Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2009

Dennis McKeithan v. Gary Abrams
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1746




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                                                            NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
                            ___________

                                   No. 08-1746
                                   ___________

                             DENNIS MCKEITHAN,
                                            Appellant
                                     v.

    JEFFREY BEARD, Secretary of Corrections; JOHN SCHAFFER, Chief Deputy
  Secretary of Corrections; LANCE COUTERIER, Chief Psychological Services; MR.
STICKMAN, Deputy Secretary of Western District; SHARON BURKE, Chief Secretary
  Office of Grievance & Appeals; MR. WYNDER, Superintendent at SCI Dallas; LORI
   LYONS, Counselor at SCI Dallas; CHRIS PUTNAM, Unit Manager at SCI Dallas;
CHARLES ERICKSON, Superintendent at SCI Retreat; J. WRIGHT, Psychologist at SCI
   Retreat; J. WILSON, Superintendent at SCI Fayette; CAROL SCIRE, Assistant to
Superintendent at SCI Fayette; M. Zaken, Unit Manager at SCI Fayette; G. GALLUCCI,
      Chief Psychologist at SCI Fayette; COI GALICKI, Guard at SCI Retreat; COI
 WECHOWSKI, Guard at SCI Retreat; COI VAN FOSSEN, Guard at SCI Dallas; MR.
    MCKEOWN, Hearing Examiner; SGT. LAYOU, Guard at SCI Retreat, Property
 Sergeant; SGT. YARCGWER, Physician Asst. SCI Fayette; MR. MATALONI, CHCA
   SCI Retreat; C. MYERS, Physician Asst. SCI Fayette; MR. TETINIK, CHCA SCI
 Fayette; MR. G. ABRAMS, Counselor at SCI Fayette; DR. HERBICK, Medical Doctor
                                      SCI Fayette
                      ____________________________________

                  On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                         (D.C. Civil Action No. 06-0965 )
                   District Judge: Honorable Gary L. Lancaster
                   ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 March 26, 2009

           Before: SLOVITER, AMBRO and STAPLETON, Circuit Judges

                           (Opinion filed: April 6, 2009)
                                         ___________

                                          OPINION
                                         ___________

PER CURIAM

          Dennis McKeithan, a prisoner at SCI Coal Township,1 appeals from orders of the

District Court granting certain defendants’ motion to dismiss and summary judgment to

the remaining defendants. McKeithan filed the underlying § 1983 action asserting that

prison officials and prison medical staff had violated his constitutional rights under the

First, Eighth and Fourteenth Amendments.

          McKeithan sued over twenty employees of the Department of Corrections (“DOC

defendants”) and three medical personnel, not employed by DOC (“medical defendants”).

The medical defendants, including two physicians assistants, Chris Meyer and L.

Yarcgwer, as well as one physician, Dr. Herbik, moved to dismiss the complaint. The

District Court granted the motion as to Meyer and Yarcgwer. Following discovery, the

Magistrate Judge recommended granting summary judgment in favor of all remaining

defendants and denying summary judgment to McKeithan. The District Court adopted

these R&Rs, granted summary judgment to the defendants and denied McKeithan’s

motion. McKeithan timely appealed.2


   1
       At the time he filed suit, McKeithan was incarcerated at SCI Fayette.
   2
    We have jurisdiction under 28 U.S.C. § 1291. We review orders granting a motion to
dismiss or summary judgment de novo. Phillips v. County of Allegheny, 

,
230 (3d Cir. 2008); MBIA Ins. Corp. v. Royal Indem. Co., 

, 209 (3d Cir.

                                               2
       A.     Motion to Dismiss

       McKeithan alleged that Meyers and Yarcgwer denied him previously-prescribed

treatment for his dry skin, gas and hemorrhoids without a doctor’s approval and in

violation of the Eighth Amendment. To state a claim under the Eighth Amendment,

McKeithan was required to allege that defendants were deliberately indifferent to his

serious medical condition. See Farmer v. Brennan, 

, 837 (1994). The

District Court determined that “dry skin” and gas were not serious medical conditions,

such that McKeithan had failed to state a claim. Although mere “dry skin” may fall short

of a serious medical condition, McKeithan states in his response to defendants’ motion to

dismiss that his skin was so cracked and dry from his condition that it bled and left stains

on his shirt. Had McKeithan been given an opportunity to amend his complaint to

include these facts, he might have successfully alleged a serious medical condition.3 For


2005). When considering a district court’s grant of a motion to dismiss under Rule
12(b)(6), “we accept all factual allegations in the complaint as true and view them in the
light most favorable to the plaintiff.” Phillips v. County of Allegheny, 

, 233
(3d Cir. 2008). Summary judgment is proper only if it appears “that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c). Once the moving party demonstrates the absence of a
genuine material factual dispute, to survive summary judgment the non-moving party
must proffer “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ.
P. 56(e).
   3
    We will affirm the District Court’s dismissal of McKeithan’s claims regarding
treatment for gas, which we do not believe is a serious medical condition under the Eighth
Amendment. On appeal, McKeithan suggests that he mischaracterized his condition as
“gas,” when it was actually “gastritis,” or inflammation of the stomach. However,
McKeithan offered a fuller description of his condition for the first time on appeal.
Notably, in his response to the medical defendants’ motion to dismiss, McKeithan does

                                              3
this reason, we will vacate the dismissal of McKeithan’s claims that Meyers and

Yarcgwer unconstitutionally denied him medical treatment for eczema.

       McKeithan also alleged that Meyers and Yarcgwer violated due process by

charging him co-payments for medications for his dry skin and gas, despite prison

regulations prohibiting personnel from charging co-payments for medicines to treat pre-

existing or chronic conditions. To state a claim for due process, an inmate must allege

“(1) that the state deprived him of a protected interest in life, liberty, or property and (2)

the deprivation occurred without due process of law.” Burns v. Pa. Dep’t of Corr., 

, 285 (3d Cir. 2008). A prisoner has a protected property interest in the funds in

his prison account, as well as the right to security in that account. 

Therefore,

McKeithan has properly alleged the first prong of the due process test, and the only

question is whether the deduction of co-payments occurred without adequate procedural

safeguards. Because the District Court analyzed McKeithan’s claim under the Eighth

Amendment instead of due process, we will vacate and remand for consideration of how

much process is due prior to the deduction of co-payments in apparent violation of DOC




not use the term “gastritis.” Instead, he repeatedly refers to his condition as “gas” and
even mentions his use of the antacid known as “Tums.” Although McKeithan labels his
condition as “gastritis” in his objections to the Magistrate Judge’s R&R recommending
dismissal of this claim, he offers no description of the condition and no argument as to
why dismissal on this particular claim was improper. Instead, his objections focus almost
exclusively on his eczema and angina. (See Dkt. # 76, Pl’s Objections to Part of R&R.)

                                               4
regulations.4

       B.       Summary Judgment

       McKeithan also appeals from the District Court’s decision to grant summary

judgment to all defendants and to deny summary judgment to McKeithan. He primarily

challenges his placement in the LTSU at SCI Fayette as a violation of due process. He

asserts that officials falsified evidence to justify his placement in the LTSU in retaliation

for his prior grievances. Routine transfers to administrative segregation do not impinge

on liberty interests protected by the Due Process Clause unless the conditions in

administrative segregation present an “atypical and significant hardship in relation to the

ordinary incidents of prison life.” Sandin v. Conner, 

, 484 (1995). Even

where the conditions of confinement present an atypical and significant 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, 

, 225 (2005).

       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.




   4
    Our case law establishing that the policy of charging prisoners fees for medical
services does not violate the Eighth Amendment per se is inapposite because McKeithan
asserts that the co-payments violate due process, not the Eighth Amendment. See Tillman
v. Lebanon County Corr. Facility, 

, 418-19 (3d Cir. 2000).

                                              5
Horn, 

, 145 (3d Cir. 2000); cf. 

(pre-transfer

notice of reasons for proposed transfer to “supermax” facility satisfied Due Process); cf.

Hewitt v. Helms, 

, 476 n.8 (1983) (hearing on transfer to administrative

segregation must occur “within a reasonable time following an inmate’s transfer, taking

into account the relatively insubstantial private interest at stake and the traditionally broad

discretion of prison officials.”) (emphasis added). Even assuming that the LTSU presents

a significant and atypical hardship triggering the right to due process, McKeithan’s due

process claim fails because the record indicates that McKeithan received periodic reviews

while in the LTSU. (DOC Deft.’s Mot. Summ. J., Ex. 10 (LTSU 30-day reviews) & Ex.

11).5

         McKeithan also asserts that prison officials violated due process by allegedly

falsifying his disciplinary record. Due process requires only that a prisoner have an

opportunity to rebut the allegedly false accusations and evidence. Smith v. Mensinger,

, 653-54 (3d Cir. 2002) (“[S]o long as certain procedural requirements are

satisfied, mere allegations of falsified evidence or misconduct reports, without more, are

not enough to state a due process claim.”); Lagerstrom v. Kingston, 

, 624-25

(7th Cir. 2006) (falsified evidence alone not a violation of due process so long as “basic

procedures” were followed).6 In light of the extensive process afforded to McKeithan


   5
       McKeithan alleges but does not proffer evidence that these hearings were a sham.
   6
    We reject McKeithan’s assertion that his placement in the LTSU violated the Equal
Protection Clause. To assert a claim for a violation of equal protection, McKeithan must

                                               6
after his transfer, which offered him ample opportunity to raise his concerns regarding his

disciplinary history, summary judgment was proper as to this claim.

       McKeithan also asserts a retaliation claim in connection with his placement in the

LTSU. A prison official’s act of filing false misconduct reports in retaliation for First

Amendment protected activity may violate an inmate’s right of access to the courts. See

Allah v. Seiverling, 

, 225 (3d Cir. 2000). To prevail on a claim for

retaliation by prison officials, a plaintiff must show that: (1) he engaged in

constitutionally protected conduct; (2) he suffered some “adverse action” by prison

officials; and (3) his exercise of a constitutional right was a substantial or motivating

factor in the adverse action. Rauser v. Horn, 

, 333-34 (3d Cir. 2001).

“[P]rison officials may still prevail by proving that they would have made the same

decision absent the protected conduct for reasons reasonably related to a legitimate

penological interest.” 

       Defendants have proffered significant evidence that placing McKeithan in the

LTSU advances a legitimate penological interest, namely, containing McKeithan’s

persistent misconduct and criminal activity within the prison. (See DOC Deft.’s Mot.

Summ. J., Ex. 5 (psychological assessment), Ex. 6 (memo from Wynder and Lyons); Ex.




show that he is a member of a protected class, such as a racial or religious group. Bradley
v. United States, 

, 206 (3d Cir. 2002). McKeithan does not assert that
defendants discriminated against him on the basis of any protected class, and his equal
protection claim fails.

                                              7
8 (misconduct report describing McKeithan’s assault on a correctional officer)).

Therefore, McKeithan’s retaliation claim fails.

       McKeithan asserts that prison officials violated due process by transferring him

out of the LTSU and into the Special Management Unit, or SMU, instead of into the

general population, without notice or an opportunity to contest the reasons for the

transfer. (See Suppl. Compl., ¶ 15.) He also contends that defendants assigned him to the

SMU in retaliation for filing a complaint regarding his placement in the LTSU.

Defendants asserted in the District Court that McKeithan failed to exhaust this grievance,

#170024, by failing to appeal. A prisoner must complete the administrative review

process available at the prison level to satisfy the exhaustion requirement of the PLRA.

Williams v. Beard, 

, 639 (3d Cir. 2007). The record indicates that

McKeithan did not appeal grievance # 170024 to Final Review. (DOC Deft.’s Mot.

Summ. J., Ex. 1, ¶ 7 (decl. of Kristen Reisinger, Asst. Chief Grievance Coordinator)). As

McKeithan failed to complete the administrative review process provided by the prison,

his SMU claim fails, and the District Court correctly granted summary judgment on this

claim, albeit on a different basis.7

       McKeithan next asserts that prison officials deprived him of his right to call




   7
    For the same reason, McKeithan’s motion for summary judgment on this claim was
properly denied. McKeithan asserts that the District Court granted summary judgment on
this claim “sua sponte,” but the record reflects that defendants requested summary
judgment on this claim. (See DOC Deft’s Mot. Summ. J. at 16 n.10.)

                                             8
witnesses and present evidence at his disciplinary hearings, in violation of due process.

McKeithan alleges that in one instance, defendant Van Fossen conducted a cell search

and accused McKeithan of carrying a wood shank in one of his boots. McKeithan

contends that Van Fossen tugged at the sole of his boots in order to plant a weapon there

after the cell search, and that a videotape of the search itself would reveal no shank.

McKeithan sent his attorney an identical boot, and his attorney created a videotape of

himself opening the sole of the boot and digging a wooden shank from deep inside the

heel, suggesting that the shank was part of the boot’s structure, not a weapon. (Pl.’s

Opp’n to Deft’s Mot. Summ. J., Ex. 28.) McKeithan contends that defendant McKweon

violated due process when she failed to view the videotape of the cell search or his

attorney’s videotape in the course of adjudicating this misconduct charge. He also

contends that McKweon denied him the opportunity to call witnesses in his defense.

       A prisoner has a right to call witnesses and present evidence at disciplinary

hearings limited by the “broad discretion of prison officials to refuse witness requests that

conflict with the need to maintain order in the institution.” Woods v. Marks, 

, 773 (3d Cir. 1984). Due process, however, may require prison officials to consider

existing documentary evidence relevant to a charge against a prisoner. Young v. Kann,

, 1400 (3d Cir. 1991). In Young, the prisoner had been accused of sending

a threatening letter to an officer. Although the letter itself was available, the hearing

officer instead relied on the oral summary of the letter’s contents provided by another



                                              9
correctional officer. In such a situation, the Court held, due process requires the prison

official to rely on the document itself, unless safety or institutional order require

otherwise. 

case at bar, prison officials explained that, although the cell search may have

been videotaped, the moment at which Van Fossen found the shank – after the search –

had not. Therefore, the tape of the cell search was immaterial. McKeithan’s attorney’s

videotape and photographs, in contrast to the letter in Young, are not primary evidence

regarding the charges against McKeithan. Rather, the videotape and photographs at most

constitute potentially exculpatory evidence, which prison officials have no constitutional

obligation to preserve or consider. See Griffin v. Spratt, 

, 22 (3d Cir. 1992)

(due process does not require prison officials to preserve allegedly intoxicating beverages

brewed by prisoner, even though beverage sample may have constituted exculpatory

evidence valuable to the prisoner). McKweon also concluded that McKeithan’s proposed

inmate witness was not needed to determine the facts, and McKeithan offers only bald

assertions in response. (See DOC Deft.’s Mot. Summ. J., Ex. 15, at 3-4.) As a prisoner

does not have an absolute right to call witnesses, and officials had no obligation to

consider the videotape, this claim fails.

       McKeithan next asserts that defendant Carol Scire restricted his ability to file

grievances, in violation of his constitutional rights. Scire allegedly labeled five of

McKeithan’s grievances “frivolous,” even though McKeithan allegedly won at least one



                                              10
of those grievances, which demonstrates that the grievance had merit. As a prisoner has

no free-standing constitutional right to an effective grievance process, McKeithan cannot

succeed on this claim under either the First or the Fourteenth Amendment. See Flick v.

Alba, 

, 729 (8th Cir. 1991).8

       McKeithan also asserts several Eighth Amendment claims against DOC

defendants. He first contends that defendants denied him the proper means for caring for

his nitroglycerin tablets, and that defendant Tretinik falsely reported that McKeithan’s

echocardiogram was normal. As to the nitroglycerin tablets, defendants proffered

undisputed evidence that McKeithan was instructed about how to maintain his tablets in

the envelope provided. (DOC Deft.’s Mot. Summ. J., Ex. 21, at 1.) Thus, the record does

not support a conclusion that any DOC defendants possessed the requisite scienter to

harm McKeithan. McKeithan also failed to carry his burden that Tretinik’s statements –

whether true or false – had any adverse effect on him, as he subsequently underwent

another echocardiogram. (DOC Deft’s Mot. Summ. J. Ex. 22 at 1-2.) McKeithan also

failed to adduce any evidence that he has a serious pulmonary condition that Dr. Herbik

ignored. For these reasons, McKeithan’s claims against Tretinik and Herbik fail.9



   8
   McKeithan has not argued that Scire’s conduct prevented him from exhausting his
administrative remedies in compliance with the PLRA.
   9
    For the reasons offered by the District Court, we agree that McKeithan’s claims
against Herbik in his capacity as a supervisor (e.g., for allegedly rubberstamping the work
of Meyers and Yarcwerger) must fail because § 1983 does not provide for supervisory
liability. Rode v. Dellarciprete, 

, 1207 (3d Cir. 1988).

                                            11
          McKeithan also asserts that the conditions of confinement in the LTSU violated

the Eighth Amendment. McKeithan asserts that “psychotic inmates [ ] throw body feces

in the showers, exercise cages, and air vents. Body feces, urine and other body fluids

would be thrown on you through the gates of the showers and exercise cages . . . .”

(Appellant’s Br., at 27.) He contends that defendants Zaken and Wilson moved him into

cells next to or in the same vent as some of “the worst psychotic inmates.” (Id.)

Although the District Court concluded that such allegations do not “even arguably rise[]

to the level necessary to state an Eighth Amendment claim[,]” we believe that such

conditions are sufficiently serious to state a claim. See, e.g., Vinning-El v. Long, 

, 925 (7th Cir. 2007) (allegations of cell floor covered with water, a broken

toilet, feces and blood smeared on the wall, and no mattress to sleep on, stated Eighth

Amendment claim); McBride v. Deer, 

, 1292 (10th Cir. 2001) (allegation

of being forced to remain in feces-covered cell for three days stated Eighth Amendment

claim).

          We also believe that the record contains evidence from which a reasonable jury

could have found that the conditions in the LTSU violated the Eighth Amendment. In

response to defendants’ motion for summary judgment, McKeithan submitted an unsworn

affidavit of a fellow inmate, who described troubling conditions in the LTSU, including,

but not limited to, prisoners placing feces in the air vents, flooding “the tier” with feces,

and banging on the doors and sinks for days on end. (Pl’s Opp’n to Deft’s Mot. Summ.



                                              12
J., Ex. 10.) The affidavit also states that prisoners eat their own feces, spread feces all

over themselves and then stand at the door. (Id.). We note that deliberate indifference

may be demonstrated through circumstantial evidence, and that McKeithan has alleged

facts from which a reasonable jury could have concluded that prison officials were aware

of these conditions and failed to rectify them. 

.10

        Accordingly, we will vacate the District Court’s grant of summary judgment with

respect to McKeithan’s Eighth Amendment challenge to the conditions of confinement in

the LTSU, and its dismissal of McKeithan’s claims against Meyers and Yarcgwer with

respect to their treatment of McKeithan’s eczema and deduction of co-payments for

preexisting conditions, and remand for further proceedings consistent with this opinion.

We will affirm the orders of the District Court in all other respects.11




   10
     Defendant-appellees assert that, in the alternative, they are entitled to qualified
immunity. We leave that question for the District Court to address in the first instance.
However, we note that defendant-appellees’ construction of the question appears overly
narrow. The relevant question is not the legality of the LTSU, but instead, whether the
conditions of confinement in that unit, regardless of the name or custody level of the unit,
state a claim for a violation of constitutional rights and whether such conditions violate
clearly established law. Accordingly, we express no opinion on the legality of the LTSU
as such, which is now defunct. We note that other Courts of Appeals have indicated that
requiring inmates to live amidst or in proximity to human waste may state a claim under
the Eighth Amendment. See LaReau v. MacDougall, 

, 978 (2d Cir. 1972).
   11
     McKeithan asserts that summary judgment was improper because discovery was
incomplete, but he fails to identify the facts that he seeks to prove through additional
discovery, as required by Fed. R. Civ. P. 56(f).

                                              13