effort to maintain or restore discipline or maliciously and
sadistically to cause harm.”

Fuentes v. Wagner, 206 F.3d 335, 345

(3d Cir.), cert. denied, 531 U.S. 821(2000); Brooks v. Kyler, 204
F.3d 102, 106 (3d Cir. 2000)(even a de minimis use of force, if

30

repugnant to the conscience of mankind, may be constitutionally
significant).

As explained in Fuentes:

Resolution of an Eighth Amendment claim
therefore “mandate[s] an inquiry into a
prison official’s state of mind.” Wilson
v. Seiter, 501 U.S. 294, 299, 111 S. Ct.
2321, 115 L. Ed. 2d 271 (1991). Two
considerations define that inquiry. We
must first determine if the deprivation
was sufficiently serious to fall within
the Eighth Amendment’s zone of
protections. Id. at 298, 111 S. Ct. 2321.
If not, our inquiry is at an end.
However, if the deprivation is
sufficiently serious, we must determine if
the officials acted with a sufficiently
culpable state of mind. Id. In other
words, we must determine if they were
motivated by a desire to inflict
unnecessary and wanton pain. “What is
necessary to establish an ‘unnecessary and
wanton infliction of pain. . .’ varies
according to the nature of the alleged
constitutional violation.” Hudson v.
McMillan, 503 U.S. 1, 5, 112 S. Ct. 995,
117 L. Ed. 2d 156 (1992).
206 F.3d at 344.
Remaining Defendants acknowledge that on January 20, 2009,
force was used against the Plaintiff because he refused numerous
orders to allow officers to handcuff him so that he could be
removed from his cell for a security cell search.
49.

See Doc. 133, p.

Specifically, after the use of a negotiator failed, pepper

spray was used against Jackson.

As a result, Plaintiff complied

with orders to be handcuffed and was walked to a medical cell where
he refused medical treatment.

The prisoner displayed no visible

signs of injury other than eye redness.

In support of their

summary judgment request, they have submitted a videotape which
documented the incident.

See Doc. 131, App. Exhibit 11.
31

The use of mace-type sprays by correctional officials has
been found to be constitutionally acceptable under certain
circumstances.

See Banks v. Mozingo, 423 Fed. Appx. 123, 126

(3d

Cir. 2011); Travillion v. Leon, 248 Fed. Appx. 3563 (3d Cir. 2007).
Based upon the undisputed facts of this matter, notably the
videotape evidence, the responding correctional staff was faced
with a situation involving a prisoner with a history of disruptive
behavior and which required an immediate response.

As such, and

noting that it is undisputed that Plaintiff was housed in the SMU,
had a lengthy history of disciplinary infractions, and was being
persistently uncooperative, this Court concurs that Plaintiff was a
prisoner who required cautious treatment.
Second, the responding correctional officers initially
attempted to verbally resolve the situation.

It is also noted that

the use of chemical agents was not prolonged or excessive.
Furthermore, there is no claim or facts establishing that Plaintiff
suffered any injury as a result of the employment of chemical
agents.
Given those undisputed circumstances, and Plaintiff’s
failure to address this argument, there is simply no factual
support for a claim under Whitley and Fuentes that the undisputed
limited use of pepper spray was motivated by a desire to inflict
unnecessary and wanton pain.

Rather, the limited application of

pepper spray was clearly a good faith effort and reasonable
response to a potentially dangerous situation which did not rise to
the level of a constitutional excessive force violation.

32

Remaining Defendants also acknowledge that on April 17,
2008, the Plaintiff was removed from a disciplinary hearing by COs
Bridwell, Blosser, and Brant after he began spitting pieces of a
styrofoam tray at or near a correctional officer.
50.

See Doc. 133, p.

The only injury allegedly suffered by Jackson was a bleeding

wrist which was examined by a nurse who noted that the inmate had
no injuries.
A declaration under penalty of perjury by Major Paul Leggore
(Doc. 131-16) states that he conducted an investigation into the
incident.

Leggore states that the Plaintiff refused to provide a

statement and that he interviewed all of the COs who were involved
as well as Hearing Examiner Barrett who was also present.

All of

those individuals denied witnessing or using excessive force.

See

id. at ¶ 17.
A misconduct report prepared by CO Bidwell states that
during the April 17, 2008, disciplinary hearing, he noticed that
Plaintiff had something in his mouth and ordered him to spit it
out, the Plaintiff spit out an apple stem and continued to spit at
Bidwell and CO Blosser who was also present.

When he refused to

obey an order to stop spitting at the two officers, he was escorted
from the hearing.

See id. at Exhibit A.

Institutional medical

records submitted by Remaining Defendants show that Jackson was
examined by RN Minnich who reported no bleeding or noticeable
injury.

See id. at Exhibit B.
In addition, the Plaintiff refused to provide Security

Officer Soto with a statement regarding the incident.

33

See id. at

Exhibit C.

It is further noted that Plaintiff has not opposed the

Remaining Defendants’ argument.

Based upon those considerations

this Court also concludes that entry of summary judgment is
appropriate with respect to the April 17, 2008 incident.
Conditions of Confinement
Jackson was housed in the SCI-Camp Hill SMU from October 3,
2007, to March 9, 2009.

Plaintiff raises multiple claims of

retaliatory deprivation of meal trays and being served with
adulterated food.

See Doc. 66,

pp. 18-22, 25.

Jackson was also

purportedly housed in an unsanitary SMU cell which had a leaking
toilet, no linen, a blinking security light, no cleaning supplies,
with no shoes or clothes.

See id. at pp. 9, 12, 69-71. Plaintiff

additionally indicates that he was not provided with adequate
recreation, showers, or access to the mini-law library.
Remaining Defendants contend that Jackson himself was
responsible for any missed meals.

See Doc. 133, p. 52.

Moreover,

any SMU cells in which the Plaintiff was housed were cleaned prior
to his placement.

Jackson was also provided with a clean SMU

jumpsuit, footwear, linens, and a mattress.

Finally, any

restrictions on privileges and items imposed against the Plaintiff
were due to SMU regulations or were put in place for a temporary
period of time after the Plaintiff committed disciplinary
infractions.

See id. at p. 53.

The Eighth Amendment’s prohibition of cruel and unusual
punishment imposes duties on prison officials to provide prisoners
with the basic necessities of life, such as food, clothing,

34

shelter, sanitation, medical care and personal safety.
v. Brennan, 511 U.S. 825, 832 (1994).

See Farmer

Prison conditions may amount

to cruel and unusual punishment if they cause “unquestioned and
serious deprivations of basic human needs ... [that] deprive
inmates of the minimal civilized measure of life’s necessities.”
Tillman v. Lebanon County Correctional Facility, 221 F.3d 410 (3d
Cir. 2000).
A declaration under penalty of perjury by Unit Manager
Chambers provides that for security reasons SMU prisoners change
cells every 90 days and they are also subject to frequent cell
searches.

See Doc. 131-1.

Chambers adds that upon his arrival

Plaintiff was placed in the SMU because he had outstanding
disciplinary custody time to serve.

The cell Plaintiff was

initially housed in “was clean, the cell water was on, and the sink
and toilet were operational.”

Id. at ¶ 33.

Chambers adds that although Plaintiff claims that he was
denied meals, it is the inmate himself who refused numerous meals
throughout his SMU confinement by either failing to stand at his
cell door with his cell light on when his meals were delivered as
required by SMU policy or by verbally refusing meals.
When Plaintiff refused several consecutive meals, he refused
to state his reasons for doing so to Chambers.

After a one week

period of refusing meals, during which he was evaluated by a staff
physician, the inmate began eating again.
While in the SMU Plaintiff was issued 15 misconduct charges.
As a result of his continued disruptive behavior including threats

35

towards staff and other prisoners, Plaintiff was placed on
recreation, showering, cell cleaning and shaving restrictions for
temporary periods at various times.

The videotape evidence

submitted by the Remaining Defendants clearly shows that the
Plaintiff was fully clothed while in the SMU.
It is noted that the Eighth Amendment does not require that
prisoners be afforded frequent or comfortable showers.

See Veteto

v. Miller, 829 F. Supp. 1486, 1496 (M.D. Pa. 1992)(deprivation of
showers during period of placement in administrative detention
found not to be Eighth Amendment violation); Briggs v. Heidlebaugh,
No. Civ. A. 96-3884, 1997 WL 318081, at *3 (E.D. Pa. 1997)(denial
of showers for two weeks is not a constitutional violation;
DiFilippo v. Vaughn, No. Civ. A. 95-909, 1996 WL 355336, at *5
(E.D. Pa. 1996)(Eighth Amendment does not require that prisoners be
afforded frequent or comfortable showers).

Accordingly,

Plaintiff’s vague assertion that his showering privileges were at
times curtailed does not rise to the level of a constitutional
violation.
Second, the denial of recreation for thirteen days does not
amount to cruel and unusual punishment.
F.2d 1093, 1096 (8th Cir. 1989).

Knight v. Armontrout, 878

The halting of recreation during

emergency lock downs “not objectively serious enough to warrant
constitutional protection.”
(3d Cir. 2007).

Bacon v. Minner, 229 Fed. Appx. 96, 99

Based upon an application of the Knight and Bacon

reasoning, short term

denial of recreational privileges does not

rise to the level of a viable constitutional violation.

36

It has also been recognized that “continuous exposure to
low wattage night time security lighting may be permissible based
on legitimate security concerns.”
0033, 2009 WL 3147800, at *23

Sims v. Piazza, No. 3:09-CV-

(M.D. Pa. Sept. 28, 2009)(Kosik,

J.); King v. Frank, 371 F. Supp. 2d 977, 984-85 (W.D. Wisc. 2005).
Similarly, in Brown v. Martinez, Civ. No. 3:CV-03-2392, 2007 WL
2225842, at *8

(M.D. Pa. July 31, 2007), it was concluded that the

presence of a 15 watt security night light in a prisoner’s cell
was necessary for night time institutional security and thus did
not give rise to a constitutional violation.
Finally, in Blount v. Folino, Civ. A. No. 10-697, 2011 WL
2489894, at *13 (W.D. Pa. June 21, 2011), the district court
concluded “service of food on unsanitary trays does not present an
unreasonable risk of harm” as required to set forth a valid
constitutional claim.

Likewise the use of eating utensils that

were not properly washed does not constitute cruel and unusual
punishment.

See Blaxton v. Boca Grande Foods, No. 4:08cv350-WS,

2008 WL 4888852, at *2 (N.D. Fla. Nov. 12, 2008).

Moreover, prison

officials cannot be held responsible when an inmate refuses to
accept a meal.

It is also noted that undisputed prison records

clearly contradict Plaintiff’s claim that he suffered substantial
weight loss while in the SMU.

Moreover, the images of Plaintiff in

the submitted videotape evidence do not reflect that he was
emaciated.
Based upon an application of the above standards to the
undisputed facts, the unopposed summary judgment will be granted.
37

For the reasons set forth above the totality of the circumstances
of the Plaintiff’s SMU incarceration during the relevant time
period did not include such serious deprivations of basic human
needs as to set forth a viable claim of being subjected to
unconstitutional conditions of confinement.

Jackson’s vague

assertions that he was subjected to unconstitutional conditions
while housed in the SCI-Camp Hill SMU will not be allowed to
proceed given the substantial evidence submitted by the Remaining
Defendants.
Conspiracy
The final summary judgment argument contends that the
Amended Complaint makes only a conclusory claim of conspiracy.
Doc. 133, p. 53.

See

Since there are no facts asserted showing any

agreement in furtherance of the alleged constitutional violation,
Remaining Defendants conclude that a viable conspiracy claim has
not been stated.

Once again, it is noted that this argument is

unopposed.
In order to set forth a cognizable conspiracy claim, a
plaintiff cannot rely on broad or conclusory allegations.

D.R. by

L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364,
1377 (3d Cir. 1992), cert. denied, 506 U.S. 1079 (1993); Rose v.
Bartle, 871 F.2d 331, 366 (3d Cir. 1989); Durre v. Dempsey, 869
F.2d 543, 545 (10th Cir. 1989).

The Third Circuit Court of Appeals

has further noted that "[a] conspiracy claim must . . . contain
supportive factual allegations."

Rose, 871 F.2d at 366.

Moreover,

"[t]o plead conspiracy adequately, a plaintiff must set forth

38

allegations that address the period of the conspiracy, the object
of the conspiracy, and the certain actions of the alleged
conspirators taken to achieve that purpose."

Shearin v. E.F.

Hutton Group, Inc., 885 F.2d 1162, 1166 (3d Cir. 1989).
The essence of a conspiracy is an agreement or concerted
action between individuals.
Durre, 869 F.2d at 545.

See D.R. by L.R., 972 F.2d at 1377;

Consequently, a plaintiff must allege with

particularity and present material facts which show that the
purported conspirators reached some understanding or agreement or
plotted, planned and conspired together to deprive plaintiff of a
protected federal right.

Id.; Rose, 871 F.2d at 366; Young, 926

F.2d at 1405 n.16; Chicarelli v. Plymouth Garden Apartments, 551 F.
Supp. 532, 539 (E.D. Pa. 1982).

Where a civil rights conspiracy is

alleged, there must be some specific facts in the complaint which
tend to show a meeting of the minds and some type of concerted
activity.

Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir. 1985).

A plaintiff cannot rely on subjective suspicions and unsupported
speculation.

Young v. Kann, 926 F.2d 1396, 1405 n. 16 (3d Cir.

1991).
There are no averments of fact set forth in the Amended
Complaint that reasonably suggest the presence of an agreement or
concerted activity among the Remaining Defendants.

Although

Jackson makes repeated claims of conspiracy, he has not alleged any
facts showing any communication or cooperation among any Remaining
Defendants from which an agreement could be inferred.

While this

Court agrees that Plaintiff has set forth multiple claims of

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constitutional misconduct by various prison staff members, his
Amended Complaint has not adequately alleged that those actions
were the result of a conspiracy.

The request for entry of summary

judgment will be granted with respect to the claim of conspiracy.
Verbal Harassament
The Amended Complaint includes multiple allegations of
verbal harassment and racial slurs attributed to a variety of the
SMU Defendants.
The use of words generally cannot constitute an assault
actionable under § 1983.

Johnson v. Glick, 481 F.2d 1028, 1033 n.7

(2d Cir. 1973); Maclean v. Secor, 876 F. Supp. 695, 698-99 (E.D.
Pa. 1995); Murray v. Woodburn, 809 F. Supp. 383, 384 (E.D. Pa.
1993) ("Mean harassment . . . is insufficient to state a
constitutional deprivation."); Prisoners' Legal Ass'n v. Roberson,
822 F. Supp. 185, 189 (D.N.J. 1993) ("[V]erbal harassment does not
give rise to a constitutional violation enforceable under §
1983.").
Mere threatening language and gestures of a custodial
officer do not, even if true, amount to constitutional violations.
Balliet v. Whitmire, 626 F. Supp. 219, 228-29 (M.D. Pa.)
("[v]erbal abuse is not a civil rights violation . . ."), aff'd,
800 F.2d 1130 (3d Cir. 1986) (Mem.).

A constitutional claim based

only on verbal threats will fail regardless of whether it is
asserted under the Eighth Amendment's cruel and unusual punishment
clause, see Prisoners' Legal Ass'n, 822 F. Supp. at 189, or under
the Fifth Amendment's substantive due process clause.

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Verbal harassment with some accompanying reinforcing act,
however, may state a constitutional claim.

For example, a viable

claim has been found if some action taken by the defendant
escalated the threat beyond mere words.

See Northington v.

Jackson, 973 F.2d 1518 (10th Cir. 1992) (guard put a revolver to
the inmate's head and threatened to shoot); Douglas v. Marino, 684
F. Supp. 395 (D.N.J. 1988) (involving a prison employee who
threatened an inmate with a knife).

Moreover, alleged instances of

verbal harassment which are not accompanied by any physical contact
are constitutionally insufficient.

See Hart v. Whalen, Civ. A. No.

3:CV-08-0828, 2008 WL 4107651, at *10 (M.D. Pa. July 29, 2008);
Wright v. O’Hara, Civ. A. No. 00-1557, 2004 WL 1793018, at *7
(E.D. Pa. 2004)(correctional officer’s words and gestures,
including lunging at prisoner with a clenched fist, were
constitutionally insufficient because there was no physical
contact).
There is no indication that any of the verbal threats and
racial slurs allegedly voiced against Jackson were accompanied by a
reinforcing act involving a deadly weapon as contemplated under
Northington and Douglas.

More importantly, it is not asserted that

the alleged verbal abuse was accompanied by any physically
intrusive behavior.

Given the circumstances described by

Plaintiff, the purported verbal remarks attributed to the
Defendants were not of such magnitude to shock the conscience as
contemplated by this Court in

S.M. v. Lakeland School District,

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148 F. Supp.2d 542, 547-48 (M.D. Pa.

2001) and thus, did not rise

to the level of a constitutional violation.
Conclusion
For the reasons discussed above, Remaining Defendants’
motion for summary judgment (Doc. 120) is granted.
An appropriate Order will enter.

__________S/Richard P. Conaboy _____________
RICHARD P. CONABOY
United States District Judge

DATED: MARCH 24, 2015

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