STOKES v. WETZEL et al

Filing 6

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 4/30/14. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s))(bs)

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Only the Westlaw citation is currently available.
United States District Court,
W.D. Pennsylvania.
Albert DANTZLER, Plaintiff
v.
Secretary Jeffrey BEARD, Executive Secretary John
Shaffer, William Stickman, Regional Deputy
Superintendent, John Doe, Classification Officer, Lance
Couterier, Chief Psychologist, Fred Maue, Chief
Psychiatrist, Joseph Folino, Superintendent of
SCI-Greene, Ken Miller, Unit Manager, Harry Wilson,
Superintendent of SCI-Fayette, Defendants.
Civil Action No. 05-1727.
Dec. 6, 2007.
Albert Dantzler, Labelle, PA, pro se.
Mariah Passarelli, Office of the Attorney General,
Pittsburgh, PA, for Defendants.
REPORT AND RECOMMENDATION
AMY REYNOLDS HAY, United States Magistrate Judge.
I. RECOMMENDATION
*1 It is respectfully recommended that the
Defendants' motion for summary judgment be granted.
II. REPORT
A. Relevant Procedural History
This case has been the subject of prior proceedings,
including a report that recommended dismissal of all but
three of Plaintiff's claims, Dkt. [27]. The report was
adopted by the District Court. Dkt. [33]. Familiarity with
those prior proceedings and report are presumed. The only
three remaining claims are: (1) that Albert Dantzler
(“Plaintiff”) was deprived of procedural due process when
he was placed in the Special Management Unit (“SMU”)
and the Long Term Segregation Unit (“LTSU”), (2) that
the conditions of those placements amounted to cruel and

unusual punishment in violation of the Eighth Amendment
and (3) that his placement and his being continued therein
violated his equal protection rights because white inmates
were allegedly treated better than he in being let out of the
LTSU more quickly than black inmates. Because Plaintiff
has failed to show that he had a liberty interest to remain
free from those constraints and/or because he has failed to
show that the process he was provided was inadequate,
Defendants are entitled to summary judgment on the
procedural due process claim. In addition, because
Plaintiff has failed to adduce evidence that the conditions
of these placements deprived him of the minimal civilized
measure of life's necessities, Defendants are entitled to
summary judgment as to his Eighth Amendment claim as
well. Finally, because he has failed to show he was
similarly situated with the other inmates allegedly treated
better than he, his equal protection claim fails to survive
summary judgment.
Defendants filed a summary judgment motion, Dkt.
[56], a brief in support, Dkt. [57], and a statement of facts.
Dkt. [58]. Appended to the motion were evidentiary
materials. Plaintiff filed a response in opposition to the
Defendants' summary judgment motion, Dkt. [70], with
appended evidentiary material; in addition, Plaintiff filed
a brief in opposition, Dkt. [71].
B. Applicable Legal Standard
Summary judgment is appropriate if, drawing all
inferences in favor of the non-moving party, “the
pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(c). Summary judgment
may be granted against a party who fails to adduce facts
sufficient to establish the existence of any element
essential to that party's case, and for which that party will
bear the burden of proof at trial. Celotex Corp. v. Catrett,
477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The moving party bears the initial burden of identifying
evidence which demonstrates the absence of a genuine

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issue of material fact. Once that burden has been met, the
non-moving party must set forth “specific facts showing
that there is a genuine issue for trial ... or the factual
record will be taken as presented by the moving party and
judgment will be entered as a matter of law. Matsushita
Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S.
574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An issue is
genuine only if the evidence is such that a reasonable jury
could return a verdict for the non-moving party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). Thus, it must be determined “
‘whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’
” Brown v. Grabowski, 922 F.2d 1097, 1111 (3d
Cir.1990), cert. denied, 501 U.S. 1218 (1991), quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-52.
C. Discussion
1. Procedural Due Process
*2 The Fourteenth Amendment provides in relevant
part that “nor shall any State deprive any person of life,
liberty, or property, without due process of law.” The “due
process of law” essentially requires that the government
provide a person notice and opportunity to be heard in
connection with the deprivation of life, liberty or property.
Zappan v. Pennsylvania Board of Probation and Parole,
152 Fed.Appx. 211, 220 (3d Cir.2005) (“The essential
requirements of any procedural due process claim are
notice and the opportunity to be heard.”). Hence, to
establish a prima facie case of a procedural due process
violation, a plaintiff must establish FN1 (1) the existence of
a liberty or property interest (2) that the state deprived the
person of and (3) that the deprivation was accomplished
without procedural protections of notice and an
opportunity to be heard. See Rusnak v. Williams, 44
Fed.Appx. 555, 558 (3d Cir.2002) ( “Procedural due
process claims, to be valid, must allege state sponsored
deprivation of a protected interest in life, liberty or
property. If such an interest has been or will be deprived,
procedural due process requires that the governmental unit
provide the individual with notice and a reasonable
opportunity to be heard.”) (citation omitted); Castro
Rivera v. Fagundo, 310 F.Supp.2d at 434 (listing elements
of prima facie case).

FN1. It is clear that Plaintiff has the burden. See,
e.g., Smith v. City of Unadilla, 510 F.Supp.2d
1335, 1346 (M.D.Ga.2007) (“A plaintiff who
asserts that a procedural due process violation
has occurred, bears the initial burden of
establishing that a protected property interest
exists.”); Castro Rivera v. Fagundo, 310
F.Supp.2d 428, 434 (D.Puerto Rico 2004) (“It is
not sufficient that a deprivation has occurred.
Plaintiffs carry the burden of pointing to the lack
of constitutionally sound proceedings at the state
level. Rumford, 970 F.2d at 999. Plaintiffs must
present evidence that the state does not have
available review mechanisms comporting with
minimum due process requirements.”), aff'd. 129
Fed.Appx. 632 (1st Cir.2005).
For present purposes, our procedural due process
analysis involves a two step inquiry: the first question to
be asked is whether the complaining party has a protected
liberty or property interest within the contemplation of the
Due Process clause of which he has been deprived and, if
so, the second question is whether the process afforded the
complaining party to deprive him of that interest
comported with constitutional requirements. Shoats v.
Horn, 213 F.3d 140, 143 (3d Cir.2000).
Defendants argue that Plaintiff has failed to establish
that his placement in the SMU and/or LTSU deprived him
of a liberty interest. Dkt. [57] at 5 to 6. Alternatively they
point out that Plaintiff received all of the process to which
he was entitled even if his placement involved a liberty
interest. Dkt. [57] at 7 to 15.
A protected liberty interest may arise from one of two
sources: (1) directly from the Fourteenth Amendment's
due process clause itself or (2) from state law. Hewitt v.
Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 74 L.Ed.2d 675
(1983).
There is no liberty interest created directly by the
Fourteenth Amendment that prevents an inmate from
being subjected to programs such as the SMU and/or the
LTSU. See Sandin v. Conner, 515 U.S. 472, 484, 115
S.Ct. 2293, 132 L.Ed.2d 418 (1995) (“Conner asserts,

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incorrectly, that any state action taken for a punitive
reason encroaches upon a liberty interest under the Due
Process Clause even in the absence of any state
regulation”); Stephany v. Wagner, 835 F.2d 497, 499 (3d
Cir.1987) (“the Due Process Clause does not give a
prisoner a liberty interest in remaining in the general
prison population”).
*3 Nevertheless, Plaintiff appears to attempt to bring
himself within a class of cases that hold involuntary
psychiatric treatment implicates a liberty interest that is
derived directly from the Due Process clause. Dkt. [71] at
6 to 7. The class of cases has its origins to a great extent
in the Supreme Court's decision of Vitek v. Jones, 445
U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), which
Plaintiff cites. Dkt. [71] at 7. In that case, a prisoner was
transferred to a hospital for the mentally ill and
involuntarily subjected to treatment including use of
psychoactive drugs. See, e.g., Miller v. Vitek, 437 F.Supp.
569, 572 (D.Neb.1977) (“Patients there, including inmates
transferred from the Penal Complex, are frequently
required to participate in behavior modification programs
and to take whatever medication may be prescribed for
them.”) (emphasis added).FN2 Some prisoners so
transferred brought suit alleging a violation of their
procedural due process rights contending that they had a
liberty interest in not being so transferred without some
pre transfer process of notice and an opportunity to be
heard. The Supreme Court agreed, holding that
FN2. The Miller decision is the case in the
District Court that eventually resulted in the
Supreme Court decsion in Vitek v. Jones .
the District Court was convinced that characterizing
Jones as a mentally ill patient and transferring him to
the Lincoln Regional Center had “some stigmatizing”
consequences which, together with the mandatory
behavior modification treatment to which Jones would
be subject at the Lincoln Center, constituted a major
change in the conditions of confinement amounting to a
“grievous loss” that should not be imposed without the
opportunity for notice and an adequate hearing. We
agree with the District Court.
Vitek v. Jones, 445 U.S. 480, 488, 100 S.Ct. 1254, 63

L.Ed.2d 552 (1980). The Court in Vitek found that the
liberty interest was both a state created liberty interest
and a liberty interest directly created by the Due Process
clause. See, e.g., Kritenbrink v. Crawford, 457
F.Supp.2d 1139,1149 n. 6 (D.Nev.2006) (“The
Supreme Court in Vitek found that classifying a prisoner
as mentally ill and transferring him to a mental hospital
for mandatory behavior modification treatment
implicated a state-created liberty interest as well as a
liberty interest arising from the Due Process Clause
itself.”). In finding a state created liberty interest, the
Supreme Court engaged in the now rejected (as
explained below) Hewitt-type methodology of looking
for mandatory language in state regulations.
Accordingly, the Vitek Court's holding with respect to
the state created liberty analysis is superceded by
Sandin. Hence, we need address only the Vitek holding
as to a liberty interest directly created by the Due
Process clause. We find Vitek and its line of cases to be
distinguishable insofar as the Court found that transfer
to a mental hospital combined with involuntary
psychiatric treatment that the court characterized as
“behavior modification” implicated a liberty interest.
Plaintiff seizes on the term of “behavior modification”
from Vitek, as well as upon the concession by a DOC
official that “by definition, behavior modification is
utilized in the LTSU.” Dkt. [70-19] at 2. Plaintiff argues
that because Vitek held that transfer to a mental hospital
that engaged in behavior modification implicated a liberty
interest created directly by the Due Process clause, his
transfer to the LTSU which utilizes “behavior
modification” likewise implicates a liberty interest. The
problem with Plaintiff's argument is the logical problem
known as equivocation, i.e., simply because the same
words were used the same meanings must be indicated.
However, as noted by one court: “the problem in
discussing ‘behavior modification’ is that the term is
defined in a number of different ways. He explained that
‘In its broadest sense, virtually every program in the
Bureau of Prisons is designed to change or modify
behavior.” Clonce v. Richardson, 379 F.Supp. 338, 343
(W.D.Mo.1974).FN3 The court finds that the “behavioral
modification” referred to in Vitek, was of the kind that
necessarily involved psychiatric treatment, including, but
not limited to the involuntary administration of
psychotropic drugs. See, e.g., Vitek v. Jones, 445 U.S. at

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494 (“But here, the stigmatizing consequences of a
transfer to a mental hospital for involuntary psychiatric
treatment, coupled with the subjection of the prisoner to
mandatory behavior modification as a treatment for
mental illness, constitute the kind of deprivations of
liberty that requires procedural protections.”) (emphasis
added). See also Cooper v. Garcia, 55 F.Supp.2d 1090,
1101 (S.D.Cal.1999) (“In Vitek v. Jones, 445 U.S. 480,
100 S.Ct. 1254, 63 L.Ed.2d 552, (1980), the Court found
the prisoner plaintiff's liberty interest was affected by
virtue of him being classified as mentally ill which
mandated that he be transferred to a mental hospital for
involuntary psychiatric treatment (mandatory behavior
modification).”).
FN3. To the extent that the holding of the court
in Clonce is inconsistent with the holding herein,
the Court notes Clonce is not mandatory
authority and hence is only persuasive authority.
As such, it is authoritative only to the extent
persuasive and this court is not persuaded by its
reasoning.
*4 In contrast, the behavior modification at issue here,
for all that the record evidence shows, is a carrot and stick
approach, i.e., Plaintiff's negative behaviors are negatively
reinforced or “punished” by a substantial loss of privileges
upon his transfer to the LTSU and Plaintiff is encouraged
to engage in good behavior by the incentive of granting
greater privileges as he continues to engage in positive
behaviors. Such behavior modification appears throughout
the penal system, such as, for example, the stick of
incarceration at a greater security classification and/or
higher security prison with the carrot of greater privileges
in lower security prisons or the carrot of parole should the
inmate conduct himself properly. The use of such behavior
modification techniques as those utilized in the LTSU
simply do not constitute a liberty interest within the
contemplation of Vitek because the behavior modification
there and the behavior modification at issue herein are
substantially different. See, e.g., Neal v. Shimoda, 131
F.3d 818, 830 (9th Cir.1997) (“The liberty interest
implicated by the establishment of the SOTP [i.e., a type
of behavior modification program] is not merely the
requirement that sex offenders complete the specified
treatment program. If that were all that was at stake, we

could probably not say that a liberty interest had been
created, given the fact that prisons frequently maintain
treatment and behavioral modification programs (such as
anger management or alcohol abuse classes) that have
long withstood legal challenge.”); Love v. McKune, 33
Fed.Appx. 369 (10th Cir.2002); FN4 Barkus v. Kaiser, 229
F.3d 1162 (Table), 2000 WL 1346226 (10th Cir.2000)
(unpublished) (inmate's thirty-three day placement in
behavior modification program [i.e., carrot and stick
approach] that restricted his television and movement
privileges did not impose significant hardship on inmate
sufficient to create a liberty interest); Jones ‘El v. Berge,
No. 00-C-421-C, 2001 WL 34379611, at * 16 (W.D.Wis.
Aug.14, 2001) (holding that the plaintiffs in a class action
on behalf of inmates at the Wisconsin supermax prison
failed to state a claim for violations of their procedural due
process rights, notwithstanding allegations that “the
solitary confinement, denial of privileges, additional
regulations and restrictions on protected and discretionary
activities, the limitation on educational and employment
opportunities, the lack of access to legal materials and
legal counsel and the behavior modification program at
Supermax impose an atypical and significant hardship on
plaintiffs in relation to the ordinary incidents of prison life
in the Wisconsin prison system.... [P]risoners do not have
a liberty interest in remaining out of segregation status so
long as that period of confinement does not exceed the
remaining term of their incarceration.”).FN5 Accordingly,
Plaintiff has no liberty interest, as a matter of law, arising
directly from the Due Process clause that prevents his
placement in the SMU FN6 and/or the LTSU. Hence, the
only other source of a liberty interest could arise from
state law.
FN4. In Love v. McKune, the Court held that
requiring involuntary participation in a behavior
modification program described below, did not
violate due process:
The “involuntary behavior modification
system” referred to is Internal Management
Policy and Procedure (IMPP) 11-101, adopted
by the Kansas Department of Corrections in
January 1996. “IMPP 11-101 implements a
statewide incentive level system which ties
inmate privileges to participation in programs

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and good behavior.” Pool v. McKune, 267
Kan. 797, 987 P.2d 1073, 1076 (Kan.1999).
Under the system, incarcerated inmates are
assigned to one of four levels (Intake Level
through Level III) and, in turn, are provided
with a corresponding level of privileges (e.g.,
television ownership, handicrafts, participation
in organizations, use of outside funds, canteen
expenditures, incentive pay, visitation). In
order to be assigned to a higher level and
obtain more privileges, inmates must
“generally remain[ ] free of offenses and
demonstrat[e] a willingness to participate in
recommended programs.” Stansbury v.
Hannigan, 265 Kan. 404, 960 P.2d 227, 230
(Kan.1998). An inmate may be assigned to a
lower level, and in turn lose privileges, for a
variety of reasons, including commission of
disciplinary offenses or refusal to participate in
a recommended program. Id., 960 P.2d at 237.
Id. at 370, 960 P.2d 227.
FN5. The specific holding of Jones ‘El v. Berge
with respect to there being no liberty interest
implicated by a transfer to a super max prison
may be suspect in light of the subsequent
Supreme Court decision in Wilkinson v. Austin,
545 U.S. 209, 125 S.Ct. 2384, 162 L.Ed.2d 174
(2005) but it continues to be persuasive authority
for the proposition that mere behavior
modification such as the carrot and stick
approach, which necessarily excludes use of
psychiatric treatment, does not implicate a liberty
interest.
FN6. Unlike with the LTSU, Plaintiff points to
no evidence that the SMU utilizes behavior
modification. Nevertheless, the very nature of the
program permits a reasonable inference that the
SMU does do so. Even so, again the behavior
modification utilized in the SMU is the same as
that in the LTSU, a carrot and stick approach
with respect to increasing and decreasing
privileges. Such does not implicate a liberty
interest created by the Due Process clause.

*5 Addressing the issue of state created liberty
interests, the United States Supreme Court in Sandin v.
Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d
418 (1995) made a sea change in the analysis courts had
used prior to the Sandin decision. Prior to Sandin, the
courts were instructed to determine whether the State had
issued regulations or rules and whether in those
promulgations the State had used “language of an
unmistakably mandatory character” such that the incursion
on liberty would not occur “absent specified substantive
predicates.” Hewitt v. Helms, 459 U.S. 460, 471-72, 103
S.Ct. 864, 74 L.Ed.2d 675. (1983). However, in Sandin,
that methodology was rejected. Sandin, 515 U.S. at
483-84 n. 5.FN7 In Sandin the Supreme Court “abrogated
the methodology of parsing the language of particular
regulations.” Wilkinson, 545 U.S. at 222-23. (describing
the Court's holding in Sandin ). “After Sandin, it is clear
that the touchstone of the inquiry into the existence of a
protected, state-created liberty interest in avoiding
restrictive conditions of confinement is not the language
of regulations regarding those conditions.” Id. at 223
(quoting Sandin, 515 U.S. at 484).
FN7. Despite this rejection of the Hewitt
methodology, Plaintiff appears to continue to
rely thereon in his arguments, asserting that state
regulations and rules gave him a liberty interest
apparently in having certain state mandated
procedures followed. See, e.g., Dkt. [71] at 6
(invoking Prison Policy 2.1.2 and 45 Pa.C.S.A.
§§ 1201-0821) and at 21 (invoking 37 Pa.Code
93.10 and 93.11(b)). However, the Court of
Appeals for the Third Circuit has specifically
rejected this notion. As the Court of Appeals for
the Third Circuit explained:
The fact that Pennsylvania regulations provide
for hearings after transfer to administrative
custody is not relevant to a determination of
whether federal procedural due process is
required. See Hewitt v. Helms, 459 U.S. 460,
470, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)
(The mere fact that Pennsylvania has created a
careful procedural structure to regulate the use
of administrative segregation does not indicate

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the existence of a protected liberty interest.).
The process afforded by state law is not
relevant in determining whether there is a state
created right that triggers due process
protection. Olim v. Wakinekona, 461 U.S. 238,
103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). (“The
State may choose to require procedures for
reasons other than protection against
deprivation of substantive rights, of course, but
in making that choice, the State does not create
an independent substantive right.”)
Griffin v. Vaughn, 112 F.3d 703, 709 n. 3 (3d
Cir.1997). Not only does the State's creation of
procedures before a certain deprivation can
occur, fail to establish that Plaintiff has a
liberty interest in what he was deprived of, but
in addition, Plaintiff has no constitutional
liberty interest in the Defendants following the
procedures allegedly mandated by state law.
River Park, Inc. v. City of Highland Park, 23
F.3d 164, 166 (7th Cir.1994) (“the
Constitution does not require state and local
governments to adhere to their procedural
promises”); Wilson v. Formigoni, 42 F.3d
1060, 1066 (7th Cir.1994) (“[S]tate-created
procedural requirements do not, standing
alone, constitute protected liberty or property
interests or create substantive entitlements.”)
(citations omitted). Hence, neither the
deprivation nor the failure to follow state
mandated procedures deprive Plaintiff of a
liberty interest here.
Rather than searching state prison regulations or laws
for mandatory language, the Sandin court directed that we
are to analyze the nature of the deprivation to determine if
a liberty interest is implicated. Specifically, the Sandin
Court held that a state government “may under certain
circumstances create liberty interests which are protected
by the Due Process Clause. But these interests will be
generally limited to freedom from restraint which, while
not exceeding the sentence in such an unexpected manner
as to give rise to protection by the Due Process Clause of
its own force, nonetheless imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents

of prison life.” 515 U.S. at 483. The meaning of these
words or this test is not self evident. Skinner v.
Cunningham, 430 F.3d 483 (1st Cir.2005) (“The hardship
test has itself become the source of major disagreement.”).
The test apparently requires a determination of what
constitutes the ordinary incidents of prison life, which has
been referred to as the “baseline” or “base for
comparison,” FN8 so as to determine whether a particular
deprivation can be said to be atypical and significant. See,
e.g., Wilkinson v. Austin, 545 U .S. at 223 (“In Sandin' s
wake the Courts of Appeals have not reached consistent
conclusions for identifying the baseline from which to
measure what is atypical and significant in any particular
prison system. This divergence indicates the difficulty of
locating the appropriate baseline, an issue that was not
explored at length in the briefs.”). Rather than resolve this
question, the Supreme Court provided no guidance by
refusing to do so. Id. (“We need not resolve the issue here,
however, for we are satisfied that assignment to OSP
imposes an atypical and significant hardship under any
plausible baseline.”).FN9 Hence, as of June 13, 2005, the
date Wilkinson was decided, it is unclear from the
Supreme Court what the baseline of comparison is to be
under Sandin, and consequently how to determine a liberty
interest under Sandin, nearly more than ten years after
Sandin was decided.
FN8. Sealey v. Giltner, 197 F.3d 578, (2d
Cir.1999) (“The District of Columbia Circuit
uses the ‘most restrictive’ conditions of
administrative confinement as the base for
comparison....”).
FN9. Although not wishing to establish a
baseline, the Court appeared to necessarily
exclude one potential baseline by implication.
Whereas Mechum seemed to establish that a
prisoner has no liberty interest to be housed in
any prison in the state, including the most secure
one in the state, Meachum v. Fano, 427 U.S.
215, 225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976)
(no liberty interest arising from Due Process
Clause itself in transfer from low to maximum
security prison, because confinement in any state
institution is within normal limits or range of
custody which the conviction has authorized the

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state to impose), Wilkinson seems to overrule
that insofar as Ohio prisoners apparently had a
liberty interest not to be housed in the supermax
prison without some procedural due process
protections. Hence, by implication, it appears
that the baseline for Sandin' s test of atypicality,
at least in Ohio and perhaps elsewhere, cannot be
the conditions of the most secure prison in the
state.
*6 The Court of Appeals for the Third Circuit has
provided some guidance regarding this issue. Among the
first attempts to address this issue, the Court of Appeals
stated that “the baseline for determining what is ‘atypical
and significant'-the ‘ordinary incidents of prison life'-is
ascertained by what a sentenced inmate may reasonably
expect to encounter as a result of his or her conviction in
accordance with due process of law.’' Griffin v. Vaughn,
112 F.3d 703, 706 & n. 2 (3d Cir.1997). Unfortunately,
there are several difficulties with this formulation. One
may be that it is tautological. Defining a liberty interest for
purposes of determining whether certain procedures are
constitutionally required by saying that a deprivation does
not constitute a liberty interest if it constitutes a
deprivation that a prisoner may reasonably expect in
accordance with due process of law appears to be a
tautology, i.e., defining a word by using that same word or
a form of the same word.FN10 Even if not tautological, what
is apparently required or permitted by such a formulation
is quite open ended and provides little practical guidance.
However, even if the formulation does not, the precise
holding of Griffin perhaps provides more guidance; from
Griffin we know that a prisoner placed in the conditions of
Administrative Custody for a period of 15 months does
not implicate a liberty interest. See id.FN11
FN10. The formulation may not be a tautology if
the formulation means in accordance with
“substantive due process” i.e., in accordance
with fundamental fairness as opposed to
“procedural due process.”
FN11. The Circuit Court's other statements on
this issue have varied. Compare Leamer v.
Fauver, 288 F.3d 532, 546 (3d Cir.2002) (“under
Sandin a court must assess whether

administrative segregation, or its concomitant
conditions, constitute an ‘atypical and significant
hardship’ by comparing the circumstances of
Leamer's placement with those of others within
comparable confinement.”); Shoats v. Horn, 213
F.3d 140, 144 (3d Cir.2000) (in determining
what constitutes an atypical and significant
hardship for those in disciplinary confinement,
the question is “whether the conditions of his
confinement in disciplinary segregation were
significantly more restrictive than those imposed
upon other inmates in solitary confinement.”).
Griffin v. Vaughn, 112 F.3d 703, 708 (3d
Cir.1997) (“It is thus apparent that in the penal
system to which Griffin was committed with due
process of law, it is not extraordinary for inmates
in a myriad of circumstances to find themselves
exposed to the conditions to which Griffin was
subjected.”). Griffin appears to reject that
assertion that the base of comparison is with the
conditions of the inmates in the general
population of the single prison where the
prisonerplaintiff's deprivation took place. Id., at
706 n. 2.
Perhaps as a consequence of the fluidity of the test for
atypicality, the Court of Appeals has also emphasized that
this is a fact intensive inquiry. Wilkins v. Bittenbender,
--- Fed.Appx. ----, 2007 WL 708993, *2 (3d Cir.2007)
(“In order to do so [i.e., determine whether a deprivation
is atypical and significant], a court should perform a
fact-specific inquiry evaluating ‘the duration of
disciplinary confinement and the conditions of that
confinement in relation to other prison conditions.’ ”)
(quoting Mitchell v. Horn, 318 F.3d 523, 531 (3d
Cir.2003)).
Significantly, for purposes of deciding this motion for
summary judgment, it is a Plaintiff's burden to establish
the existence of a liberty interest. Zigmund v. Foster, 106
F.Supp.2d 352, 360 (D.Conn.2000) (“The plaintiff bears
the burden of demonstrating the existence and
infringement of a protected liberty or property interest.”).
Hence, it is Plaintiff's burden to adduce evidence that the
conditions he faced were both atypical and significant
hardships in relation to the ordinary incidents of prison

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life. Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.1996)
(“To prevail, Frazier must establish ... that the
confinement or restraint creates an ‘atypical and
significant hardship’ under Sandin” ); Vasquez v.
Coughlin, 2 F.Supp.2d 255, 260 (N.D.N.Y.1998)
(“Plaintiff has the burden of proving that the conditions of
his confinement constituted an atypical, significant
hardship in relation to the ordinary incidents of prison life
in order to recover damages under 42 U.S.C. section
1983.”); Keel v. Dovey, 459 F.Supp.2d 946, 955
(C.D.Cal.2006) (“Plaintiff has failed to carry her burden
of raising a triable issue of material fact on whether her
placement in Ad Seg qualifies as an ‘atypical and
significant hardship[ ] ... when compared to the burdens of
ordinary prison life’ ”) (some internal quotation marks
omitted). Accord Wilkins v. Bittenbender, --- Fed.Appx.
----, 2007 WL 708993 at *2 (3d Cir.2007) (“Nor has he
[i.e., the prisoner-plaintiff] provided any evidence that the
conditions during his stay in administrative segregation
involved atypical or significant hardship.”).
*7 Instantly, although Plaintiff offered evidence of the
type of deprivations he encountered in the SMU and the
LTSU, he has offered no evidence at all with respect to the
atypicality of the hardships that he suffers. FN12 However,
without a base of comparison, there is no evidence to
establish the atypicality of the hardships. Indeed, there is
support in the record to indicate that the conditions
plaintiff ascribes to the LTSU are identical to the
conditions under which plaintiff was previously housed in
the SMU at SCI-Greene and, furthermore, that those
conditions are not significantly different from conditions
in the RHU, which could constitute some evidence that the
conditions of the LTSU and/or SMU are not so atypical as
to come within Sandin' s protections. Dkt .[71] at 17"
(both the LTSU and SMU are no more secure than an
RHU in a normal L-5 unit. As is determined from (Exhibit
7 p. 3) neither unit offers anything that is not offered in the
RHU.”). Indeed, Plaintiff has provided no evidence of the
fr e q ue nc y with which pr iso ne r s fa c e
restrictions/deprivations similar to the
restrictions/deprivations of the SMU and or the LTSU nor,
in the case of the SMU, any evidence of the numbers of
prisoners who face such restrictions/ deprivations. In fact,
under the reasoning of Shoats v. Horn, in order to succeed,
it appears that Plaintiff must show that his conditions were

harsher than the conditions of others throughout
Pennsylvania's correctional facilities who are in solitary
confinement. Shoats v. Horn, 213 F.3d 140, 144 (3d
Cir.2000) (in determining what constitutes an atypical and
significant hardship for those in disciplinary confinement,
the question is “whether the conditions of his confinement
in disciplinary segregation were significantly more
restrictive than those imposed upon other inmates in
solitary confinement.”). See also Wagner v. Hanks, 128
F.3d 1173 (7th Cir.1997) (State prison inmate's due
process claim based on inmate's placement in disciplinary
segregation was to be evaluated by comparing conditions
of inmate's confinement with conditions of segregation in
state's entire prison system, not just inmate's individual
prison.). Because Plaintiff offers no evidence that his
conditions in the SMU and/or the LTSU were
“significantly more restrictive than those imposed upon
other inmates in solitary confinement” pursuant to Shoats
or any evidence as to the likelihood and frequency and
duration of stays in conditions like those of the LTSU
were visited upon other prisoners, Plaintiff has failed to
establish that the conditions he faces are an atypical and
significant hardship. Thus, Plaintiff has failed to establish
by evidence that he has been deprived of a liberty interest
at all.
FN12. He did offer evidence of the small
numbers of prisoners who are are placed in the
LTSU, at any one given time, at least with
respect to the number of prisoners placed in the
LTSU at SCI-Fayette. Dkt. [70-11] at 2, (“Only
one-tenth of 1 percent of the state's 40,000
inmates live in the LTSU cells at the new State
Correctional institution-Fayette, in Luzerne
County ...”). However, even if there is only a
small number of prisoners who actually live in
the special program called the LTSU, absent
evidence that the conditions in the program are
radically different from the conditions in, say, for
example, the Administrative Custody, and
Plaintiff fails to point to such evidence, Plaintiff
has failed to establish the atypicality of the
conditions of the LTSU and hence that he was
deprived of a liberty interest.
Furthermore, the court takes judicial notice that the

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conditions of the SMU and LTSU do not appear to be
significantly different from those found in the AC as
described in Griffin v. Vaughn.
Nor do Plaintiff's allegations of other inmates
throwing feces and bodily fluids in the SMU and/or LTSU
establish atypicality in the absence of information
concerning the frequency of exposure of other inmates in
solitary confinement or even in general population to these
conditions. The same holds true of Plaintiff's complaints
about being exposed to inmates who allegedly were
mentally ill that were housed in the LTSU or SMU. As
such, Plaintiff has failed to establish the deprivation of a
liberty interest.
*8 Alternatively, even if Plaintiff did establish a genuine
issue of material fact with respect to the existence of a
liberty interest, he has failed to show that the process that
he did receive in connection with his being deprived of
being in general population or being deprived of being in
the RHU was constitutionally inadequate.
The Defendants adduced evidence of all of the
process he received. Namely, Plaintiff received many
misconducts between July 1999, the date whereon Plaintiff
entered into DOC's custody and in or about December
2001, when Plaintiff was recommended for placement in
the SMU. Plaintiff was not transferred to the SMU until
February 19, 2002. Dkt. [57] at 8 to 9. It is undisputed that
Plaintiff received notice and an opportunity to be heard
regarding the multiple disciplinary charges most of which
he was found guilty of.
Furthermore, it is undisputed that Plaintiff was transferred
to the SMU on February 19, 2002, Dkt. [56-2] at 31, and
that less than three full days later, on February 22, 2002,
Plaintiff was given an opportunity to meet with a SMU
Review team, where he was specifically informed of the
way in which to progress through the SMU and ultimately
gain release to the general population and was provided an
opportunity to be heard by them. Dkt. [56-2] at 31. He
received thirty day reviews thereafter wherein his status
was reviewed to determine his progress and whether he
should be promoted to higher levels of privileges. In fact,
several times he was so promoted but because of his
subsequent behavior, he was repeatedly demoted. After

several such demotions, Plaintiff was transferred back to
the RHU on March 24, 2004, for failure to successfully
complete the SMU. Dkt. [57] at 10. In addition, during his
stay in the SMU, Plaintiff also received reviews every 60
days by the PRC, Dkt. [56-3] at 2 to 19, to which he was
invited to attend and be heard. This is sufficient process so
as to satisfy the procedural due process clause. See, e.g.,
Shoats v. Horn, 213 F.3d 140, 144 (3d Cir.2000) (periodic
reviews by PRC of placement in Administrative Custody
for 8 years satisfied due process).FN13
FN13. Plaintiff does aver that he was not allowed
to attend his annual review nor permitted to
appeal it. Dkt. [70-15]. Even if this is true, it
does not establish that he was denied procedural
due process in light of the other process he
received which the record establishes, such as the
PRC reviews and 30 day unit reviews, even if, as
Plaintiff contends, he did not receive copies of
the written decisions from the 30 day unit
reviews. Nor does procedural due process
require that Plaintiff be able to appeal from a 30
day unit review.
After Plaintiff was transferred back to the RHU based
on his failure in the SMU, the process to have Plaintiff
transferred to the LTSU was begun almost immediately,
Dkt. [56-3] at 35 to 38. On January 4, 2005, Plaintiff was
given notice that “you have been received from
SCI-Greene as an administrative transfer for placement
into the Long Term Segregation Unit. You currently are
on Administrative Custody and will be placed on LTSU
Level 4 for a 90 day assessment, you will remain housed
in the LTSU at SCI-Fayette until completion of the
program.” Dkt. [56-3] at 26. The notice specifically
referenced DC-ADM 802 Article VI., Section A,
subsection 1a.FN14 Because there was no room for Plaintiff
in the LTSU, he was put on a waiting list, Dkt. [56-3] at
38, and was not formally placed in the LTSU until January
4, 2005. Dkt. [57] at 12. Once there, the following day, he
met with the PRC for his initial review. Dkt. [56-3] at 10,
and the PRC recorded the following on the PRC review
sheet: “He was told by the committee that he needs to
comply with rules and regulations of the LTSU program.
He is now in the assessment phase. He was told to get no
misconducts, keep his cell clean, show up for his 30-day

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reviews, be respectful to staff and he will get through the
program. His next 90-day review is scheduled for
03/30/05.” Id. It is undisputed that he received these 60 or
90 day reviews until January 2, 2007 when the LTSU was
transitioned in to an SMU because DOC phased out the
LTSU. The procedures the Defendants point to establish
that, assuming Plaintiff was deprived of a liberty interest
by his placement in the SMU from February 22, 2002 until
to March 24, 2004, and/or in the LTSU from January 2,
2005 until January 2, 2007, such “deprivations” were not
accomplished without the process required by the
procedural due process requirements of the
Constitution.FN15
FN14. The Court takes judicial notice of the fact
that DC-ADM 802 Article VI., Section A,
subsection 1a (issued March 8, 2004), provided
at that time as follows:
VI. PROCEDURES
A. Reasons for transfer to Administrative
Custody
1. An inmate may be transferred from general
population to Administrative Custody by order
of the shift commander for the following
reasons(s):
a. The inmate is a danger to some person(s) in
the institution who cannot be protected by
alternate measures
FN15. This is true notwithstanding that Plaintiff
avers that “I was never informed of why I was
being put in the LTSU.” Dkt. [70-2] at 2, ¶ 9,
because in the second sentence thereafter,
Plaintiff acknowledges that “As with the SMU,
the LTSU did not tell me why I was housed there
other than my alleged behavior, with nothing
written.” Id., at ¶ 11 (emphasis added). Plaintiff
was given notice of the reason for his placement
in both the SMU and the LTSU, i.e., his
behavior. Morever, it is apparent from Plaintiff's
own evidence, that he did receive written copies
of his PRC reviews. Dkt. [70-16] at 4 (Plaintiff's

Inmate Request to Staff wherein Plaintiff wants
to know “why on my PRC sheet” a person named
Galluci appears). In addition, despite Plaintiff's
averment that “before or after being placed in
said unit [i.e. SMU], Plaintiff was never given
any notice, chance to be heard or appeal such
placement” Dkt. [70-2] at 2, ¶ 5, the
documentary evidence indicates that Plaintiff
received 30 day reviews by the unit team, Dkt.
[56-2] at 31 to 59 and Plaintiff's own evidence
establishes that at least in the LTSU, Plaintiff
attended these 30 day reviews. Dkt. [70-24] at 2.
Such conclusory allegations in Plaintiff's
affidavits, without more, in the face of such
documentary evidence, are insufficient to create
a genuine issue of material fact See, e .g., Lujan
v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110
S.Ct. 3177, 111 L.Ed.2d 695 (1990) (the
non-moving party may not defeat a properly
supported summary judgment motion by simply
substituting the “conclusory allegations of the
complaint or answer with conclusory allegations
of an affidavit.”); Seddon v. Maytag Corp., No.
04-CV-4058, 2005 WL 2030629, *3 (S.D.Ill.
Aug. 23, 2005) (“The Court will not credit a
self-serving and contradictory affidavit that is
clearly and inherently inconsistent with
documentary evidence presented by the same
party.”); Matter of Bevill, Bresler & Schulman,
Inc., 94 B.R. 817, 822 n. 4 (D.N.J.1989) (“While
on summary judgment Hawthorne is entitled to
all reasonable inferences from the facts it alleges,
Herbst's allegations here have been contradicted
by documentary evidence and therefore cannot
be accepted as true.”).
*9 To the extent that Plaintiff complains that he was
required to have received pre-deprivation notice and an
opportunity to be heard, i.e., he was required by
procedural due process to received notice that he was
being placed in the LTSU before actually being placed
therein and an opportunity to be heard prior to being
placed therein, Plaintiff is mistaken.FN16 Assuming that he
was required by procedural due process to be given notice
and an opportunity to be heard prior to being deprived of
a liberty interest, he would be required to show when he

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was deprived of a liberty interest so as to enable us to
determine when the pre-deprivation process was required.
Knowing as we do that 15 months in AC did not deprive
a prisoner of a liberty interest, pursuant to Griffin v.
Vaughn, and knowing that the conditions of the AC are
not dramatically different from those of the LTSU, the fact
that Plaintiff was in the LTSU for only one day, i.e., from
January 4, 2005 to January 5, 2005, when Plaintiff met
with the PRC who gave him notice of the reasons for his
being placed in the LTSU and an opportunity to be heard,
we hold as a matter of law that such a short duration of
exposure to the conditions of the LTSU did not deprive
him of a liberty interest and hence, he did in fact receive
notice and an opportunity to be heard prior to the
deprivation of any liberty interest. At best, Plaintiff might
be able to show that after a greater length of time, for
example, 15 months a la Griffin, in the LTSU he was
deprived of a liberty interest, but prior to that time, he had
received much process and several explanations of why he
was initially placed there and continued there and given
several opportunities to be heard as to those explanations.
This is sufficient. Hence, Plaintiff has failed to show that
even if he were deprived of a liberty interest at some point
in time after being in the LTSU, such was not
accomplished without the procedures required by
procedural due process. FN17
FN16. See, e.g., Dkt. [71] at 22 (“Plaintiff was
not given notice or reason for transfer [to the
LTSU.] I was not given [a] chance to be heard
except after placement, which surely violated
Plaintiff's due process rights.”); Dkt. [70-18] at
3.
FN17. Thus the fact that DOC may have
subsequently amended its procedures to provide
notice and an opportunity to be heard prior to
transfer to the LTSU, does not mean that
Plaintiff's transfer to the LTSU without such
pre-transfer notice violated his due process rights
especially in light of the fact that Plaintiff was
not deprived of any liberty interest when he was
actually given notice and an opportunity to be
heard within one day after being transferred into
the LTSU, a time so short that no liberty interest
could conceivably have been deprived. The same

may be said of his placement in the SMU,
wherein less than 3 days after his placement
there, the SMU Unit team met with him.
This is true notwithstanding Plaintiff's complaints that
the process was perfunctory given that, just as in the
process he received while in the SMU, the process actually
worked to provide Plaintiff with approvals for greater
privileges only to have those privileges again removed
upon Plaintiff's subsequent failures to comply with prison
rules.
Accordingly, on this record no reasonable jury could
find for the Plaintiff on his procedural due process claim.
2. Equal Protection
The Equal Protection Clause of the Fourteenth
Amendment provides that no state shall “deny to any
person within its jurisdiction the equal protection of the
laws.” U.S. Const. Amend. XIV, § 1. In order to establish
an equal protection claim, plaintiff must show that: (1) the
person, compared with others similarly situated, was
selectively treated, and (2) the selective treatment was
motivated by an intention to discriminate on the basis of
impermissible considerations, such as race or religion, to
punish or inhibit the exercise of constitutional rights, or by
a malicious or bad faith intent to injure the person. See
Zahra v. Town of Southold, 48 F.3d 674, 683 (2d
Cir.1995). Essentially, to demonstrate an equal protection
violation, an inmate has the burden of proving under the
second prong the existence of purposeful discrimination.
Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859,
114 L.Ed.2d 395 (1991); McCleskey v. Kemp, 481 U.S.
279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Official
action does not violate the Equal Protection Clause solely
because it results in a disproportionate impact; proof of
discriminatory intent or purpose is required to show a
violation. Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252, 265, 97 S.Ct.
555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426
U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1977);
Stehney v. Perry, 101 F.3d 925, 938 (3d Cir.1996).
Discriminatory purpose implies more than intent as
volition or intent as awareness of consequences; it implies
that the decision maker selected a particular course of

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action at least in part because of, not merely in spite of, its
adverse effects upon an identifiable group. Hernandez,
500 U.S. at 360.
*10 Here, the Defendants have pointed out that the record
lacks evidence that the white individuals to whom Plaintiff
points are similarly situated to him. Dkt. [57] at 18 to 23.
The Defendants are correct and Plaintiff has failed to carry
his burden to show that the white inmates and black
inmates were similarly situated. For example, the
Defendants have established that at least two of the four
white prisoners Plaintiff points to were never even in the
LTSU or SMU and that another white inmate was
transferred out of the LTSU only after having spent nearly
four years and five months there, which is three years
longer than Plaintiff spent in the LTSU and, furthermore,
Defendants note that this white inmate was released from
the LTSU only after having gone nine months without a
misconduct charge.
In addition, this court notes that at best, Plaintiff's
arguments seek to establish that simply because there
appears to be some disparate impact occurring, i.e., black
inmates are not released from the LTSU as frequently or
as quickly as white inmates, then equal protection is
denied, i.e., there is intentional racial discrimination.
However, the facts that Plaintiff points to at most would
establish disparate impact and, without more, (and indeed,
Plaintiff has pointed to nothing more in the record),
Plaintiff's equal protection claim fails because there is no
evidence to show that the decision maker selected a
particular course of action at least in part because of, not
merely in spite of, its adverse effects upon an identifiable
group. Accordingly, the Defendants are entitled to
summary judgment on the equal protection claim.
3. Eighth Amendment
Plaintiff complains that his Eighth Amendment rights
are being violated by the conditions of the SMU and/or the
LTSU because, inter alia, fellow inmates throw feces and
flood their cells with dirty toilet water. Defendants
contend that Plaintiff has failed to adduce evidence to
support the objective prong of an Eighth Amendment
claim.
The Eighth Amendment provides that “[e]xcessive
bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.” The Supreme
Court has explained that analysis of a violation of the
Eighth Amendment involves a two pronged inquiry: 1) an
objective inquiry into the qualitative nature of the harm
suffered by the victim of the alleged punishment and 2) a
“subjective inquiry” into the mind of the person inflicting
the harm. See Wilson v. Seiter, 501 U.S. 294, 111 S.Ct.
2321, 115 L.Ed.2d 271 (1991). Accord Sims v. Artuz, 230
F.3d 14, 21 (2d Cir.2000) (“A claim of cruel and unusual
punishment in violation of the Eighth Amendment has two
components-one subjective, focusing on the defendant's
motive for his conduct, and the other objective, focusing
on the conduct's effect.”) (citing Hudson v. McMillian,
503 U.S. 1, 7-8, 112 S.Ct. 995, 117 L.Ed.2d 156, (1992)).
The Court of Appeals for the Third Circuit has explained
the objective element as requiring proof that “the
deprivation was sufficiently serious to fall within the
Eighth Amendment's zone of protections.... If not our
inquiry is at an end.” Fuentes v. Wagner, 206 F.3d 335,
344 (3d Cir.2000), cert. denied, 531 U.S. 821, 121 S.Ct.
63, 148 L.Ed.2d 29 (2000) (citations omitted). Only if the
harm suffered is sufficiently serious does the court then
turn to analyze the subjective element which the Third
Circuit has described as determining whether the prison
“officials acted with a sufficiently culpable state of mind.
In other words, we must determine if they were motivated
by a desire to inflict unnecessary and wanton pain.” Id.
(citations omitted).
*11 Although the “objective component of a
cruel-and-unusual-punishment claim focuses on the harm
done.” Sims v. Artuz, 230 F.3d at 21, the Third Circuit has
cautioned that “not every governmental action affecting
the interests or well-being of a prisoner is subject to
Eighth Amendment scrutiny.” Fuentes v. Wagner, 206
F.3d at 344 (quoting Whitley v. Albers, 475 U.S. 312, 319,
106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)) (internal quotes
omitted). In determining whether a harm “was sufficiently
serious to fall within the Eighth Amendment's zone of
protections”, Fuentes v. Wagner, 206 F.3d at 344, the
Third Circuit has described the inquiry as whether the
prisoner has been deprived of the “minimal civilized
measure of life's necessities.” Young v. Quinlan, 960 F.2d
351, 359 (3d Cir.1992), superseded by statute on other
grounds, (quoting Rhodes v. Chapman, 452 U.S. 337,
347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). Proving that

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one has been deprived of the minimal civilized measure of
life's necessities requires proof that one has been denied
“basic human needs, such as food, clothing, shelter,
sanitation, medical care and personal safety” from
physical assault. Griffin v. Vaughn, 112 F.3d at 709.
Turning to the subjective component, the Supreme Court
has held that “deliberate indifference to serious ... needs of
prisoners constitutes the unnecessary and wanton infliction
of pain ... proscribed by the Eighth Amendment.” Estelle
v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d
251 (1976) (internal quotations omitted). The Court has
held that “deliberate indifference” occurs when a prison
“official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a
substantial risk of serious harm exists and he must also
draw the inference.” Farmer v. Brennan, 511 U.S. 825,
837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). As a
corollary of the deliberate indifference standard, mere
negligence by prison staff and officials is not sufficient to
state an Eighth Amendment violation. Estelle, 429 U.S. at
105-06.
Plaintiff complains about conditions of his
confinement while in the LTSU, alleging that there were
mentally ill inmates housed therein who make excessive
noise and that some of the inmates smeared their feces in
the cells and that they threw feces as well as bodily fluids
around. Plaintiff also notes that LTSU inmates are
required to change cells every thirty days in the LTSU and
that this requires him to go into cells where bodily
excretions have been thrown around. Plaintiff alleges that
such conditions violated the Eighth Amendment.
The difficulty with these allegations and evidence is
that Plaintiff fails to adduce evidence of the length of
exposure to some of these conditions, such as for example,
how long the bodily excretions are permitted to remain
until they are cleaned. Certainly length of exposure to
unsanitary conditions is one consideration in determining
the objective prong of the Eighth amendment. Davis v.
Scott, 157 F.3d 1003, 1004 (5th Cir.1998) (inmate being
placed in cell that was “just filthy with blood on the walls
and excretion on the floors and bread loaf on the floor” for
three days did not meet the objective component of the

Eighth Amendment) (some internal quotes omitted);
Whitnack v. Douglas County, 16 F.3d 954, 958 (8th
Cir.1994) (“the intolerable conditions lasted not more than
24 hours before the availability of adequate cleaning
supplies would make them tolerable.”); Banks v. Beard,
2006 WL 2192015, *11 (W.D.Pa. Aug.1, 2006) (“he does
not allege that any particular unsanitary conditions
remained for an inordinate period of time. Accordingly,
Plaintiff has failed to raise conditions that will satisfy the
objective component of an Eighth Amendment claim.”);
Qawi v. Howard, 2000 WL 1010281, *3 (D.Del. July 7,
2000) (“For example, in [ Smith v.] Copeland [, 87 F.3d
265, 268 (8 Cir.1996) ], the Eighth Circuit Court of
Appeals held that an inmate's confinement in a cell for
four days with an overflowing toilet, during which time he
was ‘made to endure the stench of [his] own feces and
urine,’ did not rise to the level of an Eighth Amendment
violation.”). Given the absence of any evidence regarding
the length of time that exposure to these conditions lasts,
it does not appear that Plaintiff satisfies the requirement
that he produce evidence supporting the objective
component of the Eighth Amendment. See Hutto v.
Finney, 437 U.S. 678, 687, 98 S.Ct. 2565, 57 L.Ed.2d 522
(1978) (noting that unpleasant conditions of confinement
“might be tolerable for a few days and intolerably cruel for
weeks and months”).
*12 Furthermore, in the LTSU, a place for the worst
of the worst, it is not possible to control such random
inmate behavior fully, hence, the only thing possible is for
the Defendants to remediate these conditions after they
have occurred. Plaintiff adduces no evidence that these
conditions are not remediated, or if not remediated in a
timely manner that the Defendants had actual knowledge
that such conditions were not remediated in a timely
manner. Thus, Plaintiff fails to establish the subjective
prong of his Eighth Amendment claim.
As such, the Defendants are entitled to summary judgment
on this record.
4. Qualified Immunity
Although the Court has concluded that Plaintiff has
failed to establish any violation of his constitutional rights,
because we cannot know whether a higher court will

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disagree as to this conclusion, we reach the issue of
qualified immunity as an alternative basis, in light of the
Defendants' invocation of this defense.FN18
FN18. The Complaint seeks not only money
damages but also injunctive relief. To the extent
that a higher court would find an actual violation
of the Constitution, the defense of immunity
would only apply to the damages claim and not
to prospective injunctive relief. Morse v.
Frederick, ---U.S. ----, ----, 127 S.Ct. 2618,
2642, 168 L.Ed.2d 290 (2007) (Breyer, J.,
concurring) (“A ‘qualified immunity’ defense
applies in respect to damages actions, but not to
injunctive relief.”). Since the LTSU has been
eliminated, the injunctive relief would only be
applicable to Plaintiff's placement in the SMU,
where he is apparently currently being housed.
The Moving Defendants have invoked the qualified
immunity defense. The Court of Appeals
has explained that a qualified immunity analysis must
begin with this threshold question: do the facts alleged,
viewed in the light most favorable to the party asserting
the injury, show that the officer's conduct violated a
constitutional right? Saucier [v. Katz, 533 U.S. 194,
201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ]. If the
plaintiff fails to allege the violation of a constitutional
right, no further inquiry is necessary. If, however, the
alleged facts show that there was a constitutional
violation, then the next step is to ask whether the right
was clearly established. See id. In other words, a court
must consider “whether it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.” Id. (citing Wilson v. Layne,
526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818
(1999)). This inquiry, the Court noted, “must be
undertaken in light of the specific context of the case,
not as a broad general proposition.” Id. If a court
concludes that an officer's conduct did violate a clearly
established constitutional right, then it must deny him
the protection afforded by qualified immunity.
Curley v. Klem, 298 F.3d 271, 277 (3d Cir.2002),
abrogation on other grounds recognized in, Curley v.
Klem, 499 F.3d 199 (3d Cir.2007).

Given the confusing state of the law with respect to liberty
interests and the baseline of comparison and the fact that
we must consider atypicality on such a fact sensitive
inquiry which includes the duration of the deprivation and
the fact that the Defendants surely did not know at the
time that they placed Plaintiff in either the SMU and/or the
LTSU how long he would be in there FN19 it would not
have been clear to a reasonable official in the Defendants'
position that Plaintiff was entitled to any pre-deprivation,
or more properly, a pre-placement hearing. Nor would it
have been clear to a reasonable official that the process
which they did afford Plaintiff was constitutionally
inadequate.FN20 Accordingly, they are entitled to qualified
immunity for the procedural due process claim.
FN19. Plaintiff's own evidence establishes this.
See, e.g., Dkt. [70-10] at 4 (“The [LTSU]
program is designed to last up to 36 months, but
we have had inmates who have been in it less and
inmates who've been in it longer[.]”).
FN20. To the extent that Plaintiff attempts to rely
on Bronson v. Horn, No. 3:01-CV-26 (M.D.Pa.)
for the proposition that the law was clearly
established that a prisoner is entitled to due
process protections prior to placement in the
LTSU or the SMU, Dkt. [71] at 8, the court is
not convinced. Assuming that an unpublished
District Court case is sufficient to satisfy “clearly
established law,” but see Anderson v. Romero,
72 F.3d 518, 525 (7th Cir.1995) (“But we agree
with the Second Circuit that district court
decisions cannot clearly establish a constitutional
right.”), the single unpublished memorandum
that held due process requires a hearing prior to
placement in the LTSU was not rendered until
August 16/17, 2005. See id. (Dkt.350) (Available
on PACER). At best, this memorandum could
establish entitlement to a hearing prior to
placement in the LTSU. However, Plaintiff had
already been placed in the LTSU without a
pre-placement hearing on January 4, 2005, some
eight months earlier. So it was not clearly
established at the time of Plaintiff's placement
that he was entitled to any process prior to

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Page 15
Not Reported in F.Supp.2d, 2007 WL 5018184 (W.D.Pa.)
(Cite as: 2007 WL 5018184 (W.D.Pa.))

placement in the LTSU. Morever as the
memorandum addressed only the LTSU, it
established no law with respect to the SMU.
*13 Similarly, given the facts as alleged, and the
evidence adduced, even if a higher court determines that
the Defendants violated the equal protection clause, it
would not have been clear to reasonable defendants that
the adverse actions taken against the black inmates and the
allegedly positive actions taken toward the white inmates
violated the equal protection clause of the Constitution
where officials in the shoes of the Defendants could have
reasonably believed that the inmates pointed to by Plaintiff
were not similarly situated so as to require similar
treatment especially in light of the evidence of record.FN21
FN21. For an analysis of the interplay between
constitutional torts requiring a state of mind
showing, such as equal protection requiring
intentional discrimination and the doctrine of
qualified immunity, see Auriemma v. Rice, 910
F.2d 1449, 1452 (7th Cir.1990) (en banc) (“The
objective determination in these [qualified
immunity] cases requires that courts not consider
intent when making the final determination at
summary judgment of whether the law is clearly
established.”); Rakovich v. Wade, 850 F.2d
1180, 1189, 1210 (7th Cir.1988) (en banc).

the result of the actions of other LTSU inmates, not
Defendants. Plaintiff does not allege that Defendants do
not respond to such actions. Thus, Plaintiff has failed to
allege a violation of his Eighth Amendment rights with
respect to the conditions of confinement in the LTSU.”).
III. CONCLUSION
In accordance with the Magistrate Judges Act, 28
U.S.C. § 636(b) (1)(B) & (C), and Local Rule 72.1.4 B,
the parties are allowed ten (10) days from the date of
service to file written objections to this report. Any party
opposing the objections shall have seven (7) days from the
date of service of the objections to respond thereto.
Failure to timely file objections may constitute a waiver of
any appellate rights.
W.D.Pa.,2007.
Dantzler v. Beard
Not Reported in F.Supp.2d, 2007 WL 5018184 (W.D.Pa.)
END OF DOCUMENT

Lastly, the Defendants are also entitled to qualified
immunity on the Eighth Amendment claims given that
reasonable officials in the Defendants' shoes could have
believed that the efforts to remediate any conditions
related to inmate behavior concerning bodily excretions
and noise making would establish that they were not being
deliberately indifferent to Plaintiff's needs. Accordingly,
Defendants are entitled to qualified immunity on the
Eighth Amendment claims as well. See, e.g., Rivera v. Pa.
Dept. Of Corrections, 837 A.2d 525 (Pa.Super.2003)
(finding no Eighth Amendment violations in the
conditions of the LTSU similar to those alleged herein);
Elliott v. Beard, 2006 WL 4404771, *5 (W.D.Pa. Sep 27,
2006) (“Plaintiff's conditions of confinement claims
resemble those set forth in Rivera, which were found not
to constitute cruel and unusual punishment. As Defendants
point out, the conditions complained about by Plaintiff are

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.