Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-4-2008

Brown v. PA Dept Corr
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1436




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                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ___________

                      No. 07-1436
                      ___________

                   ABDUL BROWN,
                                           Appellant

                            v.

 PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
    JEFFREY A. BEARD; WILLIAM STICKMAN;
   LANCE COUTURIER; M.D. FRED MAUE, M.D.;
  DONALD WILLIAMSON; RONALD BLANDFORD;
       NEAL MECHLING; PETE SAAVEDRA;
        LOUIS FOLINO; COUNSELOR IVAN
      ____________________________________


      On Appeal from the United States District Court
         for the Western District of Pennsylvania
                  (D.C. Civil No. 04-1361)
       District Judge: Honorable Gary L. Lancaster
       ____________________________________

        Submitted Under Third Circuit LAR 34.1(a)
                     July 25, 2008

Before: SLOVITER, BARRY and NYGAARD, Circuit Judges

              (Opinion filed: August 4, 2008)


                        _________

                         OPINION
                        _________
PER CURIAM

       Abdul Brown, a pro se prisoner, is currently incarcerated in the Federal Detention

Center-Philadelphia. Brown filed this lawsuit in the United States District Court for the

Western District of Pennsylvania 1 against the Pennsylvania Department of Corrections

(“DOC”) and numerous prison officials for violations of 42 U.S.C. §§ 1981, 1983, 1985,

1986 and 12101, et. seq. Brown raised claims of cruel and unusual punishment,

retaliation, race and class discrimination, and conspiracy; he also alleged violations of due

process and the Americans with Disabilities Act (“ADA”). The DOC Defendants moved

for summary judgment, and Brown failed to respond.2 The Magistrate Judge

recommended granting summary judgment, and the District Court adopted that

recommendation.

       Brown subsequently filed a motion to appeal nunc pro tunc, explaining that he had

been transferred to a new facility while summary judgment briefing occurred, and that

prison officials had denied him access to his legal mail. The District Court granted relief,

vacating its order granting summary judgment and allowing Brown to respond to

defendants’ summary judgment motion. Brown filed a brief, an affidavit in support, and

copies of various Pennsylvania regulations. Brown also filed numerous medical records,



       1
       At the time of filing the complaint, Brown was incarcerated at SCI-Fayette in
LaBelle, Pennsylvania.
       2
         Summary judgment was granted as to another defendant, Dr. Peter Saavedra,
earlier in the case.

                                             2
correspondence with prison officials, and news articles. The District Court then adopted

the Magistrate Judge’s prior recommendation, and granted defendants’ motion for

summary judgment, without elaboration. Brown timely appealed.

         We have jurisdiction under 28 U.S.C. § 1291. We review an order granting

summary judgment de novo, and we apply the same standard that the District Court

should have applied. MBIA Ins. Corp. v. Royal Indem. Co., 

, 209 (3d Cir.

2005).

         On February 26, 2004, Brown was transferred to the Long Term Segregation Unit

(“LTSU”) at SCI-Fayette. Brown alleges that prison officials improperly placed him in

the LTSU based on his “mentally ill behavior,” and that the reasons provided on his

transfer petition were falsified and misrepresented. Brown also alleges that the LTSU is

an experiment regarding “African-American psychology,” with the purpose of

“destroy[ing] the African American mind,” and that defendants failed to provide him

adequate psychiatric treatment, instead relying “just [on] drugs to leave him in a . . .

stupor.” Brown accuses LTSU officials of obstructing his litigation against defendant

Beard and others, and asserts that, but for his being of African descent, engaging in

litigation and being mentally ill, he would not have been placed in the LTSU. Brown also

alleges that defendants are deliberately indifferent to his health and safety.

         Based on these allegations, Brown claimed that his rights to due process, adequate

medical care, and equal protection had been violated. He also asserted violations of the



                                              3
First Amendment and the ADA, and he claimed that defendants had retaliated against

him. On appeal, Brown challenges the District Court’s grant of summary judgment on his

due process, ADA and First Amendment claims.3

       Once the moving party demonstrates the absence of a genuine material factual

dispute, the non-moving party must proffer “specific facts showing that there is a genuine

issue for trial.” Fed. R. Civ. P. 56(e). Brown asserts that prison officials denied him due

process under the Fourteenth Amendment by transferring him to the LTSU without notice

and depriving him of the opportunity to challenge the reasons for the transfer. Routine

transfers to administrative segregation do not impinge on liberty interests protected by the

Due Process clause unless the conditions in administrative segregation present a

“significant and atypical hardship in relation to the ordinary incidents of prison life.”

Sandin v. Conner, 

, 484 (1995). Even where the conditions of confinement

present a significant and atypical hardship, triggering the right to due process, placement

in administrative segregation comports with due process so long as prison officials afford

a prisoner sufficient procedural protections. See Wilkinson v. Austin, 

       3
        As Brown has not raised his equal protection or retaliation claims on appeal, we
consider those arguments waived. Anspach v. City of Phila., 

, 259 n.1 (3d
Cir. 2007) (citing Laborers’ Int’l Union of N. Am. v. Foster Wheeler Energy Corp., 

, 398 (3d Cir. 1994)). Although Brown has not expressly made an argument
under the Eighth Amendment on appeal, we will address that claim because it is
predicated on the same facts as his claim under the ADA.

                                              4
(2005).4

       We have determined that due process does not require prior notice of a transfer

where the post-transfer periodic review of an inmate’s placement in segregation provides

the inmate with a meaningful opportunity to challenge the grounds of his continued

segregation. Shoats v. Horn, 

, 145 (3d Cir. 2000). Such periodic review

must provide a meaningful, and not merely technical, opportunity to be heard. See

Sourbeer v. Robinson, 

, 1101 (3d Cir. 1986) (Due process violation where

officials applied justifications for segregation in “rote fashion”).

       Brown admits that the prison has provided him with periodic review, and that he

has attended and testified at his review hearings every 90 days. He nonetheless contends

that the hearings are a sham and the result of the hearings a foregone conclusion. In his

affidavit, Brown asserts that unnamed prison officials have told him that the periodic

reviews do not provide a realistic chance of release into the general prison population

because the LTSU is designed to house those in need of long-term segregation. Brown

suggests that, once prison officials branded him as an inmate needing long-term

segregation, they simply rubberstamped his continued segregation. Brown’s affidavit,




       4
        The record indicates that DOC has revised the procedures for placement in the
LTSU, such that inmates are now given notice and an opportunity to respond before being
transferred to the LTSU. (Pl’s Opp., Ex. C, at 26-29) (letter from Jeffrey Beard to Judge
Richard Caputo, Middle District of Pennsylvania). Appellees also state that the LTSU
was abolished in February 2007. Appellees’ Br., 3. As Brown seeks compensatory
damages, his claims are not moot.

                                               5
submitted in response to defendants’ motion, does not support a conclusion that his

reviews were a sham.

       Brown also contends on appeal that prison officials have never articulated a reason

for his confinement in the LTSU. The record belies that assertion. The documentary

evidence submitted by the parties establishes that prison officials believed Brown’s

misconduct warranted his continued placement in the LTSU. (Deft.’s Mot. Summ J., Ex.

D) (30-day review assessment showing Brown’s continued poor conduct), Ex. F

(misconduct record demonstrating Brown’s continued pattern of threats and assaults on

staff). The record reveals that the prison characterized Brown’s behavior alternatively as

deliberate, i.e., designed to manipulate those around him, and as the product of mental

illness and poor impulse control. (Pl’s Mot. Summ. J., Ex. I) (transfer individual

treatment plan stating that Brown suffers from multiple Axis I and Axis II diagnoses, but

that he was psychiatrically stable and should be placed in the LTSU due to the ongoing

risk of staff assaults and self-harm). The mental health and correctional staff who

evaluated Brown after his transfer to the LTSU stated that he had no treatable Axis I

issues, and that his misconduct was associated with his Axis II issues. (Deft.’s Mot.

Summ J., Ex. A.) In other words, whatever mental illnesses Brown may have, prison

personnel have determined that none would preclude his transfer to the LTSU. As Brown




                                             6
failed to satisfy his burden under Rule 56(e), summary judgment was properly granted.5

       Brown next contends that his placement in the LTSU violates the ADA because he

has no access to mental health services while housed in the LTSU. Although defendants

did not move for summary judgment on Brown’s ADA claim, and the District Court did

not address this claim, it is clear that Brown’s claim must fail as a matter of law. Title II

of the ADA states, “[N]o qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any such

entity.” § 42 U.S.C. 12132. Title II of the ADA applies to state prisons. Pennsylvania

Dep’t of Corr. v. Yeskey, 

, 210 (1998). However, Brown has not alleged



       5
        Brown also asserts on appeal that the District Court improperly resolved a factual
issue regarding Brown’s claim that prison officials violated due process by drafting him
into experiments against his will, in contravention of DOC policy. See Washington v.
Harper, 

, 221-22 (1990) (prisoner “possesses a significant liberty interest in
avoiding the unwanted administration of antipsychotic drugs under the Due Process
Clause of the Fourteenth Amendment.”). Although defendants failed to move for
summary judgment on this claim, and the District Court overlooked it as well, Brown’s
allegations fail to state a claim. Brown asserts that the LTSU constitutes an experiment
designed to destroy the minds of African-American inmates, but has not alleged facts
sufficient to show that he is entitled to relief. See Phillips v. County of Allegheny, 

, 231 (3d Cir. 2008). This claim, that the LTSU constitutes a psychological
experiment involving the involuntary administration of drugs, is essentially a composite
of two other claims: a due process claim regarding Brown’s placement in the LTSU, and
an Eighth Amendment claim regarding Brown’s medical care in the LTSU. In response
to defendants’ motion for summary judgment, Brown was required to come forward with
evidence in support of these two claims. Therefore, despite defendants’ failure to move
for summary judgment on the prison experiment claim, Brown necessarily would have
submitted whatever evidence he had in support of this claim when he submitted evidence
in support of his due process and Eighth Amendment claims.

                                              7
facts sufficient to show that the prison denied him access to mental health treatment “by

reason of” his alleged disabilities. Brown alleges that the prison ignored his alleged

disabilities in order to justify his placement in the LTSU – not that they placed him in the

LTSU because of discriminatory animus based on his alleged mental disabilities.

Accordingly, Brown’s ADA claim must fail.

         The record establishes that Brown has not been deprived of medical care in the

LTSU. Mere disagreements over the course of medical treatment do not support a claim

for a violation of the Eighth Amendment. Monmouth County Corr. Inst. Inmates v.

Lanzaro, 

, 346 (3d Cir. 1987). The record demonstrates that prison medical

personnel have routinely assessed Brown while he has stayed on the LTSU. Brown

challenges his regimen of medications, which allegedly leaves him in a “stupor,” but this

argument states only his disagreement with treatment methods, i.e., his preference for

medication supplemented by psychotherapy instead of medication alone.

         Brown also appeals the District Court’s grant of summary judgment as to his First

Amendment claim. Brown does not challenge the LTSU policy that permits limited

access to publications; instead, he asserts that he is deprived of even those publications

permitted under the restrictive publications policy upheld by the Supreme Court. See

Beard v. Banks, 

(2006). However, Brown does not proffer any evidence in

support of this claim. Brown has not established that there is a genuine factual dispute for

trial.



                                              8
      For these reasons, the District Court properly granted appellees’ summary

judgment motion and denied appellant’s summary judgment motion.

      Accordingly, we will affirm the District Court’s order.




                                         9