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 (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s))(bs)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.
Abdul BROWN, Plaintiff,
v.
Jeffrey BEARD; William Stickman; Fred Maue; Lance
Couturier; Donald Williamson; Mike Zaken; Harry
Wilson; George Reposky; Adam Crumb; Scott
Nickelson; Charles Dobrzynski; Robert Holman; Lee
Johnson; John Meeker; Correctional Officer Cummings;
Ken Ketcher, Defendants.
Civil Action No. 07–637.
March 21, 2011.
Raymond N. Sanchas, Juvenile Court Project, Pittsburgh,
PA, for Plaintiff.
Douglas B. Barbour, Office of Attorney General,
Pittsburgh, PA, for Defendants.
MEMORANDUM ORDER
LISA PUPO LENIHAN, United States Magistrate Judge.
*1 Plaintiff, Abdul Brown, a Pennsylvania prisoner,
commenced this action on May 14, 2007 pursuant to the
Civil Rights Act of 1871, 42 U.S.C. § 1983 complaining
about the conditions of his confinement in the Special
Management Unit (SMU) in the State Correctional
Institution at Fayette (SCI–Fayette). Plaintiff alleges a
variety of Eighth Amendment claims and challenges his
placement and confinement in the SMU pursuant to the
Fourteenth Amendment, arguing that he was placed there
without due process and in violation of his equal
protection rights. Further, Plaintiff contends that his
placement in the SMU is predicated upon a retaliatory
animus born of his history of grievances and litigation
against the DOC. In addition, Plaintiff alleges that several
defendants used excessive force against him in the course
of a cell extraction that occurred on December 12, 2005.
Plaintiff also claims that, in retaliation for a grievance he

filed on February 6, 2006, several defendants began
spreading a rumor that he was a “snitch,” which resulted
in verbal harassment from other inmates. Brown further
alleged that Defendants denied him food in retaliation for
previous lawsuits. Brown sought declaratory, injunctive
and monetary relief.
On July 23, 2008, following discovery, Defendants
filed a motion for summary judgment (ECF No. 63). The
Court then ordered Plaintiff to file his response to the
motion by September 5, 2008. On July 30, 2008, Plaintiff
filed a motion to extend that deadline because he had been
transferred from his state facility to a federal facility
without his legal materials. The District Court granted his
motion and extended the deadline for a response until
November 5, 2008. After that deadline passed, Plaintiff
filed a motion for a further extension, alleging that he had
been transferred from the federal facility back to his state
facility without the legal materials that had been forwarded
to him at the federal facility. Plaintiff's Motion was
granted and he was given until January 30, 2009 to file his
response (ECF No. 75).
On January 21, 2009, nine days before his response
was due, Brown filed an affidavit pursuant to Fed.R.Civ.P.
56(f) (ECF No. 76) and a motion for the appointment of
counsel (ECF No. 77). In the affidavit, Brown asserted
that he could support his claims with affidavits by fellow
prisoners who since had been transferred out of the SMU
but that DOC policy forbade him from corresponding with
them. He also asserted that Defendants had refused to
produce his psychological evaluations and information
regarding his transfer to SMU (in particular, the petition
setting forth the reasons for the transfer). The District
Court did not specifically address Brown's Rule 56(f)
affidavit but on January 22, 2009, it ordered Defendants
to respond to the motion for appointment of counsel as
follows.
Plaintiff has filed another request for appointment of
counsel. Although prior requests were denied, this
request centers on his ability to receive documents that
he believes are necessary in order to prosecute his case,
i.e., documents regarding his mental health history, his

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transfer petition and relevant procedure manuals.
Defendants are ORDERED to respond to this motion no
later than 2/5/09 with an explanation of what was
requested by Plaintiff and what responses were provided
by Defendants, whether Defendants believe these
documents to be relevant to Plaintiff's case and, if so,
how this issue could be remedied short of appointment
of counsel if that is possible.
*2 On February 6, 2009, Defendants filed their
Response (ECF No. 80) wherein they acknowledged that
they had refused, on confidentiality grounds, to produce
Brown's psychiatric evaluations and certain information
regarding his transfer to SMU. They agreed, however, to
produce a redacted version of the SMU transfer petition.
The record does not disclose whether they ever did so. On
February 9, 2009, the Court denied Brown's motion for
counsel.
Following review of Defendants' Response to Plaintiff's
motion, the Court agrees that his mental health records
are not relevant to Plaintiff's claims and providing that
information to him places his mental health counselors
in jeopardy, and may also negatively impact his mental
health treatment. He has been provided with significant
information regarding his confinement to the SMU and
will be able to adequately respond to any summary
judgment motion. Should this case survive summary
judgment and proceed to trial, the Court will revisit
Plaintiff's request for the appointment of counsel.
On February 24, 2009, the parties consented to the
jurisdiction of a magistrate judge (ECF No. 85). On March
10, 2009, the Defendants' motion for summary judgment
was granted (ECF No. 87).
On May 12, 2009, Plaintiff filed a Motion for Status
of Case (ECF No. 88) requesting a copy of the docket
entries. On May 19, 2009, he filed a Brief in Opposition
nunc pro tunc to Defendants' Motion for Summary
Judgment (ECF No. 89), which contained several exhibits.
On May 22, 2009, he filed a Motion to Alter or Amend the
Judgment (ECF No. 92) wherein he asserted that he had
never received a copy of the summary judgment order. He
also argued that he had not filed a response to the pending
motion for summary judgment because he believed that his

Rule 56(f) affidavit put summary judgment on hold. The
only substantive relief he requested in his motion was for
the District Court to consider his nunc pro tunc opposition
to defendants' summary judgment motion. On May 23,
2009, the Court entered the following text order.
The Motion for Summary Judgment at issue was filed in
July 2008. Plaintiff was ordered to respond by Sept. 5,
2008. Two extensions were requested and granted and
Plaintiff's response was finally due on 1/30/09. No
response was ever received and the summary judgment
motion was ruled upon on March 9, 2009. At this late
date Plaintiff is asking to be able to communicate with
other prisoners and for the judgment to be altered.
Plaintiff had 8 months to file a response. He blatantly
disregarded numerous court orders to do so. He was
advised that if he did not respond the motion would be
ruled upon. At this late date, with no explanation for the
long delay, the Court sees no reason to reopen this case.
The clerk is ordered to provide Plaintiff with a copy of
the Order and Judgment filed on 3/9/09, although a
copy was previously sent to Plaintiff at his address of
record by the Court.
On May 29, 2009, Plaintiff file a timely appeal from
this order (ECF No. 94).
*3 On March 22, 2010, the Court of Appeals for the
Third Circuit issued its non-precedential opinion regarding
Brown's appeal (ECF No. 104). In that Opinion, the Court
of Appeals directed this Court to grant Plaintiff's Rule
60(b) motion, consider his opposition brief, and conduct
such other proceedings as may be required.
On June 16, 2010, pro bono counsel was appointed
for Plaintiff. He requested, and was granted, time to
conduct discovery. Following the close of discovery he
was ordered to file a response to Defendants' Motion for
Summary Judgment. Plaintiff, through counsel, now has
filed a response and the motion for summary judgment is
ripe for review by this Court.
A. Standard of Review
Presently pending is Defendants' Motion for Summary
Judgment (ECF No. 63). Summary judgment is

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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 of
material fact and the movant is entitled to judgment as a
matter of law. Fed. Rule Civ. Proc. 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, 325, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986) (party can move for summary judgment by
“pointing out to the district court that there is an absence
of evidence to support the non-moving party's case.”). The
moving party bears the initial burden of identifying
evidence that demonstrates the absence of a genuine 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
Elec. Ind. Co. 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). The inquiry, then, involves
determining “ ‘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.’ “ Plaintiff v. Grabowski, 922 F.2d 1097, 1111 (3d
Cir.1990), cert. denied, 501 U.S. 1218 (1991) (quoting
Anderson, 477 U.S. at 251–52). If a court concludes that
“the evidence is merely colorable ... or is not significantly
probative,” then summary judgment may be granted.
Anderson, 477 U.S. at 249–50.
B. Undisputed Material Facts
On December 28, 2006, Plaintiff was placed in a
restricted housing unit known as the Special Management
Unit (SMU) at the State Correctional Institution at Fayette,
Pennsylvania. Prior to his transfer, he was confined in the
Long Term Segregation Unit (LTSU), which was
discontinued in February of 2007. The conditions of
confinement in the LTSU was discussed by the United
States Supreme Court in Banks v. Beard, 548 U.S. 521,
126 S.Ct. 2572, 165 L.Ed.2d 697 (2006) as follows.

*4 The LTSU is the most restrictive of the three
special units that Pennsylvania maintains for difficult
prisoners. The first such unit, the “Restricted Housing
Unit,” is designed for prisoners who are under
disciplinary sanction or who are assigned to
administrative segregation. The second such unit, the
“Special Management Unit,” is intended for prisoners
who “exhibit behavior that is continually disruptive,
violent, dangerous or a threat to the orderly operation of
their assigned facility.” The third such unit, the LTSU,
is reserved for the Commonwealth's “most incorrigible,
recalcitrant inmates.”
LTSU inmates number about 40. Most, but not all,
have “flunked out” of the SMU program. To qualify,
they must have met one or more of the following
conditions: failure to “complete” the SMU program;
“assaultive behavior with the intent to cause death or
serious bodily injury”; causing injury to other inmates
or staff; “engaging in facility disturbance(s)”; belonging
to an unauthorized organization or “Security Threat
Group”; engaging in criminal activity that “threatens the
community”; possessing while in prison “weapons” or
“implements of escape”; or having a history of “serious”
escape attempts, “exerting negative influence in facility
activities,” or being a “sexual predator.” The LTSU is
divided into two levels. All inmates are initially
assigned to the most restrictive level, level 2. After 90
days, depending upon an inmate's behavior, an
individual may graduate to the less restrictive level 1,
although in practice most do not.
The RHU, SMU, and LTSU all seriously restrict
inmates' ordinary prison privileges. At all three units,
residents are typically confined to cells for 23 hours a
day, have limited access to the commissary or outside
visitors, and (with the exception of some phases of the
SMU) may not watch television or listen to the radio.
Banks, 548 U.S. at 525–526 (internal citations
omitted).
A prisoner confined in restricted housing in Pennsylvania
is reviewed weekly by his/her counselor and every thirty
days by the Unit Management Team. FN1 These reviews are
documented in the DC–14, Cumulative Adjustment

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Record. Prisoners are reviewed by the Program Review
Committee (PRC) FN2 every ninety days. The PRC's
decision to continue the inmate in AC status or release
him/her to population is documented on a DC–141, Part 4
with a copy provided to the inmate. A qualified
psychologist or psychiatrist conducts an interview and
assessment of inmates remaining in AC status for more
than 30 calendar days. Thereafter, a mental health
assessment is completed at least every 90 calendar days.
When an inmate is being recommended for transfer to a
Special Housing Unit (SMU, SSNU) the PRC reviews the
recommendation with the inmate and inform him/her of
the reason(s) for the transfer recommendation. The inmate
is given the opportunity to respond to the rationale given
and object to his/her placement in a Special Housing Unit,
if he/she so desires. The inmate may appeal the
recommendation for Special Housing Unit transfer to the
Facility Manager/designee and Central office.
FN1. The Unit Management Team consists of the
individuals assigned to operate a housing unit
with the responsibilities for security, risk
management, conducting informal resolutions of
misconducts, and program delivery. DC–ADM
802, Administrative Custody Procedures Manual
Glossary of Terms.
FN2. The Program Review Committee is a
committee consisting of three staff members who
conduct Administrative and Disciplinary Custody
Hearings, periodic reviews, make decisions
regarding continued confinement in a Security
Level 5 Housing Unit, and hear all first level
appeals of misconducts. The committee shall
consist of a Deputy Superintendent (who shall
serve as the chairperson), a Commissioned
Officer, and one staff member from the following
classifications: Corrections Classification and
Program Manager (CCPM), Unit Manager,
School Principal, Alcohol and Other Drugs
Treatment Specialist Supervisor or Inmate
Records Office Supervisor. The Facility Manager
may designate other staff as committee members;
however, if such designations are made, they
must be in writing and the Facility Manager must
maintain a list of all designees. Whenever a PRC

is convened, at least one member of the
committee must be a staff member who is not
directly involved in the administration of the
Security Level 5 Housing Unit in which the
inmate is currently housed. DC–ADM 802,
Administrative Custody Procedures Manual
Glossary of Terms.
*5 Plaintiff was transferred to the SMU
predominantly based on his failure to adjust to prison life
as documented in his lengthy misconduct history.
Specifically, since he entered the jurisdiction of the DOC
in August 1998 through December 28, 2006, Plaintiff had
incurred a total of 128 misconducts (ECF No. 63–2). Of
these, Plaintiff was charged fourteen times for Assault, 24
times with Possession of Contraband, 36 times with
Refusing to Obey an Order, and twice for Arson.
The PRC review dated December 28, 2006, sets forth
the following as the basis for Plaintiff's transfer to the
SMU.
Initial Reason for Confinement
lnmate Brown was received from SCI–Greene's RHU on
2/26/04 and placed in the LTSU (A645202) according
to DC–ADM 802, Article IV, Section A, Subsection
1.a. He arrived here from SCI–Greene with Disciplinary
Custody [DC] time expiring 02/23/13. He will be placed
on LTSU Level 4 for 90 days at which time his level
will be determined by the Unit Management Team.
Inmate level changed to Level 3 on 5/20/04. On
11/03/04 he RECD 30 days DC (A61 5086) for # 33,
and # 35. On 01/24/05 he RECD 20 days DC
(A708901) for # 33. On 02/18/05 he RECD a consec.45
days DC (A708918) for # 38, a consec. 45 days DC
(A708919) for # 38, and a consec. 150 days DC
(426358) for # 1, # 15, # 33. On 03/21/05 he RECD a
consec. 45 days DC (A71 7919) for # 38, a consec. 45
days DC (437113) for # 38, and a consec. 150 days DC
(A671104) for # 1, # 15. On 04/05/05 he RECD 30 days
concurrent (A671169) for # 35. On 04/25/05 he RECD
a consec. 90 days DC (A671 154) for # 36, and a
concurrent 30 days DC (A671158) for # 36, # 51. On
05/09/05 he RECD a consec. 60 days DC (A671177)
for # 36. On 08/30/05 he RECD a consec. 60 days DC

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(A61 51 56) for # 36. On 09/26/05 he RECD a consec.
90 days DC (A705385) for # 1, # 35. On 10/17/05 he
RECD a consec. 90 days DC (A68781 3) for # 36, a
consec. 60 days DC (A687823) for # 33, # 35, and a
consec. 45 days DC (A687817) for # 38. On 11/07/05
he RECD a consec. 60 days DC (A687830) for # 15. On
12/20/05 he RECD a consec. 60 days DC (A717964)
for # 36, # 38, a consec. 90 days DC (A717966) for #
35, # 38, a consec. 90 days DC (A717968) for # 1, and
a consec. 75 days DC (A756943) for # 33, # 35. On
03/03/06 he RECD a consec. 30 days DC (A687872)
for # 33, # 35. On 03/22/06 he RECD 30 days DC
(A570204) for # 35, # 41. On 03/31/06 he RECD a
consec. 60 days DC (A754396) for # 15, # 33, a consec.
60 days DC (A767936) for # 15, # 35, a consec. 20 days
DC (A767938) for # 35, a consec. 30 days DC
(A767943) for # 33, # 35, and a consec. 20 days DC
(A767936) for # 33. On 04/10/06 he RECD a consec.
30 days DC (A744354) for # 15, # 33, and a consec. 60
days DC (A756603) for # 15, # 33. On 04/12/06 he
RECD a consec. 90 days DC (A612941) for # 17, # 40.
On 05/30/06 he RECD a consec. 75 days DC
(A756661) for # 36, and a consec. 60 days DC
(A756642) for # 15, # 33, # 35. On 06/05/06 he was
ATA to SCI–Graterford. On 10/25/06 he returned to
SCI–Fayette. On 11/29/06 he RECd a consec. 45 days
DC (A90861 9) for # 31, # 36.
PRC Comments
*6 Inmate Brown refused to attend his SMU placement
hearing. He had an opportunity to agree/object with his
placement into the SMU but refused. He is being placed
in the SMU during the LTSU transition. His next
regularly scheduled review will be held on 02/15/07.
ECF No. 63–1, p. 23.
Plaintiff challenged his placement in the SMU by
filing grievance no. 174565 (ECF No. 63–1, p. 24). The
response to this grievance provides as follows.
COMPLAINT: Inmate Brown is alleging that his
placement in the SMU is unlawful due to the following
reasons: He was not evaluated prior to placement, He
was not afforded due process prior to placement, the
SMU placement decision was based on the 6.5.1 policy,
which hasn't been properly promulgated and thus null
and void, mentally ill inmates are prohibited by law and

DOC policy from being housed in the SMU, he has
been denied twice previously for the SMU due to
Brown having behavioral instability and periodic
exacerbations of his chronic adjustment disorder issues
and severe borderline personality disorder. Inmate
Brown is seeking to be immediately removed from the
SMU, mentally assessed and compensated in the amount
of $500,000.
FINDING OF FACT: The Executive Deputy Secretary
reviewed your transfer petition and approved your
placement in the SMU. Your behavior, to include
misconducts, DC time, disruptive incidents, etc, and
your current psychological evaluation were reviewed,
which means that a thorough evaluation was completed
prior to your placement in the SMU. You were afforded
due process by attending your PRC hearing and being
informed of the reasoning for your placement, which
you then had the opportunity to respond to the rationale
and object, if appropriate. Regarding your contention
that the 6.5.1 is null and void, that is incorrect. The
Policy was reviewed/approved by Dr. Jeffrey Beard,
Secretary of Corrections. To address your two mental
illness issues, the Chief Psychiatrist/Psychologist
reviewed your current psychological evaluation and
approved your placement in the SMU.
DECISION: This grievance is without merit.
ECF No. 63–1, p. 25.
Plaintiff appealed this decision to Superintendent
Harry Wilson claiming that he was not given any prior
notice of why he was being called for his PRC hearing on
an irregular date, i.e., not the date he usually was assigned
and that he did not get a copy of his DC–141 part 4. The
Superintendent denied this appeal as follows.
After a careful evaluation of the attached grievance, it is
the determination of this Superintendent that the action
and response provided by the investigating staff will be
upheld. I find the issues raised at the first-level appeal
were addressed appropriately and responsibly by staff at
the initial review.
I find no argument of merit enclosed in your appeal;

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your placement in the SMU Program is not unlawful.
Department policy 6.5 .1 stipulates that you receive
reason for your placement in the SMU Program. You
did, you received a DC–141 Part III documenting that
your placement was a result of the LTSU Program
transitioning into an SMU Program, your behavior to
include misconducts, DC–Time, disruptive incidents,
etc. and your current psychological evaluation was
reviewed. The Executive Deputy Secretary reviewed
and approved your transfer petition and approved your
placement into the SMU Program. This was also
explained to you at your PRC hearing on December 28,
2006, during which you had the opportunity to question
the Committee regarding your aforementioned
placement, however you refused to attend.
*7 In conclusion, to address your two mental health
issues, the Chief Psychiatrist/Psychologist reviewed
your current psychological evaluation and approved
your placement in the SMU Program as well. There is
no merit to your accusations, Department policy was
followed in regards to the procedures in your SMU
placement your request to be compensated and appeal
is denied.
ECF No. 63–1, p. 28.
Plaintiff filed a final appeal, which was denied as follows.
Dear Mr. Brown:
This is to acknowledge receipt of your appeal to final
review of the above numbered grievance.
In accordance with the provisions of DC–ADM 804,
effective January 3, 2005, 1 have reviewed the entire
record of this grievance; including your initial
grievance, the grievance officer's response, your appeal
from initial review and the superintendent's response. I
have also carefully reviewed the issues you raise to final
review. Upon completion of this review, it is the
decision of this office to uphold the responses provided
by staff at the institutional level. There is no evidence to
support your claim that your placement in the SMU is
unlawful. Your placement in the SMU was reviewed by
the appropriate Department of Correction's (DOC) staff

and was determined to be appropriate based on a
number of factors. Your request to be removed from the
SMU and compensated in the amount of $500.000.00 is
unwarranted and, therefore, denied.
The responses provided at the institutional level are
appropriate and in accordance with Department of
Corrections' policies and procedures. Accordingly, your
appeal to final review must be denied.
ECF No. 63–1, p. 31.
On December 12, 2005, Plaintiff smashed his cell
door windows and ripped a metal plate off the wall inside
his cell. Plaintiff was also observed threatening to assault
staff with a mixture of urine and feces which he intended
to throw out of his cell. In response to this situation,
defendant Reposkey assembled a cell extraction team and
reported to Plaintiff's cell. In addition to the notes of the
ensuing exchange, which defendant Reposky prepared
immediately thereafter, the cell extraction was videotaped
FN3
by a non-defendant corrections officer commencing
with the assembly of the extraction team, which the court
has now reviewed for a second time. In briefing the cell
extraction team, defendant Reposky stated that Plaintiff
had been medically cleared for the use of Oleoresin
Capsicum (O.C.) (essentially mace or pepper spray), as
well as the EBID. The extraction team was accompanied
by two nurses—one of whom was defendant Ketcher—for
the purposes of ensuring Plaintiff's continued well-being
during the extraction. Defendant Reposky and the
extraction team approached Plaintiff's cell, whereupon
they discovered that Plaintiff had covered the window in
the door with a towel. After Plaintiff refused several direct
orders to remove the towel and submit himself to be
handcuffed, defendant Reposky administered a
two-second burst of O.C. through the food aperture in
Plaintiff's cell door. Plaintiff threw the aforementioned
mixture of urine and feces at defendant Reposky as he
opened the food aperture. This initial dose of O.C. appears
to have had no effect on Plaintiff, who can be heard
speaking clearly—even shouting—at the officers even
after its application. After being convinced to dispose of
a second cup of urine and feces mixture, Plaintiff
voluntarily submitted himself to be handcuffed and was
removed from the cell without further incident.

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FN3. The cell extraction was videotaped
pursuant to DOC policy (Exhibit 8).
*8 Plaintiff was thereafter placed in a holding cell
area so that the requisite strip search could be performed.
At this time, Plaintiff was laughing and taunting the
Corrections Officers and threatening “y'all gonna pay for
this.” After he refused several direct orders regarding the
search, O.C. was used for a second time by defendant
Reposky. Once the strip search was completed, Plaintiff's
eyes were washed by Nurse Ketcher. Plaintiff then was
placed in a restraint chair and secured. Once Plaintiff was
secure therein, his eyes were once again washed by Nurse
Ketcher and the restraints were checked. Upon his
complaints of shortness of breath, Nurse Ketcher
administered Plaintiff's inhaler. Defendant Johnson placed
the EBID shield on the ground to assist with securing
Plaintiff in the restraint chair. Officer Haines—who is not
a defendant in this case—used the hand-held EBID on
Plaintiff when he began resisting the application of the
restraints. Plaintiff was placed in the restraint chair at
approximate 10:30 a.m. and was removed at
approximately 6:30 p.m.
C. Liability under 42 U.S.C. § 1983
Plaintiff's Complaint seeks to assert liability against
Defendants pursuant to 42 U.S.C. § 1983. To state a claim
under 42 U.S.C. § 1983, a plaintiff must meet two
threshold requirements. He must allege: 1) that the alleged
misconduct was committed by a person acting under color
of state law; and 2) that as a result, he was deprived of
rights, privileges, or immunities secured by the
Constitution or laws of the United States. West v. Atkins,
487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988);
Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68
L.Ed.2d 420 (1981), overruled in part on other grounds,
Daniels v. Williams, 474 U.S. 327, 330–331, 106 S.Ct.
662, 88 L.Ed.2d 662 (1986).
To establish personal liability against a defendant in
a section 1983 action, that defendant must have personal
involvement in the alleged wrongs; liability cannot be
predicated solely on the operation of respondeat superior.
Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d
561 (1976). Accordingly, individual liability can be

imposed under section 1983 only if the state actor played
an “affirmative part” in the alleged misconduct. Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988);
Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir.1986).
Personal involvement by a defendant can be shown by
alleging either personal direction or actual knowledge and
acquiescence in a subordinate's actions. Rode, 845 F.2d at
1207.
The issues at bar concern whether Defendants have
violated any of Plaintiff's constitutional rights. His claims
are discussed separately below.
D. First Amendment—Retaliation
Plaintiff claims that Defendants retaliated against him
by placing him in the SMU, denying him food and by
labeling him a snitch. It is well settled that retaliation for
the exercise of a constitutionally protected right may
violate the protections of the First Amendment, which is
actionable under section 1983. Rauser v. Horn, 241 F.3d
330 (3d Cir.2001); White v. Napo leon, 897 F.2d 103, 112
(3d Cir.1990). However, merely alleging the fact of
retaliation is insufficient; in order to prevail on a
retaliation claim, a plaintiff must show three things: (1) the
conduct which led to the alleged retaliation was
constitutionally protected; (2) that he was subjected to
adverse actions by a state actor (here, the prison officials);
and (3) the protected activity was a substantial motivating
factor in the state actor's decision to take the adverse
action. See Mt. Healthy City Bd. of Educ. v. Doyle, 429
U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977);
Anderson v. Davila, 125 F.3d 148, 163 (3d Cir.1997).
*9 A plaintiff can satisfy the second requirement by
demonstrating that the “adverse” action “was sufficient to
deter a person of ordinary firmness from exercising his
[constitutional] rights.” See Allah v. Seiverling, 229 F.3d
220, 225 (3d Cir.2000). The third factor, “motivation,”
may be established by alleging a chronology of events
from which retaliation plausibly may be inferred. Tighe v.
Wall, 100 F.3d 41, 42 (5th Cir.1996); Goff v. Burton, 91
F.3d 1188 (8th Cir.1996); Pride v. Peters, 72 F.3d 132
(Table), 1995 WL 746190 (7th Cir.1995). If the plaintiff
proves these three elements, the burden shifts to the state
actor to prove that it would have taken the same action
without the unconstitutional factors. Mt. Healthy, 429 U.S.

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at 287. “This means that, once a prisoner demonstrates
that his exercise of a constitutional right was a substantial
or motivating factor in the challenged decision, the prison
officials may still prevail by proving that they would have
made the same decision absent the protected conduct for
reasons reasonably related to a legitimate penological
interest.” Rauser, 241 F.3d at 334.
Because retaliation claims can be easily fabricated, district
courts must view prisoners' retaliation claims with
sufficient skepticism to avoid becoming entangled in every
disciplinary action taken against a prisoner. See Cochran
v. Morris, 73 F.3d 1310, 1317 (4th Cir.1996); Woods v.
Smith, 60 F.3d 1161, 1166 (5th Cir.1995), cert. denied,
516 U.S. 1084, 116 S.Ct. 800, 133 L.Ed.2d 747 (1996);
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995).
Finally, allegations of de minimis acts of retaliation do not
state a claim under § 1983. Thaddeus–X v. Blatter, 175
F.3d 378, 397 (6th Cir.1999); Dawes v. Walker, 239 F.3d
489, 492 (2d Cir.2001) (holding that a de minimis
retaliatory act is outside the ambit of constitutional
protection).
A prisoner's ability to file grievances and lawsuits against
prison officials is a protected activity for purposes of a
retaliation claim. See Milhouse v. Carlson, 652 F.2d 371,
373–74 (3d Cir.1981) (retaliation for exercising right to
petition for redress of grievances states a cause of action
for damages arising under the constitution); Woods, 60
F.3d at 1165 (prison officials may not retaliate against an
inmate for complaining about a guard's misconduct).
Plaintiff claims that the retaliation was the result of his
filing grievances and complaints. Thus, he has alleged the
first element of a retaliation claim.
With respect to the second element, the Plaintiff
alleges that he was placed in the SMU, denied food trays
and was labeled a snitch. Only retaliatory conduct that
would deter a similarly situated individual of ordinary
firmness from exercising his or her constitutional rights
constitutes an adverse action for a claim of retaliation.
This objective inquiry is not static across contexts; it must
be tailored to the different circumstances in which
retaliation claims arise. Thaddeus–X v. Blatter, 175 F.3d
378, 398 (6th Cir.1999) (“Prisoners may be required to
tolerate more than public employees, who may be required

to tolerate more than average citizens, before a
[retaliatory] action taken against them is considered
adverse.”).
*10 With regard to his first two allegations, this Court
may conclude that Plaintiff has alleged the second element
of a retaliation claim, i.e., that he was subjected to
“adverse” action. See Mitchell v. Horn, 318 F.3d 523, 530
(3d Cir.2002) (holding that prisoner's allegation that he
was falsely charged with misconduct in retaliation for
filing complaints against a correctional officer sufficiently
alleged a retaliation claim); Allah v. Seiverling, 229 F.3d
220, 225 (3d Cir.2000) (holding that an allegation that a
prisoner was kept in administrative segregation to punish
him for filing civil rights complaints stated a retaliation
claim).
It is unclear, however, whether Plaintiff's third allegation
that he was labeled a snitch, can satisfy the second element
of a retaliation claim. See Dawes v. Walker, 239 F.3d 489,
492 (2d Cir.2001) (“Absent some factual showing that the
comments by the prison officials actually risked inciting
other inmates against Dawes, we are unwilling simply to
assume that prison inmates would be incited, without
more, to attack “one of their own” who was labeled an
“informant” and a “rat” for complaining to prison
supervisors about a prison guard's conduct.”); McDowell
v. Sherrer, 2008 WL 4542475, *22 (D.N.J.2008) (same);
Snyder v. McGinnis, 2004 WL 1949472 (W.D.N.Y.
Sept.4, 2004). The Court need not decide this issue,
however, as Plaintiff's has not shown the third factor
required to make out a retaliation claim.
In this regard, the third element of a retaliation claim
requires the Plaintiff to show that the protected activity
was a substantial motivating factor in the state actor's
decision to take the adverse action. This “motivation”
factor may be established by alleging a chronology of
events from which retaliation plausibly may be inferred.
Tighe v. Wall, 100 F.3d 41, 42 (5th Cir.1996); Goff v.
Burton, 91 F.3d 1188 (8th Cir.1996); Pride v. Peters, 72
F.3d 132 (Table), 1995 WL 746190 (7th Cir.1995). It is
Plaintiff's burden to prove that the Defendants were
motivated by retaliation. Hannon v. Speck, 1988 WL
131367, at *4 (E.D.Pa. Dec.6, 1988) (“In bringing a §
1983 action alleging such retaliation, an inmate faces a

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substantial burden in attempting to prove that the actual
motivating factor ... was as he alleged.”) (internal quotes
and citation omitted), aff'd, 888 F.2d 1380 (3d Cir.1989)
(Table).
With respect to his first retaliation claim, i.e., that he
was placed in the SMU, the record evidence does not
establish the essential third element, i.e., that the protected
activity was a substantial motivating factor in the state
actor's decision to take the adverse action. In this regard,
DOC records indicate that Plaintiff was placed in the SMU
due to his disruptive behavior and extensive and violent
misconduct history (ECF. No. 63–1, 63–3). Plaintiff has
not submitted any evidence to refute this. Because this
demonstrates that the state actors would have taken the
same action without the unconstitutional factors, Plaintiff
can not prevail on his first retaliation claim and
Defendants are entitled to summary judgment as to this
claim.
*11 In his second claim, Plaintiff alleges that he was
denied food trays by Defendants Holman and Cummings
(Compl.¶ 44). Plaintiff does not attach any evidence to
support this claim and does not provide any information as
to when this allegedly occurred. Nor has Plaintiff
submitted any evidence indicating when Defendants
Holman and Cummings allegedly became aware of his
prior litigation or his filing of grievances such as to
establish any motivating In this regard, Plaintiff has failed
to provide the court with any probative evidence
establishing the crucial link between his previous litigation
and Defendants alleged retaliatory actions. See Lauren W.
ex rel. Jean W. v. Deflaminis, 480 F.3d 259, 267 (3d
Cir.2007) (to show a causal connection, a plaintiff must
prove “either (1) an unusually suggestive temporal
proximity between the protected activity and the allegedly
retaliatory action, or (2) a pattern of antagonism coupled
with timing to establish a causal link”); Estate of Smith v.
Marasco, 318 F.3d 497, 512 (3d Cir.2003) (holding that
the temporal proximity between the protected conduct and
the alleged retaliatory action must be “unusually
suggestive” before the court will infer a causal link) (citing
Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d
Cir.1997)).

forward with evidence in support of his claims in response
to defendants' motion for summary judgment. See Brown
v. Pennsylvania Dept. of Corrections 290 Fed. App'x 463,
466 (3d Cir.2008). Here, Plaintiff has failed to provide a
precise chronology of events; consequently, no reasonable
jury could infer causation. While “timing plus other
evidence may be an appropriate test where the temporal
proximity is not so close as to be ‘unduly suggestive,’ ”
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d
Cir.2000), Plaintiff has not offered other evidence in
support of his retaliation claim. Thus, he has not
demonstrated any causation between his protected
activities and Defendants' alleged actions in refusing him
meal trays.FN4
FN4. It is patently clear that not every allegedly
adverse action is sufficient to support a claim of
retaliation. See, e.g., Huskey v. City of San Jose,
204 F.3d 893, 899 (9th Cir.2000) (holding that a
retaliation claim cannot rest on the logical fallacy
of post hoc, ergo propter hoc, literally, “after
this, therefore because of this.”).
Moreover, Defendants have attached records showing
that Plaintiff repeatedly refused his meal trays (ECF No.
63–3, pp. 35–36). Plaintiff has not submitted any evidence
to refute the accuracy of these records. Thus, Defendants
are entitled to summary judgment as to Plaintiff's second
retaliation claim.
With regard to his third claim, in his Complaint, he states
that he was labeled a snitch for filing the February 6, 2006
Grievance No. 143257. Yet, in that Grievance, he
complains that Holman, Meeker, Dobrynski and Crumb
labeled him a snitch and wrote the word snitch on his
property box. The affidavits he filed in support of this
claim show that the alleged name calling was done prior to
the filing of his grievance. See ECF No. 89–5, p. 2; ECF
No. 89–6, p. 2. Because he allegedly was labeled a snitch
before he filed this grievance, Plaintiff can not show that
the protected activity of filing the grievance on February
6, 2006 was the substantial motivating factor in the state
actor's decision to take the adverse action. Consequently,
Defendants are entitled to summary judgment as to this
claim.

Brown is quite aware that it is his responsibility to come

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E. The Eighth Amendment
*12 Plaintiff makes several allegations that invoke
liability under the Eighth Amendment, which provides as
follows.
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
U.S. Const. amend. VIII.
The Eighth Amendment protects individuals against
the infliction of “cruel and unusual punishments.” U.S.
Const. amend. VIII. This protection, enforced against the
states through the Fourteenth Amendment, guarantees
incarcerated persons humane conditions of confinement.
In this regard, prison officials must ensure that inmates
receive adequate food, clothing, shelter and medical care,
and must “take reasonable measures to guarantee the
safety of the inmates.” Farmer v. Brennan, 511 U.S. 825,
832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting
Hudson v. Palmer, 468 U.S. 517, 526–27, 104 S.Ct. 3194,
82 L.Ed.2d 393 (1984)).

We hold instead that a prison official cannot be found
liable under the Eighth Amendment for denying an
inmate humane conditions of confinement unless the
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. This approach comports best with
the text of the Amendment as our cases have interpreted
it. The Eighth Amendment does not outlaw cruel and
unusual “conditions”; it outlaws cruel and unusual
“punishments.” An act or omission unaccompanied by
knowledge of a significant risk of harm might well be
something society wishes to discourage, and if harm
does result society might well wish to assure
compensation.... But an official's failure to alleviate a
significant risk that he should have perceived but did
not, while no cause for commendation, cannot under our
cases be condemned as the infliction of punishment.
*13 Farmer, 511 U.S. at 837–838 (emphasis added).
1. Conditions of Confinement

Notwithstanding, not every injury raises constitutional
concerns. A prison official violates the Eighth Amendment
only when two requirements are met. The inmate must
show that: 1) he suffered a risk of “serious” harm; and 2)
prison officials showed “deliberate indifference” to such
risk. Id., 511 U.S. at 834. The first element is satisfied
when the alleged “punishment” is “objectively sufficiently
serious.” Id. In determining whether a prisoner has alleged
a risk that is objectively serious, a court must consider not
only the seriousness of the potential harm and the
likelihood that the harm will actually occur, but evidence
that unwilling exposure to that risk violates contemporary
standards of decency. In other words, the prisoner must
show that the risk of which he complains is not one that
today's society chooses to tolerate. Helling v. McKinney,
509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993).
The second criterion, deliberate indifference, requires an
inmate to show that the prison official had a sufficiently
culpable state of mind.
The Supreme Court clarified this deliberate
indifference standard in Farmer as follows.

Plaintiff first alleges that the conditions of his
confinement in the SMU violated the Eighth Amendment
prohibition against cruel and unusual punishment. Plaintiff
fails to allege any facts to demonstrate that the conditions
of his confinement in the SMU deprived him of any basic
human need such as food, clothing, shelter, sanitation,
medical care or personal safety. Neither classification nor
confinement to segregation, either administrative or
punitive, implicates the Cruel and Unusual Punishment
Clause of the Eighth Amendment unless the conditions
themselves are cruel and unusual. Hutto v. Finney, 437
U.S. 678, 686, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978);
Spaight v. Coughlin, 104 F.3d 350 (Table), 1996 WL
518507 (2d Cir.1996), cert. denied, 519 U.S. 1121, 117
S.Ct. 972, 136 L.Ed.2d 855 (1997); Young v. Quinlan,
960 F.2d 351, 363 (3d Cir.1992); Sheley v. Dugger, 833
F.2d 1420, 1428–29 (11th Cir.1987); Gibson v. Lynch,
652 F.2d 348, 352 (3d Cir.1981) ( “administrative
segregation and solitary confinement do not, in and of
themselves, constitute cruel and unusual punishment”)
(citing Hutto ), cert. denied, 462 U.S. 1137, 103 S.Ct.
3123, 77 L.Ed.2d 1375 (1983).

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The Constitution does not mandate comfortable prisons.
Rhodes, 452 U.S. at 349. Prisons housing “persons
convicted of serious crimes cannot be free of discomfort.”
Id. Accord Griffin v. Vaughn, 112 F.3d 703 (3d Cir.1997)
(restrictive conditions in administrative custody in the
Pennsylvania state correctional institutions, in and of
themselves, do not violate the Eighth Amendment).
Plaintiff claims that the SMU is a severely hostile
environment and that Defendants have confined him there
in order to conduct psychiatric research and that his
confinement in the SMU is exacerbating his mental illness.
As stated, the SMU is a place where the worst of the worst
are confined. Plaintiff has submitted no evidence to
support his claims that Defendants are conducting
psychiatric research as part of the LTSU and/or SMU
programs. The behavior modification utilized in these
programs is a carrot and stick approach, i.e., Plaintiff's
negative behaviors are negatively reinforced or “punished”
by a substantial loss of privileges 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, i.e., 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 well-established rule is that discipline reasonably
maintained in state prisons is not under the supervisory
direction of Federal courts. Ford v. Board of Managers of
the New Jersey State Prison, 407 F.2d 937 (3d Cir.1969).
But so long as incarceration as a form of punishment
continues, we are required perforce to recognize that,
archaic and indefensible though it may be, its objective
is to circumscribe certain activities and opportunities
not only available in, but also characteristic of, an open
societal setting. And, unpleasant as it is to contemplate
the physical restrictions of a ‘settled environment’, we
must also recognize that even those rights which survive
penal confinement may be diluted by peculiar
institutional requirements of discipline, safety, and
security.

*14 Gittlemacker v. Prasse, 428 F.2d 1, 3–4 (3
Cir.1970).
It is only when confinement becomes so foul, so inhuman,
and so violative of the basic concepts of decency that a
federal court should interfere with prison officials who
purportedly have the experience and expertise in matters
of prison discipline. Plaintiff has failed to evidence
conditions that satisfy the objective component of an
Eighth Amendment claim with respect to the conditions
alleged in the SMU. Consequently, Defendants are entitled
to summary judgment as to this claim. Accord Dantzler v.
Beard 2007 WL 5018184, *10 (W.D.Pa. Dec.6, 2007);
Woods v. Abrams, 2007 WL 2852525, 13 (W.D.Pa.
Sept.27, 2007); Elliott v. Beard, 2006 WL 4404771, *5
(W.D.Pa. Sep 27, 2006).
2. Denial of Food
Plaintiff claims that Defendants denied him his meal
trays in violation of the Eighth Amendment. While the
Eighth Amendment requires prison officials to provide
adequate nutrition to convicted prisoner, only extreme
deprivations state a violation of the Eighth Amendment.
Hudson v. McMillan, 503 U.S. 1, 8–9, 112 S.Ct. 995, 117
L.Ed.2d 156 (1992). The conditions presenting the risk
must be “sure or very likely to cause serious illness and
needless suffering,” and give rise to “sufficiently imminent
dangers.” Helling v. McKinney, 509 U.S. 25, 33, 34–35,
113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). In order to prevail
on such a claim there must be a “substantial risk of serious
harm,” an “objectively intolerable risk of harm” that
prevents prison officials from pleading that they were
“subjectively blameless for purposes of the Eighth
Amendment.” Farmer v. Brennan, 511 U.S. 825, 842,
846, and n. 9, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
Here, Plaintiff does not provide any evidence concerning
when, or how often, these alleged sporadic denials
occurred. Inasmuch as Plaintiff does not presently contend
that he was denied consecutive meals, nor that he suffered
any ill effects from these supposed occasional denials,
Defendants are entitled to summary judgment as to this
claim. Cf. Ford v. Brd. of Mgrs of New Jersey State
Prison, 407 F.2d 937, 939–940 (3d Cir.1969) (no Eighth
Amendment claim where prisoner fed four slices of bread
and one pint of water three times a day with a full meal

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every three days).
3. Excessive Force
Next, Plaintiff alleges that Defendants used excessive
force during a cell extraction that occurred on December
12, 2005. The Cruel and Unusual Punishments Clause of
the Eighth Amendment protects inmates against the
application of excessive force by correctional officers. See
Whitley v. Albers, 475 U.S. 312, 318–19, 106 S.Ct. 1078,
89 L.Ed.2d 251 (1986). What is required to prove an
Eighth Amendment violation “varies according to the
nature of the alleged constitutional violation.” Hudson v.
McMillian, 503 U.S. 1, 5, 112 S.Ct. 995, 117 L.Ed.2d 156
(1992). In an excessive force claim, the core judicial
inquiry is “whether force was applied in a good faith effort
to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.” Hudson
v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d
156 (1992). Factors relevant to this inquiry include: the
need for application of force; the relationship between that
need and the amount of force used; the threat reasonably
perceived by the responsible officials; and any efforts
made to temper the severity of a forceful response.
Hudson, 503 U.S. at 7 (citations omitted). The extent of
any resulting injury, while material to the question of
damages and informative as to the likely degree of force
applied, is not in and of itself a threshold requirement for
proving this type of Eighth Amendment claim. Wilkins v.
Gaddy, ––– U.S. ––––, 130 S.Ct. 1175, 175 L.Ed.2d 995
(2010).
*15 The facts surrounding the cell extraction are set
forth on pages 12 and 13 herein.
The fact that prison authorities employ the use of restraint
chairs, body restraints or taser guns does not, in and of
itself, allege a violation of the Eighth Amendment. See,
e.g., Fuentes v. Wagner 206 F.3d 335, 345 (3d Cir.2000)
(defendants entitled to summary judgment with regard to
use of restraint chair where there was no evidence that
prison officials placed him in the chair maliciously and
sadistically to cause harm); Dixon v. Toole, 225 Fed.
App'x 797, 799 (11th Cir.2007) (no Eighth Amendment
violation with respect to four point restraints where
prisoner suffered no physical injury); Parks v. Williams
157 Fed. App'x 5, 6 (9th Cir.2005) (same); Draper v.

Reynolds, 369 F.3d 1270, 1278 (11th Cir.2004) (holding
that a “single use of the taser gun causing a one-time
shocking” against a “hostile, belligerent, and
uncooperative” arrestee in order to effectuate the arrest
was not excessive force in the totality of the
circumstances); Jasper v. Thalacker, 999 F.2d 353, 354
(8th Cir.1993) (using stun gun to subdue an unruly inmate
did not violate Eighth Amendment where plaintiff failed
to prove that the officers used the stun gun “sadistically or
maliciously” to cause harm); Caldwell v. Moore, 968 F.2d
595, 602 (6th Cir.1992) (use of stun gun against disruptive
prisoner to restore discipline and order does not violate
Eighth Amendment); Michenfelder v. Sumner, 860 F.2d
328, 336 (9th Cir.1988) (policy of allowing use of taser
guns on inmate who refuses to submit to a strip search
does not constitute cruel and unusual punishment). Prisons
are hostile environments, the use of restraint chairs and the
like may be the only way for prison officials to control
prisoners such as Brown who simply will not abide by the
prisons rules. As long as such measures are utilized in an
humane manner, it is not for the federal courts to interfere
in prison discipline.
With respect to the event depicted on the videotape,
it is clear that the force applied was not so excessive as to
present a cognizable Eighth Amendment claim. Plaintiff's
actions in destroying his cell created the confrontation;
force was applied for reasonably short periods necessary
to subdue Plaintiff. Contrary to Plaintiff's assertions, the
use of the stun gun and chemical agent does not prove that
the amount of force was excessive. Soto v. Dickey, 744
F.2d 1260, 1270 (7th Cir.1984) (“The use of mace, tear
gas or other chemical agent of the like nature when
reasonably necessary ... to subdue recalcitrant prisoners
does not constitute cruel and inhuman punishment,” even
if the inmate is handcuffed). Moreover, the brief
application of the EBID was reasonably necessary to
control Plaintiff while he was being strapped into the
restraint chair. See Hunter v. Young, 238 Fed. App'x 336,
339 (10th Cir.2007) (finding use of taser gun not
objectively unreasonable); Jeffers v. Gomez, 267 F.3d
895, 910–11 (9th Cir.2001) (a prison security measure that
is undertaken for the protection of prison officials and the
inmate population is constitutional when it is applied in
good-faith). Consequently, Defendants are entitled to
summary judgment as to the force used up until the time

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he was secured in the restraint chair as demonstrated on
the videotape.
*16 Plaintiff also alleges that, during the time period
not depicted on the videotape, he was shocked with the
EBID by Defendant Johnson after he was restrained and
incapable of being a threat to anyone. This allegation may
support a claim of excessive force. See, e.g ., McDowell v.
Sheerer, 374 Fed. App'x 288 (3d Cir.2010; Smith v.
Mensinger, 293 F.3d 641, 648 (3d Cir.2002); Brooks v.
Kyler, 204 F.3d 102 (3d Cir.2000). Thus, this claim
remains assuming Plaintiff can demonstrate that he fully
exhausted this claim as required by the PLRA.
4. Failure to Provide Medical Treatment
Plaintiff also asserts an Eighth Amendment claim
alleging failure to provide medical treatment for his
mental illness. He claims that his disruptive behavior is
due to his mental condition, bi-polar disorder and low
Global Assessment Function of 55, and that his
confinement in the SMU is exacerbating his mental illness.
To state an Eighth Amendment violation in the context of
medical treatment, an inmate must show prove two
elements: 1) plaintiff was suffering from a “serious
medical need,” and 2) prison officials were deliberately
indifferent to the serious medical need. Gamble v. Estelle,
439 U.S. 897, 99 S.Ct. 260, 58 L.Ed.2d 245 (1978).
The first showing requires the court to objectively
determine whether the medical need was “sufficiently
serious.” A medical need is “serious” if it is one that has
been diagnosed by a physician as mandating treatment, or
one that is so obvious that even a lay person would easily
recognize the necessity for a doctor's attention.
Gaudreault v. Municipality of Salem, 923 F.2d 203, 208
(1st Cir.1990), cert. denied, 500 U.S. 956, 111 S.Ct. 2266,
114 L.Ed.2d 718 (1991); Monmouth County Correctional
Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d
Cir.1987), cert. denied, 486 U.S. 1006, 108 S.Ct. 1731,
100 L.Ed.2d 195 (1988).
The second prong requires a court subjectively to
determine whether the officials acted with a sufficiently
culpable state of mind. Deliberate indifference may be
manifested by an intentional refusal to provide care,
delayed medical treatment for non-medical reasons, a

denial of prescribed medical treatment, or a denial of
reasonable requests for treatment that results in suffering
or risk of injury. Durmer v. O'Carroll, 991 F.2d 64, 68 (3d
Cir.1993).
a. Serious Medical Need
In the case at bar, the Plaintiff claims that he did not
receive adequate medical care for his mental health illness.
A plaintiff alleging constitutionally inadequate medical
treatment must submit medical evidence of a “serious
medical need” sufficient to satisfy the objective
component of the test. Boring v. Kozakiewicz, 833 F.2d
468 (3d Cir.1987), cert. denied, 485 U.S. 991, 108 S.Ct.
1298, 99 L.Ed.2d 508 (1988). In Boring, the Court of
Appeals for the Third Circuit determined that, because
plaintiffs failed to produce expert testimony that their
injuries were “serious,” they failed to meet their burden of
proof. The court explained that expert testimony would
not necessarily be required in situations where the
seriousness of injury or illness would be apparent to a lay
person, e.g., a gunshot wound. Boring, 833 F.2d at 473
(citing City of Revere v. Massachusetts General Hosp.,
463 U.S. 239, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983)).
With respect to an ulnar nerve injury and migraine
headaches, however, the Court concluded that a fact finder
would not be able to determine that the condition was
“serious” because the need for treatment did not appear to
be “acute.” Id. With respect to a scalp condition and
complaints about dental care, the Court found that the
complaints merely reflected a disagreement over the
proper method of treatment. In so concluding, the Court
noted that “courts will not ‘second-guess the propriety or
adequacy of a particular course of treatment [which]
remains a question of sound professional judgment.’ ” Id.
(quoting Inmates of Allegheny County Jail v. Pierce, 612
F.2d 754, 762 (3d Cir.1979)). Finally, with respect to a
prior knee injury, the Court found that the evidence did
not establish an acute condition.
*17 As laymen, the jury would not be in a position to
decide whether any of the conditions described by
plaintiffs could be classified as “serious.” In these
circumstances, the district court properly required
expert medical opinion and in its absence properly
withdrew the issue from the jury.

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Boring, 833 F.2d at 474 (citations omitted).
Here, Plaintiff has not included any evidence to
whatsoever to substantiate the existence of any serious
medical need with regard to his alleged mental illness.
Moreover, as Defendants point out, the record evidence
belies his contentions in this regard. Plaintiff has received
regular examinations and reviews by the mental health
staff. During each of these reviews, a Mental Health
Contact Note is created by the Psychological/Psychiatric
Support Staff (PSS) member (ECF No. 63–3, pp. 24–36).
Plaintiff's Mental Health Contact Notes provide that he is
psychologically stable. These notes further provide that
Plaintiff has attempted to manipulate a psychological
recommendation to leave the LTSU and that he “oscillates
between wanting to be mentally ill and not wanting to be
mentally ill,” and “does not play the mentally ill game
well” (ECF No. 63–3, p. 30).
As with the medical complaints in Boring, a lay
person would not be able to conclude that Plaintiff's
unsubstantiated allegations of mental illness constituted a
“serious medical need” sufficient to invoke the Gamble
standard without expert testimony or evidence. Thus,
Plaintiff has failed to meet his burden of demonstrating a
genuine issue of fact about whether Defendants ignored a
critical or escalating medical situation or that their actions
posed a substantial risk of serious harm. Because evidence
of this nature is required in order for an inmate's claim to
succeed, Plaintiff's failure to meet this burden is fatal to
his case.
b. Deliberate Indifference
Moreover, even if the court were to conclude that
Plaintiff has demonstrated the existence of a serious
medical need, a finding this Court specifically does not
make, he has failed to demonstrate that Defendants were
deliberately indifferent to it. The “deliberate indifference”
standard for purposes of liability under section 1983 is a
stringent standard of fault requiring proof that a defendant
disregarded a known or obvious consequence of his
action. Board of County Commissioners of Bryan County
v. Plaintiff, 520 U.S. 397, 410, 117 S.Ct. 1382, 137
L.Ed.2d 626 (1997). The defendant must be both aware of
facts from which the inference could be drawn that a

substantial 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). An official is not
deliberately indifferent if “he fails to alleviate a significant
risk that he should have identified.” Id. Moreover,
deliberate indifference to a serious medical need of a
prisoner is distinguishable from a negligent diagnosis or
treatment of a medical condition; only the former conduct
violates the Eighth Amendment. Medical malpractice may
give rise to a tort claim in state court but does not
necessarily rise to the level of a federal constitutional
violation. Kost v. Kozakiewicz, 1 F.3d 176, 185 (3d
Cir.1993); Durmer v. O'Carroll, 991 F.2d 64, 67 (3d
Cir.1993).
*18 The Supreme Court explained the difference between
negligence and constitutional claims in Estelle v. Gamble,
429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1978). In
that case, the prisoner, Gamble, was injured when a bale
of cotton fell on him while he was unloading a truck. He
went to the unit hospital where a medical assistant checked
him for a hernia and sent him back to his cell. He returned
to the hospital where he was given pain pills by an inmate
nurse and then was examined by a doctor. The following
day, his injury was diagnosed as a lower back strain; he
was prescribed a pain reliever and a muscle relaxant. Over
the course of several weeks, Gamble was seen by several
doctors who prescribed various pain relievers and
provided him with medical work excuses. Ultimately,
despite his protests that his back hurt as much as it had the
first day, medical staff certified Gamble to be capable of
light work. During the next two months, Gamble received
a urinalysis, blood test, blood pressure measurement, and
pain and blood pressure medication. Subsequently, a
medical assistant examined Gamble and ordered him
hospitalized for treatment of irregular cardiac rhythm.
The Supreme Court held that Gamble's allegations failed
to state a claim upon which relief could be granted against
the defendant, both in his capacity as a treating physician
and as the medical director of the Corrections Department.
Gamble was seen by medical personnel on 17
occasions spanning a 3–month period.... They treated
his back injury, high blood pressure, and heart
problems. Gamble has disclaimed any objection to the
treatment provided for his high blood pressure and his

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heart problem; his complaint is “based solely on the
lack of diagnosis and inadequate treatment of his back
injury.” The doctors diagnosed his injury as a lower
back strain and treated it with bed rest, muscle relaxants
and pain relievers. Respondent contends that more
should have been done by way of diagnosis and
treatment, and suggests a number of options that were
not pursued. The Court of Appeals agreed, stating:
“Certainly an x-ray of (Gamble's) lower back might
have been in order and other tests conducted that would
have led to appropriate diagnosis and treatment for the
daily pain and suffering he was experiencing.” But the
question whether an X-ray or additional diagnostic
techniques or forms of treatment is indicated is a classic
example of a matter for medical judgment. A medical
decision not to order an X-ray, or like measures, does
not represent cruel and unusual punishment. At most it
is medical malpractice, and as such the proper forum is
the state court under the Texas Tort Claims Act.

record evidence simply do not show that Defendants acted
with deliberate indifference to his serious medical needs
for purposes of imposing liability under the Eighth
Amendment's prohibition against cruel and unusual
punishment. Specifically, there is nothing that suggests
that Defendants knew that Plaintiff faced a substantial risk
of serious harm and disregarded that risk by failing to take
reasonable measures to abate it. Thus, the Defendants are
entitled to judgment as a matter of law with respect to this
claim. See Brown v. Pennsylvania Dept. of Corrections
290 Fed. App'x 463, 467 (3d Cir.2008) (“The record
establishes that Brown has not been deprived of medical
care in the LTSU”); Sides v. Law 283 Fed. App'x 930 (3d
Cir. June 30, 2008) (corrections officials' failure to afford
mental health treatment to an inmate while he was housed
in a special management unit (SMU) did not constitute
deliberate indifference to his medical needs, so as to
violate the Eighth Amendment, even though he had an
anti-social personality disorder).

Gamble, 427 U.S. at 107 (internal citations omitted).

In paragraph 45 of his Complaint, Plaintiff claims that
Nurse Ketcher should not have approved the use of OC
due to his asthmatic condition. First of all, it was Dr.
Harper, not Nurse Ketcher, who approved the use of OC.
As Dr. Harper is not a Defendant in this action, there is no
basis to impose liability for the approval of the OC.
Second, Plaintiff's eyes were washed out twice and his
inhaler administered despite the fact that he did not appear
to suffer any respiratory ill effects from the OC. Thus,
there is no basis to conclude that either the approval or the
use of the OC violated Plaintiff's Eighth Amendment
rights.

Plaintiff's allegations, like Gamble's, do not state a
constitutional violation, a prerequisite for recovery under
42 U.S.C. § 1983. The record evidence reveals that the
Defendants acted responsibly in attending to his medical
needs. He was seen by psychiatric staff on a monthly basis
and was determined to be stable. While an intentional
refusal to provide any medical treatment to an inmate
suffering from a serious medical need manifests deliberate
indifference and is actionable under the Eighth
Amendment, the Eighth Amendment does not require that
a prisoner receive every medical treatment that he requests
or that is available elsewhere. A disagreement as to the
appropriate choice of medical treatment does not give rise
to a constitutional violation because the “right to be free
from cruel and unusual punishment does not include the
right to the treatment of one's choice.” Layne v. Vinzant,
657 F.2d 468, 473 (1st Cir.1981). Mere disagreements
over medical judgment do not state Eighth Amendment
claims as there are typically several acceptable ways to
treat an illness. Young v. Quinlan, 960 F.2d 351, 358 n. 18
(3d Cir.1992); White v. Napoleon, 897 F.2d 103, 110 (3d
Cir.1990).
*19 Taken as true, the Plaintiff's allegations and the

F. Fourteenth Amendment
1. Procedural Due Process
Plaintiff claims that Defendants' actions in placing
him in the SMU and/or LTSU violated his rights under the
Due Process Clause of the Fourteenth Amendment
because he was not provided with notice or a hearing. The
Due Process Clause does not protect every change in the
conditions of confinement having a substantial adverse
impact on a prisoner. Meachum v. Fano, 427 U.S. 215,
224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). The Due
Process Clause shields from arbitrary or capricious
deprivation only those facets of a convicted criminal's
existence that qualify as “liberty interests.” Hewitt v.

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Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675
(1983); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593,
33 L.Ed.2d 484 (1972). The types of protected liberty
interests are not unlimited. The interest must rise to more
than an abstract need or desire and must be based on more
than a unilateral hope. Rather, an individual claiming a
protected interest must have a legitimate claim of
entitlement to it. Greenholtz v. Inmates of Nebraska Penal
and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100,
60 L.Ed.2d 668 (1979) (citation omitted).
Thus, the threshold question presented by Petitioner's
claim is whether Defendants' actions impacted a
constitutionally-protected liberty interest. A liberty interest
may arise either from the Due Process Clause itself, or
from a statute, rule, or regulation. Hewitt, 459 U.S. at 466.
a. Liberty Interest Inherent in Due Process Clause
*20 A liberty interest inherent in the Constitution
arises when a prisoner has acquired a substantial, although
conditional, freedom such that the loss of liberty entailed
by its revocation is a serious deprivation requiring that the
prisoner be accorded due process. Gagnon v. Scarpelli,
411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
Interests recognized by the Supreme Court that fall within
this category include the revocation of parole, Morrissey,
408 U.S. at 471, and the revocation of probation, Gagnon,
411 U.S. at 778. The Due Process Clause, however, does
not create an inherent liberty interest to remain free from
administrative segregation. See, e.g., Hewitt, 459 U.S. at
468; Wolff, 418 U.S. at 556; Montayne v. Haymes, 427
U.S. 236, 242, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976);
Sheehan v. Beyer, 51 F.3d 1170, 1175 (3d Cir.1995);
Layton v. Beyer, 953 F.2d 839, 845 (3d Cir.1992).
Accordingly, Plaintiff can succeed under the Due Process
Clause only if state law or regulation has created a
constitutionally-protected liberty interest in remaining free
from administrative detention.
b. Liberty Interest Created by Law or Statute
In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293,
132 L.Ed.2d 418 (1995) the Supreme Court dramatically
narrowed the range of liberty interests created by law and
regulation. Prior to Sandin, courts reviewed the specific
language of the pertinent law or regulation to determine
whether the language was unmistakably mandatory in

character such that it created a liberty interest. The
Supreme Court announced a new rule in Sandin for
determining whether a prisoner had a protected liberty
interest created under statute or regulation by shifting the
focus of inquiry from the specific language of the law or
regulation to whether the deprivation suffered by the
prisoner imposes an “atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison
life.” Sandin, 515 U.S. at 483 (emphasis added).
Every court that has addressed this issue in Pennsylvania
has determined that prisoners do not have a liberty interest
in remaining free from confinement in the SMU or similar
housing. See, e.g., Smith v. Dodrill, 2009 WL 62175
(M.D. Pa. Jan 8, 2009); Spencer v. Kelchner, 2007 WL
88084 (M.D.Pa. Jan.9, 2007); Dantzler v. Beard 2007 WL
5018184 (W.D.Pa. Dec.6, 2007); Francis v. Dodrill, 2005
WL 2216582 (M.D.Pa. Sept.12, 2005). Cf. Johnson v.
Hill, 910 F.Supp. 218, 220 (E.D.Pa.1996) (holding that,
absent a state-created liberty interest that does not exist in
Pennsylvania, prisoner placement is a matter of prison
administration and a prisoner has no constitutional right to
be placed in any particular cell or housing unit).
Notwithstanding, long-term confinement in restricted
housing may be sufficiently atypical and significant to
create a protected liberty interest. See Shoats v. Horn, 213
F.3d 140 (3d Cir.2000). Here, Plaintiff has been confined
in restricted housing since at least 2004. Thus, the Court
concedes that he has demonstrated a protected liberty
interest. However, it is well settled in Pennsylvania that
periodic review of inmates indefinitely confined in
administrative confinement comports with due process
requirements. Shoats 213 F.3d at 144; Delker v.
McCullough, 103 Fed. App'x 694 (3d Cir.2004);
McKeithan v. Beard, 322 Fed. App'x 194, 199 (3d
Cir.2009) (holding that prisoner's due process claim failed
because he received periodic reviews while in the LTSU);
Brown v. Pa. Dep't of Corrections, 290 Fed. App'x 463,
465–66 (3d Cir.2008) (same); Dantzler v. Beard, Civ. No.
05–1727, 2008 WL 744740, at *1 (W.D.Pa. Mar. 18,
2008) (same for LTSU and SMU). The Court of Appeals
for the Third Circuit repeatedly has affirmed the holding
in Shoats that post-transfer periodic review comports with
due process requirements for prisoners serving lengthy
sentences who are housed in restrictive administrative
custody for indefinite periods of time. See, e.g., Gans v.

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Rozum, 267 Fed. App'x 178, 180–81 (3d Cir.2008)
(prisoner in administrative custody status for eleven
years); Williams v. Sebek, 299 Fed. App'x 104, 107 (3d
Cir.2008) (holding that inmate's continued confinement in
administrative custody for five and one-half years did not
require a remedy because the record showed that he was
receiving the required periodic reviews of his status by the
program review committee); Brown v. D.O.C. Pa., 265
Fed. App'x 107, 110 (3d Cir.2008) (same); Bowen v.
Ryan, 248 Fed. App'x 302, 304 (3d Cir.2007) (prisoner in
administrative custody status for twenty years on restricted
release status).
*21 In the current action, Plaintiff complains about
his placement in the SMU. Specifically, he states that he
did not receive advance notice that his PRC review, which
was scheduled for a different date than he anticipated, was
for the purpose of transferring him from the LTSU to the
SMU. However, Plaintiff is well aware that “due process
does not require prior notice of a transfer where the
post-transfer periodic review of an inmate's placement in
segregation provides the inmate with a meaningful
opportunity to challenge the grounds of his continued
segregation.” Brown, 290 Fed. App'x at 465. The record
shows that Plaintiff has received reviews by the Program
Review Committee (PRC) every 90 days, and by his unit
team every 30 days, since at least October, 2005 (ECF No.
63–2, pp. 2–21). Moreover, Plaintiff was provided an
opportunity to meet with the PRC upon notification of his
transfer from the LTSU to the SMU but he refused to
attend this meeting (ECF No. 63–2, p. 23). Finally,
Plaintiff filed a grievance regarding his SMU placement,
which was reviewed and answered at all three levels (ECF
No. 63–2, pp. 24–31). He has failed to submit any valid
evidence showing that such reviews did not provide him
a meaningful opportunity to challenge the grounds of his
continued segregation. See Brown v. Pennsylvania Dept.
of Corrections, 290 Fed. App'x at 466 (“Brown's affidavit,
submitted in response to defendants' motion, does not
support a conclusion that his reviews were a sham.”).
Accordingly, Defendants are entitled to summary
judgment as to Plaintiff's procedural due process claim.
2. Equal Protection
In his Complaint, Plaintiff further asserts that he was

denied equal protection. The Equal Protection Clause
provides that no state shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const.
Amend. XIV, § 1. “This is not a command that all persons
be treated alike but, rather, ‘a direction that all persons
similarly situated should be treated alike.’ ” Artway v.
Attorney General of State of N.J., 81 F.3d 1235, 1267 (3d
Cir.1996) (quoting City of Cleburne, Tex. v. Cleburne
Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87
L.Ed.2d 313 (1985)). See also United States v. Armstrong,
517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996)
(Equal Protection Clause prohibits decision to prosecute
based on an unjustifiable standard such as race, religion,
or other arbitrary classification).
To demonstrate an equal protection violation, an
inmate has the burden of proving 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 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. An inmate must offer
evidence specific to his own case that would support an
inference that unlawful considerations played a part in the
adverse decision. McCleskey, 481 U.S. at 293.
*22 Plaintiff has failed to allege any facts from which
it can be concluded that Defendants engaged in intentional
or purposeful discrimination or that he was treated
differently than similarly situated persons on the basis of
his race, nationality or gender. In short, Plaintiff does not
show any discrimination with respect to his placement in
the SMU or with respect to his treatment he received
there. There is no cognizable equal protection claim
stated. Additionally, the Plaintiff has not stated any

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specific acts taken by Defendants to show any
discriminatory animus attributable to Defendants. Thus,
Defendants are entitled summary judgment as to this
claim. Accord Spencer v. Kelchner, Civil No. 3:06–1099,
2007 WL 88084, at *13–15 (M.D.Pa. Jan.9, 2007);
Dantzler v. Beard, Civil No. 05–1727, 2007 WL 5018184,
at *9–10 (W.D.Pa. Dec.6, 2007).
G. Conspiracy
In his Amended Complaint, Plaintiff makes several
accusations of conspiracy. In order to demonstrate a
conspiracy, “a plaintiff must show that two or more
conspirators reached an agreement to deprive him or her
of a constitutional right ‘under color of state law.’ ”
Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685,
700 (3d Cir.1993) (quoting Adickes v. S.H. Kress & Co.,
398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142
(1970)). Plaintiff has concluded that Defendants and
others conspired to violate his rights yet, with regard to the
claims discussed above, he has failed to evidence any facts
showing an agreement or plan formulated and executed by
the Defendants to achieve this conspiracy. Plaintiff cannot
rely on unsupported claims of conspiracy. Without a
factual showing which gives some substance to the
conspiracy claims, Plaintiff's conspiracy claim amounts to
nothing more than mere conjecture and bare speculation.
The law is clear that bare allegations of wrongdoing by a
Defendant, without any substantiating proof of an
unlawful agreement, are insufficient to sustain a
conspiracy claim. Gometz v. Culwell, 850 F.2d 461, 464
(8th Cir.1988) (citations omitted). Also, to survive a
motion for summary judgment, the Plaintiff must establish
that there is a genuine issue of material fact regarding the
question of whether the Defendants entered into an illegal
conspiracy which caused the Plaintiff to suffer a
cognizable injury. Massachusetts School of Law at
Andover v. American Bar Association, 107 F.3d 1026,
1039 (3d Cir.), cert. denied, 522 U.S. 907, 118 S.Ct. 264,
139 L.Ed.2d 191 (1997). In other words, to successfully
counter the Defendants' motions for summary judgment,
Plaintiff must provide specific evidence establishing that
the Defendants agreed among themselves to act against
him either unlawfully or for an unlawful purpose. Vieux v.
East Bay Regional Park Dist., 906 F.2d 1330, 1343 (9th
Cir.), cert. denied, 498 U.S. 967, 111 S.Ct. 430, 112
L.Ed.2d 414 (1990).

Here, Plaintiff has failed to introduce into this record
any evidence which shows an agreement or plan
formulated and executed by Defendants or anyone else
which rises to the level of a conspiracy. At a minimum,
absent some modicum of proof which tends to reveal the
existence of an agreement which is designed to deny the
constitutional rights of the Plaintiff, he cannot maintain his
conspiracy claim. In sum, Plaintiff's allegations, standing
alone, are patently insufficient for a reasonable jury to
return a verdict in his favor. See Schowengerdt v. United
States, 944 F.2d 483 (9th Cir.1991) (allegations in a
complaint which are based on inference and speculation
cannot defeat a motion for summary judgment on a
conspiracy claim), cert. denied, 503 U.S. 951, 112 S.Ct.
1514, 117 L.Ed.2d 650 (1992); D.R., a minor v. Middle
Bucks Area Vocational School, 972 F.2d 1364 (3d
Cir.1992) (the Plaintiffs failed to show that the Defendants
engaged in a conspiracy to interfere with the Plaintiffs'
civil rights); City of Omaha Betterment Association v. City
of Omaha, 883 F.2d 650 (8th Cir.1989) (evidence was
insufficient to support a finding that an employer and a
local union conspired to deny an employee a promotion
because of her gender); Gometz v. Culwell, 850 F.2d at
464 (summary judgment should have been granted
regarding against allegations of a conspiracy purportedly
engaged in between prison officials because no credible
evidence supported the conspiracy claim); Oatess v.
Norris, 431 Pa.Super. 599, 637 A.2d 627 (1994) (inmate's
response to officers' motion for summary judgment in
1983 civil rights action alleging a conspiracy was not
sufficient to establish the existence of a genuine issue of
material fact).
*23 Because the evidence which is included in the record
is insufficient to raise a genuine issue of material fact, the
Defendants' Motions for Summary Judgment will be
granted as to this claim as well. An appropriate order
follows.
AND NOW, this 21st day of March, 2011;
IT IS HEREBY ORDERED that Plaintiff's Motion
to Alter Judgment (ECF No. 92) is GRANTED.
IT IS FURTHER ORDERED that the Order
granting Defendants' Motion for Summary Judgment (ECF

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No. 87) and Judgement in favor of Defendants (ECF No.
86) are VACATED.
IT IS FURTHER ORDERED that Defendants' Motion
for Summary Judgment (ECF No. 63) is GRANTED
EXCEPT as to Plaintiff's claim that Defendant Johnson
used the EBID after he was fully restrained and incapable
of being a threat.
W.D.Pa.,2011.
Brown v. Beard
Not Reported in F.Supp.2d, 2011 WL 1085890 (W.D.Pa.)
END OF DOCUMENT

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