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 (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s))(bs)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,
M.D. Pennsylvania.
Freddie FRANCIS, Plaintiff
v.
D. Scott DODRILL, Regional Director; Joseph V.
Smith, Warden; T.R. Snziezk, Assistant Warden; Becky
Clay, Captain, Defendants
No. 3:04CV1694.
Sept. 12, 2005.
Freddie Francis, Lewisburg, PA, Pro Se.
Jennifer Clark, U.S. Attorney's Office, Scranton, PA, for
Defendants.
ORDER
MUNLEY, J.
*1 Before the court for disposition are a motion for
summary judgment filed by Defendants D. Scott Dodrill,
Joeseph Smith, T.R. Snziezk, and Barbara Clay, as well as
Plaintiff Freddie Francis' cross motions for summary
judgment. These matters have been fully briefed and are
ripe for disposition. For the following reasons, we will
grant the defendants' motion for summary judgment and
enter judgment on their behalf.
I. Background
Francis is a federal prisoner incarcerated at the United
States Prison at Lewisburg, Pennsylvania
(“USP-Lewisburg”). On August 2, 2004, he filed a
complaint instituting the present action against D. Scott
Dodrill, the Regional Director of the Bureau of Prisons,
Joseph Smith, the USP-Lewisburg Warden, T.R. Sniezk,
the Assistant Warden, and Captain Becky Clay FN1
(collectively “Defendants”). Francis alleges that he was
improperly transferred to USP-Lewisburg's Special
Management Unit (“SMU”). He was transferred because
of his involvement with a gang, although he claims he was

never involved in gang activity. He was not provided with
notice or a hearing prior to his transfer. He claims that the
SMU program is run without a proper policy or without
congressional authorization. He alleges that his placement
in the SMU program violates his Fifth Amendment due
process rights, and constitutes cruel and unusual
punishment in violation of his Eight Amendment rights.
FN1. The Complaint identifies her as “Barbara,”
but he refers to her in her briefs as Becky. We
will refer to her as Becky because the defendants
note this is her correct name.
II. Standard
Granting summary judgment is proper if 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 judgment as a
matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.
4 (3d Cir.1997) (citing FED. R. CIV. P. 56(c)). “[T]his
standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an
otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986) (emphasis in original).
In considering a motion for summary judgment, the
court must examine the facts in the light most favorable to
the party opposing the motion. International Raw
Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946,
949 (3d Cir.1990). The burden is on the moving party to
demonstrate that the evidence is such that a reasonable
jury could not return a verdict for the non-moving party.
Anderson, 477 U.S. at 248 (1986). A fact is material
when it might affect the outcome of the suit under the
governing law. Id. Where the non-moving party will bear
the burden of proof at trial, the party moving for summary
judgment may meet its burden by showing that the
evidentiary materials of record, if reduced to admissible
evidence, would be insufficient to carry the non-movant's
burden of proof at trial. Celotex v. Catrett, 477 U.S. 317,

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322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the
moving party satisfies its burden, the burden shifts to the
nonmoving party, who must go beyond its pleadings, and
designate specific facts by the use of affidavits,
depositions, admissions, or answers to interrogatories
showing that there is a genuine issue for trial. Id. at 324.
III. Discussion
*2 The defendants present three grounds for their
motion. First, they argue that Francis fails to produce
evidence of their personal involvement in the alleged
constitutional violations. Second, they argue that Francis's
placement in the SMU does not implicate his due process
rights because it is not a punitive unit. Third, they argue
that they are entitled to qualified immunity. Francis has
filed cross motions for summary judgment. We will grant
summary judgment for the defendants on the first two
arguments, and thus need not address qualified immunity.
A. Personal Involvement
Francis claims that his placement in the SMU violates
his constitutional rights under the Cruel and Unusual
Punishment Clause and the Due Process Clause. A claim
for violations of constitutional rights is actionable
pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29
L.Ed.2d 619 (1971) and is the federal counterpart to 42
U.S.C. § 1983.FN2 To state a claim for a violation of the
Cruel and Unusual Punishment Clause, a prisoner must
demonstrate that “he has been deprived of ‘the minimal
civilized measure of life's necessities'... and that a prison
official acted with deliberate indifference in subjecting
him to that deprivation.” Griffin v. Vaughn, 112 F.3d 703,
709 (3d Cir.1997) (quoting Young v. Quinlan, 960 F.2d
351, 359 (1992)). A violation of the Due Process Clause
involves the following three elements: “1) the claimant
must be ‘deprived’ of a protectable interest; 2) that
deprivation must be due to some government action; and
3) the deprivation must be without due process.” Cospito
v. Heckler, 742 F.2d 72, 80 (3d Cir.1984). To establish
liability under Bivens, a plaintiff must demonstrate that the
defendants were personally involved in the deprivation of
his rights, and the theory of respondeat superior is not a
basis for liability. See Rode v. Dellarciprete, 845 F.2d
1195, 1208 (3d Cir.1988) (“A defendant in a civil rights

action must have personal involvement in the alleged
wrongs; liability cannot be predicated solely on the
operation of respondeat superior.”).FN3
FN2. “Every person who ... subjects, or causes to
be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or
immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at
law.” 42 U.S.C. § 1983.
FN3. We recognize Rode involved a suit
pursuant to 42 U.S.C.1983, and to date, no
precedent binding on this Court has held that
respondeat superior liability is unavailable in a
Bivens claim. See Young v. Quinlan, 960 F.2d
351, 358 (3d Cir.1991) (recognizing that the
Supreme Court has not addressed this issue, but
noting that “most jurisdictions have decided
against the applicability of respondeat superior
liability in Bivens suits.”). The Third Circuit,
however, has established that respondeat superior
liability is not available for 42 U.S.C. § 1983
claims, Rode, 845 F.2d at 1208, and Bivens
claims are merely the federal counterpart of §
1983 suits, Paton v. La Prade, 524 F.2d 862,
871 (3d. Cir.1975). Furthermore, the Supreme
Court has recognized that “the Courts of Appeals
have unanimously rejected the contention ... that
the doctrine of respondeat superior is available
against a municipal entity under a Bivens-type
action.” Jett v. Dallas Independent School Dist.,
491 U.S. 701, 735, 109 S.Ct. 2702, 105 L.Ed.2d
598 (1989).
Francis has produced no evidence that Defendants
Becky Clay, D. Scott Dodrill, or T.R. Snziezck were
involved in his placement in the SMU, and instead relies
on the doctrine of respondeat superior . Francis' exhibits
contain no allegations regarding these individual
defendants, and his evidence does not reference them in
any way. Thus, we find that Francis has not created a
genuine issue of material fact that these defendants
violated his constitutional rights, and we will grant
summary judgment. Francis has, however, submitted a
letter from Defendant Warden Joseph Smith, providing

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that his placement in the SMU would be reevaluated.
Thus, he has created a genuine issue of material fact that
Smith had sufficient personal involvement in his
placement in the SMU, and we will not grant summary
judgment for Smith on this ground.FN4
FN4. This evidence is not sufficient, however, to
withstand summary judgment on Francis' First
Amendment claim. Francis' complaint refers to
the First Amendment, but he does not allege nor
produce sufficient facts that any defendant was
personally involved in retaliating against him for
engaging in any First Amendment protected
activity. Therefore, we will grant summary
judgment on the First Amendment claim for all
defendants.
B. Due Process
*3 The defendants also argue that Francis' placement
in the SMU does not implicate his due process rights. We
agree. A due process liberty interest “in avoiding
particular conditions of confinement may arise from state
policies or regulations.” Wilkinson v. Austin, 545 U.S.
209, ----, 125 S.Ct. 2384, 2393, 162 L.Ed.2d 174 (2005).
The Due Process Clause protects a prisoner's right 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 in
relation to the ordinary incidents of prison life.” Id. at
2394 (quoting Sandin v. Conner, 515 U.S. 472, 484, 115
S.Ct. 2293, 132 L.Ed.2d 418 (1995)).
The proper focus for determining whether prison
conditions give rise to a due process liberty interest is the
nature of the conditions, not mandatory language in prison
regulations. Sandin, 515 U.S. at 484. In Sandin, an inmate
was charged with violating prison regulations. Id. at 475.
At a hearing, the hearing committee refused the inmate's
request to present witnesses. Id. The committee found the
inmate guilty and sentenced him to disciplinary
segregation. Id. The inmate sought review, and a deputy
administrator found some of the charges unfounded and
expunged his disciplinary record. Id. at 476. Thereafter,
the inmate filed suit pursuant to 42 U.S.C. § 1983 for a
deprivation of procedural due process during the

disciplinary hearing. Id. The Tenth Circuit found that he
had a protected liberty interest because it interpreted the
prison regulations to require that the committee find
substantial evidence of misconduct before imposing
segregation. Id. at 477. The Supreme Court reversed,
finding no liberty interest. Id. at 484. In doing so, it
rejected an approach that focused on whether the prison
regulation went “beyond issuing mere procedural
guidelines and has used ‘language of an unmistakably
mandatory character’ such that the incursion on liberty
would not occur ‘absent specified substantive predicates.”
’ Id. at 480 (quoting Hewitt v. Helms, 459 U.S. 460,
471-72, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). The Court
found this approach undesirable because it created a
disincentive for prison administrators to codify prison
management procedures and because it “led to the
involvement of federal courts in the day-to-day
management of prisons, often squandering judicial
resources with little offsetting benefit to anyone.” Id. at
482. Thus, the Court held liberty 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.” Id. at 484. In applying
this test, the Court observed, “[d]iscipline by prison
officials in response to a wide range of misconduct falls
within the expected perimeters of the sentence imposed by
a court of law.” Id. at 485. The Court then found that the
inmate's disciplinary segregation “did not present a
dramatic departure from the basic condition's of Conner's
indeterminate sentence” because the conditions of
disciplinary segregation were similar to those faced in
administrative and protective custody. Id. at 486.
*4 In Wilkinson v. Austin, 545 U.S. 209, ----, 125
S.Ct. 2384, 2393, 162 L.Ed.2d 174 (2005) the Court
applied the Sandin test and found that the plaintiff's due
process rights were implicated when he was placed in a
program where:
almost all human contact is prohibited, even to the point
that conversation is not permitted from cell to cell; the
light, though it may be dimmed, is on for 24 hours;
exercise is for 1 hour per day, but only in a small indoor

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room....[P]lacement ... is indefinite and, after an initial 30
day review, is reviewed just annually....[P]lacement
disqualifies an otherwise eligible inmate for parole
consideration.
Id. at 2394-95.
The court found that these harsh conditions “give rise
to a liberty interest in their avoidance.”
Id. at 2395.
Fraise v. Terhune, 283 F.3d 506 (3d Cir.2002)
applied the Sandin test and found that avoiding placement
in the Security Threat Group Management Unit (STGMU)
in the New Jersey prison system is not a protected liberty
interest. Inmates who the prison deemed members of
groups that posed a security threat were placed in the
STGMU. Id. at 509. “An inmate assigned to the STGMU
remains in maximum custody until the inmate successfully
completes a three-phase behavior modification program.”
Id. at 511. The Court found that despite the additional
restrictions, prisoners have no liberty interest in avoiding
placement in the STGmU. Id.; see also Griffin v. Vaughn,
112 F.3d 703, 706 (3d Cir.1997) (finding that additional
restrictions in administrative custody for a period of
fifteen months does not deprive prisoners of protected
liberty interests).
We find that the conditions in the SMU do not
remotely approach the severity of the conditions Wilkinson
found to give rise to a protected liberty interest, and are
comparable to the conditions in cases such as Sandin,
Fraise, and Griffin, which found no protected liberty
interest. The SMU program is “designed to teach inmates
self-discipline, prosocial values, and to facilitate [inmates']
ability to successfully coexist with members of other
geographical, cultural, and religious backgrounds.” (Def.
Ex. 2, SMU Inmate Handbook at 1). If inmates follow the
program, they will complete it in twelve to eighteen
months. (Id.). As they progress through the program, their
restrictions decrease until they return to the general
population. (Id.) Failure to comply with the program
results in greater restrictions and increased duration of the
program. (Id.) Inmates are restricted to one telephone call
per thirty days, and may be visited by members of their

immediate family only. (Id. at 2). They may shower three
times per week and are issued razors when they shower.
(Id. at 3). They are permitted hygenie items and supplies
such as toothbrushes, toilet paper, writing paper, and
pencils, which are issued by the custody staff. (Id.).
Prisoners are issued three pairs of boxer shorts, three
t-shirts, two towels, three pairs of socks, two sheets, one
pillowcase, one blanket, and a mattress. (Id.). They are
limited to one haircut per month. (Id.). Inmates are
allowed five hours of recreation per week, which they do
with a partner. (Id. at 4). They may retain legal materials
so long as they fit within one cubic foot. (Id.). They also
may retain basic educational materials. (Id. at 4-5). Every
twenty-one days the prisoners are moved to a new cell.
(Id. at 5). Significantly, the disciplinary system in the
SMU is nearly identical to that of the rest of the prison
system. The disciplinary system for the entire Bureau of
Prisons contains the same categories of offenses, the same
prohibited acts, the same punishments, and the same
procedures as those in the SMU. Compare Id. at 5-18,
with 28 C.F.R. § 541.13-19.
*5 Francis submits evidence that inmates in his block
are permitted to shower only three days per week whereas
other inmates shower every day. (Pl.Ex. 4, Francis Decl.
¶ 3). He also provides that he is permitted to go to the
commissary only every other week, whereas other inmates
go every week. (Id.). Inmates in his block are placed in
restraints whenever outside of their cells, whether they are
showering, going for recreation, or going to the health
services department. (Id.). Francis confirms that inmates
who refuse to cooperate remain in administrative custody
for longer periods of time and receive increased
restrictions and decreased privileges. (Id.). He has
produced no other evidence regarding adverse conditions
in the SMU. Furthermore, he has produced no evidence
nor even argued that his transfer to the SMU somehow
resulted in a loss of good conduct time credits or
otherwise altered his sentence.
We find that the restrictions in the SMU are no
greater than those in Griffin, 112 F.3d at 708, which the
court found unextraordinary. Like the SMU, the “RHU”
inmates in Griffin were restricted to three showers, three
shaves, and five hours of recreation per week. Id. at 707.
They were allowed to retain legal materials so long as they

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fit in a records box and one religious text. Id. They were
provided with a jumpsuit, footwear, and basic toiletries.
Id. Other than these items, they were prohibited from
possessing property. Id. The duration and restrictions of
the program were adjusted based on the inmates behavior
and cooperation. Id. We find these conditions entirely
consistent with the conditions in the SMU.FN5
FN5. We also find that these conditions do not
constitute cruel and unusual punishment. A
prisoner suffers cruel and unusual punishment if
“he has been deprived of ‘the minimal civilized
measure of life's necessities' ... and ... a prison
official acted with deliberate indifference in
subjecting him to that deprivation.” Griffin v.
Vaughn, 112 F.3d 703, 709 (3d Cir.1997). The
SMU clearly provides the minimum civilized
measure of life's necessities.

judgment (Doc. 24, 26) are hereby DENIED. The Clerk of
Courts is hereby directed to enter judgment on behalf of
the defendants and to close this case in this district.
M.D.Pa.,2005.
Francis v. Dodrill
Not Reported in F.Supp.2d, 2005 WL 2216582 (M.D.Pa.)
END OF DOCUMENT

Inmates have no due process right to a facility of their
choosing. Young v. Quinlan, 960 F.2d 351, 358 n. 16 (3d
Cir.1992). The Bureau of Prisons retains sole discretion
over where to place an inmate. 18 U.S.C. § 3621. Inmates
do, however, have a liberty interest in avoiding transfer to
facilities where the conditions impose “atypical and
significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin, 515 U.S. at 484.
This is not such a transfer. We find that these conditions
and the conditions overall in the SMU are reasonable and
proportionate to those in other prisons in the federal
system and across the country, and do not impose an
atypical and significant hardship in relation to the ordinary
incidents of prison life. Using restrictions to promote
prosocial behavior falls within the parameters of a
sentence imposed by a court of law. While Francis clearly
would prefer not to be housed in the SMU, his preference
is not a liberty interest protected by the Due Process
Clause. Accordingly, we find no genuine issue of material
fact that Francis has no liberty interest in avoiding
placement in the SMU, and we will grant summary
judgment for the defendants. An appropriate order
follows.
AND NOW, to wit, this 12th day of September 2005,
Defendants' motion for summary judgment (Doc. 20) is
hereby GRANTED and Plaintiff's motions for summary

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