Peay v. Fisher et al

Filing 146

MEMORANDUM For the reasons set forth above, the Court will grant Defendants' motion (Doc. 105) for summary judgment. A separate Order shall issue.Signed by Honorable Robert D. Mariani on 3/24/17. (jfg)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Civil No. 3:15-cv-345

STRATTON PEAY,

(Judge Mariani)

Plaintiff

v.
SUPERINTENDENT J. FISHER, et al.,
Defendants

MEMORANDUM
Plaintiff, Stratton Peay, an inmate formerly confined at the Smithfield State
Correctional Institution, ("SCI-Smithfield"), in Huntingdon, Pennsylvania, initiated the instant
action pursuant to 42 U.S.C. § 1983. (Doc. 1). The matter is proceeding via an amended
complaint wherein Peay names the following Defendants at SCI-Smith'field: Jon Fisher,
Lonnie Oliver, Jay Whitesel, Nathan Goss, Kenneth Crum, and William Henry. (Doc. 17).
Presently pending before the Court is Defendants' motion for summary judgment pursuant
to Federal Rule of Civil Procedure 56. (Doc. 105). For the reasons set forth below, the
Court will grant the motion for summary judgment.
I.

Summary Judgment Standard of Review
Through summary adjudication, the court may dispose of those claims that do not

present a"genuine dispute as to any material fact." FED. R. CIV. P. 56(a}. "As to materiality,
... [o]nly disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc.,

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477 U.S. 242, 248 (1986).

The party moving for summary judgment bears the burden of showing the absence
of agenuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548,91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving
party must offer specific facts contradicting those averred by the movant to establish a
genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871,888 (1990).
Therefore, the non-moving party may not oppose summary judgment simply on the basis of
the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S.
at 248. IIA party asserting that a fact cannot be or is genuinely disputed must support the
assertion by citing to particular parts of materials in the record ... or showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P.
56(c)(1)(A)-(8). In evaluating whether summary judgment should be granted, lI[t]he court
need consider only the cited materials, but it may consider other materials in the record."
FED. R. CIV. P. 56(c)(3). "Inferences should be drawn in the light most favorable to the
non-moving party, and where the non-moving party's evidence contradicts the movant's,
then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am.,
Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cerl. denied 507 U.S. 912 (1993).

However, "facts must be viewed in the light most favorable to the nonmoving party

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only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380,127
S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007). If a party has carried its burden under the
summary judgment rule,
its opponent must do more than simply show that there is some metaphysical
doubt as to the material facts. Where the record taken as a whole could not
lead a rational trier of fact to 'find for the nonmoving party, there is no genuine
issue for trial. 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. When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe
it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.
Id. (internal quotations, citations, and alterations omitted).

II.

Statement of Undisputed Facts 1

The allegations of the amended complaint pertain to Peay's incarceration at SCISmithfield. (Doc. 106, Statement of Material Facts, 1f 1).

Local Rule 56.1 requires that a motion for summary judgment pursuant to Federal Rule of Civil
Procedure 56 be supported "by a separate, short, and concise statement of the material facts, in numbered
paragraphs, as to which the moving party contends there is no genuine issue to be tried." LOCAL RULE OF
COURT 56.1. A party opposing a motion for summary judgment must file a separate statement of material
facts, responding to the numbered paragraphs set forth in the moving party's statement and identifying
genuine issues for trial. See id. Unless otherwise noted, the factual background herein derives from
Defendants' Rule 56.1 statement of material facts. (See Doc. 106). Peay did not file a response to
Defendants' statement of matelial facts. The Court accordingly deems the facts set forth by Defendants to
be undisputed. See LOCAL RULE OF COURT 56.1.
To the extent that Peay's responses to the summary judgment motion attempt to challenge his
underlying criminal conviction, he cannot use this civil proceeding to contest his conviction and profess his
actual innocence. See (Docs. 110, 116, 141,142). The Court previously advised Peay that he must
refrain from challenging his criminal conviction in this proceeding. (See Docs. 124, 126, 132).
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Peay alleges that Defendants Fisher, Whitesel, Oliver, and Goss failed to protect him
after he notified them that staff were "'torturing' [him], 'siccing' inmates on [him] to verbally
abuse [him] and start 'fist-fights' with [him]" in an "attempt to keep [him] 'quiet' regarding U
being 'framed' for crimes." (Doc. 106, 1f 9; Doc. 17, pp. 2-3).
Peay sets forth First Amendment retaliation claims against unnamed staff who
allegedly tampered, read, and withheld his mail in retaliation for Peay's assertion that he is
innocent of murder. (Doc. 106, 1f 10; Doc. 17, p. 3).

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Peay asserts that all of the Defendants knew of and acquiesced in Peay's assault by
inmates Wilson and Reyes, the stealing of Peay's Nike sneakers and box of oatmeal from
his cell, and his food being poisoned with herpes. (Doc. 106, 1f 11; Doc. 17, p. 4). Peay

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claims that these acts were committed for "raising [his] 'Actual Innocence' and staffs
malfeasance." (Id.). Peay claims that unnamed staff poisoned him "after raising staffs
involvement in the 4-29-14 assault." (Doc. 106, 1f 12; Doc. 17, p. 4). He alleges that
Defendant Goss illegally confiscated and kept his Walkman radio "after raising staffs
involvement in the 4-29-14 assault' (Doc. 106, 1f 13; Doc. 17, p. 4). Peay further claims
that Defendant Henry failed to protect him from being poisoned with herpes when he was "in

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charge of the housing unit and [knew] beforehand, if not participating himself." (Doc. 106, 1f
14; Doc. 17, p. 5).

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Peay claims that "Defendants all are liable for violating policy, or having none,

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regarding 'cleaning' of cells once exited and prior to the next inmate being housed there."

(Doc. 106,11 15; Doc. 17, p. 5).
Peay claims that Defendants Fisher, Whitesel, and Oliver refused to remove Peay's
Zcode status "S0 they could continue to cause [him] 'harm' (claustrophobia; etc.) from the '2
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years' [he] served in 'solitary confinement.'" (Doc. 106,11 16; Doc. 17, p. 5).
He further claims that Defendants found Peay guilty of fighting "although % C.O.s

witnessed me assaulted by 2 inmates." (Doc. 106,11 17; Doc. 17, p. 5).
For relief, Peay seeks monetary damages, punitive damages, a temporary
restraining order against Defendants and the Department of Corrections ("DOC") restraining
them from tampering, reading, and withholding his legal mail and obstructing his access to
courts, removal of his Z code status, an interstate transfer, all misconducts and negative
reports removed from his record, and an injunction preventing staff from "hurting" and
"obstructing court, my mail, etc." (Doc. 106, 1f 18; Doc. 17, p. 6).
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A.

Peay's Altercation with Inmates Reyes and Wilson

On April 29, 2014, Peay fought with inmates Reyes and Wilson. (Doc. 106,11 19).
On the same date, following the altercation, Peay told RHU staff during a strip search that

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correctional officers instigated the assault on him. (Doc. 106, 11 21).
Also on April 29, 2014, correctional officer Peters issued Misconduct Number
8357021 charging Peay with Fighting due to his altercation with inmates Reyes and Wilson,

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and Refusing to Obey an Order for ignoring several orders to stop. (Doc. 106, ~ 20). On

May 5,2014, Hearing Examiner Himes held a hearing on Misconduct Number 8357021.
(Doc. 106, ~ 25; Doc. 106-1, p. 10). Hearing Examiner Himes ultimately found Peay guilty
of Fighting and Refusing to Obey an Order. (Id.). Peay appealed Misconduct Number
8357021 to the Program Review Committee. (Doc. 106, ~ 26). The Program Review
Committee denied Peay's appeal and found that the facts were sufficient to support the
underlying decision. (Id.). The Program Review Committee consisted of Defendant
Whitesel, Corrections Classification Program Manager 8iser, and Unit Manager Morder.
(Doc. 106, ~ 27). On May 14, 2014, Peay appealed to Defendant Fisher. (Doc. 106, ~ 29).
On May 19, 2014, Defendant Fisher upheld the decisions of the Hearing Examiner and
Program Review Committee. (Doc. 106, ~ 30; Doc. 106-1, p. 13). Peay then appealed
Misconduct Number 8357021 to Final Review. (Doc. 106, ~ 35). On June 20,2014, the
DOC Deputy Secretary vacated Misconduct Number 8357021 and remanded it to permit
recharge and rehearing. (Id.; Doc. 106-1, p. 14).
On April 29, 2014, Peay 'filed Grievance Number 507592 claiming that staff failed to
protect him. (Doc. 106, ~ 22; Doc. 106-1, p. 16). In the grievance, Peay stated that he
contacted staff, including the Superintendent, Deputies, and Captain of Security, concerning
correctional officers committing crimes, torture, and oppression against him in attempts to
silence him about a detective framing him for murder. (Id.). Peay further complained that

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correctional officers retaliated against him and had two inmates physically assault him on

April 29, 2014. (Id.). On May 8,2014, Lieutenant G. Allison denied Grievance Number
507592 because Peay failed to provide evidence supporting his allegations, and the
inmates and staff involved in the altercation denied Peay's allegations. (Doc. 106, 1128;
Doc. 106·1, p. 17). On May 14, 2014, Peay appealed Grievance Number 507592 to
Defendant Fisher. (Doc. 106,1129; Doc. 106-1, p. 18). On May 19,2014, Defendant Fisher
upheld the denial of Grievance Number 507592. (Doc. 106,1131; Doc. 106-1, p. 19). Peay
then appealed Grievance Number 507592 to the Secretary's Office of Inmate Grievances
and Appeals ("SOIGA"). (Doc. 106,1132; Doc. 106·1, p. 20). On June 23,2014, Chief
Grievance Officer Dorina Varner upheld the denial of Grievance Number 507592. (Doc.
106,1136; Doc. 106-1, p. 21).
Peay called the abuse hotline regarding his allegation that correctional officers had
two inmates assault him. (Doc. 106, 1123). In response to Peay's call to the abuse hotline,
Captain Goss and Lieutenant Booher interviewed Peayon April 30, 2014. (Doc. 106,1124).
Peay told Captain Goss and Lieutenant Booher that he believed Defendant Crum had the
inmates assault him. (Id.). Peay could not provide any evidence to support his belief. (Id.).
Instead, he stated that it was "just what [he] thought" happened and he "really [did] not

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know." (Id.; Doc. 106-1, p. 17).
On May 20,2014, Peay filed Grievance Number 510472 claiming that his counselor,

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Mr. Zimmerman, falsely accused him of misconduct and that staff had him physically
assaulted by two inmates on April 29, 2014. (Doc. 106, ~ 33; Doc. 106-1, p. 23). On May
29,2014, Defendant Oliver denied Grievance Number 510472. (Doc. 106, ~ 34; Doc. 106­
1, p. 24). Peay appealed Grievance Number 510472 to Defendant Fisher. (Doc. 106, ~
38). On June 25,2014, Defendant Fisher upheld the denial of Grievance Number 510472.
(/d.; Doc. 106-1, p. 25). Peay filed no further appeals of Grievance Number 510472. (Doc.

106, ~ 38).
On June 23,2014, Peay sent a letter to the Huntingdon County District Attorney
raising several claims against prison staff, including claims that white staff had him
assaulted by inmates Reyes and Wilson on April 29, 2014. (Doc. 106, ~ 37; Doc. 106-2, pp.
6-7). On July 7,2014, the Huntingdon County District Attomey forwarded Peay's
correspondence to the Department of Corrections. (Doc. 106, ~ 39; Doc. 106-2, p. 10).
The Department of Corrections initiated an Office of Special Investigations and Intelligence
("OS 11") Investigation regarding Peay's allegations. (Doc. 106,1140). SCI-Smithfield
Security Lieutenant G. Allison conducted the investigation and determined that Peay's
allegations were unSUbstantiated. (Doc. 106, ~ 41-42; Doc. 106-2, pp. 2-4, Declaration of
Gary Allison, ~ 5-6). During the investigation, the staff and inmates who were involved in
the April 29, 2014 altercation between Peay and inmates Reyes and Wilson were
interviewed. (Doc. 106, ~ 43). They all denied Peay's allegations. (ld.). Inmates Reyes

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and Wilson stated that Peay had been coming at them on the block for a month, they had

enough, and beat him up. (Doc. 106, 1f 44). When interviewed, Peay stated that he could
not provide any evidence to support his claim that staff had inmates Reyes and Wilson
assault him. (Doc. 106, 1f 45). Instead, Peay stated that is what he thinks happened. (ld.).
On October 20,2014, the OSII reviewed the investigation and determined that it was
satisfactory. (Doc. 106, 1f 46). On October 21,2014, Security Lieutenant G. Allison notified
Peay that the investigation was being closed because there was no evidence of abuse.
(Doc. 106, 1f 47).
B.

Exhaustion of Administrative Review

On January 10, 2014, Peay filed Grievance Number 493085 claiming that four
envelopes and eight stamped envelopes were taken from his cell. (Doc. 106, 1f 48; Doc.
106-1, p. 27). No Defendants were named in Grievance Number 493085. (ld.). The
grievance was upheld and Peay was provided replacement envelopes. (Doc. 106, 1f 48;
Doc. 106-1, p. 28).
On January 15, 2014, Peay filed Grievance Number 493773 claiming that his radio
and Walkman were confiscated during an investigative search. (Doc. 106, 1f 49; Doc. 106­
1, p. 30). Defendant Goss was the only Defendant named in Grievance Number 493773.
(/d.). Grievance Number 493773 was denied, and Peay did not file any appeals. (ld.).

On May 4,2014, Peay filed Grievance Number 508389 complaining about a miSSing

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pair of Nike sneakers. (Doc. 106, ~ 50). No Defendants were named in this grievance.

(ld.). The Grievance Coordinator and Facility Manager each denied Grievance Number
508389. (ld.). Peay filed no further appeals. (Id.).

On May 10, 2014, Peay filed Grievance Number 509077. (Doc. 106, ~ 51). In this
grievance, Peay claimed that he sustained burning sores on his penis after it touched the
inside of a toilet. (Id.). Peay did not name any Defendants in Grievance Number 509077.
(ld.). The grievance was denied. (Doc. 106, ~ 52). On May 28,2014, Peay appealed the

denial of Grievance Number 509077 to Superintendent Fisher. (ld.). In his appeal, Peay
raised for the first time a claim that "staff (C.O.s, etc.) may have placed 'Herpes' in my food!
on my toilet." (ld.). Peay further stated that "[ilt's been over 117' years since the last time I
had sex of any kind." (Id.).
On May 28,2014, Peay filed two grievances regarding sores on his genitals and a
possible diagnosis of herpes, assigned as Grievance Number 511544 and Grievance
Number 511546. (Doc. 106, ~ 53). No Defendants were named in either grievance. (ld.;
Doc. 106-1, pp. 49,51,56). The grievances were denied on initial review. (Doc. 106-1, pp.
52,57). Peay appealed both grievances to the Facility Manager Defendant Fisher. (Doc.
106-1, pp. 53, 58). On appeal, Defendant Fisher upheld the responses of the Grievance
Coordinators. (Doc. 106-1, pp. 54, 59). Peay did not appeal either grievance to the SOIGA.
(Doc. 106, ~ 53).
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On June 5,2014, Peay filed Grievance Number 513171 regarding mail that was

returned by the mail room for lack of postage. {Doc. 106,11 54). No Defendants were
named in this grievance. (/d.). Grievance Number 513171 was denied on initial review, and
Peay did not file any appeals. (/d.).
On June 11, 2014, correctional officer Scott issued Misconduct Number 8600994
charging Peay with Assault, Abusive, Obscene Language to an Employee and Refusing to
Obey an Order. (Doc. 106, 11 55; Doc. 106-1, p. 64). Following a hearing, Peay was found
guilty of Assault and Refusing to Obey an Order. (Doc. 106-1, p. 66).
On June 14,2014, Peay filed Grievance Number 514295 wherein he alleged that
correctional officer Scott withheld his mail and improperly opened his mail. (Doc. 106,11 56;
Doc. 106-1, p. 68). No Defendants were named in Grievance Number 514295. (/d.). The
grievance was denied by both the Grievance Coordinator and Facility Manager. (Doc. 106,
11 56; Doc. 106-1, pp. 69, 71). Peay did not appeal to the SOIGA. (Doc. 106,11 56).
On June 22,2014, Peay filed Grievance Number 515115 and attempted to
collaterally appeal Misconduct Number 8600994. (Doc. 106,11 57; Doc. 106-1, p. 73). No
Defendants were named in Grievance Number 515115. (/d.). The grievance was denied by
both the Grievance Coordinator and Facility Manager. (Doc. 106,11 57; Doc. 106-1, pp. 74,
76). Peay did not appeal to the SOIGA. (Doc. 106,11 57).
Peay did not file a grievance complaining that a box of oatmeal was stolen from his

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cell at SCI-Smithfield, and he did not file a grievance pertaining to the cleaning of cells at

SCI-Smithfield. (Doc. 106, 1MJ58-59).

C.

Herpes Simplex Virus

On June 17,2014, Peay was tested for the herpes simplex virus. (Doc. 106, 1f 61;
Doc. 106-5, p. 14). The test was conducted by Garcia Laboratory of Jackson, Michigan.
(/d.). The test results were negative for the herpes simplex virus. (Doc. 106, 1f 62; Doc.

106-5, p. 14). Peay's medical records contain no documentation of a positive diagnosis of
the herpes simplex virus. (Doc. 106, 1f 63; Doc. 106-4, p. 3, 1f 7; Doc. 106-5, p. 3, 1f 4).
D.

Z Code Status

A l code indicates that an inmate requires single-cell status and may not be
assigned cell-mates. (Doc. 106, 1f 64). A l code may be aSSigned to inmates who have "a
documented history of aggressive or predatory behavior towards cell partners, or staff has
reason to believe would exhibit assaultive or predatory behavior towards cell partners."
(Doc. 106, 1f 65; Doc. 106-1, p. 80). "[A]n inmate may request to be reviewed for the
addition or deletion of a 'l' Code housing classification. Staff shall make the final
determination regarding Program Code 'l' addition or removal." (Doc. 106, 1f 66; Doc. 106­
1, p. 80). To determine whether a Program Code "l" should be added or removed, "a
DC-46, Vote Sheet along with other relevant information shall be circulated to the Facility
Manager/designee who shall make the final decision." (Doc. 106, 1f 67; Doc. 106-1, p. 80).

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"An inmate assigned a Program Code 'Z' due to an inability to double cell is not necessarily
precluded from open dormitory housing if staff believe the inmate or others will not be
jeopardized as the result of the dormitory housing placement." (Doc. 106, ~ 68; Doc. 106-1,
p.80).
On March 6,2014, Counselor Zimmemlan prepared a DC-46 Vote Sheet in
response to Peay's request to Unit Manager Kustenbauder to have his Zcode removed.
(Doc. 106, ~ 69). Peay made this request due to being claustrophobic and because he no
longer wanted to be in a cell by himself. (Doc. 106, ~ 70). Zimmerman reviewed Peay's file
and drafted staff recommendations. (Doc. 106, ~ 71). Zimmerman obtained the following
infonnation from Peay's file: Peay has had a Z code since 2001 due to problems with his
cellmates while housed at SCI-Graterford; Peay arrived at SCI-Smithfield on December 5,
2013 from SCI-Fayette as an Administrative Separation transfer due to his assault of
another inmate; Peay has a significant misconduct history since his reception into the DOC;
as of March 6, 2014, Peay had received 64 rnisconduct reports; as of March 6, 2014, Peay
had received multiple misconduct reports for Assault involving staff members; Peay has
assaulted staff by punching, kicking, and spitting on them, throwing objects and unknown
liquids at them, attempting to bite them, and by making other physical contact with them; as
of March 6, 2014, Peay had assaulted other inmates. (Doc. 106,11 71).
All of the voting staff members voted to maintain Peay's Z code status, noting that

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Peay was "highly assaultive." (Doc. 106, ~ 72). Defendants Goss, Whitesel, and Oliver

were among the voting staff members. (Doc. 106, ~ 73). Defendants Crum and Henry did
not participate in the vote. (ld.). Defendant Fisher signed the Vote Sheet, making the final
decision to maintain Peay's Z code. (Doc. 106, ~ 74).
Peay has received four misconducts for assaults on other inmates: Misconduct
Number 8544611 on September 16, 2013; Misconduct Number 8310928 on March 22,
2013; Misconduct Number A781193 on May 7,2007; and, Misconduct Number 0899303 on
October 23, 1998. (Doc. 106, ~ 75). While housed at SCI-Smithfield, Peay's Zcode was
maintained due to his history of assaultive behavior. (Doc. 106, ~ 76).
On March 17,2014, Peay filed Grievance Number 502305 requesting removal of his
Z code status. (Doc. 106, ~ 77; Doc. 106-1, p. 83). The grievance was denied by the
Grievance Coordinator and Facility Manager. (Doc. 106-1, pp. 84, 86). Peay appealed to
final review, where it was denied by the Chief Grievance Officer. (Doc. 106-1, pp. 87-88).
On April 15, 2014, Peay filed Grievance Number 505979 again requesting removal
of his Zcode status. (Doc. 106, ~ 78; Doc. 106-1, p. 90). Grievance Number 505979 was
denied on initial review. (Doc. 106, ~ 78; Doc. 106-1, p. 91). Peay did not file any appeals
of Grievance Number 505979. (Doc. 106, ~ 78).

E.

Peay's Housing Status at SCI·Smithfield

Administrative Custody ("AC") is a status of confinement for nondisciplinary reasons.
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(Doc. 106, ~ 79). AC provides closer supervision, control, and protection than what is

provided in general population. (Id.). Disciplinary Custody ("DC") is a status of confinement
for inmates who have been found guilty of a misconduct in accordance with Department
Policy DC-ADM 801, "Inmate Discipline." (Doc. 106, ~ 80).
From September 2012 to October 2014, inmates on AC or DC status were typically
housed in the Restricted Housing Unit ("RHU"). (Doc. 106, ~ 81). An inmate with a Z code
may be housed in General Population or the RHU, and on AC or DC status. (Doc. 106, ~
82).
The Pennsylvania Department of Corrections does not house inmates in "solitary
con'finement." (Doc. 106, ~ 83).
Peay was housed at SCI-Smithfield from December 5,2013 to July 10, 2014. (Doc.
106, ~ 84). From December 5,2013 to December 12,2013, Peay was housed in the RHU.
(Id.). From December 12, 2013 to January 5,2014, Peay was housed in General

Population. (Id.). From January 5,2014 to January 22,2014, Peay was housed in the
RHU. (Id.). From January 22,2014 to April 29, 2014, Peay was housed in General
Population. (Id.). From April 29, 2014 to July 10, 2014, Peay was again housed in the
RHU. (Id.).
Peay arrived at SCI-Smithfield on AC status due to his receipt of Other Report
Number 8640153 on October 15,2013 for assaulting another inmate. (Doc. 106, ~ 85).

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According to Other Report Number 8640153, Peay was a danger to himself or others. (ld.).

As a result of the PRC's Decision and Rationale from its December 12, 2013 review
of Peay, he was released to General Population. (Doc. 106, ~ 86).
On January 5,2014, Peay received Other Report Number 8600651 which placed
him on AC status because "[t]he inmate has been charged with, or is under investigation for
a violation of facility rules and there is a need for increased control pending disposition of
charges or completion of the investigation." (Doc. 106, ~ 87; Doc. 106-1, p. 127). As a
result of this Other Report, Peay was placed on AC status in the RHU pursuant to DC-ADM
802. (ld.).

On January 16, 2015, Peay received Other Report Number 8431735 which
"request[ed] continued placement on AC status upon release from investigation, effective
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1.16.14, due to institutional operational need (appropriate bed space)." (Doc. 106, ~ 88;
Doc. 106-1, p. 129). As a result of this Other Report, Peay was placed on AC status in the

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RHU pursuant to DC-ADM 802. (ld.). On January 22,2014, Peay was released from AC
status to General Population. (Doc. 106, ~ 89).

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On February 21,2014, Peay received Misconduct Report Number 8358382. (Doc.
106, ~ 90; Doc. 106-1, pp. 133-34). Peay was found guilty of Refusing to Obey and Order,
Possession of Contraband, and Loaning or 80rrowing Property. (Doc. 106-1, p. 133). He
was sanctioned to thirty days cell restriction, effective February 24,2014. (Doc. 106, ~ 90;

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Doc. 106-1, p. 134).

On April 29, 2014, Peay received Misconduct Report Number 8357021 due to an
altercation with two inmates. (Doc. 106, 1f 91). As a result of this misconduct, Peay was
placed in the RHU. (/d.). He was found guilty of the charges and sanctioned with atotal of
thirty days Disciplinary Custody status, effective April 29, 2014. (Id.).
On May 28,2014, Peay received Other Report Number 8433782 which stated that
"[t]he inmate is in danger by/from some person(s) in the facility and cannot be protected by
alternate measures," and requests "[p]lacement on AC status ... upon completion of current
DC sanction on 5.28.14 in order to pursue an [Administrative Separation] transfer from
SCI-Srnithfield." (Doc. 106, 1f 92; Doc. 106-1, p. 138). As a result of this Other Report,
Peay was placed on AC status in the RHU pursuant to DC-ADM 802. (/d.).
On May 29,2014, the Program Review Committee conducted an administrative
hearing as a result of Peay's receipt of Other Report Number 8433782. (Doc. 106, 1f 93).
The Program Review Committee authorized continued placement of Peay on AC status.
(/d.).

On June 18, 2014, Peay received Other Report Number 8684008 which stated that
"the inmate is in danger by/from some persons in the facility and cannot be protected by
alternate measures," and "[r]equest[s] placement on AC status." (Doc. 106, 1f 94; Doc. 106­
1, p. 142). As a result of this Other Report, Peay was placed on AC status in the RHU

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pursuant to DC ADM-802. (Id.).
On June 26,2014, the Program Review Committee conducted an administrative
hearing as a result of Peay's receipt of Other Report Number 8684008. (Doc. 106, 1{95).
The Program Review Committee authorized continued placement of Peay on AC status.
(Id.).
III.

Discussion

Defendants seek an entry of summary judgment on the following grounds: (1) Peay
failed to establish that he was poisoned with the herpes simplex virus; (2) Peay failed to
properly exhaust the administrative remedies with respect to his claims regarding the
cleaning of cells, his oatmeal, Walkman, Nike sneakers, and legal mail, the alleged herpes
poisoning, any claims against Defendants Fisher, Whitesel, Oliver, Goss, and Henry, and
the failure to protect claims; (3) Defendants had no personal involvement in the alleged
herpes poisoning, the First Amendment claim, the April 29, 2014 assault, and finding Peay
guilty of a misconduct for fighting; (4) Peay failed to establish a failure to protect claim; (5)
Peay's Zcode status was justified; (6) Peay failed to establish a retaliation claim; and, (7)
Defendants are entitled to qualified immunity. (Doc. 112). The Court will address these
claims seriatim.

A.

Herpes Simplex Virus

The uncontroverted evidence establishes that Peay does not have herpes. {Doc.

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106, mI 62-63). On June 17, 2014, Peay was tested for the herpes simplex virus. (Id. at 11
61; Doc. 106-5, p. 14). The results of the test were negative. (Doc. 106,11 62; Doc. 106-5,
p. 14). Peay has produced no medical records documenting a positive diagnosis of the
herpes simplex virus. Based on the undisputed medical records, the Court finds that there
is no genuine issue of material fact as to whether Peay was ever diagnosed with herpes or

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poisoned with herpes. Consequently, Defendants are entitled to an entry of judgment in

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their favor on Peay's claim that he was poisoned with herpes and that Defendant Henry

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failed to protect him from being poisoned with herpes.
B.

Exhaustion of Administrative Review

Under the Prison Litigation Reform Act of 1996 (the "PLRA"), a prisoner is required

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to pursue all avenues of relief available within the prison's grievance system before bringing

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a federal civil rights action. See 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 741

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(2001). The exhaustion requirement is mandatory, see Williams v. Beard, 482 F.3d 637,
639 (3d Cir. 2007); see also Booth, 532 U.S. at 741 (holding that the exhaustion
requirement of the PLRA applies to grievance procedures "regardless of the relief offered
through administrative procedures"); Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir. 2000)
(same), and "applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some
other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).

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Courts have also imposed a procedural default component on the exhaustion

requirement, holding that inmates must fully satisfy the administrative requirements of the
inmate grievance process before proceeding into federal court. Spruill v. Gillis, 372 F.3d
218 (3d Cir. 2004). Inmates who fail to fully, or timely, complete the prison grievance
process, or who fail to identify the named defendants, are barred from subsequently
litigating claims in federal court. See Spruill, 372 F.3d 218. "As for the failure to identify
named defendants on the grievance form, ...to the extent the identity of a defendant was 'a
fact relevant to the claim,' Pennsylvania's prison grievance policy mandated that the
identification be included in the inmate's statement of facts on the grievance form. And,...in
the absence of any justi'fiable excuse, a Pennsylvania inmate's failure to properly identify a
defendant constituted a failure to properly exhaust his administrative remedies under the
PLRA." Williams v. Pennsylvania Dep't of Corr., 146 F. App'x 554,557 (3d Cir. 2005)
(non-precedential). An "untimely or otherwise procedurally defective administrative
grievance" does not satisfy the PLRA's exhaustion requirement. Woodford v. Ngo, 548 U.S.
81, 83-84 (2006). Thus, the PLRA mandates that inmates "properly" exhaust administrative
remedies before filing suit in federal court. Id. at 92.
The Pennsylvania Department of Corrections has an Inmate Grievance System
which permits any inmate to seek review of problems that may arise during the course of
confinement. See 37 PA. CODE § 93.9(a); PA. DEPT OF CaRR., No. DC-ADM 804; (see

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also Doc. 106-3, pp. 44-66). After an attempt to resolve any problems informally, an inmate

may submit a written grievance to the Facility's Grievance Coordinator for initial review.
This must occur within fifteen days after the events upon which the claims are based.
Within fifteen days of an adverse decision by the Grievance Coordinator, an inmate may
then appeal to the Facility Manager of the institution. Thereafter, within 'fifteen days of an
adverse decision by the Facility Manager, an inmate may file a final appeal to the
Secretary's Office of Inmate Grievances and Appeals. See Booth v. Churner, 206 F.3d 289,
293 n. 2 (3d Cir. 2000) (outlining Pennsylvania's grievance review process). An appeal to
final review cannot be completed unless an inmate complies with all established
procedures. An inmate must exhaust all three levels of review and comply with all
procedural requirements of the grievance review process in order to fully exhaust an issue.
See Booth, 206 F.3d at 293 n. 2 (outlining Pennsylvania's grievance review process);
Ingram v. SCI Camp Hill, 448 F. App'x 275,279 (3d Cir. 2011) (same).
1.

Cleaning of Cells and Oatmeal Claims

The undisputed evidence reveals that Peay did not 'file any grievances related to his
claim that a box of oatmeal was stolen from his cell, and his claim regarding the cleaning of
cells at SCI-Smithfield. (Doc. 106, 1f1f 58-59; Doc. 106-1, p. 3, 1f 5). A declaration under
penalty of perjury submitted by Lisa Reeher, Superintendent's Assistant at SCI-Smithfield,
states that based on a review of the DOC's inmate grievances, Peay never filed any

21

grievances alleging that a box of oatmeal was stolen from his cell, and never filed any

grievances complaining about the cleaning of cells at SCI-Smithfield. (Doc. 106-1 pp. 2-6,
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Declaration of Lisa Reeher, 1f1f 1, 5). Peay failed to dispute this fact and failed to provide
any evidence that he filed any grievances related to these claims. Accordingly, the Court
concludes that Peay failed to exhaust administrative remedies with respect to these claims.

2.

Walkman, Hike Sneakers, and Handling of Legal Mail Claims

Defendants argue that Peay never filed afinal appeal with the SOIGA regarding the
claims that his Walkman was confiscated, his Nike sneakers were missing, and his legal
mail was mishandled. (Doc. 112, pp. 14-15).
On January 15, 2014, Peay filed Grievance Number 493773 complaining that his
radio and Walkman were confiscated during an investigative search. (Doc. 106-1, p. 30).
The grievance states that Defendant Goss informed Peay that his items would not be
returned. (Id.). The grievance was denied on initial review. (Doc. 106-1, p. 31). Peay did
not file any appeals. (Doc. 106, 1f 49).
On May 4,2014, Peay filed Grievance Number 508389 complaining about a missing
pair of Nike sneakers. (Doc. 106-1, p. 33). No Defendants were named in this grievance.
(Id.). The Grievance Coordinator and Facility Manager each denied the grievance. (Doc.

106-1, pp. 34-36). Peay did not file any further appeals. (Doc. 106, 1f 50).

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Peay filed the following five grievances regarding the alleged improper handling of
his mail at SCI-Smithfield. On January 10, 2014, Peay filed Grievance Number 493085
claiming that four envelopes and eight stamped envelopes were taken from his cell. (Doc.
106, ,-r 48; Doc. 106-1, p. 27). Peay's grievance was upheld and he received replacement
envelopes. (Doc. 106, ,-r 48; Doc. 106-1, p. 28). Peay did not appeal Grievance Number
493085. (Doc. 106, ,-r 48).
On June 5,2014, Peay filed Grievance Number 513171 regarding mail which was
returned by the mail room for lack of postage. (Doc. 106,,-r 54; Doc. 106-1, p. 61). The
grievance was denied, and Peay did not file any appeals. (ld.).
On June 14, 2014, Peay filed Grievance Number 514295 complaining that
correctional officer Scott withheld his mail and improperly opened his mail. (Doc. 106, ,-r 56;
Doc. 106-1, p. 68). No Defendants were named in this grievance. (Doc. 106-1, p. 68). The
Grievance Coordinator and Facility Manager each denied Peay's appeals. (Doc. 106, ,-r 56;
Doc. 106-1, pp. 69, 71). Peay did not appeal this grievance to the SOIGA. (ld.).
On June 22,2014, Peay filed Grievance Number 515115 in an attempt to collaterally
appeal Misconduct Number 8600994. (Doc. 106, ,-r 57; Doc. 106-1, p. 73). Peay
complained that correctional officer Scott tampered with his mail. (Doc. 106-1, p. 73). No
Defendants were named in this grievance. (ld.). The Grievance Coordinator and Facility

23

Manager each denied Peay's appeals. (Doc. 106, ~ 57; Doc. 106-1, pp. 74, 76). Peay did
not appeal to the SOIGA. (Doc. 106, ~ 57).
The uncontroverted evidence establishes that Peay has not followed the proper
grievance procedure with respect to his claims that his Walkman was confiscated, his Nike
sneakers were missing, and his legal mail was mishandled. Peay provides no evidence that
he properly grieved these claims. Nor has Peay offered a "justifiable excuse" for failing to
do so. See Williams, 146 F. App'x at 557. Since Peay failed to comply with the DOC's
procedural rules with respect to these claims, Defendants are entitled to an entry of
summary judgment on the basis of non-exhaustion.
Moreover, Peay failed to name any Defendants in his grievances regarding the
missing Nike sneakers, and the handling of his legal mail. As noted supra, the standard
used to determine when a prisoner has exhausted the administrative process is whether he
complied with applicable grievance procedures and rules. The relevant policy and the
pertinent language states as follows:
The text of the grievance must be legible, understandable, and presented in a
courteous manner. The inmate must include a statement of the facts relevant
to the claim. The statement of facts shall include the date, approximate time
and location of the event(s) that gave rise to the grievance. The inmate shall
identify individuals directly involved in the event(s).
DC-ADM 804, § 1(A)(11). Notably, "[t]he inmate shall identify individuals directly involved in
the event(s)." DC-ADM 804, § 1(A)(11). The purpose of the regulation "is to put the prison

24

officials on notice of the persons claimed to be guilty of wrongdoing." Spruill, 372 F.3d at
234. Based upon the submitted DOC administrative remedy records, the Court finds that
Peay failed to utilize the DOC's Inmate Grievance System with respect to the grievances
regarding his Nike sneakers, and the handling of his legal mail by failing to identify any
Defendants in these grievances.

3.

April 29, 2014 Altercation

On April 29, 2014, Peay filed Grievance Number 507592 regarding the April 29,
2014 altercation with inmates Reyes and Wilson. (Doc. 106, 19; Doc. 106-1, p. 16). The
grievance only names Defendant Crum, and does not name Defendants Fisher, Whitesel,
Oliver, Goss, and Henry. (ld.). The grievance plainly provides that these Defendants were
not named in relation to this claim, and Peay has offered no explanation for the failure to
name these Defendants. The undisputed evidence establishes that Peay has not properly
followed the grievance procedure with respect to any claim that Defendants Fisher,
Whitesel, Oliver, Goss, and Henry caused the alleged assault on April 29, 2014 by failing to
name them in Grievance Number 507592. See DC-ADM 804, § 1(A)(11) ("[t]he inmate
shall identify individuals directly involved in the event(s)"). As a consequence, the Court
finds that Peay has failed to exhaust this claim against Defendants Fisher, Whitesel, Oliver,
Goss, and Henry.
4.

Herpes Claim

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The evidence reveals that Peay filed three grievances complaining about the herpes

simplex virus. On May 10, 2014, Peay filed Grievance Number 509077 wherein he claimed
that his genitals touched the inside of an unsanitary toilet, causing burning sores. (Doc.
106, ~ 51; Doc. 106-1, p. 38). Peay requested treatment by the medical department. (/d.).
Peay did not claim that staff poisoned him with herpes, and did not name any of the
Defendants in the grievance. (Id.). On May 28,2014, Peay appealed Grievance Number
509077 to Superintendent Fisher and, for the first time, stated that "staff [C.O.s, etc.] may
have placed 'Herpes' in my food/on my toilet." (Doc. 106, ~ 52; Doc. 106-t p. 41).
Pursuant to DC-ADM 804, "only an issue that was raised for Initial Review, determination of
frivolousness, rejection and/or placement on grievance restriction may be appealed."
DC-ADM 804, § 2.A.1.c. Peay's grievance plainly shows that he never raised issues
pertaining to herpes poisoning on initial review, but only complained of this action in a
subsequent appeal to the Superintendent. Hence, Peay has failed to properly exhaust his
claim that "staff ... placed 'Herpes' in my food/on my toilet." (Doc. 106-1, p. 41).
On May 28,2014, Peay filed two grievances, Grievance Numbers 511544 and
511546, complaining about sores on his genitals and claiming that he may have been
poisoned with herpes. (Doc. 106, ~ 53; Doc. 106-1, pp. 49,51,55). Peay did not name any
Defendants in these grievances. (ld.). The grievances were denied on initial review. (Doc.
106-1, pp. 52,57). Peay appealed both grievances to Defendant Fisher. (Doc. 106-1, pp.

26

53, 58). On appeal, Defendant Fisher upheld the responses of the Grievance Coordinators.

(Doc. 106-1, pp. 54, 59). Peay did not appeal either grievance to the SOIGA. (Doc. 106, ~
53). The uncontroverted evidence reflects that Peay has not followed the proper grievance
procedure with respect to the claims raised in Grievance Numbers 511544 and 511546.
5.

Failure to Protect Claim

Peay alleges that Defendants Fisher, Whitesel, Oliver, and Goss failed to protect him
after being notified that staff were "'torturing' [him], 'siccing' inmates on [him] to verbally
abuse [him] and start "f!st-'fights' with [him]" in an "attemptD to keep [him] 'quiet' regarding I]
being 'framed' for crimes." (Doc. 17, pp. 2-3). On April 29, 2014, Peay filed Grievance
Number 507592 claiming that staff failed to protect him. (Doc. 106-1, p. 16). Peay stated
that he contacted the Superintendent, Deputies, and Captain of Security concerning
correctional officers committing crimes, torture, and oppression against him in attempts to
silence him pertaining to his claims that a detective framed him for murder. (Id.). Peay
claimed that correctional officers had two inmates physically assault him on April 29, 2014,
and that there was a "total failure to protect." (Id.). The Grievance Officer denied the initial
grievance. (Doc. 106-1, p. 17). Peay appealed Grievance Number 507592 to the Facility
Manager. (Doc. 106-1, p. 18). The Facility Manager denied Peay's appeal. (Doc. 106-1, p.
19). Peay then appealed Grievance Number 507592 to final review, and the institution's
findings were ultimately upheld. (Doc. 106-1, pp. 20-21).

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In the initial grievance, the only failure to protect claim that was properly identified is
Peay's claim with respect to the April 29, 2014 altercation with inmates Reyes and Wilson.
The Gourt finds that Peay properly exhausted his claim with respect to the April 29, 2014
altercation with inmates Reyes and Wilson as raised in Grievance Nurnber 507592 .
C.

Personal Involvement

Individual liability can be imposed under Section 1983 only if the state actor played
an "affirmative part" in the alleged misconduct and "cannot be predicated solely on the
operation of respondeat superior." Evancho v. Fisher, 423 F.3d 347,353 (3d Gir. 2005)
(quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Gir. 1998)). "A defendant in acivil
rights action must have personal involvement in the alleged wrongs. . .. Personal
involvement can be shown through allegations of personal direction or of actual knowledge
and acquiescence." Rode, 845 F.2d at 1207-08; see also Rizzo v. Goode, 423 U.S. 362

(1976); Atkinson v. Taylor, 316 F.3d 257 (3d Gir. 2003). Such allegations, however, must
be made with appropriate particularity in that acomplaint must allege the particulars of
conduct, time, place, and person responsible. Evancho, 423 F.3d at 354; Rode, 845 F.2d at
1207-08. Alleging a mere hypothesis that an individual defendant had personal knowledge
or involvement in depriving the plaintiff of his rights is insufficient to establish personal
involvement. Rode, 845 F.2d at 1208.

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Defendants argue that the evidence fails to establish that they had any involvement

in the alleged herpes poisoning, the First Amendment claims, the April 29, 2014 assault,
and finding Peay guilty of a misconduct for fighting. (Doc. 112, pp. 22-29). The Court will
address these claims seriatim.
1.

Herpes Claim

Peay alleges that unnamed staff members poisoned him with herpes "after raising
staffs involvement in the 4-29-14 assault." (Doc. 17, p. 4). It is clear from the record that
Peay tested negative for the herpes simplex virus. Peay failed to offer any evidence to
dispute this fact, failed to name any Defendants in relation to this claim, and merely sets
forth conclusory accusations that he was poisoned with herpes. 2 No reasonable juror could
conclude from the evidence that any of the Defendants poisoned Peay with herpes. Rule
56 requires affirmative evidence in support of a claim. See FED. R. CIV. P. 56(e). The
record is devoid of any such corroborative evidence. The Court will grant summary
judgment to Defendants on this claim.

2
Peay submitted lab results and progress notes which he claims reveal a herpes diagnosis.
(Doc. 111, pp. 9-12). Peay is mistaken. The lab work submitted by Peay pertains to blood collected in
April 2014, and is not atest for the herpes simplex virus. (Doc. 111, p. 9). The progress notes submitted
by Peay are dated May 20,2014, and indicate that Peay was evaluated for the herpes simplex virus after
complaints of a burning sensation on his genitals. (Doc. 111, p. 10). Peay was subsequently tested for
the herpes simplex virus. The conclusive test results from June 17, 2014 reveal a negative diagnosis for
herpes. (Doc. 106-5, p. 14).

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Peay further alleges that Defendant Henry failed to protect him from being poisoned

with herpes. Peay acknowledges that he is suing Defendant Henry because he was "in
charge of the housing unit" and, in this role, failed to protect him from the herpes poisoning.
(Doc. 17, p. 5). Peay's claim, in essence, is nothing more than an assertion of respondeat
superior liability which seeks to hold this Defendant liable based on his supervisory role.
This ground of constitutional liability has been squarely rejected by the courts. See Rode,
845 F.2d at 1207. Moreover, Peay has offered no evidence to support his claim that
Defendant Henry failed to protect him from the alleged herpes poisoning. Indeed, Peay has
not presented any evidence that he ever tested positive for the herpes simplex virus. The
Court will grant summary judgment to Defendant Henry on this claim.
2.

First Amendment Claim

Peay alleges that unnamed staff tampered, read, and withheld his legal mail in
retaliation for his claim that he is innocent of murder. (Doc. 17, p. 3). A careful review of
the amended complaint confirms that Peay does not allege that any of the Defendants were
personally involved in the purported mail tampering. (See generally Doc. 17). Moreover,
Peay does not name any of the Defendants in the grievances pertaining to his mail
tampering claim. (Doc. 106-1, pp. 27, 61,68, 73). Peay failed to offer any evidence to
dispute this fact. The party adverse to summary judgment must raise "more than a mere
scintilla of evidence in its favor" and cannot survive Rule 56 scrutiny by relying on

30

unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of

W Chester,891 F.2d 458, 460 (3d Cir. 1989). Peay has failed to demonstrate agenuine
issue of fact as to whether any of the Defendants were personally involved in this First
Amendment mail tampering claim.
3.

Misconduct Charge

On April 29, 2014, correctional officer Peters issued Misconduct Number 8357021
charging Peay with Fighting and Refusing to Obey an Order. (Doc. 106, ~ 20). A hearing
was held before Hearing Examiner Himes and Peay was ultimately found guilty of the
charges. (Doc. 106, ~ 25). The uncontroverted evidence rel1ects that the Defendants were
not involved in the issuance of the misconduct charge, and were not involved in the
misconduct hearing and, thus, had no personal involvement in finding Peay guilty of the
charges.
On appeal, Defendants Whitesel and Fisher upheld the decision of Hearing
Examiner Himes. (Doc. 106, ~ 27,29-30). Defendant Whitesel was a member of the
Program Review Committee that reviewed Peay's first appeal. (Doc. 106, ~ 27). Defendant
Fisher reviewed Peay's second appeal. (Doc. 106, ~~ 29-30). To the extent that Peay
attempts to hold Defendants Whitesel and Fisher liable based on their involvement in the
review of his misconduct appeals, this claim also fails. The "failure of a prison official to
provide a favorable response to an inmate grievance is not afederal constitutional

31

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violation." Flanagan v. Shively, 783 F. Supp. 922, 931-32 (M.D. Pa. 1992), aff'd, 980 F.2d

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722 (3d Gir. 1992). Thus, insofar as Defendants Whitesel and Fisher are sued in their
capacity for upholding the decision of the hearing examiner, dissatisfaction with responses

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to an inmate's grievances or mere concurrence in an administrative appeal process does
not support aconstitutional claim. See Alexander v. Gennarini, 144 F. App'x 924 (3d Gir.

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2005) (concluding that involvement in the post-incident grievance process is not a basis for

§ 1983 liability); Wilkerson v. Schafer, 2011 WL 900994, at *7 (M.D. Pa. 2011) (allegations
that defendants "should be held liable for due process violations because they should have
become aware of them through their review of his misconduct appeals is insufficient to
establish their personal involvement in the underlying unconstitutional conduct"); Cole v.

Sabina, 2007 WL 4460617, at *5 (W.o. Pa. 2007) ("[M]ere concurrence in a prison
administrative appeal process does not implicate aconstitutional concern."). Judgment will
be entered in favor of Defendants on this claim.
D.

Failure to Protect Claim

"The Eighth Amendment's prohibition against cruel and unusual punishment protects
prisoners against the 'unnecessary and wanton infliction of pain" and "imposers] a duty upon
prison officials to take reasonable measures 'to protect prisoners from violence at the hands
of other prisoners.'" Hamilton v. Leavy, 117 F.3d 742, 746 (3d Gir. 1997) (citing Farmer v.

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Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994); Whitley v. Albers,

475 U.S. 312, 319, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986))).
"In order for a plaintiff to prove a constitutional violation in a failure-lo-protect case, a
claimant must demonstrate that: (1) he is 'incarcerated under conditions posing a
sUbstantial risk of serious harm;' and (2) the prison officials acted with 'deliberate
f

indifference to his health and safety.'" Ogden v. Mifflin County, 2008 U.S. Dist. LEXIS
81681, *9-10 (M.D. Pa. 2008) (citing Farmer, 511 U.S. at 834). A substantial risk of serious
harm "may be established by much less than proof of a reign of violence and terror," but
requires more than a single incident or isolated incidents. See Riley v. Jeffes, 777 F.2d
143, 147 (3d Cir. 1985). This does not require that an inmate must suffer an assault before

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obtaining relief. Id. Deliberate indifference requires that the prison official "knows of and

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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 asubstantial risk of serious harm exists,
and he musl also draw the inference." Farmer, 511 U.S. at 837; Heggenmiller v. Edna
Mahan Corr. Inst., 128 F. App'x 240, 245 (3d Cir. 2005). "The knowledge element of
deliberate indifference is subjective, not objective knowledge, meaning that the official must
actually be aware of the existence of the excessive risk; it is not sufficient that the official
should have been aware." Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001).

33

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Finally, the inmate must show that "the official's deliberate indifference caused the harm."

Bistrian v. Levi, 696 F.3d 352,367 (3d Cir. 2012).
Peay claims that Defendants failed to protect him from an assault by two inmates on
April 29, 2014 after Peay informed them that staff were "siccing" inmates on him. (Doc. 17,
p. 2). Peay failed to provide any evidence to support his claims that staff caused inmates
Reyes and Wilson to assault him. The evidence reflects that Captain Goss and Lieutenant
Booher interviewed Peay on April 30, 2014 in response to his call to the abuse hotline
regarding the April 29, 2014 incident. The interview is documented by a Grievance Officer
as follows:
Mr. Peay, in the above grievance you claim that you have contacted staff
concerning COs commi[t]1:ing crimes, torture, and oppression against you, in
order to silence you concerning adetective "framing" you for the crime of
murder. You claim that multiple COs have committed these actions. You
claim that you informed the facility chaplaincy department and in retaliation,
COs had 2 inmates assault you. Inmate Peay you were interviewed on
4-30-14 by Captain Goss and Lt. Booher of the security office due to you
calling the abuse hotline about this allegation. You told them that you were
assaulted by two inmates and believe that Sgt. K Crum put the inmates up to
do it. You were asked what evidence you had to support this and you stated
that is just what you thought and really do not know. The inmates that you
were involved in the fight with state that staff were not involved in this
altercation nor were they told to assault you by staff. After speaking with
staff, they have informed me that they did not commit crimes of torture or
retaliate against you. Mr. Peay, all of your claims have been previously
investigated and you never provide any specifics. In closing, your grievance
is denied and considered frivolous due to the fact that your claims are
unfounded and simply no evidence exists to substantiate they happened.
Your relief requested of $150,000.00 is also denied.

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(Doc. 106-1, p. 17). Peay appealed the denial of this grievance to the Facility Manager.

(Doc. 106-1, p. 18). On appeal, the Facility Manager upheld the Grievance Officer's
response and found that Peay did not present any new information that would change the
outcome of the original response. (Doc. 106-1, p. 19). Peay then appealed to the SOIGA.
(Doc. 106-1, p. 20). The Chief Grievance Officer upheld the institution's findings and
responded as follows:
A review of the record shows that you are filing an appeal based on your
claim that on 4-29-14, Officers Crum, Reid, [and] Gerhart, had two other
inmates jump you and assault you. You say that for over a decade, white
staff have been trying to silence you about being framed for Murder along
with reading your incoming and outgoing mail. You also complain that staff
has used secret technology and microwaves to torture you which has caused
you severe pain and sickness. You are asking to be paid $150,000 for
deliberate indifference.
An investigation into the matter reveals that there is no evidence to
substantiate your claims. You were interviewed by the Security Office staff
and an Investigator from the Office of Special Investigations and Intelligence.
You were asked what evidence you had to support your allegations and you
stated that it was just what you thought and really did not know. The inmates
that you were involved in the fight with stated that staff were not involved in
the altercation nor were they told to assault you by staff. Interviewed staff
denied torturing or retaliating against you. The staff did not useU secret
technology or microwaves to torture you and as a result, the frivolous
determination is upheld. Your request for payment of $150,000.00 is denied.
(Doc. 106-1, p. 21).
The DOC Office of Special Investigations and Intelligence subsequently initiated an
investigation regarding Peay's allegations that prison staff had him assaulted by inmates

35

Reyes and Wilson on April 29, 2014. (Doc. 106, 1f 40). Once the investigation was

launched by the OSII, Lieutenant Allison interviewed Peay. (Doc. 106-2, pp. 2-4). Peay
again stated that he could not provide any evidence to support his claim that staff had
inmates Reyes and Wilson assault him. (Doc. 106-2, p. 4, 1f 7). He merely stated that is
what he thinks happened. (Id.). In conjunction with this investigation, the staff and inmates
involved in the April 29, 2014 altercation were interviewed, and they all denied Peay's
allegations. (Doc. 106-2, p. 3, 1f 7). Inmates Reyes and Wilson explained that Peay had
been coming at them for a month, they had enough, and beat him up. (Doc. 106-2, p. 3, 1f
8). Lieutenant Allison ultimately determined that Peay's allegations were unsubstantiated.
(Doc. 106-2, p. 3, 1f 6).
Peay has not presented any evidence in support of his claims that staff failed to
protect him from assault and caused inmates Reyes and Wilson to assault him. Instead,
Peay sets forth hypothesis and accusation, which is insufficient to satisfy his burden. The
party adverse to summary judgment must raise "more than a mere scintilla of evidence in its
favor" and cannot survive Rule 56 scrutiny by relying on unsupported assertions, conclusory
allegations, or mere suspicions. Williams, 891 F.2d at 460. See Betts v. New Castle Youth
Development Center, 621 F.3d 249, 252 (3d Cir. 2010) (citing Williams, 891 F.2d at 460);
Podobnik V. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477

U.S. at 325). Rule 56 requires affirmative evidence in support of a claim. See FED. R. CIV.

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P.56(e). The record is devoid of any such affirmative evidence. Accordingly, the Court will
grant summary judgment to Defendants on the Eighth Amendment failure to protect claim.

E.

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Z Code Status

The Eighth Amendment protects prison inmates from cruel and unusual punishment.

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See Farmer, 511 U.S. at 832. However, not all deficiencies and inadequacies in prison
conditions amount to a violation of aprisoner's constitutional rights. Rhodes v. Chapman,
452 U.S. 337, 349 (1981). To assert an Eighth Amendment conditions of confinement

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claim, a prisoner must satisfy both an objective and subjective test. See Wilson v. Seiter,
501 U.S. 294, 298 (1991). Specifically, a prisoner must show that the alleged deprivation is
"suffiCiently serious" and that he has been deprived of the "minimal civilized measure of
f.

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life's necessities," Farmer, 511 U.S. at 834. A prisoner must also demonstrate that "he is
incarcerated under conditions posing asubstantial risk of serious harm" and that prison

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officials possessed a "sufficiently culpable state of mind" and demonstrated "deliberate
indifference" to his health or safety. Id. However, only "extreme deprivations" are sufficient
to present a claim for unconstitutional conditions of confinement. Hudson v. McMillian, 503

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U.S. 1,8-9 (1992).
Peay claims that Defendants Fisher, Whitesel, and Oliver refused to remove his Z
code status "so they could continue to cause [him] 'harm' (claustrophobia; etc.) from the '2
%years' [he] served in 'solitary confinement.''' (Doc. 17, p. 5). As to the objective prong,

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the Court finds that the practice of single-ceiling inmates is not sufficiently serious to
constitute denial of the minimal civilized measure of life's necessities. See Keeling v.

Barrager, 2014 WL 1338077 (M.D. Pa. 2014) (,the United States Constitution does not
confer any right upon an inmate to any particular custody or security classification") (citing

Moody v. Daggett, 429 U.S. 78, 88, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976); Montanye v.
Haymes, 427 U.S. 236, 242,96 S.Ct. 2543,49 L.Ed.2d 466 (1976)).
As to the subjective prong, Peay has not established that any Defendants were
deliberately indifferent to his health or safety. Notably, Peay does not claim that he was
denied basic human needs, such as food, clothing, shelter, sanitation, and medical care.
Moreover, the evidence establishes that Peay's Z code status was reasonable and was
based on his documented history of assaultive and combative behavior. (Doc. 106, ~~ 72,
76). The evidence reveals that Peay has had a Z code since 2001 due to problems with his
cellmates at SCI-Graterford. (Doc. 106, ~ 71). The evidence further reveals that Peay has
had continuing problems with his cellmates and fellow inmates. For example, on December
5,2013, Peay was transferred from SCI-Fayette to SCI-Smithfield due to his assault of
another inmate. (Id.).
Since being placed in the custody of the Department of Corrections, and as of March
6,2014, Peay has received 64 misconduct reports, including multiple misconducts for
assault involving staff members. (ld.). Peay assaulted staff by punching, kicking, and

38

spitting on them, throwing objects and unknown liquids at them, attempting to bite them,

and making other physical contact with them. (ld.). Additionally, Peay has received four
misconducts for assaults on other inmates. (Doc. 106, 1MJ 71, 75). The evidence further
reveals that the Pennsylvania Department of Corrections does not house inmates in
"solitary confinement." (Doc. 106, 1{83; Doc. 106-7, 1{6). Moreover, was housed at
SCI-Smithfield from December 5,2013 to July 10, 2014. (Doc. 106, 1{84). During this time,
he was housed in General Population from December 12, 2013 to January 5,2014, and
again from January 22,2014 to April 29, 2014. (ld.).
Peay has not presented any evidence to dispute these facts. Peay has thus failed to
establish that the deprivation alleged was objectively, sufficiently serious, and that
Defendants Fisher, Whitesel, and Oliver acted with deliberate indifference to an excessive
risk to his health and/or safety as required by Farmer. Consequently, the Court will enter
summary judgment in favor of Defendants Fisher, Whitesel, and Oliver with respect to
Peay's claim that they refused to remove his Z code status.

F.

Retaliation Claim

The First Amendment offers protection for a wide variety of expressive activities.
See U.S. CONST. amend I. These rights are lessened, but not extinguished in the prison

context, where legitimate penological interests must be considered in assessing the
constitutionality of official conduct. See Turner v. Safley, 482 U.S. 78, 89 (1987).
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Retaliation for expressive activities can infringe upon an individual's rights under the First

Amendment. See Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000). To prevail on a
retaliation claim under 42 U.S.C. § 1983, plaintiff must demonstrate: (1) that he was
engaged in constitutionally protected activity; (2) that he suffered an "adverse action" by
government officials; and (3) that there is "a causal link between the exercise of his
constitutional rights and the adverse action taken against him." Rauser v. Horn, 241 F.3d
330 (3d Cir. 2001) (quoting Allah, 229 F.3d at 225).
Peay generally alleges that correctional officers retaliated against him and had two
inmates physically assault him. (Doc. 17, p. 3). With respect to this claim, Peay failed to
establish what constitutionally protected activity he was engaged in that would suffice for
purposes of stating a First Amendment retaliation claim. Moreover, Peay's unsubstantiated
claim that correctional officers retaliated against him is insufficient to survive the Rule 56
standard. Defendants have presented evidence providing that, in each alleged instance of
retaliation, their actions were justified and were not taken in retaliation. (Doc. 106-1, p. 31).
Peay has failed to provide any "affirmative evidence" in support of his right to relief.
Pappas,331 F. Supp. 2d at 315; FED. R. CIV. P. 56(e).
Peay further alleges that unnamed staff tampered, read, and withheld his mail in
retaliation for Peay's assertion that he is innocent of murder. (Doc. 17, p. 3). This mail
tampering claim involves a protected activity because prisoners have a First Amendment

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right to send and receive mail. See Thornburgh v. Abbott, 490 U.S. 401,407 (1989); Jones

v. Brown, 461 F.3d 353, 359 (3d Cir. 2006). However, Peay failed to establish that any of
the named Defendants were involved in the alleged mishandling of his mail. Instead, he
generally states that "staff' tampered with his mall. (Doc. 17, p. 3). Peay failed to set forth
any plausible facts or evidence to support aclaim that his mail was tampered with by any of
the named Defendants. Because the Defendants were not personally involved in the
purported withholding of mail, Peay cannot establish that he suffered any adverse action at
the hands of the Defendants. Consequently, Defendants are entitled to an entry of
summary judgment on the retaliation claim.
G.

Qualified Immunity

Defendants raise the defense of qualified immunity in answer to Peay's § 1983
claims. "The doctrine of qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known." Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). "Qualified immunity
balances two important interests-the need to hold public officials accountable when they
exercise power irresponsibly and the need to shield officials from harassment, distraction,
and liability when they perform their duties reasonably." Pearson, 555 U.S. at 231. It
"provides ample protection to all but the plainly incompetent or those who knowingly violate

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the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). "Thus, so long as an official
reasonably believes that his conduct complies with the law, qualified immunity will shield
that official from liability." Sharp v. Johnson, 669 F.3d 144, 159 (3d Gir. 2012) (citing
Pearson, 555 U.S. at 244). Although qualified immunity is generally a question of law that
should be considered at the earliest possible stage of proceedings, a genuine dispute of
material fact may preclude summary judgment on qualified immunity. Giles v. Kearney, 571
F.3d 318, 325-26 (3d Gir. 2009).
Acourt evaluating a claim of qualified immunity considers two distinct inquiries: first,
whether, based on the facts alleged, aconstitutional right has been violated and, second, if
so, whether the right was "clearly established" at the time of the alleged violation. Spady v.
Bethlehem Area Sch. Dist., 800 F.3d 633,637 (3d Gir. 2015) (quoting Pearson, 555 U.S. at

232). Acourt may begin its qualified immunity analysis with either prong. See Pearson,
555 U.S. at 237. Because there are no genuine issues of fact as to whether a constitutional
or federal right has been violated, Defendants are entitled to qualified immunity. See, e.g.,
Milhouse v. Gee, 2011 U.S. Dist. LEXIS 91749, *24-27 (M.D. Pa. 2011) (granting the

defendants' motion for summary judgment because the plaintiff "failed to set forth an Eighth
Amendment claim with respect to this use of force incident ... and qualified immunity
shields Defendants from suit").

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IV.

Conclusion
For the reasons set forth above, the Court will grant Defendants' motion (Doc. 105)

for summary judgment. A separate Order shall issue.

Date:

March~ 2017

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