Schreane v. Marr et al

Filing 72

MEMORANDUM (Order to follow as separate docket entry) re 34 MOTION for Declaratory Judgment filed by Clarence D Schreane, 21 MOTION to Dismiss MOTION for Summary Judgment filed by Diltz, Sarah Dees, T Lynn, Robert Marr, D Olseskie, B Chamber, 69 MOTION for Order filed by Clarence D Schreane, 52 MOTION for Extension of Time to for 30 days to file documetns filed by Clarence D Schreane. Signed by Honorable A. Richard Caputo on 4/3/17. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CLARENCE D. SCHREANE,
Plaintiff
v.
ROBERT MARR, et al.,
Defendants

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CIVIL NO. 3:CV-15-1204
(Judge Caputo)

MEMORANDUM
I.

Introduction
Plaintiff Clarence D. Schreane, a federal inmate formerly housed at the United

States Penitentiary at Lewisburg (USP-Lewisburg), in Lewisburg,1 Pennsylvania,
commenced this Bivens action on June 19, 2015.2 Named as defendants are the
following USP-Lewisburg employees: Corrections Counselor Robert Marr; Disciplinary
Hearing Officer (DHO) B. Chambers; T. Lynn; Corrections Counselor Diltz; Supervisory
Correctional Systems Specialist D. Olsheskie; and Paramedic Sarah Dees.

Mr.

Schreane alleges that Defendants were deliberately indifferent to his serious medical

1

Mr. Schreane is currently housed at USP-Florence (High), in Florence, CO. (ECF No.

68.)
2

Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388,
91 S.Ct. 1999, 29 L.ED.2d 619 (1971). Bivens stands for the proposition that “a citizen
suffering a compensable injury to a constitutionally protected interest could invoke the general
federal-question jurisdiction of the district courts to obtain an award of monetary damages
against the responsible federal official.” Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894,
2910, 57 L.Ed.2d 895 (1978).

needs, impaired his access-to-the-courts, issued him a retaliatory misconduct and
denied him due process at his disciplinary hearing.
Presently pending is Defendants’ motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b) and motion for summary judgment pursuant to Federal Rule of
Civil Procedure 56(a). (ECF No. 21.) Also pending before the Court is Mr. Schreane’s
motion for Declaratory Judgment (ECF No. 34), Motion for Extension of Time (ECF No.
52), and Motion for an Order (ECF No. 69).
For the reasons set forth below, the motion to dismiss will be denied and the
motion for summary judgment will be granted. Mr. Schreane’s additional motions will
be denied as moot and summary judgment will be issued in favor of the Defendants.

II.

Standards of Review
Defendants’ pending dispositive motion is captioned as a motion to dismiss and

motion for summary judgment. (ECF No. 21.) It is supported by evidentiary materials
outside the pleadings. Mr. Schreane’s opposition to Defendants’ motion is entitled
“Plaintiff’s Objection to Defendant Motion for Summary Judgments” and also relies on
materials outside of the pleadings. (ECF No. 44.)
Federal Rule of Civil Procedure 12(d) provides in part as follows:
If, on a motion under Rule 12(b)(6) or 12(c), matters
outside the pleading are presented to and not excluded by
the court, the motion must be treated as one for summary
judgment under Rule 56. All parties must be given
reasonable opportunity to present all the material that is
pertinent to the motion.
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Fed. R. Civ. P. 12(b)(d). Based on the above, Defendants’ motion will be treated as
solely seeking summary judgment. See Latham v. United States, 306 Fed. Appx. 716,
718 (3d Cir. 2009) (when a motion to dismiss has been framed alternatively as a motion
for summary judgment such as in the present case, the alternative filing “is sufficient
to place the parties on notice that summary judgment might be entered.”)
Federal Rule of Civil Procedure 56 sets forth the standards and procedures for
granting a motion for summary judgment. Summary judgment is proper where “the
movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court must
determine “whether the pleadings, depositions, answers to interrogatories, admissions
on file, and affidavits show that there is no genuine issue of material fact and whether
the moving party is therefore entitled to judgment as a matter of law.” MacFarlan v. Ivy
Hill SNF, LLC, 675 F.3d 266, 271 (3d Cir. 2012)(citing Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). “[T]his standard
provides that the mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 - 48, 106 S.Ct. 2505, 2509 - 10, 91 L.Ed.2d 202 (1986).
A “material” fact is any fact that might affect the outcome of a suit under the
governing substantive law. Gonzalez v. Sec’y of Dept. of Homeland Sec., 678 F.3d
254, 261 (3d Cir. 2012). An issue of material fact is “genuine” if supported by evidence

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such that a reasonable jury could return a verdict in the non-moving party’s favor. Id.
at 248, 106 S.Ct. at 2510.
In reviewing a motion for summary judgment, the court must view all facts and
draw all reasonable inferences “in the light most favorable to the party opposing the
motion.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014)(internal
quotation marks omitted). To prevail on summary judgment, the moving party must
affirmatively identify those portions of the record which demonstrate the absence of a
genuine issue of material fact. Santini v. Fuentes, 795 F.3d 410 (3d Cir. 2015) (citing
Celotex, 477 U.S. at 323, 106 S.Ct. 2553). If this burden is met, the nonmoving party
“must do more than simply show that there is some metaphysical doubt as to material
facts.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.
1992) (citation and internal quotation marks omitted). Rather, the party opposing
summary judgment “must set forth specific facts showing that there is a genuine issue
for trial.” Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001)(citing Fed.R.Civ.P.
56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986)). Failure to properly support or contest an assertion of fact may
result in the court considering the fact undisputed for the purpose of the motion. Fed.
R. Civ. P. 56(e).

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III.

Statement of Material Facts
From the pleadings, declarations and exhibits submitted therewith, the following

facts are ascertained as undisputed or, where disputed, reflect Mr. Schreane’s version
of the facts, pursuant to this Court’s duty to view all facts and reasonable inferences in
the light most favorable to the nonmoving party.3 Anderson, 477 U.S. at 255, 106 S.Ct.
at 2510.
Mr. Schreane was housed at USP-Lewisburg from July 6, 2011 through July 3,
2013, and then again from October 2, 2013 through July 22, 2015. (ECF No. 32, Defs.’
Statement of Material Facts (DSMF), ¶ 2.) He has a disciplinary history that includes,
but is not limited to: refusing orders; threatening bodily harm; disruptive conduct;
possession of a dangerous weapon; and making sexual proposals/threats. (DSMF ¶
3.)

A.

Mr. Schreane’s Disruptive Behavior and Calculated
Use of Force Event

On February 20, 2014, at approximately 11:45 a.m., Counselor Marr approached
Mr. Schreane in his cell to return legal mail he had tried to send out without postage.
During the discussion, Mr. Schreane became agitated and threatened Counselor Marr
and his family with violence. (DSMF ¶ 5.) Mr. Schreane stated “if you think I am

3

In support of their summary judgment motion, Defendants submit a statement of
material facts. (ECF No. 32.) Because Mr. Schreane fails to properly oppose Defendants’
statement of material facts (ECF No. 42) as required by Middle District Local Rule 56.1, facts
submitted by Defendants are deemed admitted.

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playing fucking games with you, your family will find out what fucking games are when
my people get in contact with them, then we will see what fucking games are.” (ECF
No. 32-1, Incident Report 2550915, p. 34.) Due to Mr. Schreane’s disruptive behavior,
his display of imminent violence and not being in control of himself physically or
emotionally, the Acting Warden was notified and authorized staff to place Mr. Schreane
in ambulatory restraints. (DSMF ¶ 6; ECF No. 32-1, pp. 26 - 29.) A use of force team
was assembled to conduct the calculated use of force of extracting Mr. Schreane from
his cell and placing him in ambulatory restraints. (Id.) The event was videotaped. ECF
No. 32-1, p. 28.)
Following the cell extraction and application of restraints, a health services staff
member (J. Robertson) performed an injury assessment of Mr. Schreane. (DSMF ¶ 23;
ECF No. 32-1, pp. 31 - 32.) No significant findings or apparent distress was noted.
(Id.) It was noted that the ambulatory restraints were applied appropriately to permit
adequate blood flow to the inmate’s extremities, and that Mr. Schreane sustained no
injuries and offered no chief complaint. (Id.)

B.

Restraint Checks

In accordance with BOP Program Statement (PS) 5666.06 (ECF No. 32-1, pp.
47 - 69), prior to any calculated use of force, the ranking custodial official, a designated
mental health professional, and others confer and gather pertinent information about
the inmate and the immediate situation. Based on their assessment of that information,

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they identify staff to attempt to obtain the inmate’s voluntary cooperation, and using the
knowledge they gained about the inmate and the incident, determine if use of force is
necessary. (DSMF ¶ 7.) The policy authorizes staff “to apply physical restraints
necessary to gain control of an inmate who appears to be dangerous because the
inmate: (a) Assaults another individual; (b) Destroys government property; (c) Attempts
suicide; (d) Inflicts injury upon self; or (e) Becomes violent or displays signs of imminent
violence.” (DSMF ¶ 11.) Pursuant to the policy “[r]estraints should remain on the
inmate until self-control is regained.” (DSMF ¶ 12.) Restraints are not to be used in a
manner to cause unnecessary physical pain or extreme discomfort. (DSMF ¶ 13.)
When applied, “staff will use sound correctional judgment to ensure unnecessary
pressure is not applied to the inmate.” (DSMF ¶ 15.) “Ambulatory restraints are
defined as approved soft and hard restraint equipment which allow the inmate to eat,
drink, and take care of human basic needs without staff intervention.” (DSMF ¶ 14.)
Fifteen-minute scheduled checks are required for inmates place in restraints. (DSMF
¶ 16.) Two-hour scheduled checks by Lieutenants are required and “qualified health
personnel ordinarily are to visit the inmate at least twice during each eight hour shift.”
(DSMF ¶ 18 and ¶ 24.)
Counselor Marr issued Mr. Schreane Incident Report 2550915 following the
incident and calculated use of force. (DSMF ¶ 8.) Plaintiff was kept in ambulatory
restraints from 1:00 p.m. until 8:00 p.m. on February 20, 2014. (DSMF ¶ 9 and ¶ 10.)
In accordance with the BOP’s restraint policy, staff made fifteen-minute checks on Mr.

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Schreane while he was in restraints. Fifteen-minute checks were completed between
1:06 p.m. and 8:00 p.m. (DSMF ¶ 17; ECF No. 32-1, pp. 38-39.) At one point in time
Mr. Schreane is alleged as saying “That counselor had it coming.” (Id., p. 39.) The
required two-hour Lieutenant checks were also completed in accordance with policy.
(DSMF ¶ 19; ECF No. 32-1, pp. 41 - 42.) During each two-hour Lieutenant check, Mr.
Schreane was offered use of the toilet. (DSMF 32; ECF No. 32-1, pp. 41 - 42.) A
Lieutenant checked Mr. Schreane’s restraints at 2:00 p.m., 4:00 p.m., 6:00 p.m. and at
8:00 p.m. when they were removed. (DSMF ¶ 20.) Mr. Schreane was agitated,
exhibited a poor attitude and cursed staff during these checks until the 8:00 p.m. check.
(DSMF ¶ 21.) Mr. Schreane’s restraints were removed at 8:00 p.m. on February 20,
2014, by Lieutenant Johnson once the calm effect was achieved. (DSMF ¶ 22; ECF
No. 32-1, p. 43.)
When Mr. Schreane was initially placed in restraints, J. Robertson, a member
of the medical staff assessed him. (ECF No. 32-1, pp. 31 - 32.) At that time he had
“[g]ood palpable distal pulses and capillary refill less than two seconds in all four
extremities ... [and] noted to have movement of fingers and toes.” (Id.) Mr. Schreane
voiced no complaints at that time. (Id., p. 31.) During the relevant time period
Defendant Dees performed two health services restraint checks, one at 4:00 p.m. and
another at 6:00 p.m. (DSMF ¶ 25; ECF No. 32-1, pp. 45 - 46.) Her Clinical Encounter
notes from the 4:00 p.m. check indicated Mr. Schreane was alert and oriented in no
acute distress. She noted Mr. Schreane “to have the restraints pushed up on to his

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forearms causing bilateral swelling in his hands.” (DSMF ¶ 26; ECF 32-3, p. 7.) She
counseled Mr. Schreane “on the importance of keeping the restraints in their proper
position.” (Id.) Plaintiff was noted to have good circulation below the restraints which
moved freely. (Id.) At Ms. Dees’ 6:00 p.m. visit, she arrived to find Mr. Schreane sitting
on the lower bunk in the cell, alert, oriented, and not in acute distress. (DSMF ¶ 27;
ECF 32-3, pp. 10 -13.) Again she noted that Mr. Schreane pushed the restraints up on
to his forearms causing bilateral swelling in both hands. She repositioned the restraints
and counseled him on the importance of keeping them in their proper position. (ECF
32-2, pp. 10 - 13.) Mr. Schreane was noted to have good circulation below the
restraints with less than 2 second capillary refill. His restraints moved freely and he
voiced no complaints at that time. (Id.)

C.

Mr. Schreane’s DHO Hearing Re: Incident Report 2550915

Counselor Marr issued Mr. Schreane Incident Report 2550915 on February 20,
2014. (ECF No. 32-2, p. 3, Incident Report 2550915.) On March 11, 2014, DHO
Chambers held a hearing concerning Incident Report 2550915. (DSMF ¶ 33; ECF No.
32-4, pp. 1 - 10, Chambers Decl. & DHO Report.) Defendant Lynn was Mr. Schreane’s
staff representative at the DHO hearing. (DSMF ¶ 34.) She requested DHO Chambers
recuse himself because he was a named defendant in another action filed by Mr.
Schreane. (DSMF ¶ 35.) DHO Chambers denied that request. (DSMF ¶ 36.) At the
conclusion of the hearing DHO Chambers found Mr. Schreane guilty of the misconduct

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and sanctioned him to loss of 27 days good conduct time and a loss of 20 days of nonvested good conduct time. (DSMF ¶ 38; ECF No. 32-4.) Although Mr. Schreane
properly exhausted his administrative remedies with regard to Incident Report 2550915
it still remains on Mr. Schreane’s disciplinary record. (DSMF ¶ 39; DSMF ¶ 61 - ¶ 63;
ECF No. 32-1, pp. 16, Inmate Discipline Data Chronological Disciplinary Record.)

D.

Facts Concerning the Operation of the Mailroom

Defendant Olsheskie is the Supervisory Correctional Systems Specialist at USPLewisburg. (DSMF ¶ 40; ECF No. 32-5, Olsheskie Decl., pp. 1 - 2.) His duties include
oversight of the Inmate Records Office, Mail Room, and Receiving and Discharge
functions. (DSMF ¶ 41; ECF No. 32-5, Olsheskie Decl., pp. 1 - 2 and Position
Description, pp. 4 - 11.) The mailroom processes hundreds, if not thousands of pieces
of mail daily. (DSMF ¶ 42.) It is located in a different area of the institution than Mr.
Olsheskie’s office. (DSMF ¶ 43.)
Mr. Olsheskie’s interaction with the mail room is fairly limited. Should a mail
room staff member have a question concerning a piece of mail, they may consult with
Mr. Olsheskie. (DSMF ¶¶ 44 - 45.) Otherwise, Defendant Olsheskie is not personally
involved with the daily processing of the mail. (DSMF ¶ 46.) Defendant Olsheskie was
not aware of any claim by Mr. Schreane that he was prevented from receiving a
magazine in April - May 2014. (DSMF ¶ 47.)

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E.

Exhaustion of Administrative Remedies

The BOP has established an administrative remedy procedure with respect to
inmate complaints found at 28 C.F.R. ¶ 542.10, et seq. (DSMF ¶ 48; ECF No. 32-1,
Romano Decl., ¶ 7.) Inmates must informally present their complaints to the staff in
order to attempt to resolve the matter. (DSMF ¶ 49; 28 C.F.R. § 542.13(a).) If the
informal resolution is unsuccessful, the inmate then has twenty (20) calendar days after
the complained about event to execute the appropriate form to bring the matter to the
attention of the Warden. (DSMF ¶ 50; 28 C.F.R. § 542.13(a).) The Warden must
respond to the inmate’s complaint within twenty (20) calendar days. (DSMF ¶ 51; 28
C.F.R. § 542.18.) If the inmate is dissatisfied with the Warden’s response, the inmate
may then appeal to the Regional Director within twenty (20) calendar days. (DSMF ¶
52; 28 C.F.R. § 542.15(a).) If the Regional Director’s response is unsatisfactory, the
inmate has thirty (30) calendar days to appeal to the BOP’s Central Office. (DSMF ¶
53; 28 C.F.R. § 542.15(a).) An exception is made for appeals of DHO decisions, which
are first raised directly to the Regional Office level and then to the Central Office level.
(DSMF ¶ 54; 28 C.F.R. § 542.14(d)(4).) If a remedy is rejected, it is returned to the
inmate and the inmate is provided with a written notice explaining the reason for the
rejection, but a copy of the remedy is not ordinarily maintained by the BOP. (DSMF ¶
55; 28 C.F.R. § 542.17(a).) An appeal to the Central Office is the final step in the
BOP’s administrative remedy process. (DSMF ¶ 56; 28 C.F.R. § 542.10.)

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A review of the BOP’s SENTRY computer generated Administrative Remedy
Retrieval for Mr. Schreane, performed on October 16, 2015, generated many results.
(DSMF ¶ 57.) A limited search, narrowed to February 1, 2014 through October 14,
2015, revealed that Mr. Schreane filed twenty-three (23) administrative remedies.
(DSMF ¶ 58; ECF No. 32-1, pp. 71 - 83.) The twenty-three (23) remedies concerned
disciplinary proceedings, the delivery of magazines, the tampering of Mr. Schreane’s
mail, unsanitary conditions for drawing blood, medical treatment, mail issues, the
preservation of surveillance video and his access to the law library. (DSMF ¶ 59; ECF
No. 32-1, pp. 71 - 83.) Only six (6) of Mr. Schreane’s twenty three (23) administrative
remedies filed between February 1, 2014 and October 14, 2015, were appealed to the
Central Office level. (DSMF ¶ 60; ECF No. 32-1, pp. 85 - 88.)
Remedy number 778030-A1, received at the BOP’s Central Office on July 15,
2014, pertains to Incident Report number 2550915, issued by Counselor Marr. (DSMF
¶ 61; ECF No. 32-1, p. 86.) It was denied by Central Office on August 13, 2014.
Defendants concede that Mr. Schreane properly exhausted his claims related to
Incident Report number 2550915. (DSMF ¶¶ 62 - 63; ECF No. 32-1, p. 86.)
Remedy number 773875-A1, received by the BOP’s Central Office on August
5, 2014, concerned a Unit Disciplinary Committee (UDC) finding related to Incident
Report number 2587054 which is not at issue in this action. (DSMF ¶ 65; ECF No. 321, p. 74.)

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Remedy number 782605-A1 was received by the BOP’s Central Office on
August 12, 2014, and concerns a UDC finding related to Incident Report number
2587054. (DSMF ¶ 65; ECF No. 32-1, p. 87.) Mr. Schreane’s appeal was rejected on
September 15, 2014, as untimely. He was advised to “obtain a staff memo stating the
reason for [his] untimeliness and resubmit [his] appeal to the regional office for review
and response.” (ECF No. 32-1, p. 87.)
Remedy number 773875-A2, received by the BOP’s Central Office on October
6, 2014, relates to a UDC finding concerning Incident Report number 2563086. (DSMF
¶ 66; ECF No. 32-1, p. 87.) This incident report is not at issue in the instant Complaint.
(DSMF ¶ 66.)
On December 18, 2014, remedy number 796160-A1 was received by the BOP’s
Central Office. (DSMF ¶ 67; ECF No. 32-1, p. 88.) It pertains to Mr. Schreane’s claim
that he “never received magazines” he paid for while housed at USP-Lewisburg. (ECF
No. 32-1, pp. 88.) The BOP Defendants concede Mr. Schreane’s exhaustion of this
issue. (DSMF ¶ 68.)
Remedy number 813593-A1 was received by the BOP’s Central Office on May
27, 2015, and addresses Mr. Schreane’s claim that USP-Lewisburg staff tampered with
his mail. (DSMF ¶ 69; ECF No. 32-1, p. 88.) The appeal was denied on July 9, 2015.
This issue is properly exhausted. (DSMF ¶ 70.)
Absent from the administrative remedies filed to final review are grievances
concerning the following claims Mr. Schreane raises in his Complaint: (1) Defendant

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Marr denied Mr. Schreane postage; (2) Defendant Diltz denied Plaintiff a letter
concerning his untimely filing of a DHO Administrative Remedy to the Regional Office;
and (3) Defendant Dees was deliberately indifferent to his medical needs on February
20, 2014, while he was in ambulatory restraints. (DSMF ¶ 71.)

IV.

Discussion
A.

Mr. Schreane Failed to Exhaust Several of his Bivens
Claims.

Under the Prison Litigation Reform Act (PLRA), before a prisoner may bring a
civil rights action pursuant to 42 U.S.C. § 1983, or any other federal law, he must
exhaust all available administrative remedies. See 42 U.S.C. § 1997e; Porter v.
Nussle, 534 U.S. 516, 524, 122 S.C. 983, 988, 152 L.Ed.2d 12 (2002). There is no
“futility” exception to the administrative exhaustion requirement. Ahmed v. Dragovich,
297 F.3d 201, 206 (3d Cir. 2002)(citing Nyhuis v. Reno, 204 F.3d 65, 78 (3d Cir. 2000)).
The exhaustion requirement of the PLRA is one of "proper exhaustion." Woodford v.
Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 2383, 165 L.Ed.2d 368 (2006). Failure to
substantially comply with procedural requirements of the applicable prison's grievance
system will result in the procedural default of a claim. Spruill v. Gillis, 372 F.3d 218,
227-32 (3d Cir. 2004). Dismissal of an inmate’s claim is appropriate when the prisoner
has failed to exhaust his available administrative remedies before bringing a civil-rights
action. Oriakhi v. United States, 165 F. App’x 991, 993 (3d Cir. 2006) (per curiam)
(nonprecedential) (citing Ahmed v. Dragovich, 297 F.3d 201, 209 & n. 9 (3d Cir. 2002)).
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All individuals incarcerated in institutions operated by the BOP may challenge
any aspect of their confinement using the BOP's administrative remedy process.
(DSMF ¶¶ 48 - 56; 28 C.F.R. § 542.10, et seq.) The undisputed facts demonstrate that
Mr. Schreane properly exhausted six (6) administrative remedies between February 1,
2014 and October 14, 2015. (DSMF ¶ 60.) The exhausted administrative remedies
concern Incident Report 2550915 (issued by Counselor Marr); three UDC actions that
are not subject of this lawsuit; his failure to receive magazines he ordered while at
USP-Lewisburg; and a claim that USP-Lewisburg staff were tampering with his mail.
(DSMF ¶ 63 - ¶ 69.) Mr. Schreane fails to provide any evidence to demonstrate his
administrative exhaustion of claims concerning Counselor Marr denying him stamps,
or that Defendant Diltz failed to provide him a letter stating reasons for his untimely
filing of a DHO appeal to the Regional Office, or that Defendant Dees was deliberately
indifferent to his medical needs on February 20, 2014, while he was in ambulatory
restraints. Accordingly, Defendants Marr, Diltz and Dees are entitled to summary
judgment as to these claims.

B.

Mr. Schreane Fails to State a Claim against
Defendant Olsheskie.

“[I]ndividual government officials ‘cannot be held liable’ in a Bivens suit ‘unless
they themselves acted’ unconstitutionally.” Wood v. Moss,

U.S.

,

, 134 S.Ct. 2056, 2070, 188 L.Ed.2d 1039 (2014) (quoting Iqbal, 556 U.S. at 683,
129 S.Ct. at 1952). To establish liability for the deprivation of a constitutional right, an
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individual government defendant must have personal involvement in the alleged
wrongs; liability cannot be predicated based on the unconstitutional conduct of their
subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662,
676, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009); Bistrian v. Levi, 696 F.3d 352, 366
(3d Cir. 2012).
This personal involvement can be shown where a defendant personally directs
the wrongs, or has actual knowledge of the wrongs and acquiesces to them. See Rode
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); A.M. ex rel. J.M.K. v. Luzerne
Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (noting that “a supervisor
may be personally liable under § 1983 if he or she participated in violating the plaintiff's
rights, directed others to violate them, or, as the person in charge, had knowledge of
and acquiesced in his subordinates' violations”).

A defendant “cannot be held

responsible for a constitutional violation which he or she neither participated in nor
approved.” C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 201-202 (3d Cir. 2000). It is also
“not enough for a plaintiff to argue that the constitutionally cognizable injury would not
have occurred if the superior had done more than he or she did.” Sample v. Diecks,
885 F.2d 1099, 1118 (3d Cir. 1989).
The United States Court of Appeals for the Third Circuit has recognized that
“there are two theories of supervisory liability, one under which supervisors can be
liable if they established and maintained a policy, practice or custom which directly
caused the constitutional harm, and another under which they can be liable if they

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participated in violating plaintiff's rights, directed others to violate them, or, as the
persons in charge, had knowledge of and acquiesced in their subordinates' violations.”
Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016) (quoting Santiago v. Warminster
Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010)) (internal quotations omitted).
Defendant Olsheskie argues that Mr. Schreane has failed to allege his personal
involvement in the loss of his magazines or the tampering of his mail simply based on
his employment as the Supervisory Correctional Systems Specialist who oversees
several areas, including the mailroom. After careful review, the Court agrees.
The undisputed record before the Court reveals that while Defendant Olsheskie
had oversight of the mailroom, his office is not located near the mailroom and his
interaction with the mailroom staff is limited. (DSMF ¶¶ 40 - 44.) He is not involved in
the daily processing of the mail and was not aware of the issue of Mr. Schreane’s
missing magazines prior to the initiation of this lawsuit. (DSMF ¶¶ 46 - 47.) Mr.
Schreane states that it is “hard to believe that Olseskie (sic) was not notified, or had
any knowledge of” his loss of magazines. (ECF No. 42, p. 6.)

He argues that

mishandled or lost mail is reported to the mailroom supervisor, and therefore, Mr.
Olsheskie should have known of his lost magazines. (ECF No. 43, Schreane Aff., ¶
29.) These statements, even if true, would at best show the Defendant’s after-the-fact
knowledge of the loss of his mail but not his personal contemporaneous involvement
in the constitutional harm. Likewise, these statements alone also do not demonstrate

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that Defendant Olsheskie established and maintained a policy, practice, or custom
which directly caused the alleged constitutional violation.
The Court has also examined the documents Mr. Schreane submits in support
of his Complaint as well as those in opposition to Defendants’ motion that relate to his
administrative remedies and personal investigation into the loss of his mail. See ECF
No. 1-1, pp. 72 -86 and ECF No. 42, pp. 9 - 10. None of the proffered documents
implicate Mr. Olsheskie’s involvement in, or knowledge of, the loss of his magazines.
Accordingly, Defendant Olsheskie is entitled to summary judgment on this claim.

C.

Due Process Claims Against Chambers and Lynn
Based on Disciplinary Proceedings Stemming from
the February 20, 2014 Incident Report are Heck
Barred.

The sanctions imposed against Mr. Schreane during his DHO hearing were the
result of the February 20, 2014 incident report issued by Counselor Marr.

As

Defendants correctly point out, Mr. Schreane’s claims that Lynn or DHO Chambers
violated his due process rights in connection with his disciplinary hearing are barred by
the favorable termination rule announced in Heck v. Humphrey, 512 U.S. 477, 114 S.
Ct. 2364, 129 L.Ed.2d 383 (1994), and extended to prison disciplinary proceedings that
result in the loss of good time credit, thus, affecting the inmate’s period of incarceration,
in Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997); see also
Torres v. Fauver, 292 F.3d at 143 (3d Cir. 2002). Yet, under some circumstances a
prisoner may bring a Bivens claim for monetary damages based on the denial of due

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process during a prison disciplinary hearing. See Wolff v. McDonnell, 418 U.S. 539,
554, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974) (stating that plaintiffs § 1983
“damages claim was ... properly before the District Court and required determination
of the validity of the procedures employed for imposing sanctions, including loss of
good time, for flagrant or serious misconduct”). However, such due process claims
cannot be brought in a Bivens action where the claims “necessarily imply the invalidity
of the punishment imposed” unless the plaintiff shows that the sanctions have been
overturned. See Balisok, 520 U.S. at 648, 117 S.Ct. at 1589 (finding claims for
declaratory and monetary relief based on allegations that plaintiff was denied the
opportunity to present a defense and that hearing officer was biased could not be
brought pursuant to § 1983); Heck, 512 U.S. at 486 - 87, 114 S.Ct. at 2372 (“We hold
that, in order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called into question
by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.”).
First, to the extent Mr. Schreane seeks to assert a due process violation against
Counselor Marr for issuing him a false misconduct, this claim, without more, fails.
Smith v. Mensinger, 293 F.3d 631, 653 (3d Cir. 2002) (citing Freeman v. Rideout, 808
F.2d 949, 953 (2d Cir. 1986) (“”[S]o long as certain procedural requirements are

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satisfied, mere allegations of falsified evidence or misconduct reports, without more,
are not enough to state a due process claim.”)
Here it is undisputed that Mr. Schreane exhausted the BOP’s administrative
remedy process relating to DHO Chambers’ disciplinary report finding him guilty of
threatening another with bodily harm. (DSMF ¶ 63.) It is also undisputed that Incident
Report number 2550915, issued by Counselor Marr, still remains on Mr. Schreane’s
disciplinary history. (DSMF ¶ 39.) It is clear that Mr. Schreane is challenging the result
of his disciplinary hearing, not simply the constitutionality of the procedures used during
those proceedings. He seeks declaratory and injunctive relief in addition to monetary
damages. Mr. Schreane claims that Defendant Lynn failed to provide adequate
representation as his staff representative and that Defendant Chambers was not an
impartial DHO. These claims are a collateral attack on the standing disciplinary finding
and sanctions. A favorable outcome on either claim would necessarily imply the
invalidity of the prison disciplinary finding and sanctions.

Consequently, Heck

precludes the Court from considering such claims until such time as the disciplinary
finding is invalidated through a habeas corpus action or some other appropriate means.

D.

Mr. Schreane’s Retaliation Claim against Counselor Marr.

Retaliating against a prisoner for the exercise of his constitutional rights is
unconstitutional. Bistrain v. Levi, 696 F.3d 352, 376 (3d Cir. 2012). It is well settled
that “[g]overnment actions, which standing alone, do not violate the Constitution, may

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nonetheless be constitutional torts if motivated in substantial part by a desire to punish
an individual for exercise of a constitutional right.” Allah v. Seiverling, 229 F.3d 220,
224 - 25 (3d Cir. 2000) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir.
1999)).
To prevail on a retaliation claim, a plaintiff must show that: (1) he engaged in
constitutionally protected conduct; (2) he suffered, at the hands of a state actor, an
adverse action; and (3) his constitutionally protected conduct was a substantial or
motivating factor in the state actor’s decision to discipline him. Watson v. Rozum, 834
F.3d 417, 422 (3d Cir. 2016) (internal citations omitted).
The filing of grievances or a lawsuit satisfies the constitutionally protected
conduct prong of a retaliation claim. Mearing v. Vidonish, 450 F. App’x 100, 102 (3d
Cir. 2011) (per curiam) (citing Millhouse v. Carlson, 652 F.2d 371, 373 - 74 (3d Cir.
1981)). To show an “adverse action,” the prisoner plaintiff must demonstrate that the
defendants’ actions were “sufficient to deter a person of ordinary firmness from
exercising his [constitutional] rights.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)
(citing Allah, 229 F.3d at 225). The third prong of a prima facie case of retaliation may
be satisfied with “evidence of: (1) an unusually suggestive temporal proximity between
the protected activity and the alleged retaliatory action, or (2) a pattern of antagonism
coupled with timing to establish a causal link.” Watson, 834 F.3d at 424 (internal
citations omitted). “In the absence of that proof the plaintiff must show that the
‘evidence gleaned from the record as a whole’ the trier of the fact should infer

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causation.” Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citing Farrell
v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000).
If the prisoner establishes a prima facie case of retaliation, the burden then shifts
to prison officials to show by a preponderance of the evidence 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. “This is often referred
to as the ‘same decision defense.’” Watson, 834 F.3d at 422. If the prison officials can
make this showing, it defeats the retaliation claim. Carter v. McGrady, 292 F.3d 152,
159 (3d Cir. 2002).
While “most prisoners’ retaliation claims will fail if the misconduct charges are
supported by the evidence,” the Third Circuit Court of Appeals recently clarified in
Watson that “a plaintiff can make out a retaliation claim even though the [misconduct]
charge against them may have been fully supported.” Watson, 834 F.3d at 425 - 26.
The Third Circuit Court of Appeals in Watson clarified that a disciplinary hearing finding
of guilt based on “some evidence” will not bar a First Amendment retaliation claim. Id.
at 431 (Ambro, J., concurring). “Where there is direct evidence that retaliation drove
a charging decision,” the inmate’s finding of guilty alone “does not shield a defendant
from liability.” Id. at 430.
When “evaluating the legitimacy of a misconduct report, [the Court] considers
‘the quantum of evidence of the misconduct to determine whether the prison officials’
decision to discipline an inmate for his violations of prison policy was within the broad

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discretion [the Court] must afford them.’” Williams v. Folino, 664 F. App’x 114, 148 149 (3d Cir. 2016) (quoting Watson v. Rozum, 834 F.3d 417, 426 (3d Cir. 2016).
In Watson, the Third Circuit Court of Appeals held that a state inmate who was
found guilty of the possession of contraband, a broken radio, could sustain a retaliation
claim for the misconduct because “Watson’s broken radio was not so ‘clear and overt’
a violation that [the Court could] conclude that he would have been written up if he had
not also given prison officials ‘a hard time’.” Watson, 834 F.2d at 426. In reaching its
conclusion the Court, relying on the summary judgment record, noted that there was
evidence that other inmates with similarly broken radios did not have them confiscated
or received a misconduct. (Id.) The Court also noted that Watson did not receive the
misconduct when his radio was confiscated. (Id.) Based on this information the Court
held that “a reasonable fact finder could conclude that the misconduct was issued in
retaliation for Watson’s statement that he was going to file a grievance, and not in
furtherance of legitimate penological goals.” (Id.)
Here, Mr. Schreane alleges Counselor Marr sought to retaliate after learning he
filed a lawsuit against other prison staff and provided a declaration in that matter. As
a result of Counselor Marr’s incident report, Plaintiff suffered various adverse
consequences, including the loss of good conduct time. Where Mr. Schreane’s
retaliation claim fails is on the third prong. Mr. Schreane fails to provide any “direct
evidence” to create a genuine issue of material fact that his litigation activities motivated

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Counselor Marr to charge him with a misconduct.4 Based on the undisputed evidence
in the record, Counselor Marr wrote the Incident Report charging Mr. Schreane with
threatening bodily harm after he said “if you think I am playing fucking games with you,
your family will find out what fucking games are when my people get in contact with
them, then we will see what fucking games are”. (ECF No. 32-3, Incident Report
2550915.) Mr. Schreane was found guilty of threatening Counselor Marr and the
Incident Report remains on Mr. Schreane’s disciplinary record. Staff other than
Counselor Marr described Mr. Schreane at the time as “extremely agitat[ed] and began
cursing ... and threatened imminent violence towards [Counselor Marr] and his family.”
(ECF No. 32-1, p. 28). “Due to inmate Schreane’s continued disruptive behavior, his
display of imminent violence and not being in control of himself physically or
emotionally,” the Acting Warden authorized his placement in ambulatory restraints.
(Id.) While in restraints Mr. Schreane is reported to have told prison staff that “[t]hat
counselor had it coming.” (Id., p. 39.)
Within the correctional setting, threats by prisoners of physical harm to others
cannot be ignored. Mr. Schreane’s threats were a “clear and overt” violation of prison
policy. There is no evidence presented by Mr. Schreane that similar threats are

4

To be clear, the issue before the Court is whether there is a quantum of
evidence of the misconduct to determine whether the prison officials’ decision to
discipline Mr. Schreane for his violation of prison policy, threatening another with bodily
harm, was within the broad discretion courts must afford prison administrators. The
Court is not determining whether Mr. Schreane’s finding of guilty was based on “some
evidence” or whether his Due Process rights were violated during the course of his
disciplinary hearing.
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overlooked or ignored by prison staff. As DHO Chambers noted, threats against staff
members “inherently jeopardizes the security and good order of the institution.” (ECF
No. 32-4, p. 10). And where, as here, Mr. Schreane’s threats of harm extended into
society “beyond the prison walls ... the Federal Bureau of Prisons has a statutory
responsibility to” act. (Id.)
Mr. Schreane’s statement that Counselor Marr fabricated the incident as a
pretext for retaliating against him after Counselor Marr provided a declaration in a case,
at a summary judgment, does not advance a finding of retaliatory motive. Moreover,
Mr. Schreane, given the opportunity to oppose Defendants’ summary judgment motion
on this claim fails to provide an direct evidence that retaliation drove Counselor Marr’s
decision to issue the misconduct. His request to deny Defendants’ summary judgment
on this issue is based on his request that Counselor Marr and he both be given
polygraph test to determine the truth. Summary judgment cannot be avoided by
resorting to speculation, conclusory statements or personal opinion or belief “he must
provide competent evidence from which a rational trier of fact can find in his favor.”
Turner v. Sec’y of Pa. Dep’t of Corr., No. 16-3543, 2017 WL 1097098, at *2, n. 2 (3d
Cir. Mar. 23, 2017).
Because Mr. Schreane points to no facts from which a reasonable fact finder
could infer that Counselor Marr’s issuance of the misconduct, for threatening bodily
harm, was motivated by a desire to retaliate against him for engaging in protected
activity. Based on the uncontradicted record before the Court, Counselor Marr’s

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misconduct charge was legitimate and not retaliatory. Defendant Marr is entitled to
summary judgment on this issue.

V.

Conclusion
For the above stated reasons, Defendants’ Motion for Summary Judgment will

be granted.
An appropriate order follows.

/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: April 3, 2017

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