Redmond v. Lytle et al

Filing 38

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable A. Richard Caputo on 10/27/17. (dw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JESSE R. REDMOND,
Plaintiff,

CIVIL ACTION NO. 3:16-CV-01804

v.

(JUDGE CAPUTO)
(MAGISTRATE JUDGE SCHWAB)

CHAD LYTLE, et al.,
Defendants.
MEMORANDUM
Presently before this Court is Magistrate Judge Schwab’s Report and
Recommendation (“R&R”) (Doc. 32) to Defendants’ Motion to Dismiss and Motion for
Summary Judgment (Doc. 13), and Plaintiff Jesse R. Redmond’s Motion to Appoint Counsel
(Doc. 33). Because Plaintiff’s claim is governed by the Prison Litigation Reform Act
(“PLRA”), Plaintiff had a duty to exhaust available administrative procedures. Since Plaintiff
failed to exhaust such procedures, Magistrate Judge Schwab’s recommendation to grant
summary judgment in favor of Defendants Chad Lytle and John Adami will be adopted.
Further, this Court will grant summary judgment in favor of Defendant Angelo Jordan
because Plaintiff has not asserted an interest protected under the Fifth Amendment and his
discipline was supported be sufficient evidence. Consequently, Plaintiff’s Motion to Appoint
Counsel will be denied as moot.
I. Background
A. Factual Background:
The following facts appear in Defendants’ Statement of Material Facts (“DSMF”) filed
pursuant to Local Rule 56.1:
Plaintiff Jesse R. Redmond (“Plaintiff”) is a federal inmate formerly incarcerated at
the United Sates Penitentiary located in Lewisburg, Pennsylvania. (DSMF ¶ 1.) On October
31, 2012, Corrections Officer Chad Lytle (“Lytle”) conducted a random search of Plaintiff’s

cell. (DSMF ¶ 4.) While searching Plaintiff’s cell, Lytle discovered a number of items
including: (1) a honey bottle containing ethyl alcohol hand sanatizer; (2) plastic bags with
uncooked rice; (3) a plastic bag with uncooked grits; (4) a plastic bag containing brown
sugar; (5) sixteen isoprophyl alcohol preparation pads; and (6) an inmate identification card
that did not belong to Plaintiff. (DSMF ¶¶ 5-6.) Notably, according to policies established by
the United States Bureau of Prisons (“BOP”), it was prohibited for an inmate to possess any
of the items identified above. (DSMF ¶ 7.)
Upon further investigation, Lytle learned that Plaintiff worked as a Hospital Orderly
at the prison, and that many of the prohibited items found in Plaintiff’s cell may have been
obtained from the prison’s Health Services Department. (DSMF ¶¶ 8-9.) Following Lytle’s
search and investigation, he authored an incident report detailing the violations of BOP
policy discovered during the October 31, 2012 search of Plaintiff’s cell. (DSMF ¶ 11.) This
incident report was provided to Plaintiff on November 1, 2012. (Id.) Specifically, Plaintiff was
informed that he had violated five “codes” or policies in place at the prison: (1) Code 113,
Possession of any narcotic, drugs, alcohol, intoxicants, or related paraphernalia not
prescribed by medical staff; (2) Code 111, Introduction of any narcotic, alcohol, intoxicant,
or related paraphernalia not prescribed by medical staff; (3) Code 219, Stealing; (4) Code
226, Possession of stolen property; and (5) Code 305, Possession of anything not
authorized. (Id.)
As prescribed by the BOP, Plaintiff was advised of his rights before the Disciplinary
Hearing Officer (“DHO”) on November 2, 2012, and Plaintiff indicated he understood his
rights prior to the start of the disciplinary hearing. (DSMF ¶¶ 13, 16.) At that time, Plaintiff
requested a staff representative, and submitted a number of written statements for the DHO
to review. (DSMF ¶ 13.) The DHO tasked to this matter was Defendant Angelo Jordan
(“Jordan”), and he conducted the disciplinary hearing on December 17, 2012. (DSMF ¶¶ 13-

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14.) As requested, Plaintiff was provided a staff representative for the hearing, Defendant
John Adami (“Adami”). (DSMF ¶¶ 13, 15.)
At the hearing, Plaintiff testified that the facts in the incident report were accurate,
but he believed his due process rights were violated because his cell had been search by
two different staff members on October 31, 2012. (DSMF ¶¶ 17-18). In an attempt to
substantiate this claim, Plaintiff wished to call Officer Stackhouse, the officer who conducted
the search prior to Lytle, as a witness. (DSMF ¶ 19.) Adami contacted Officer Stackhouse,
who submitted two written statements confirming she had searched Plaintiff’s cell on the
day in question, but she also noted that she had not conducted the search that lead to the
instant incident report. (DSMF ¶¶ 20-22.) Notably, Officer Stackhouse wrote that she did not
conclude the initial search because she was called away from Plaintiff’s cell prior to
completing the search. Upon Officer Stackhouse being called away from the cell, Officer
Lytle began searching Plaintiff’s cell and concluded the search.(DSMF ¶ 23.) In addition to
a statment from Officer Stackhouse, Plaintiff requested video servailance footage of the
incident. (DSMF ¶ 24.) Unfortunately, such video was no longer available. (Id.)
On January 3, 2013, Jordan provided Plaintiff a written report which detailed his
findings. (DSMF ¶ 30.) The report concluded that Plaintiff violated Code 226, possession
of stolen property. (DSMF ¶ 25.) Such a conclusion was reached after reviewing the incident
report, statements submitted by Plaintiff and Stackhouse, and the photographs of the items
at issue. (DSMF ¶ 26.)
As a result of having been found in violation of Code 226, Plaintiff was sanctioned
to 30 days of Disciplinary Segregation, and 90-days loss of commissary, telephone, and
visitation. (DSMF ¶ 27.) Notably, Plaintiff appealed the sanctions, and the incident report
in question was expunged after a subsequent hearing at a different United States
Penitentiary. (DSMF ¶ 32.) Plaintiff exhausted his appeal relative to the substantive Code

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226 violation. During that appeal, Plaintiff argued that Defendant Jordan, acting as DHO,
did not have sufficient evidence to find that he had stolen the items in question. (DSMF ¶
44.) But, the appeal and subsequent administrative filings made by Plaintiff do not concern
his transfer, the loss of his job and associated wages, or an inability to make funeral
arrangements. (DSMF ¶¶ 42-43.)
B. Procedural History:
Following the events described above, Plaintiff filed a Complaint on Auguest 31,
2016 seeking monetary damages against three staff members at United States Penitentiary,
Lewisburg: (1) Corrections Officer Chad Lytle, (2) Discipline Hearing Officer Angelo Jordan
and (3) Unit Manager John Adami. On November 14, 2017, Defendants moved to dismiss
the Complaint and simultaneously moved for summary judgment.
Magistrate Judge Schwab conducted an initial review of Defendants’ motions and
authored an R&R on May 26, 2017 in which Magistrate Judge Schwab recommends this
Court grant Defendants’ motions. Plaintiff has filed a timely objection.
Notably, following Magistrate Judge Schwab’s R&R, Plaintiff filed a Motion to Appoint
Counsel. Plaintiff was denied an earlier request to be provided counsel by Magistrate Judge
Schwab on September 14, 2016.
II. Legal Standard
A.

Review of the Report and Recommendation
Where objections to a magistrate judge's R&R are filed, the Court must conduct a

de novo review of the contested portions. Sample v. Diecks, 885 F.2d 1099, 1106 n.3
(3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)). This only applies to the extent that a
party's objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir.
1984).
In conducting a de novo review, a court may accept, reject, or modify, in whole or

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in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. §
636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Althoug h the review
is de novo, the law permits the court to rely on the recommendations of the magistrate
judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667,
675–76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm’n, 849 F.
Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at
a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154
(1985); Goney, 749 F.2d at 7. At the least, the court should rev iew uncontested portions
for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77
(M.D. Pa. 1998).
B.

Motion for Summary Judgment
Summary judgment shall be granted “if 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). Summary judgment is appropriate when “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” Wright v. Corning, 679
F.3d 101, 103 (3d Cir. 2012) (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d
Cir. 1995)). A fact is material if proof of its existence or nonexistence might affect the
outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish
that it is entitled to judgment as a matter of law. See Edelman v. Comm’r of Soc. Sec.,
83 F.3d 68, 70 (3d Cir. 1996). W here, however, there is a disputed issue of material fact,
summary judgment is appropriate only if the factual dispute is not a genuine one.

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Anderson, 477 U.S. at 247-48. An issue of material fact is genuine if “a reasonable jury
could return a verdict for the nonmoving party.” Id. at 248. Where there is a material fact
in dispute, the moving party has the initial burden of proving that: (1) there is no genuine
issue of material fact; and (2) the moving party is entitled to judgment as a matter of law.
See Howard Hess Dental Labs., Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 251 (3d Cir.
2010). The moving party may present its own evidence or, where the non-moving party
has the burden of proof, simply point out to the court that “the nonmoving party has
failed to make a sufficient showing on an essential element of her case.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986).
When considering whether there are genuine issues of material fact, the court is
required to “examine the evidence of record in the light most favorable to the party
opposing summary judgment, and resolve all reasonable inferences in that party's
favor.” Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). Once the m oving party has
satisfied its initial burden, the burden shifts to the non-moving party to either present
affirmative evidence supporting its version of the material facts or to refute the moving
party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477
U.S. at 256-57. The Court need not accept mere conclusory allegations, whether they
are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S.
871, 888 (1990).
In order to prevail on a motion for summary judgment, the non-moving party must
show “specific facts such that a reasonable jury could find in that party's favor, thereby
establishing a genuine issue of fact for trial.” Galli v. N.J. Meadowlands Comm'n, 490
F.3d 265, 270 (3d Cir. 2007) (citing FED. R. CIV. P. 56(e)). Although the non-moving
party’s evidence may be either direct or circumstantial, and “need not be as great as a
preponderance, the evidence must be more than a scintilla.” Id. (quoting Hugh v. Butler

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Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)). In deciding a motion for
summary judgment, “the judge's function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249.
III. Discussion
A.

Recommendation to Grant Summary Judgment in Favor of Defendants Lytle
and Adami
Plaintiff has offered a specific and timely objection to Magistrate Judge Schwab’s

recommendation that summary judgment1 be granted in favor of Defendants Lytle and
Adami. Plaintiff rests on a single argument: Magistrate Judge Schwab ignored the fact that
Plaintiff seeks only monetary damages. Plaintiff contends that the PLRA’s exhaustion
requirement is inapplicable to claims solely seeking monetary damages. Plaintiff is incorrect.
Plaintiff relies on a single case to support his argument that the PLRA’s exhaustion
requirement does not apply to bar his claim: McCarthy v. Madigan, 503 U.S. 140 (1992).
There, as Plaintiff correctly notes, the Supreme Court held that a federal prisoner’s claim
was not barred by the exhaustion requirement because he only sought monetary relief.
McCarthy, 503 U.S. at 156. Thus, following the Court’s decision in McCarthy, a Plaintiff only
seeking monetary relief was able to file a Bivens action prior to exhausting his
administrative remedies. Unfortunately, McCarthy was displaced when the PLRA became
effective on April 26, 1996. As noted by both the Supreme Court and the Third Circuit,
McCarthy is not applicable to claims governed by the PLRA. See Booth v. Churner, 532

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Defendants’ Motion to Dismiss was properly converted to a Motion for
Summary Judgment to resolve the “narrow issue of exhaustion and the
relatively straightforward questions about plaintiff’s efforts to exhaust. . . .”
McCoy v. Goord, 255 F. Supp. 2d 233, 251 (S.D.N.Y. 2003). Proper
notice was provided to Plaintiff as required by Federal Rule of Civil
Procedure 12(d).
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U.S. 731, 740-41 (2001) (explaining that Congress’ imposition of a broader exhaustion
requirement in the PLRA displaced the holding in McCarthy); Ghana v. Holland, 226 F.3d
175, 184 (3d Cir. 2000) (citing Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir. 2000)). Now, even
plaintiffs seeking only monetary damages must exhaust their administrative remedies.
As explained by Magistrate Judge Schwab, and accepted by Plaintiff, Plaintiff failed
to exhaust the BOP’s administrative procedures for claims against Defendant Lytle and
Adami. There is no material dispute of fact regarding Plaintiff’s failure to exhaust. (DSMF
¶¶ 42-43.) Following the Court’s decision in Booth, it is clear Plaintiff was required to
exhaust his administrative remedies before filing an action in federal court. Because
Plaintiff failed to exhaust the BOP’s administrative procedures, Defendants are owed
summary judgment. For this reason, this Court will adopt Magistrate Judge Schwab’s
recommendation and grant summary judgment in favor of Defendants Lytle and Adami.
B. Recommendation to Grant Defendant Jordan’s Motion to Dismiss
As an initial matter, Magistrate Judge Schwab had considered this action pursuant
to Federal Rule of Civil Procedure 12(b)(6). But, since Defendants have offered information
outside of the pleadings to support their position that no cognizable claim exists, and
Defendants had in fact moved for summary judgment, this matter is properly considered as
a motion for summary judgment. See FED.R.CIV.P. 12(d), 56(a). Additionally, Plaintiff has
offered a timely and specific objection to Magistrate Judge Schwab’s recommendation that
Plaintiff’s claim against Defendant Jordan be dismissed for failing to state a claim upon
which relief could be granted.
It is well-settled that a claim premised on a violation of the Fifth Amendment’s Due
Process Clause requires a two-part analysis. First, the Court is required to determine
whether a Plaintiff has asserted an interest within the scope of the Amendment’s protection
of life, liberty, or property. See Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000). Second,

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if the interest is one within the Amendment’s ambit, “the question then becomes what
process is due to protect it.” Id. Here, Magistrate Judge Shwab held that Plaintiff’s asserted
interest was not an interest protected by the Fifth Amendment, and thus no Fifth
Amendment due process claim could be made.
At bottom, Plaintiff argues that his due process rights were violated because
Defendant Jordan, acting as the prisons DHO, found Plaintiff “guilty even though there was
no evidence to support that finding.” (Doc. 26, at 3.) Such objection challenges the second
step of the analysis as discussed above–“what process is due?”–while ignoring whether or
not Plaintiff has asserted an interest protected by the Fifth Amendment.
First, it is important to note that Magistrate Judge Schwab was correct: Plaintiff has
not asserted a violation of an interest protected by the Fifth Amendment’s Due Process
Clause. The punishment suffered by Plaintiff does not invoke a liberty interest protected by
either the Due Process Clause or state law. See Torres v. Fauver, 292 F.3d 141, 150 (3d
Cir. 2002) (explaining that no liberty interest was violated when an inmate was subject to
administrative or restrictive housing quarters); Perez v. Fed. Bureau of Prisons, 229 Fed.
App’x 55, 58 (3d Cir. 2007) (noting that denial of telephone privileges does not implicate a
protected liberty interest); Henry v. Dep’t of Corr., 131 Fed. Appx. 847, 849 (3d Cir. 2005)
(“Courts have held that a loss of visitation privileges is one of the ordinary incidents of
prison confinement,” and thus does not implicate a protected liberty interest); Wilkins v.
Bittenbender, No. 06-2827, 2007 WL 708993, at *2 (3d Cir. 2007) (holding that an inmates
loss of “commissary and telephone privileges certainly do not qualify” as a violation of a
protected liberty interest). For this reason alone, Defendant Jordan’s Motion for Summary
Judgment should be granted because Plaintiff cannot pursue this action as a matter of law.
Even if this Court were to conclude that Plaintiff had asserted an interest protected
by the Fifth Amendment, Plaintiff’s claim would still fail. It is well-established that “prison

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disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights
due a defendant in such proceedings do not apply.” Wolff v. McDonnell, 418 U.S. 539, 556
(1974). The Supreme Court has made clear that a prison disciplinary proceeding comports
with the mandates of due process if the disciplinary decision is based on at least “some
evidence.” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454-56 (1985). In other
words, the disciplinary hearing officer need not conduct an “examination of the entire record,
independent assessment of the credibility of witnesses, or weighing of evidence.” Id. at 455.
Rather, to comply with the requirements of the due process clause of the Fifth Amendment
a disciplinary hearing officer must simply be able to point to “any evidence in the record that
could support the conclusion reached.” Id. at 455-56 (emphasis added).
Here, Defendants have offered evidence suggesting that Defendant Jordan did
review “some evidence” prior to rendering his decision. For example, Defendant Jordan
reviewed the incident report, statements by witnesses, and photographs of contraband
found in Plaintiff’s control. (DSMF ¶ 21, 26.) Defendant Jordan’s consideration of this
evidence suffices to meet the low bar established by the Court in Hill.
Now, Plaintiff may claim that there is a material dispute as to what information was
reviewed by Defendant Jordan prior to rendering his decision. But, Plaintiff has not provided
an Answer to Defendants’ Statement of Facts compliant with Local Rule 56.1. As such,
Defendants Statement of Facts will be considered undisputed and deemed admitted. See,
e.g., Carpenter v. Kloposki, No. 08-2233, 2012 WL 911558, at *1 (M.D. Pa. Mar. 16, 2012)
(noting that a when a pro se plaintiff fails to provide a complaint Statement of Facts as
required by Local Rule 56.1, defendant’s statement of fact will be deemed admitted). In fact,
Plaintiff’s Answer to Defendants’ Statement of Material Fact was not only non-compliant
with Local Rule 56.1, but offers nothing more than mere conclusions. Such statements need
not be considered when determining whether or not there is a genuine dispute of material

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fact. Fireman’s Ins. Co. of Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982).
Therefore, no dispute of material fact exists.
Defendant Jordan is owed summary judgment because Plaintiff has not asserted an
interest protected by the Fifth Amendment, and it is not in dispute that Jordan reviewed
“some evidence” prior to rendering his decision.
IV. Conclusion
For the above stated reasons, this Court will grant Defendants’ Motion for Summary
Judgment and enter judgment in favor of Defendants.
An appropriate order follows.

October 27, 2017
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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