MEMORANDUM

MALACHY E. MANNION, District Judge.

I. Background

Plaintiff, Muttaqin Fatir Abdullah, an inmate confined in the United States Penitentiary, Lewisburg, ("USP-Lewisburg"), Pennsylvania, filed the above captioned Bivens1 action pursuant to 28 U.S.C. §1331. (See Doc. 1, complaint). He names as Defendants the following USP-Lewisburg employees: Jason Seeba2, Lieutenant; Gregory George, Emergency Medical Technician, and Beverly Prince, National CPR Coordinator. Id. Plaintiff alleges that on April 17, 2011, he and his cell mate were "placed in 24 hrs restraints with belly chains pulled around our chest so tight that [Plaintiff] could barely breath, or eat [his] meals" and "the restraints were so tight that is cause both of [Plaintiff's] hands to swell up so bad that they look like [he] had on boxing gloves", resulting in "ulner nerve damage in [Plaintiff's] left hand." Id. at 2. Plaintiff claims that Defendant, Nurse George "did tell Lt. Seba to loose the chains from around [Plaintiff's] chest, but Lt. Seba refuse to loose the restraints from around [Plaintiff's] wrists where [he] has ulner nerve damage in [his] left hand from the restraints." Id. at 3.

Plaintiff further claims that on April 19, 2011, Nurse Prince came to Plaintiff's cell and "observe the swelling in [his] hands, and refuse to tell the Lt. to loose the restraints from around [his] writs." Id.

On May 6, 2013, Plaintiff filed the instant action in which he seeks ten million dollars in damages. Id. at 4. On June 7, 2013, Plaintiff filed a document entitled "Medical Complaint" (Doc. 10).

Presently before the Court is Defendants' motion to dismiss and motion for summary judgment. (Doc. 28). Defendants' motion is directed at both the original complaint, (Doc. 1) and the Plaintiff's "Medical Complaint".3 (Doc. 10). The motion has been fully briefed and is ripe for disposition. For the reasons that follow, Defendant's motion for summary judgment will be granted.

II. Standards of Review

A. Bivens Standard

Plaintiff's claims are filed pursuant to 28 U.S.C. §1331, in accordance with Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, (1971). Under Bivens, the District Court has federal question jurisdiction pursuant to 28 U.S.C. §1331 to entertain an action brought to redress alleged federal constitutional or statutory violations by a federal actor. Bivens, supra. Pursuant to Bivens, "a citizen suffering a compensable injury to a constitutionally protected interest could invoke the general federal question jurisdiction of the district court to obtain an award of monetary damages against the responsible federal official." Butz v. Economou, 438 U.S. 478, 504 (1978). A Bivens-style civil rights claim is the federal equivalent of an action brought pursuant to 42 U.S.C. §1983 and the same legal principles have been held to apply. See, Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975); Veteto v. Miller, 829 F.Supp. 1486, 1492 (M.D.Pa. 1992); Young v. Keohane, 809 F.Supp. 1185, 1200 n. 16 (M.D.Pa. 1992). In order to state an actionable Bivens claim, a plaintiff must allege that a person has deprived him of a federal right, and that the person who caused the deprivation acted under color of federal law. See West v. Atkins, 487 U.S. 42, 48 (1988); Young v. Keohane, 809 F.Supp. 1185, 1199 (M.D.Pa. 1992); Sharpe v. Costello, 2007 WL 1098964, *3 (M.D.Pa., 2007).

B. Motion to Dismiss

Defendants' pending dispositive motion is supported by evidentiary materials outside the pleadings. Federal Rule of Civil Procedure 12(d) provides in part as follows:

Fed.R.Civ.P. 12(b)(d).

This Court will not exclude the evidentiary materials accompanying the Defendants' motion. Thus, their 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.")

C. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56(a) "[t]he court shall grant summary judgment 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (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 (1986) (emphasis in original).

A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact, the court must view the facts and all reasonable inferences in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail Corporation, 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary judgment, however, parties may not rely on unsubstantiated allegations. Parties seeking to establish that a fact is or is not genuinely disputed must support such an assertion by "citing to particular parts of materials in the record," by showing that an adverse party's factual assertion lacks support from cited materials, or demonstrating that a factual assertion is unsupportable by admissible evidence. Fed.R.Civ.P. 56(c)(1); see Celotex, 477 U.S. at 324 (requiring evidentiary support for factual assertions made in response to summary judgment). The party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). Parties must produce evidence to show the existence of every element essential to its case that they bear the burden of proving at trial, for "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U .S. at 323; see Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir.1992). Failure to properly support or contest an assertion of fact may result in the fact being considered undisputed for the purpose of the motion, although a court may also give parties an opportunity to properly provide support or opposition. Fed.R.Civ.P. 56(e).

III. Statement of Facts4

On April 17, 2011, a calculated use of force was approved by the Warden of USP-Lewisburg in order to place Abdullah in ambulatory restraints after he refused to give staff his food tray and displayed signs of imminent violence by threatening to assault staff. (Doc. 35-2 at 87, Declaration of Jason Seeba, USP-Lewisburg Lieutenant). Upon arrival of the team, Abdullah submitted to restraints and was removed from his cell. (Doc. 35-1 at 4, Declaration of Dr. Kevin Pigos, USP-Lewisburg Clinical Director). Abdullah was removed from his cell, and escorted to the shower, where he was visually searched. Id. The Plaintiff was placed in ambulatory restraints at approximately 8:48 a.m., and was escorted to D-block without further incident. (Doc. 35-2 at 87, Declaration of Jason Seeba, USP-Lewisburg Lieutenant).

On April 17, 2011 at 8:42 a.m., EMT Bryan Walls completed a Bureau of Prisons Health Services Clinical Encounter on Plaintiff, which reflects the following:

(Doc. 35-1 at 16, Bureau of Prisons Health Services Clinical Encounter).

Beginning at 10:00 a.m., restraint checks were conducted by a lieutenant every two hours. (Doc. 35-2 at 88, Declaration of Lieutenant Jason Seeba). On April 17, 2011, Lt. Seeba conducted restraint checks on Abdullah at 4:00 p.m., 6:00 p.m., and 10:00 p.m. Id. Also, restraint reviews were conducted by health services twice during each eight-hour shift. (See Doc. 35-1 at 18-27, Bureau of Prisons Health Services Clinical Encounters). During the approximate 24 hour period that Plaintiff was in ambulatory restraints, he continued to be disruptive, defiant and verbalized he would not be compliant if he was removed from restraints. (Doc. 35-2 at 88, Declaration of Lieutenant Jason Seeba).

At the 12:00 p.m. check EMT Walls noted the following:

(Doc. 35-1 at 18, Bureau of Prisons Health Services Clinical Encounter).5

Paramedic George conducted restraint review checks at 4:00 p.m., 6:00 p.m. on April 17, 2011, and at 12:00 a.m. on April 18, 2011. (See Doc. 35-1 at 18-30). At his 12:00 a.m. check, Paramedic George noted swelling in Plaintiff's hands, stating "[t]he inmate continues to manipulate the restraints which is causing the swelling." Id. Abdullah was educated that continued manipulation of the restraints was causing the swelling. Id. At no time did Paramedic George recommend adjustment of Abdullah's ambulatory restraints because of circulation or other medical concerns. Id.

On April 18, 2011, Nurse Hartzel conducted a restraint review check at 6:00 a.m, and EMT Beverly Prince conducted a restraint review check at 8:00 a.m. (Doc. 35-1 at 31-36, Bureau of Prisons Health Services Clinical Encounter). At no time did Plaintiff offer any medical complaints, nor was there any sign of apparent distress. Id. Both Nurse Hartzel and EMT Prince found his restraints to be adequate with regard to circulation. Id. No injuries were noted. Id.

Abdullah was maintained in ambulatory restraints for approximately 24 hours because he continued to be disruptive, defiant, and verbalized that he would not be compliant if he was removed from restraints. (Doc. 35-2 at 88, Declaration of Lieutenant Jason Seeba). Id. ¶ 9.

On April 19, 2011, Abdullah was seen during sick call with complaints that his hands are numb and he does not have any circulation in them. (Doc. 35-1 at 37, Bureau of Prisons Health Services Clinical Encounter). He also stated at that he was "in restraints over the weekend" and "that was unconstitutional." Id. It was noted that Abdullah refused to move his extremities during one restraint check and that he had strong bilateral pulses and was able to move his fingers and toes during the other restraint checks. Id. He was advised that the symptoms should improve within 7-10 days, and to return to clinic if symptoms persist or worsen. Id.

On April 27, 2011, Abdullah was again seen during sick call. (Doc. 35-1 at 40, Bureau of Prisons Health Services Clinical Encounter). He again complains that his recent episode of being in restraints was unconstitutional, asking "Isn't there anything you can do so that this doesn't happen again?". Plaintiff relayed that his hands have improved somewhat, but that his left hand is still numb. Id. He requested to see another doctor, stating that "it could be my circulation." Id. He denied any pain. Id.

On May 1, 2011, EMT Bryan Walls completed the following Bureau of Health Services Encounter:

(Doc. 35-1 at 43, Bureau of Prisons Health Services Clinical Encounter).

On May 3, 2011, Abdullah was seen for a follow-up encounter. (Doc. 35-1 at 37, Bureau of Prisons Health Services Encounter). Abdullah relayed that at the time he was placed in restraints, he felt they were too tight. Id. Specifically, he stated that the swelling and pressure from the restraints caused a loss of adequate blood flow to his wrist/hand, particularly his left hand. Id. After the restraints were removed, he stated that his left hand was numb and did not work properly, and that he has difficulty holding a pencil or grip objects with his left hand because he is unable to extend his fingers. Id. He also complained of tissue tension and continued swelling in his palmar region. Id. Following examination, a circumferential scab was noted around the left wrist and less pronounced around the right wrist; and Plaintiff was noted as having a weakness of his left hand muscles, loss of strength, and loss of adduction of fingers and flexion of the EPL (positive Froment's sign). Id. Abdullah was prescribed medication for pain and consultations for an EMG and an orthopedic consultation were submitted on an expedited basis for peripheral nerve injury. Id.

On May 4, 2011, referrals were approved by the Utilization Review Committee ("URC"), permitting Abdullah to be evaluated by an orthopedist and specialist for a "lower ulnar nerve injury (L)." (Doc. 35-1 at 54-55, Utilization Review Committee Referral).

On or about May 24, 2011, Abdullah was seen by consulting orthopedist, David J. Ball, D.O. (Doc. 35-1 at 58-61). Dr. Ball noted that Abdullah complained of an inability to extend his fingers, a decrease in sensation in all digits and decreased grip strength in his left hand. Id. He also complained of a decrease in sensation in 2-3 fingers on his right hand. Id.

Following his examination, Dr. Ball sought to rule out neuropathy and recommended the following: (1) conduct electromyography ("EMG") of the upper extremities; (2) Medrol dose pack as an anti-inflammatory; and (3) reevaluate Abdullah after the electromyography. Id.

On May 25, 2011, a consultation request was approved by the URC and Abdullah was referred to an orthopedist to rule out neuropathy. (Doc. 35-1 at 62, Utilization Review Committee Referral).

On May 25, 2011, an EMG was conducted by John Rice, M.D., of Evangelical Medical Services Organization. (Doc. 35-1 at 63-66). Dr. Rice prepared a report and noted that the nerve conduction testing of the upper extremities is abnormal, demonstrating:

Id.

On June 3, 2011, Dr. Kevin Pigos, USP-Lewisburg Clinical Director, discussed the recent EEMG findings with the neurologist. (Doc. 35-1 at 67, Bureau of Prisons Health Services Clinical Encounter — Administrative Note). The neurologist indicated that the injury is not consistent with an injury involving restraint application, given that the location is far above the restraint sites. Id. The neurologist recommended a follow up MRI of the entire left arm, brachial plexus, cervical and thoracic spine and head, with and without contrast. Id.

On June 20, 2011, Dr. Pigos spoke with an outside radiologist, and it was determined that "given the technical difficulties of the MRIs ordered, they will need to be done on separate and successive trips-Will first get brachial plexus with and without contrast. Next will get entire arm MRI with and without contrast. Third trip will be for brain/cervical/thoracic spine with and without contrast." (Doc. 35-1 at 68, Bureau of Prisons Health Services Clinical Encounter — Administrative Note).

On June 22, 2011, Abdullah was approved for referrals to radiology for MRIs of his entire left arm, brain, cervical and thoracic spine, with and without gadolinium contrast, due to loss of signal transmission throughout entire arm on the recent EMG of his left arm. (Doc. 35-1 at 69-70, Utilization Review Committee Referral).

On June 28, 2011, consulting orthopedist, Dr. Ball, examined Abdullah for complaints of tingling in his left hand and reviewed the EMG report compiled by Dr. Rice. (Doc. 35-1 at 71-75). Dr. Ball noted tingling and a good range of motion in all digits. Id. At this time, Dr. Ball recommended ulnar nerve transposition at the left elbow and carpal tunnel release at the left wrist. Id.

On June 29, 2011, a consultation request was submitted to the URC, pending regional review. (Doc. 35-1 at 76, Utilization Review Committee Referral). The request sought a referral to an orthopedist for cubital tunnel syndrome (moderate) and carpal tunnel syndrome (mild). Id.

On June 30, 2011, Abdullah underwent an MRI of the brachial plexus. (Doc. 35-1 at 77-81). The study found no masses, suspicious enhancement, edema or other lesions involving the left brachial plexus or left cervical soft tissues. Id. There were no left axillary masses or adenopathy identified. Id.

On July 13, 2011, an Administrative Note was entered into Plaintiff's medical records after an officer observed Abdullah doing numerous pushups and pull-ups without difficulty while at recreation. (Doc. 35-1 at 82-83, Bureau of Prisons Health Services Clinical Encounter — Administrative Note).

On August 9, 2011, Abdullah underwent an MRI of his left upper extremity. (Doc. 35-1 at 85-87). The results found no focal abnormality of the left upper extremity and no mass or abnormal enhancement within the bones, muscles or along the neurovascular bundle. Id.

On August 10, 2011, Abdullah refused an MRI scan of his brain, cervical and thoracic spine due to claustrophobia. (Doc. 35-1 at 88-89, Bureau of Prisons Health Services Consultation Request).

On August 11, 2011, an Administrative Note was entered in his medical file, noting the following:

(Doc. 35-1 at 84).

On October 7, 2011, Abdullah received surgery for carpal tunnel syndrome on his left wrist and ulnar nerve transposition in his left arm. (Doc. 35-1 at 90-94; Doc. 35-2 at 1-7). Upon return to the institution, Abdullah stated that he did not have any pain at this time. Id. Abdullah was instructed to alert medical for excessive bleeding through the dressing. Id.

On October 8, 2011, Abdullah's dressing was checked. (Doc. 35-2 at 8-9, Bureau of Prisons Health Services Clinical Encounter — Administrative Note). Upon arrival, it was noted that the dressing was covered in blood near Abdullah's elbow. Id. The dressing was removed and the suture site cleaned and redressed. Id.

On October 11, 2011, Abdullah was evaluated for pain in his arm from the surgery. (Doc. 35-2 at 10-12, Bureau of Prisons Health Services Clinical Encounter). Abdullah was prescribed ibuprofen for pain. Id.

On October 13, 2011, Abdullah was seen for a follow-up encounter. (Doc. 35-2 at 13-16, Bureau of Prisons Health Services Clinical Encounter). Following examination of the suture sites, a consultation for a followup appointment with Dr. Ball was submitted. Id.

On October 14, 2011, Abdullah's bandage was changed after he got it wet while in the recreation yard. (Doc. 35-2 at 17-18, Bureau of Prisons Health Services Clinical Encounter — Administrative Note). There was no sign of infection and the staples were intact. Id.

On October 18, 2011, Abdullah's bandage was changed. (Doc. 35-2 at 19-21). No signs of infection were noted but the left elbow was noted as tense with hematoma in the upper arm, where the staples are placed. Id.

On October 20, 2011, the URC approved a referral to an orthopedist for a status post on the left carpal tunnel tendon release and the left ulnar nerve transposition. (Doc. 35-2 at 28, Utilization Review Committee Referral).

On October 20, 21 and 24, 2011, Abdullah's bandage was changed. (Doc. 35-2 at 22-27; 29-34, Bureau of Prisons Health Services Clinical Encounter — Administrative Note). The staples and sutures were noted as intact. Id.

On October 25, 2011, Abdullah was seen for a follow-up encounter. (Doc. 35-2 at 35-38, Bureau of Prisons Health Services Clinical Encounter). Twenty-four staples and seven sutures were removed, and the sites redressed with gauze. Id.

On October 27, 2011, Abdullah was seen for a follow-up encounter. (Doc. 35-2 at 39-42). His hand wound is noted as healing well and the other wound is found to be mostly healed with some drainage. Id. At that time, Plaintiff mentioned a recurrence of hand pain. Id.

On October 28, 2011, Plaintiff's wound was cleaned and minimal drainage was noted. (Doc. 35-2 at 43-45, Bureau of Prisons Health Services Clinical Encounter).

On October 31, 2011, Abdullah's bandaged was redressed and the left elbow wound showed healing with no signs of suppuration. (Doc. 35-2 at 46-48, Bureau of Prisons Health Services Clinical Encounter).

On November 2 and 4, 2011, Abdullah's bandage was redressed. (Doc. 35-2 at 49-53, Bureau of Prisons Health Services Clinical Encounter).

On November 7, 2011, Abdullah was seen for a Chronic Care clinic at health services for hypertension. (Doc. 35-2 at 54-58, Bureau of Prisons Health Services Clinical Encounter). At this time, he stated that he continues to have severe pain in his left arm and hand, as well as decreased mobility. Id. Examination noted that Abdullah's left wrist has reduced range of motion and that he has interosseus wasting in the left hand which is related to disuse or neuropathy. Id. Abdullah states that this had improved for him. Id.

On November 9, 2011, Abdullah was seen by Dr. Ball for a follow-up appointment. (Doc. 35-2 at 59-60, Bureau of Prisons Health Services Clinical Encounter). Dr. Ball examined Abdullah and noted he had increased sensation in his left fifth digit and that Abdullah stated the "nerve slowly getting better." Id.

On November 10, 2011, Abdullah was seen for a post-consultation visitation, where the following was noted:

(Doc. 35-2 at 61-63, Bureau of Prisons Health Services Clinical Encounter).

On February 16, 2012, following a review of Abdullah's records, the following was determined:

(Doc. 35-2 at 64-66, Bureau of Prisons Health Services Clinical Encounter — Administrative Note).

On April 17, 2012, gabapentin was confiscated from Abdullah's cell. (Doc. 35-2 at 68-69, Bureau of Prisons Health Services Clinical Encounter). This is a restricted medication which is delivered to pill line daily and the patient prescribed the medication is to ingest it immediately in front of staff. Id. Abdullah's prescription was discontinued for failure to follow pill line procedures. Id.

On June 4, 2012, the prescription for gabapentin was renewed. (Doc. 35-2 at 70-71, Bureau of Prisons Health Services Clinical Encounter).

On July 27, 2012, gabapentin and coumadin were confiscated from Abdullah's cell. (Doc. 35-2 at 72, Bureau of Prisons Health Services Clinical Encounter — Administrative Note). Both medications are restricted and delivered to pill line daily. Id. The patient prescribed the medication is to ingest it immediately in front of staff. Id.

On July 30, 2012, the prescription for gabapentin was discontinued for the second time and renewed on August 15, 2012. (Doc. 35-2 at 72-75, Bureau of Prisons Health Services Clinical Encounter — Administrative Note). Abdullah's prescription for gabapentin was renewed on February 12, 2013, March 14, 2013, and April 12, 2013. (Doc. 35-2 at 76-82, Bureau of Prisons Health Services Clinical Encounter — Administrative Note).

On April 22, 2013, gabapentin was again confiscated from Abdullah's cell and the medication was discontinued. (Doc. 35-2 at 83-86, Bureau of Prisons Health Services Clinical Encounter — Administrative Note).

Subsequent to the April 17, 2011 use of ambulatory restraints, Plaintiff was also placed in ambulatory restraints on the following dates without any medical complaints: November 3, 2011, April 17, 2012, and March 14, 2013. (Doc. 35-1 at 12, Declaration of Dr. Kevin Pigos, USP-Lewisburg Clinical Director).

IV. Discussion

A. Constitutional Standards Governing Eighth Amendment Claims

As the United States Court of Appeals for the Third Circuit has observed:

Fuentes v. Wagner, 206 F.3d 335, 344-45 (3d Cir. 2000).

With these principles as the backdrop, the Court considers that individual Eighth Amendment claims advanced by Abdullah.

1. Excessive Force Claims

At the outset, Eighth Amendment excessive force claims entail a showing of some subjective intent to injure. In an excessive force case, where "prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley[v. Albers, 475 U.S. 312 (1986)]: whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6-7 (1992).

Thus, the keystone to analysis of an Eighth Amendment excessive force claim often entails issues of motivation-whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). However, the issue of whether excessive force was used is one which, in proper circumstances, can be determined as a matter of law. In such cases, summary judgment is appropriate when "it appears that the evidence, viewed in the light most favorable to the plaintiff, will [not] support a reliable inference of wantonness in the infliction of pain." Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Whitley, 475 U.S. at 322). There are several factors that a court examines in determining whether a correctional officer has used excessive force in violation of the Eighth Amendment, including: "(1) `the need for the application of force'; (2) `the relationship between the need and the amount of force that was used'; (3) `the extent of injury inflicted'; (4) `the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them'; and (5) `any efforts made to temper the severity of a forceful response.'" Id. at 106.

When considering such claims, the reasonableness of a particular use of force is often dependent upon factual context and must be "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.", 490 U.S. 386, 396-7 (1989). Moreover, in the context of prison excessive force claims, in determining "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm," Hudson v. McMillian, 503 U.S. 1, 6-7 (1992), "even if we concede [that an inmate] has established at most that prison officials over-reacted to the disturbance that he caused. . ., any such over-reaction would still fall short of supporting a finding that prison officials acted `maliciously and sadistically to cause harm.'" Fuentes v. Wagner, 206 F.3d 335, 346 (3d Cir. 2000).

Further, in the specific factual context of excessive force claims based upon allegations relating to a prisoner's handcuffing, courts have acknowledged that, in certain instances, government officials are entitled to qualified immunity as a matter of law. Gilles v. Davis, 427 F.3d. 197, 207 (3d Cir. 2005). With respect to these particular excessive force claims, the test for qualified immunity can be simply stated: "In these cases, summary judgment for an officer who claims qualified immunity is appropriate where, `after resolving all factual disputes in favor of the plaintiff,[ ] the officer's use of force was objectively reasonable under the circumstances.'" Id.

2. Deliberate Indifference Claims

In order to establish an Eighth Amendment medical claim, a plaintiff must show "(i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need." Natale v. Camden Cty. Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that a layperson would recognize the need for a doctor's attention. Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). In addition, "if unnecessary and wanton infliction of pain results as a consequence of denial or delay in the provision of adequate medical care, the medical need is of the serious nature contemplated by the eighth amendment." Id.

A prison official acts with deliberate indifference to an inmate's serious medical needs when he "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a complaint that a physician or a medical department "has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment..." Estelle v. Gamble, 429 U.S. 97, 106 (1976). For instance, a "medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice." Id., 429 U.S. at 107. "[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights." Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). Further, a doctor's disagreement with the professional judgment of another doctor is not actionable under the Eighth Amendment. See White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990). In sum, negligence, unsuccessful medical treatment, or medical malpractice does not give rise to a §1983 cause of action, and an inmate's disagreement with medical treatment is insufficient to establish deliberate indifference. See Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993).

Further, a non-physician defendant cannot be found deliberately indifferent under the Eighth Amendment because he or she fails to respond to the medical complaints of an inmate being treated by a prison physician, or because, as non-physicians, they defer to the medical judgment of the inmate's treating physicians. Id., 991 F.2d at 69. If, however, non-medical prison personnel had "a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner," liability may be imposed. Spruill, 372 F.3d 236.

A mere difference of opinion between the prison's medical staff and the inmate regarding the diagnosis or treatment which the inmate receives does not support a claim of cruel and unusual punishment. Farmer v. Carlson, 685 F.Supp. 1335, 1339 (M.D. Pa. 1988). See McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977); Smart v. Villar, 547 F.2d 112, 113 (10th Cir. 1976).

Additionally, if there is a dispute over the adequacy of the received treatment, courts have consistently been reluctant to second guess the medical judgment of the attending physician. Little v. Lycoming County, 912 F.Supp. 809, 815 (M.D. Pa.), aff'd, 101 F.3d 691 (3d Cir. 1996). The key question is whether the defendant has provided the plaintiff with some type of treatment, regardless of whether it is what the plaintiff desires. Farmer v. Carlson, 685 F. Supp. at 1339.

B. Abdullah's Eighth Amendment Claims Fail

Turning first to the decision to apply restraints after Abdullah refused to give staff his food tray and displayed signs of imminent violence by stating he would assault staff, and recognizing that summary judgment is appropriate only when the evidence, "viewed in the light most favorable to the plaintiff, will [not] support a reliable inference of wantonness in the infliction of pain." Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Whitley, 475 U.S. at 322), we find that the initial decision to impose these restraints Plaintiff did not violate the Eighth Amendment. In this regard the Court is persuaded that the factors which govern use of force in this setting: "(1) `the need for the application of force'; (2) `the relationship between the need and the amount of force that was used'; (3) `the extent of injury inflicted'; (4) `the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them'; and (5) `any efforts made to temper the severity of a forceful response'", id. at 106, which all show that the use of these restraints was a prudent and necessary response to the display of imminent violence threatened by Abdullah. Thus, circumstances of the situation amply justified the use of force; the force applied was modest, given the dangers inherent in Abdullah's threatening conduct; the risk to staff and others posed by Abdullah's conduct was great; and Abdullah's verbal threat of assault demonstrated that it would have been extremely dangerous to further temper these security measures. Therefore, when considering the reasonableness of this authorized use of force, which must be "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight," Graham v. Connor, 490 U.S. 386, 396-97 (1989), the Court finds that the actions of the prison officials " would still fall short of supporting a finding that prison officials acted `maliciously and sadistically to cause harm.'" Fuentes v. Wagner, 206 F.3d 335, 346 (3d Cir. 2000).

Nor can Plaintiff sustain a deliberate indifference claim based upon the fact that he was held in restraints for a 24 hour period after his angry outburst. At the outset, the duration of this period of restraint-24 hours-simply does not implicate grave Eighth Amendment concerns. See, e.g., Key v. McKinney, 176 F.3d 1083, 1086 (8th Cir. 1999) (no Eighth Amendment violation where prisoner handcuffed and shackled for 24 hours); Hunter v. Bledsoe, No. 10-CV-927, 2010 WL 3154963 (M.D.Pa. Aug.9, 2010) (ambulatory restraints used for 24 hours); Holley v. Johnson, No. 08-CV-629, 2010 WL 2640328 (W.D.Va. June 30, 2010) (ambulatory restraints used for 48 hours); Zimmerman v. Schaeffer, 654 F.Supp.2d 226, 232 (M.D.Pa. 2009)(19 hours or more in restraint chair); Moore v. Miller, No. 7:08CV00614, 2009 WL 113258 (W.D.Va. Jan.15, 2009) (26 hours); Keyes v. O'Brien, No. Civ. A. 7:06CV00437, 2006 WL 2125912 (W.D.Va. July 27, 2006) (no Eighth Amendment violation where prisoner placed in ambulatory restraints for 30 hours); Saleh v. Ray, No. Civ. A. 02-3214, 2003 WL 23484639, at * 6 (D.Kan. 2003) (24 hours in ambulatory restraints, no Eighth Amendment violation).

Moreover, the use of these restraints was both reasonable and necessary in light of Abdullah's threatening behavior. Indeed, it is undisputed that staff6 used the restraints in a manner which was directly linked to the penological goals of ensuring institutional safety. Furthermore, the care and attention which Plaintiff received from prison medical and correctional staff while in restraints belies any claim of deliberate indifference to his physical needs. In sum, the use of restraints here was in direct response to Plaintiff's threatening behavior. Those restraints were employed for a limited period of time, and were removed promptly once Plaintiff exhibited behavior which indicated that he no longer presented a threat to himself, fellow inmates, or staff. On these facts, a deliberate indifference claim fails, and the defendants are entitled to summary judgment in their favor.

In addition, we note that the use of these restraints was closely monitored by medical personnel and those medical staff observed no medical reason to remove these restraints. Since it is axiomatic that correctional staff cannot be held deliberately indifferent when they defer to medical personnel on medical matters, Durmer v. O'Carroll, 991 F.2d 64, 69 (3d. Cir. 1993), this fact also compels summary judgment in favor of Defendant Seeba on this deliberate indifference claim.

Finally, as to the medical staff named as Defendants, the undisputed factual record plainly shows that Plaintiff was assessed by medical staff for circulation, or other medical concerns, and none were apparent. Although, the record does demonstrate that during one of the wellness checks, staff noted that Plaintiff was manipulating the restraints, so as to cause swelling of the wrists. Plaintiff, however, refused to be counseled on the possible consequences of failing to comply with accepting medical treatment and the medical advice of moving his extremities. Additionally, aside from Plaintiff's conclusory allegation that Defendant George told Lt. Seeba to loosen Plaintiff's restraints (see Doc. 1, complaint), there is no evidence of record demonstrating that Defendant George, or any other medical staff member, at any time, recommended adjustment of Abdullah's restraints because of circulation or other medical concerns.

Moreover, following the removal of the ambulatory restraints, Plaintiff was afforded an extremely wide array of medical care, medication, testing and referrals to outside specialists, in order to determine, treat and repair his carpal tunnel syndrome on his left wrist and ulnar nerve transposition in his left arm. A condition that, once identified, was verified by the treating neurologist as an injury not consistent with an injury involving restraint application, given that the location is far above the restraint sites. Plaintiff offers nothing to refute this. Thus, the record establishes meaningful efforts by the Defendants to provide Plaintiff with necessary medical care, and an attendant mental state that falls woefully short of deliberate indifference. As such, there is insufficient proof in the record for a fair-minded jury to conclude that the Defendants were deliberately indifferent to Plaintiff's medical needs. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Monmouth County Correctional Institution Inmates v. Lanzaro, 834 F.2d at 346; West v. Keve, 571 F.2d at 161. Indeed, the extent and quality of medical attention that the Defendants provided Plaintiff precludes a finding of deliberate indifference.

C. Qualified Immunity

Even if Abdullah had stated a colorable constitutional claim relating to his cell extraction, the Defendants would still be entitled to qualified immunity from these claims for damages. In order to establish a civil rights claim Abdullah must show the deprivation of a right secured by the United States Constitution or the laws of the United States. Satisfying these elements alone, however, does not guarantee that Abdullah is entitled to recover damages from these public officials. Government officials performing "discretionary functions," are insulated from suit if their conduct did not violate a "clearly established statutory or constitutional right[ ] of which a reasonable person would have known." Wilson v. Layne, 526 U.S. 603, 609(1999); see also Pearson v. Callahan, 555 U.S. 223 (2009). This doctrine, known as qualified immunity, provides officials performing discretionary functions not only defense to liability, but also "immunity from suit." Crouse v. S. Lebanon Twp., 668 F.Supp.2d 664, 671 (M.D.Pa.2009) (Conner, J.) (citations omitted).

"Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official's error is `a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact'." Pearson, 555 U.S. at 231.

Determinations regarding qualified immunity, and its application in a given case, require a court to undertake two distinct inquiries. First, the court must evaluate whether the defendant violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201-02 (2001), abrogated in part by Pearson, 555 U.S. 223; Curley v. Klem, 499 F.3d 199, 206 (3d Cir.2007); Williams v. Bitner, 455 F.3d 186, 190 (3d Cir.2006). If the defendant did not actually commit a constitutional violation, then the court must find in the defendant's favor. Saucier, 533 U.S. at 201. If the defendant is found to have committed a constitutional violation, the court must undertake a second, related inquiry to assess whether the constitutional right in question was "clearly established" at the time the defendant acted. Pearson, 555 U.S. at 232; Saucier, 533 U.S. at 201-02. The Supreme Court has instructed that a right is clearly established for purposes of qualified immunity if a reasonable state actor under the circumstances would understand that his conduct violates that right. Williams, 455 F.3d at 191 (citing Saucier, 533 U.S. at 202).

In order to find that a right is clearly established, "the right allegedly violated must be defined at the appropriate level of specificity." Wilson, 526 U.S. at 615. The Supreme Court has explained that, at least in some cases, "a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has [not] previously been held unlawful." Hope v. Pelzer, 536 U.S. 730, 741 (2002) (quoting United States v. Lanier, 520 U.S. 259, 271 (1997) (internal quotation marks and citation omitted)). In some cases, "officials can still be on notice that their conduct violates established law even in novel factual circumstances." Wilson, 455 F.3d at 191 (quoting Hope, 536 U.S. at 741).

The court is no longer required to conduct these two inquiries sequentially, Pearson, 555 U.S. at 239-40, and it may forego difficult constitutional issues and award qualified immunity to a defendant if it is apparent that the defendant did not violate rights that were clearly established at the time the defendant acted. Id. Where a court elects to address the alleged constitutional violations, however, the court's analysis of the merits for purposes of summary judgment merges with analysis of the deprivation of federal rights for purposes of qualified immunity. Gruenke v. Seip, 225 F.3d 290, 299-300 (3d Cir.2000); Crouse, 668 F.Supp.2d at 671; see also Grant v. City of Pittsburgh, 98 F.3d 116, 122 (3d Cir.1996) ("[C]rucial to the resolution of [the] assertion of qualified immunity is a careful examination of the record ... to establish ... a detailed factual description of the actions of each individual defendant (viewed in a light most favorable to the plaintiff).") Because qualified immunity entails a consideration of whether the law was clearly established at the time of a defendant's conduct, this defense, which focuses on the state of the law, presents a question of law for the court, and one which can often be resolved on summary judgment. See Montanez v. Thompson, 603 F.3d 243 (3d Cir.2010).

In the specific factual context of excessive force claims based upon allegations relating to a prisoner's handcuffing, courts have acknowledged that, in certain instances, summary judgment is entirely appropriate. Gilles v. Davis, 427 F.3d 197, 207 (3d Cir.2005). With respect to these particular excessive force claims, courts agree that: "In these cases, summary judgment for an officer who claims qualified immunity is appropriate where, `after resolving all factual disputes in favor of the plaintiff,[ ] the officer's use of force was objectively reasonable under the circumstances.'" Id.

Applying these benchmarks, the Court finds that the Defendants are entitled to qualified immunity in this case. The record does not evince anything that would have alerted the Defendants that their actions violated "clearly established statutory or constitutional right[ ] of which a reasonable person would have known." Wilson v. Layne, 526 U.S. 603, 609 (1999). Moreover, the duration of Abdullah's detention in restraints fell squarely within the 24 hour time frame which had previously and repeatedly been recognized as a discrete period of time which did not give rise to constitutional concerns. See, e.g., Key v. McKinney, 176 F.3d 1083, 1086 (8th Cir.1999) (no Eighth Amendment violation where prisoner handcuffed and shackled for 24 hours); Hunter v. Bledsoe, No. 10-CV-927, 2010 WL 3154963 (M.D.Pa. Aug.9, 2010) (ambulatory restraints used for 24 hours); Holley v. Johnson, No. 08-CCV-629, 2010 WL 2640328 (W.D.Va. June 30, 2010) (ambulatory restraints used for 48 hours); Zimmerman v. Schaeffer, 654 F.Supp.2d 226, 232 (M.D.Pa.2009) (19 hours or more in restraint chair). Accordingly, Defendants are entitled to qualified immunity from damages in this case.

V. Conclusion

Based upon the undisputed facts of record, Defendants are entitled to summary judgment with respect to Plaintiff's claims of excessive force and denial of medical care. Additionally, Defendants' request for qualified immunity will be granted with respect to Plaintiff's claim of being subjected to unconstitutional conditions of confinement. An appropriate order shall issue.

Steven M. Hunter, Lewisburg, PA, pro se.

MEMORANDUM

WILLIAM W. CALDWELL, District Judge.

I. Introduction

*1 The pro se plaintiff, Steven Hunter, an inmate at USP-Lewisburg, is confined in the prison's Special Management Unit (SMU). He makes several constitutional claims concerning his treatment in the SMU. Plaintiff is proceeding in forma pauperis, so pursuant to 28 U.S.C.1915(e)(2)(B)(ii), we reviewed his twenty-page complaint for legal sufficiency.FN1 We have decided that some claims survive this initial screening, and others fail to state a legally valid claim for relief. Some of the latter claims may be viable if Plaintiff provides additional allegations, so we will grant Plaintiff leave to file an amended complaint on those claims. Still other claims cannot be saved by amendment, and those will be dismissed without leave to amend. If Plaintiff does file an amended complaint, and if he is going to handwrite it, he must handwrite in a printed fashion rather than use a cursive style.FN2

II. Standard of Review

A complaint filed in forma pauperis may be dismissed if it is determined that the action is frivolous, malicious, fails to state a claim on which relief may be granted or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). In deciding whether the complaint fails to state a claim on which relief may be granted, the court employs the standard used to analyze motions to dismiss under Fed.R.Civ.P. 12(b)(6). The court must accept as true the factual allegations in the complaint and construe any inferences to be drawn from the allegations in the plaintiffs favor. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), giving the defendant "fair notice of what the ... claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007)). Although detailed factual allegations are not required, Twombly, 550 U.S. at 93, 127 S.Ct. at 2200, the complaint has to plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. at 1974. "[M]ore than labels and conclusions" are required. Id. at 555, 127 S.Ct. at 1964-65.

Pro se pleadings are held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson, supra, 551 U.S. at 94, 127 S.Ct. at 2200. Pro se litigants are to be granted leave to file a curative amended complaint "even when a plaintiff does not seek leave to amend," unless such an amendment would be inequitable or futile. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.2004).

III. Discussion

A. Plaintiff Fails to State Claims for Denial of Access to the Administrative Remedy Process

Plaintiff claims that Warden Bledsoe; the Associate Warden of Programs; the prison's Administrative Remedy Coordinator; the Regional Director; Unit Manager Brewer; Counselor Lizardi; and Case Manager Zearski conspired to deny him access to the prison's administrative remedy process. (Doc. 19, CM/ECF p. 9).FN3 Plaintiff avers there was no response to more than fifty administrative remedy requests he made to Counselor Lizari, Unit Manager Brewer, Warden Bledsoe and others since June 7, 2010. (Doc. 19, Compl., CM/ECF pp. 9-10). He also avers that the BOP continues to ignore his complaints about staff misconduct at USP-Lewisburg, (id., p. 17), and that the Regional Director acts unfavorably on his complaints about staff misconduct and continues to ignore homemade administrative remedy forms despite being told that prison officials will not provide Plaintiff any official forms. (Id., p. 17).

*2 These claims fail for two reasons. First, conclusory and vague allegations will not support a conspiracy claim, see Tindell v. Beard, 351 F. App'x 591, 594 (3d Cir.2009) (per curiam) (nonprecedential) (citing Rose v. Bartle, 871 F.2d 331, 366 (3d Cir.1989)); Adams v. Teamsters Local 115, 214 F. App'x 167, 175 (3d Cir.2007) (nonprecedential), and Plaintiff has presented only conclusory allegations of conspiracy to deprive him of access to the administrative remedy process. Second, and more importantly, prisoners do not, in any event, have a constitutional right to a prison grievance process. See Heleva v. Kramer, 214 F. App'x 244, 247 (3d Cir.2007) (per curiam) (nonprecedential) (citing Massey v. Heiman, 259 F.3d 641, 647 (7th Cir.2001)). Therefore, these claims will be dismissed, and without leave to amend.FN4

B. Plaintiff Fails to State a Claim for Single-Cell Status

Plaintiff alleges that Warden Bledsoe; the Associate Warden of Programs; the Associate Warden of Operations; and the Associate Warden of Custody have been deliberately indifferent to his safety by ignoring his request for single-cell status. In support, Plaintiff avers he has: (1) a history of not having been able to share a cell with any of about twenty-four other inmates since being in the SMU; (2) been assaulted by at least three cellmates; and (3) an extensive history of an antisocial personality that causes him to act out when celling with another inmate. (Doc. 19, CM/ECF pp. 10-11).FN5

Plaintiff has no constitutional right to a single cell, Keeling v. Damiter, No. 09-147, 2010 WL 678091, at *6 (M.D.Pa. Feb. 24, 2010), and neither past assaults upon him by cellmates nor his antisocial personality are valid bases for this court to require prison officials to give him single-cell status. That judgment should be left to prison administrators, who are in the best position to decide his housing status and whether he can live with any particular inmate. See Rauser v. Horn, 241 F.3d 330, 334 (3d Cir.2001) ("the task of prison administration is difficult, and . . . courts should afford deference to decisions made by prison officials, who possess the necessary expertise"); DeFranco v. Wolfe, 2010 WL 2762968, at *6 (3d Cir.2010) (nonprecedential) (quoting Rauser). Thus, Plaintiff's claim for single-cell status will be dismissed, and without leave to amend.FN6

C. Plaintiff Fails to State Claims Based On Verbal Harassment by Guards

Plaintiff alleges that defendants Lt. Galletia and CO Kulago on several occasions made racial remarks to him, or other remarks about him, that sometimes included threats.FN7 Such remarks, if made, are unprofessional and offensive, but as a matter of law, they do not state a constitutional claim.

Verbal abuse or harassment are not civil-rights violations, Mimms v. UNICOR, 2010 WL 2747470, at *2 (3d Cir.2010) (per curiam) (nonprecedential), even harassment that includes threats of violence. See Herder v. Biesh, No. 09-2470, 2010 WL 2766611, at *4 (M.D.Pa. July 13, 2010) (Caldwell, J.); MacLean v. Secor, 876 F.Supp. 695, 698-99 (E.D.Pa.1995) (collecting cases); Wright v. O'Hara, 2002 WL 1870479 at *3 (E.D.Pa.). Nor is the use of racial slurs, as offensive as they are. Simmons v. Mallick, No. 10-739, 2010 WL 2079865, at *7-8 (M.D.Pa. April 21, 2010) (magistrate judge report), approved, Simmons v. Mallick, 2010 WL 2079857 (M.D.Pa. May 21, 2010) (Caldwell, J.). Hence Plaintiffs claims based on alleged verbal harassment will be dismissed, without leave to amend.

D. Plaintiff Fails to State Claims for the Issuance of False Misconducts

*3 Plaintiff alleges that three false incident reports were filed against him: (1) one on July 17, 2009, by Lt. Galletia; one on August 8, 2009, by Lt. Galletia for an alleged assault on that date attempted by Plaintiff on his cellmate; and (3) one on August 8, 2009, by CO Kulago, stating he possessed a torn sheet and had attempted to assault another inmate. (Doc. 19, CM/ECF pp. 11, 13, 14).

A false misconduct charge does not itself qualify as an Eighth Amendment violation. Booth v. Pence, 354 F.Supp.2d 553, 558-59 (E.D.Pa.2005) (citing Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir.1997)). Similarly, no due process claim is stated when a prisoner alleges that misconduct charges were fabricated. Smith v. Mensinuer 293 F.3d 641, 653-54 (3d Cir.2002) (due process is satisfied where an inmate is afforded an opportunity to be heard and to defend against the allegedly falsified evidence and groundless misconduct reports). Accordingly, the three claims based on the allegedly false incident reports of July 17, 2009, and August 8, 2009, will be dismissed without leave to amend.

E. Retaliation Claims Based on the Issuance of False Misconduct Reports

As noted above, a false misconduct report is not in itself a civil-rights violation, but if it was issued in retaliation for an inmate's exercise of a constitutional right, it is actionable. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001). To prevail on a retaliation claim, a prisoner must show that: (1) he engaged in constitutionally protected conduct; (2) he suffered some "adverse action" by prison officials; and (3) there is a causal link between the exercise of the right and the adverse action. Id. at 333-34.

Plaintiff avers that three false incident reports were issued for retaliatory reasons. First, on December 7, 2009, defendant Officer Hummer issued a false misconduct "in retaliation for plaintifft's] protest[ing]" that he wanted to "be move[d] to another cell to avoid a cell fight with plaintiff['s] cellmate . . . and/or from plaintiffs] being further assaulted by his cellmate . . ." (Doc. 19, CM/ECF p. 14). Second, on March 10, 2010, defendant Anderson wrote a false incident report to retaliate against Plaintiffs "threat [ ] to file an administrative remedy on Officer Anderson." (Id.). Third, on April 14, 2010, defendant Lt. Johnson issued him a false incident report in retaliation for "plaintifft's] refusal to cell with a known gang-related violent inmate in order to justify placing plaintiff in ambulatory restraints." (Id., p. 15).

None of these three reports are actionable as a retaliation claim because none of them involved Plaintiffs exercise of a constitutional right. In the December 2009 and April 2010 claims, the allegedly retaliatory conduct stemmed from Plaintiffs stating that he wanted a different cellmate. However, as noted, Plaintiff has no constitutional right to pick his cellmate or to a single cell.

*4 Because both of these claims involve the potential for an assault from the cellmate, it could be argued that Plaintiff was invoking his Eighth Amendment right against suffering serious harm from his jailers, but to make such a claim Plaintiff would have to allege facts, not just conclusions, indicating that the prison officials knew at the relevant time that Plaintiff faced a substantial risk of serious harm from his cellmates and that they disregarded that risk by placing him with the cellmates. See note 5 supra. If this was Plaintiff's intent, we will grant him leave to amend these claims.

The March 2010 claim is closer to the mark because Plaintiff alleges that Officer Anderson retaliated against him because Plaintiff threatened to file a grievance against him. The filing of a grievance by a prisoner is protected by the First Amendment. Kelly v. York County Prison, 340 F. App'x 59, 61 (3d Cir.2009) (per curiam) (nonprecedential); Baker v. Williamson, No. 07-2220, 2010 WL 1816656, at *5 (M.D.Pa. May 5, 2010) (Caldwell, J.). The difficulty here for Plaintiff is that he only threatened to file a grievance; he did not actually file one. Since Plaintiffs conduct did not actually involve the exercise of a constitutional right, he fails to satisfy the first element of a retaliation claim, and the March 2010 retaliation claim will be dismissed, without leave to amend.FN8

F. Claim that Captain Snider Was Racially Motivated in Failing to Adequately Investigate Hunter's Administrative Remedy Requests

Plaintiff claims defendant Deputy Captain Snider, motivated by racism in part, responded to administrative remedy complaints "without a prompt investigation into [the] complaints." (Doc. 19, CM/ECF p. 16). These allegations fail to state a claim for two reasons. First, Plaintiff has failed to allege sufficient facts. He must allege the administrative remedies that defendant Snider handled in a discriminatory manner, the content of the grievances, and any facts supporting the allegation of racial bias. Second, Plaintiffmust allege any injury he may have suffered from how Snider handled the grievances. We will grant him leave to amend this claim.FN9

G. Denial of Unlimited Free Postage and Photocopies for the Indigent Plaintiff

Plaintiff avers that Unit Manager Brewer, Counselor Shuck, Counselor Lizzardi, the Assistant Warden of Programs, and Warden Bledsoe refuse to provide him with postage stamps and ordered him "to repay" for stamps if they have been provided to him, even though he is indigent. (Doc. 19, CM/ECF p. 16). Plaintiff avers that Warden Bledsoe, the Assistant Warden of Programs, the Education Supervisor, Unit Manager Brewer, and Counselor Lizzardi "refuse to provide Plaintiff free (no limited amount) of . . . copies of legal cases and related papers, including this action despite Plaintiffs being indigent." (Id., pp. 16-17).

An inmate may be indigent and proceeding pro se but that does not entitle him to litigate his case without costs or at the expense of the BOP. In Tabron v. Grace, 6 F.3d 147, 159 (3d Cir.1993), the Court stated that "[t]here is no provision in [28 U.S.C. § 1915] for the payment by the government of the cost of deposition transcripts, or any other litigation expenses, and no other statute authorizes courts to commit federal monies for payment of the necessary expenses in a civil suit brought by an indigent litigant." Notably, Plaintiff does not allege that the BOP is not allowing him to anticipate funds in his prison account to cover his postage or court-related copying expenses, but rather that they are making him pay for them at some later point when there are funds in his prison account. This claim will be dismissed, and without leave to amend.

H. Ambulatory Restraints

*5 Plaintiff makes the following claims about his placement in ambulatory restraints. First, on or about June 19, 2009, he was placed in ambulatory restraints and remained in restraints well over twenty-four hours, until about June 23, 2009, despite not being disruptive, with Warden Bledsoe having personal knowledge of his plight. (Doc. 19, CM/ECF p. 14). Second, on or about August 8, 2009, Plaintiff was placed in ambulatory restraints, then placed in four-point restraints for no reason, with Warden Bledsoe having direct knowledge of this. (Id., p. 15). Third, on or about April 16, 2010, Plaintiff was placed in ambulatory restraints for more than twenty-four hours by unknown officers, until April 18, 2010, despite Plaintiffs conduct not being disruptive. (Id.). Fourth, on or about April 14 and April 16, 2010, prison officials knowingly and intentionally placed ambulatory restraints on Plaintiff in a manner that affected Plaintiffs breathing and blood circulation. (Id., pp. 15-16).

We conclude that these claims should survive an initial screening of the complaint.

I. Alleged Assaults

Plaintiff alleges the following assaults. First, since November 13, 2007, several prison officials have caused Plaintiff to be assaulted by at least three cellmates. (Doc. 19, CM/ECF p. 8). Second, on June 19, 2009, Lt. Galletia assaulted Plaintiff while he was in ambulatory restraints by spitting on him. (Id., p. 11). Third, on August 8, 2009, Lt. Galletia used excessive force when he used gas and shot-gun pepper spray on Plaintiff when he refused to allow his cellmate to have his hand restraints removed, with the intent to force Galletia to put Plaintiff in another cell. (Id., p. 12). Fourth, on November 13, 2009, Plaintiff was assaulted by a cellmate whom Lt. Galletia had placed with Plaintiff despite Plaintiffs request not to be placed with this non-compatible inmate. (Id., p. 13).

The first assault claim is deficient because it does not allege the prison officials involved, the facts supporting the averment that they caused Plaintiff to be assaulted, when the assaults occurred, and the names of the cellmates who assaulted him. The third claim is deficient in failing to allege facts that show that Lt. Galletia used excessive force, especially since Plaintiff admits he caused a confrontation by refusing to allow his cellmate to have his restraints removed. The fourth claim is also deficient in failing to allege facts showing that Lt. Gallatia knew or should have known that the cellmate was "non-compatible" and that he would assault Plaintiff, as well as the name of the cellmate. Plaintiff will be granted leave to amend these claims.

Plaintiffs second claim is also deficient but cannot be cured by amendment. An assault by spitting is not enough for an Eighth Amendment claim. See McCullough v. Miller, No. 06-514, 2008 WL 4361254, at *7 (W.D.Pa. Sept.24, 2008) (collecting cases), aff'd, 330 F. App'x 330 (3d Cir.2009) (per curiam) (nonprecedential); Young v. Medden, No. 03-5432, 2006 WL 456274, at *21-22 (E.D.Pa. Feb.23, 2006). It is immaterial that Plaintiff was in ambulatory restraints at the time. This claim will be dismissed, and without leave to amend.

J. Requests for Transfer to Another Prison or SMU

*6 Plaintiff avers that the Director of the BOP, the Regional Director, the Attorney General, Warden Bledsoe, the Associate Warden of Programs, the Associate Warden of Custody, SIS Perrin, the CMC and the Associate Warden of Operations have ignored his requests for transfer to another prison or to another SMU (essentially the same as a transfer to another prison). Plaintiff alleges the reason he needs the transfer is protection from a number of unnamed prison officials at Lewisburg. (Doc. 19, CM/ECF pp. 7-8).

Inmates have no constitutional right to confinement in any particular prison. Mimms v. UNICOR, 2010 WL 2747470, at *2 (3d Cir.2010) (per curiam) (nonprecedential). However, as noted above, inmates do have an Eighth Amendment right to safety. Nonetheless, these allegations fail to state a claim because they are conclusory. Plaintiff will be granted leave to amend this claim by alleging the following: (1) the names of the prison officials he needs protection from; and (2) a description of the conduct of these officials (including time and place) that constituted a threat to his safety.

IV. Conclusion

The following claims will be dismissed without leave to amend: (1) the claims for denial of access to the administrative remedy process; (2) the claim for single-cell status; (3) the claimbased on verbal harassment by the guards; (4) the three claims based on false incident reports of July 17, 2009, and August 8, 2009; (5) the March 2010 retaliation claim based on a allegedly false incident report issued by defendant Anderson: (6) the claim for denial of unlimited free postage and photocopies; and (7) the claim that Lt. Gallatia assaulted Plaintiff on June 19, 2009, by spitting on him.

The following claims will be dismissed but with leave to amend to make the necessary allegations, as discussed in the accompanying memorandum: (1) the December 2009 and April 2010 retaliation claims; (2) the claim that Deputy Captain Snider responded to administrative remedy complaints in a racist manner; (3) the claim that since November 13, 2007, several prison officials have caused Plaintiff to be assaulted by at least three cellmates; that on August 8, 2009, Lt. Galletia used excessive force on Plaintiff; and that on November 13, 2009, Plaintiff was assaulted by a cellmate whom Lt. Galletia had placed with Plaintiff; and (4) the claim that Plaintiff should have been transferred for safety reasons.

Plaintiff will be granted twenty-one days to file an amended complaint. If Plaintiff fails to do so, this action will proceed only on the following claim: that Warden Bledsoe and unknown defendants unconstitutionally placed Plaintiff in ambulatory restraints on several occasions.FN10

Plaintiff is advised that the "amended complaint must be complete in all respects. It must be a new pleading which stands by itself as an adequate complaint without reference to the complaint already filed." Young v. Keohane, 809 F.Supp. 1185, 1198 (M.D.Pa.1992). Thus, he must include in his amended complaint his ambulatory restraint claims even though we found them sufficient for an initial screening. Further, because Plaintiffs cursive handwriting is illegible, if Plaintiff handwrites the amended complaint, Plaintiff must handwrite it in a printed fashion rather than use a cursive style. If Plaintiff uses a cursive style, the amended complaint will be dismissed.

*7 We will issue an appropriate order.

ORDER

AND NOW, this 9th day of August, 2010, upon review of the Complaint (doc. 19) under 28 U.S.C. § 1915(e)(2)(B)(ii), it is ordered that:

1. The following claims are dismissed without leave to amend: (a) the claims for denial of access to the administrative remedy process; (b) the claim for single-cell status; (c) the claim based on verbal harassment by the guards; (d) claims based on false incident reports; (e) the March 2010 retaliation claim based on a allegedly false incident report issued by defendant Anderson; (f) the claim for denial of unlimited free postage and photocopies; and (g) the claim that Lt. Gallatia assaulted Plaintiff on June 19, 2009, by spitting on him.

2 The following claims are dismissed but with leave to amend to make the necessary allegations as discussed in the accompanying memorandum: (a) the December 2009 and April 2010 retaliation claims; (b) the claim that Deputy Captain Snider responded to administrative remedy complaints in a racist manner; (c) the claims that since November 13, 2007, several prison officials have caused Plaintiff to be assaulted by at least three cellmates; that on August 8, 2009, Lt. Galletia used excessive force on Plaintiff; and that on November 13, 2009, Plaintiff was assaulted by a cellmate whom Lt. Galletia had placed with Plaintiff; and (4) the claim that Plaintiff should have been transferred for safety reasons.

3. Plaintiff is granted twenty-one days to file an amended complaint. If Plaintiff fails to do so, this action will only proceed on the claim against Warden Bledsoe and unknown defendants that Plaintiff was unconstitutionally placed in ambulatory restraints on four occasions.

4. The amended complaint must be complete in all respects and must be a new pleading which stands by itself as an adequate complaint without reference to the complaint already filed.

5. If Plaintiff handwrites the amended complaint, Plaintiff must handwrite it in a printed fashion rather than use a cursive style. If Plaintiff uses a cursive style, the amended complaint will be dismissed.

Ray Lee Holley, Jr., Pound, VA, pro se.

Susan Foster Barr, Office of the Attorney General, Richmond, VA, for Defendants.

MEMORANDUM OPINION

GLEN E. CONRAD, District Judge.

*1 This civil rights action, filed under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5, is before the court upon the Report and Recommendation of the United States Magistrate Judge, prepared pursuant to 28 U.S.C. § 636(b). The magistrate judge recommends that the court grant defendants' motion for summary judgment in part and deny it in part. Defendants have filed one objection and a supplemental motion for summary judgment, while plaintiff has filed several objections to the report. Upon de novo review of the portions of the report and the record pertinent to the objections, the court adopts portions of the report, consistent with this memorandum opinion, and grants defendants' motions for summary judgment.

I. Background

Plaintiff Ray Lee Holley, Jr., an inmate in the segregation unit at Red Onion State Prison who is proceeding pro se, brings this civil rights complaint, pursuant to 42 U.S.C. § 1983. He alleges three groups of claims concerning:

(a) the confiscation of religious materials necessary for his practice of his professed religion, the Nation of Gods and Earths (also known as the Five Percent Nation of Islam or Five Percenters),1 in violation of the Constitution, RLUIPA, the Virginia Constitution, and state law;

(b) denial of his request to receive the Common Fare Diet (CFD) in keeping with his religious beliefs, in violation of the Constitution, RLUIPA, and the Virginia Constitution; and

(c) his being held in ambulatory restraints for 48 hours (from September 29 to October 1, 2007), in violation of the Eighth Amendment, the Virginia Constitution, and state law.

Defendants moved for summary judgment, and plaintiff responded. The court found that Holley had alleged facts which, liberally construed, stated constitutional and RLUIPA claims. (Mem.Op. Oct. 1, 2009.) Therefore, the court denied the motion on the ground of qualified immunity and referred the matter to the magistrate judge. After amendment of the complaint and completion of discovery, the magistrate judge issued her report, recommending that defendants' motions for summary judgment be granted in part and denied in part.

II. Discussion

In a report pursuant to § 636(b), the magistrate judge makes only recommendations to the court. The recommendations have no presumptive weight, and responsibility for making a final determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270-71, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged with making a de novo review of those portions of the report to which specific objection is made, and may "accept, reject, or modify, in whole or in part, the findings or recommendations" of the magistrate judge. 28 U.S.C. § 636(b)(1). In the absence of specific objections to the report, the court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir.1983).

*2 Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is properly granted if "there is no genuine issue as to any material fact and the . . . moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). For a party's evidence to raise a genuine issue of material fact to avoid summary judgment, it must be "such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party. Terry's Floor Fashions, Inc. v. Burlington Indust., Inc., 763 F.2d 604, 610 (4th Cir.1985).

A. Classification of Five Percenters as a Security Threat Group (STG)

The magistrate judge recommends granting defendants' motion for summary judgment as to any claim that the Virginia Department of Corrections' (VDOC) designation of the Five Percenters as an STG violates Holley's right to free exercise of his religious beliefs under the First Amendment. (Report 7-9, 27.) Although his complaint raises arguments that Five Percenters are not a security threat, Holley does not object to this portion of the report. Moreover, he now expressly asserts that he "does not challenge the VDOC's security threat group classification" of the Five Percenters. (Dkt. No. 115 at 2.) Accordingly, the court will adopt this portion of the report without further discussion and will grant defendants' motion for summary judgment as to any aspect of Holley's complaint asserting that the VDOC's classification of the Five Percenters as an STG is unconstitutional or otherwise unlawful. Id. See also In re Long Term Admin. Segregation of Inmates Designated as Five Percenters, 174 F.3d 464, 468 (4th Cir.1999) (upholding South Carolina prison policy designating Five Percenters as an STG and requiring that STG members remain in long-term segregated confinement).2

B. Confiscation of Religious Publications

1. First Amendment

The magistrate judge recommends that defendants' motion for summary judgment be granted as to Holley's claim that confiscation of his religious materials violated his rights under the First Amendment. (Report 9-10.) She assumes for purposes of the report, without making a factual finding, that the Five Percenters are a religious group entitled to First Amendment protections.3 She recommends granting summary judgment, however, based on this court's decision in Cartwright v. Meade, in which the court held that confiscation of Five Percenter materials pursuant to the VDOC's zero tolerance policy regarding gangs and gang identifiers is rationally related to furtherance of a legitimate penological interest. Case No. 7:08CV00250, 2008 WL 2944668 (W.D.Va. July 31, 2008) (unpublished) (citing other cases).

Holley objects to this recommendation. He argues that a genuine issue of material fact remains in dispute as to whether Five Percenters literature itself poses a threat to prison order, whether a blanket ban against inmates' possessing such literature, regardless of content, furthers prison security, and whether defendants considered the religious nature of his materials before confiscating them. Holley states that the official literature of the Five Percenters as a whole is called "The 120°," also known as "The Book of Life." According to plaintiff, this publication does not advocate violence and is as essential to the exercise of his faith as the Koran is to the Islamic faith, the Bible to the Christian faith, and the Torah to the Jewish faith. Among his exhibits, he offers replicas of the Five Percenter items taken from his cell and confiscated as gang-related.FN4 He asserts that the confiscated lessons are the only means of spiritual guidance he has available to him as a VDOC inmate, since STG designation prohibits him and other Five Percenters from meeting or corresponding with each other or with religious advisors or clergy. He asserts that his case is distinguishable from Cartwright. because the inmate plaintiff in that case did not allege that he was precluded from alternative means of practicing his religious beliefs, as Holley alleges. 2008 WL 2944668 at *2 n. 2. The court finds no merit to Holley's objections.

*3 In deference to the expertise of prison officials in managing the difficult challenges of prison administration, even when a prison policy substantially burdens an inmate's ability to practice his religious beliefs, the policy withstands a First Amendment challenge so long as it is rationally related to furtherance of a legitimate governmental interest. O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987); Turner v. Salley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). In Turner, the Supreme Court identified four factors relevant to determining the reasonableness of a challenged prison regulation: (1) whether there is a "valid, rational connection" between the regulation and a legitimate and neutral governmental interest; (b) whether alternative means of exercising the asserted constitutional right remain open to inmates; (c) whether accommodating the asserted right will have a deleterious impact on prison staff, on other inmates, and on the allocation of limited prison resources; and (d) whether the regulation represents an "exaggerated response" to prison concerns, as reflected by the presence of less restrictive alternatives that impose only "de minimis cost to valid penological interests." FN5 Id. at 89-91. "Where . . . prison administrators draw distinctions between publications solely on the basis of their potential implications for prison security, the [regulation is] `neutral'" as required under the first Turner factor. Thornburgh v. Abbott, 490 U.S. 401, 415-16, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989).

Defendants' evidence indicates that the VDOC has established a zero tolerance policy for inappropriate or criminal behavior committed by groups of inmates meeting the statutory definition of a criminal street gang:

Va. Code Ann. § 18.2-46.1. Such groups are classified as STGs, and their members are subject to severe restrictions of property or activity related to gang membership or involvement. Specifically, under the VDOC's policy regarding STGs,

*4 (Dkt. No. 34 at 28.) The Five Percenters received STG designation in the VDOC, based on officials' findings that the group is a "separatist hate group that stresses black supremacy" and that the group has disrupted orderly operation of VDOC facilities in the past and actively attempts to recruit members of other STGs.FN6 (Id.)

As stated, Holley expressly does not challenge the VDOC's classification of Five Percenters as an STG. This determination reflects officials' finding that the Five Percenters as a group present the same threats to prison security and order as do other criminal gangs. Holley also does not deny that officers confiscated his "religious" materials only because they were identified as Five Percenters material and not because of the content of the materials. In so doing, in keeping with the first Turner factor, officials furthered a neutral and legitimate security interest in eliminating all indicators of STG association in order to limit gang influence among the prison population at Red Onion State Prison.

In consideration of the second Turner factor, it is true that STG status prevents Holley from practicing some aspects of his religious beliefs that he might be free to practice outside the prison. In his unsworn response to defendants' motion, Holley summarizes those beliefs as a mandate to obtain knowledge, wisdom, and understanding about the "God" within himself by reading and contemplating Five Percenter literature and a duty to educate and enlighten others about the Five Percenter beliefs. Because the Five Percenters are classified as an STG, however, Holley asserts that he is prohibited from possessing any distinctive Five Percenter literature and from meeting or corresponding with other members of the Five Percenters, including religious leaders of the group.FN7 Holley's submissions indicate, however, that his personal religious practice also includes self-reflection and self-development and the study of the Quran and the Divine Constitution of the Moorish Temple of America, inasmuch as the Five Percenters are related to the Nation of Islam and the Moorish Temple.FN8 These practices are not prohibited by the STG policy. Thus, under the second prong of the Turner analysis, while Holley suffers some severe limitations to his ability to practice his Five Percenter beliefs, he does retain other avenues for religious exercise.

Holley believes prison officials should ban only Five Percenter material that specifically advocates violence. Such an accommodation, however, would frustrate the goal of the zero tolerance policy to eliminate all indicators of gang affiliation, and reduce the effectiveness of the policy in combating the dangers that the STG poses to other inmates and staff See In re Five Percenters, 174 F.3d at 470 (noting that because increased freedom for STG members could come "only with the cost of significantly less liberty and safely for everyone else, guards and other prisoners alike," the court properly deferred to judgment of prison officials that Five Percenters should be segregated from general population) (quoting Turner, 482 U.S. at 92-93). Thus, the third and fourth Turner factors weigh heavily in favor of prison officials.

*5 Given that at least three of the Turner factors weigh heavily on the side of defendant officials, the court agrees with the magistrate judge that the VDOC policy banning possession of written materials clearly identified with an STG is rationally related to legitimate penological interests and so withstands constitutional scrutiny under the First Amendment. See Fraise, 283 F.3d at 519 (upholding ban on Five Percenter newspapers against First Amendment challenge where inmates could possess, study, and discuss the "Koran"); Johnson v. Stewart, No. 1:07-cv-77, 2008 WL 828086 (W.D.Mich.2008) (rejecting First Amendment challenge to prison's prohibition against inmates' possession of Five Percenter newspapers as associated with STG); Cooper v. Starling, 2003 WL 23350443 (E.D.N.C.2003) (finding that prison officials' confiscation of medallion bearing Five Percenter symbol of crescent moon and five-pointed star did not violate prisoner's free exercise rights). For the stated reasons, the court will overrule Holley's objections, adopt the report's findings as to his constitutional claims regarding confiscation of his religious materials, and grant defendants' motion for summary judgment as to these claims.

2. RLUIPA

The magistrate judge finds genuine issues of material fact in dispute as to whether the STG policy's ban against Holley's possession of Five Percenter literature imposes a substantial burden on his religious practice and as to whether banning possession of Five Percenter material, regardless of whether the content itself poses a security threat, is the least restrictive means of furthering a compelling governmental interest as required for a RLUIPA claim under 42 U. S.C. § 2000cc(a)(1). (Report 13-14.) Therefore, she recommends denying summary judgment as to Holley's claim that the confiscation of his religious literature violates his rights under RLUIPA. Neither party objects to this recommendation or to the findings and conclusions on which it is based.

The magistrate judge's findings, conclusions, and recommendation regarding the RLUIPA claim, however, were rendered prior to receipt of Holley's concession that he is not challenging the VDOC's classification of the Five Percenters as an STG. Therefore, the court finds it necessary to analyze plaintiffs claims under RLUIPA, de novo.

RLUIPA prohibits governments from taking actions that impose a "substantial burden on the religious exercise of a person residing in or confined to an institution," unless the government demonstrates that imposition of that burden furthers "a compelling governmental interest" by "the least restrictive means." 42 U. S.C.A. § 2000cc-l(a)(l)-(2). Its protections apply to programs or activities that receive federal monies, such as the VDOC.FN9 § 2000cc-l(b)(l); Lovelace v. Lee, 472 F.3d 174, 186 (4th Cir.2006). Under RLUIPA, the inmate plaintiff bears the burden of proving that the challenged prison practice, or the denial of a religious accommodation, places a substantial burden on his exercise of sincere, religious beliefs. § 2000cc-2(b). Once plaintiff carries this burden, the government must prove that the imposition of the burden (or refusal to accommodate plaintiffs belief) furthers a compelling interest by the least restrictive means. Id.

*6 In applying these principles to the facts of Holley's case, the court finds no genuine issue of material fact in dispute as to whether the STG policy furthers a compelling penological interest by the least restrictive means. As stated, Holley does not now challenge the VDOC's classification of the Five Percenters as an STG. Moreover, given the evidence that the Five Percenters have occasioned security concerns in VDOC facilities and have posed longstanding, severe security problems in other prisons around the country, the court concludes that the stated security interest in limiting the influence and growth of this threat group among the VDOC inmate population is compelling. Furthermore, the court concludes that the aspect of the STG policy prohibiting inmates from affiliating with a gang or from possessing any materials indicating gang affiliation furthers the stated security interest. Logic dictates that if inmates cannot easily identify which of their number are members of a particular gang, the influence of the gangs will be decreased.

Holley's RLUIPA argument is that banning all Five Percenter publications does not further the prison's interest by the least restrictive means, because the content of the publications does not pose a security threat. This argument ignores the fact that the documents seized from Holley are themselves closely identified with the Five Percenters group, just as the color-coded clothing worn by well-known city gangs, like the Bloods and the Crips, indicates membership in, or support for, those gangs. Holley's mere possession of the confiscated items, regardless of their written content, identified him as an STG member or supporter, thereby furthering the presence and influence of the STG itself Allowing him to designate a friend or family member to receive the confiscated materials, as Holley requests, would deprive officials of the opportunity to use the materials in further investigation of Holley and other Five Percenter inmates and would leave open a risk that the literature would be returned to him surreptitiously. The court agrees that permitting possession of such distinctive Five Percenter literature would undermine the effectiveness of the STG policy in reaching its goal to eliminate all indicia of gang affiliation as a means of eliminating the gangs' power and the dangers that accompany gang activity in prison. Holley retains the ability to practice other aspects of his beliefs, as discussed herein. Therefore, the court finds no genuine issue of material fact in dispute and concludes that defendants are entitled to summary judgment as a matter of law as to Holley's claim that confiscation of his religious materials violated RLUIPA.

3. Other claims

Holley does not object to the magistrate judge's recommendation that defendants' motion for summary judgment be granted as to his claims that confiscation of his Five Percenter literature violated the Equal Protection Clause or the Due Process Clause. (Report 14-16.) Therefore, the court will adopt this portion of the report and grant summary judgment for defendants as to these claims.

*7 Holley objects to the magistrate judge's recommendation that the motion for summary judgment be granted as to Holley's claim that confiscation of his literature violated the due process, equal protection, and free exercise provisions of the Virginia Constitution, Article 1, §§ 11 and 16. (Report 16-17.) This objection has no merit. Virginia courts have "consistently held that the protections afforded under the Virginia Constitution are co-extensive with those in the United States Constitution." Rowley v. Commonwealth, 48 Va.App. 181, 629 S.E.2d 188, 191 n. 2 (Va.App.2006) (omitting citations). Therefore, the court will adopt this portion of the report and grant defendants' motion for summary judgment as to Holley's state constitutional claims regarding confiscation of his literature.

Defendants are also entitled to summary judgment as to Holley's related state law claim that the unlawful confiscation of his religious literature constituted conversion of his property.FN10 Conversion occurs after "the wrongful assumption or exercise of the right of ownership over goods or chattels belonging to another in denial of or inconsistent with the owner's rights." Economopoulos v. Kolaitis, 259 Va. 806, 528 S.E.2d 714, 719 (Va.2000) (emphasis added). Because the court has determined that confiscation of Holley's literature was not "wrongful" under the constitution and RLUIPA, he cannot maintain an action for conversion of that material. Id.

C. Denial of the Common Fare Diet (CFD)FN11

1. First Amendment and RLUIPA

In Paragraph 26 of a numbered list entitled "Proposed Findings of Fact and Conclusions of Law" at the end of the report, the magistrate judge states that defendants' motion "should be denied insofar as Holley claims the denial of the CFD violated his constitutional rights or his rights under the RLUIPA." (Report 29.) (emphasis added). Defendants object to this recommendation, arguing that it is inconsistent with the magistrate judge's analysis and findings elsewhere in the report, indicating that defendants' motion should be granted as to Holley's claims under federal law regarding the denial of the CFD. (See Report 24-26, 29 ¶ 25.) In these earlier sections of the report, the magistrate judge finds that Holley had failed to present facts to prison officials or the court in support of his allegation that denial of the CFD meals imposed a substantial burden on his religious beliefs, an essential element of a claim under the Free Exercise Clause or RLUIPA. (Id.) Defendants ask the court to reject No. 26 of the listed findings on page 29 of the report, to adopt the earlier findings, and grant summary judgment as to the CFD claims. After de novo review, the court concludes that defendants' objection must be sustained.

Inmates have a constitutional right and a statutory right under RLUIPA to receive a nutritious diet in keeping with their sincere religious beliefs. Lovelace v. Lee, 472 F.3d 174, 198-99 (4th Cir.2006); Ross v. Blackledge, 477 F.2d 616, 618-19 (4th Cir.1973). To succeed on a constitutional or RLUIPA claim in this context, however, an inmate must first demonstrate that the diet choices already provided to him by the prison substantially burden his religious practice.FN12 See Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 450, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988) ("[I]ncidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs" are insufficient to state a claim under Free Exercise Clause); Lovelace, 472 F.3d at 187 (defining RLUIPA term "substantial burden" as one that "puts substantial pressure on an adherent to modify his behavior and to violate his beliefs") (omitting citations).

*8 Holley first applied for the CFD in January 2008, stating that his religion, Nation of the Gods and Earths, required him to "refrain from eating the processed meats and unnaturally grown foods served in the regular [VDOC] diet." (Dkt. No. 34 at 74-75.) In his application, he explained that the Nation of the Gods and Earths "is a sect of the Moorish Science Temple of America and is similar but slightly different from the Nation of Islam. But we do adhere to some of the teachings and practices of the Hon. Elijah Muhammad." (Id. at 74.) The CFD application form asked for documentation explaining and verifying his religious need to participate in the CFD. In response, Holley stated, "Yes, I have the Moorish Science Temple Divine Constitution and By—Laws. I also possess a Holy Quran which strictly prohibits the consumption of a lot of foods served in the regular diet." (Id.) Holley also stated that "the Divine Constitution is clear in its teachings that members are to keep their bodies clean and pure with water and refrain from all forms of pork and foods which are unnaturally grown." (Id. at 75.) He explained on the form that for the past several years at various VDOC institutions, he had received the vegetarian menu, but had eaten only the bread and vegetables.

The initial hearing officer and the warden both disapproved Holley's CFD request, stating as a rationale: "God of Earth is not a religion." (Id. at 72.) Holley appealed, and the Central Classification Services (CCS) representative also disapproved his CFD request, stating that CCS personnel had concluded from Holley's submissions that his request was not "religiously motivated," based on "[flack of adequate documentation that the religion to which you claim membership or interest has a requirement for the Common Fare Diet. Further, this religion is not recognized by the DOC."FN13 (Id. at 73.)

Holley reapplied to participate in the CFD program in August 2008.FNI4 (Id. at 78-79.) This time, he described his religion as Nation of Islam and stated that he had been practicing this religion for almost four years. The warden approved him to receive the CFD. The CCS representative deferred the request on October 2, 2008, however, because Holley had listed a different religious preference in his January 2008 application for CFD participation. The CCS representative stated:

(Id. at 78.)

The record thus reflects that when Holley first applied for participation in the CFD in January 2008, his documentation did not include any literature on the Nation of Gods and Earths (Five Percenters) which indicated that adherents of that belief system should eat foods consistent with the CFD menu. Holley's application mentioned documentation from related religious groups, but did not explain the relationship between the dietary laws of these other groups and those of his stated religious preference. He also failed to explain in his application why he could not meet his religious dietary needs by continuing to receive the VDOC vegetarian menu. As he thus failed to demonstrate to VDOC decision makers that denial of the CFD substantially burdened his ability to practice his stated religion, neither the First Amendment nor RLUIPA required defendants to accommodate his dietary preference.FN15 Lovelace, 472 F.3d at 187. Accordingly, the court concludes that defendants are entitled to summary judgment as a matter of law as to Holley's claims that denial of the CFD violated his rights under the First Amendment and RLUIPA. Defendants' objection to the magistrate judge's contrary recommendation will be sustained, and defendants' motion for summary judgment will be granted as to these claims.

2. Other claims

*9 The magistrate judge makes a separate finding that denial of Holley's request for CFD participation did not violate the Equal Protection Clause of the Fourteenth Amendment. (Report 291 ¶ 24.) Her recommendation, however, states that defendants' motion should be denied as to Holley's "constitutional" claims related to his religious diet. (Id. at ¶ 26.) Earlier portions of the report discussing Holley's dietary claims, however, reflect sound reasoning in support of granting summary judgment on the Equal Protection claim, as well as the First Amendment and RLUIPA claims. Therefore, the court concludes that the magistrate judge's recommendation on page 29 to deny summary judgment as to the constitutional claims is a typographical error. Based on her finding that Holley suffered no equal protection violation when his CFD request was denied, the court will grant defendants' motion for summary judgment as to this claim.

Holley also asserts that denial of his CFD request violated his rights under Article 1, §§ 11 and 16 of the Virginia Constitution—the equal protection and free exercise provisions of this document. Defendants filed a supplemental motion for summary judgment as to these claims. Holley received notification of this motion as required under Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975) and has responded. He argues that defendants waived their defense by failing to address the state constitutional claims in their earlier motion. The court finds, however, that granting leave for defendants to pursue their supplemental motion furthers the interests of justice and judicial economy. Inasmuch as the court has determined that Holley has not established that denial of his initial CFD request violated his rights under the Equal Protection Clause or the Free Exercise Clause of the United States Constitution, he cannot succeed on his claim that denial of the diet violated his rights under the analogous provisions of the Virginia Constitution. Rowley. 629 S.E.2d at 191 n. 2 (finding that Virginia Constitution provides protections "co-extensive with those in the United States Constitution"). Therefore, the court will grant defendants' supplemental motion for summary judgment as to Holley's state constitutional claims regarding his religious diet.

D. Use of Ambulatory Restraints

Holley makes specific objections (1) to the magistrate judge's findings that he does not show sufficient injury to sustain Eighth Amendment claims for monetary damages for unconstitutional living conditions or excessive force related to defendants' use of ambulatory restraints,FN16 (2) to her finding that he failed to state a due process claim related to defendants' use of ambulatory restraints, and (3) to her recommendation that summary judgment be granted for defendants as to these claims. Accordingly, the court must review these claims de novo.

1. Facts and Allegations

On September 29, 2007, at approximately 10:30 a.m., a prison official reported that Holley had been observed smoking on the recreation yard.FN17 Staff escorted him to the shower and conducted a strip search. Officers reported finding a tobacco product in Holley's back pocket and confiscated it. While the inmate remained in the shower stall, staff conducted a shakedown of his cell to determine if he possessed additional tobacco or other contraband. Officers searched and inventoried Holley's property, and in the process, they found and confiscated tobacco items and a folder of written materials that they classified as "gang-related."FN18

*10 A short time later, around 12:30 p.m., staff reported to Sgt. Hale that Holley had flooded his cell and covered his cell window. Officers turned off the water to Holley's cell. Sgt. Hale went to the cell and ordered Holley to uncover his window, but Holley did not comply. Lt. McCoy repeated the order for Holley to uncover his window, but the inmate did not comply. Holley had also blocked his tray slot, so officers could not see whether he had anything in his hands. Advised of the situation, Administrative Duty Officer Assistant Warden Rowlette authorized placing Holley in ambulatory restraints because of his disruptive behavior. Officers contacted medical and mental health staff, who advised that there were no medical or mental health reasons preventing the use of ambulatory restraints on Holley.FN19

Lt. McCoy and a cell extraction team gathered at 12:55 p.m. in front of Holley's cell. Lt. McCoy ordered Holley to back up to the tray slot so that handcuffs could be applied to his wrists. Holley uncovered his window and backed up to the tray slot as ordered. Officers escorted him into the vestibule, where they ordered him to remove his clothing and footwear and gave him a safety smock to put on. He did so. Then, he knelt as ordered to allow the officers to apply leg irons to his ankles. Meanwhile, other officers cleaned and sanitized Holley's cell and removed his property, including his mattress, as required for strip cell status.

VDOC regulations state that ambulatory restraints are used to control assaultive, disruptive, or unmanageable inmates in situations where there is danger for them to injure themselves or others. The restraints are not to be used as punishment and are to be removed as soon as the inmate's disruptive behavior has ceased and officers determine that he is no longer a danger to himself or others. In any event, such restraints must be removed after 48 hours absent approval from the regional director.

An inmate in ambulatory restraints has his hands cuffed in front, double locked, with a black box covering the center keyhole portion of the cuffs. He also wears leg irons, with a security waist chain running through the black box on the handcuffs and down to the leg irons. The medical unit must advise security officers whether any medical reason prevents use of ambulatory restraints, and a nurse must examine the inmate to ensure that the restraints are appropriately applied and that two fingers can be placed under each cuff. Defendants maintain that an inmate in ambulatory restraints can stand completely upright, move around his cell, use the bathroom, wash himself, and eat, but cannot lift his arms above his head, swing his arms, or kick his feet. Holley asserts, however, that the ambulatory restraints prevented him from standing upright, which "caused tremendous back pain and muscle stiffness/soreness from days of having to lean forward to move around." (Dkt. No. 57 at 54.) He also asserts that the black box over the handcuffs "significantly restricts movement of the arms and wrist and causes severe muscle stiffness." (Id.)

*11 Defendants state that an inmate in ambulatory restraints in strip cell status can request soap or toilet paper from staff when needed. These items are not left in the cell, however, to prevent inmates from using them for disruptive activities, such as covering the cell window or stopping up the sink or toilet. Policy states that if the water to the inmate's cell is turned off while he is in ambulatory restraints, it should be turned back on every two hours, before meal breaks. Defendants also state that the water will be turned on if the inmate requests to wash himself or use the toilet. Defendants state that an inmate on ambulatory restraints is to be offered the use of a mattress at sleep time, approximately 10:00 p.m. each night. If he accepts the mattress, it will be removed from the cell the following morning at about 6:00 a.m.

After officers placed Holley in ambulatory restraints on September 29, 2007, a nurse checked the restraints. She was able to place two fingers under each cuff and noted that Holley did not voice any complaints to her. While Holley was in ambulatory restraints, staff checked on him every fifteen minutes and noted his status in a logbook. The cell check log for September 29 to October 1, 2007 included at least ten notations of Holley's disruptive behavior observed during status checks, including use of profanity toward staff, threatening staff with bodily harm if he was released, and nonverbal actions such as banging his restraints on items in his cell. The log book included notations indicating that at 10:00 p.m. on September 29 and 30, 2007, staff members offered Holley a mattress, but he refused it.

Inmates in ambulatory restraints are provided three meals per day on a tray that includes an eating utensil (a "spork") wrapped in a napkin. In some cases, the spork is omitted for mental health reasons. Records do not indicate that Holley received a special meal tray for mental health reasons while in restraints, so defendants' evidence is that he would have received a spork with his meals.

In his complaint and his response to defendants' motion, Holley alleges that he was held in ambulatory restraints for two days in a cold cell without adequate clothing, bedding, eating utensils, toilet paper, soap, other hygiene products, or running water; that he had difficulty sleeping "because of the agonizing stiffness of his muscles and the cold temperature" in the cell; and that he was unable to wipe himself or wash his hands after using the toilet, thereby exposing him to a serious risk of a bacterial infection.FN20 (Dkt. No. 1 at 16-26; Dkt. No. 57 at 52-79.) He alleges that on both nights during the restraint period, he asked officers for a mattress, but was not provided with one. Holley admits that he flooded his cell and that he initially did not comply with orders to back up to the tray slot to be handcuffed. He denies, however, that he displayed any disruptive behavior while he was being placed in ambulatory restraints, that he used vulgar language or made threats against staff while in ambulatory restraints, or that he banged the restraints on anything in his cell. Holley further asserts that defendants' status check notes indicating that he engaged in disruptive behavior while in restraints are "completely untrue." (Dkt. No. 57 at 63.)

*12 Officers released Holley from ambulatory restraints on October 1, 2007, at approximately 10:10 a.m. A nurse checked him and noted that he had no injuries. Holley complained to the nurse about pain and swelling in his wrist. She did not note any swelling, but advised Holley to use warm compresses. The swelling went away within two or three days. Plaintiff states that he also experienced "severe muscle stiffness, pain, and extreme soreness and tenderness in his back, neck (from prolonged sitting or laying in awkward positions), wrists, and ankles" for about ten days. (Id. at 65.) Holley admits that he did not seek additional medical treatment in order to avoid being charged for it.

2. Eighth Amendment Claims

It is well established that "the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). Claims under the Eighth Amendment have two components: (1) the objective component, whether a prison official's alleged wrongdoing was "objectively harmful" enough to establish a constitutional violation, and (2) a subjective component, whether the official "act[ed] with a sufficiently culpable state of mind." Id. at 8 (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). The showing required for each of these components varies with the context in which the plaintiffs claim arises, and the nature of the objective component requires comparison to "contemporary standards of decency" in that context. Id. at 8.

a. Conditions

In the context of prison living conditions, an inmate must establish by a preponderance of the evidence that the prison official acted with deliberate indifference (subjective component) to a substantial risk of harm (objective component). Id. "To the extent that [prison living] conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." Rhodes v. Chapman. 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). To prove deliberate indifference, the inmate must show that the official was aware of facts from which he could draw an inference that a substantial risk of harm existed, that he actually drew that inference, and that he disregarded the risk by failing to take "reasonable measures" to alleviate the risk. Farmer v. Brennan, 511 U.S. 825, 835-37, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). "[T]o demonstrate that a deprivation is extreme enough to satisfy the objective component of an Eighth Amendment [conditions] claim, a prisoner must produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions." Shakka v. Smith, 71 F.3d 162, 166 (4th Cir.1995) (omitting internal quotations).

The length of confinement under the challenged conditions is also a factor to be considered. Hutto v. Finney, 437 U.S. 678, 686, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (noting that confinement in "a filthy, overcrowded cell and a diet of [1000 calories per day] might be tolerable for a few days and intolerably cruel for weeks or months"). Cf. Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (finding that inmate's allegations of being handcuffed to hitching post in hot sun for seven hours in awkward position with limited access to bathroom facilities and drinking water, as punishment after being disruptive during a work detail, satisfied subjective and objective elements of Eighth Amendment conditions claim); Beverati v. Smith 120 F.3d 500, 505 n. 5 (4th Cir.1997) (finding that inmates' alleged confinement for six months in unbearably hot cells, infested with vermin and smeared with urine and feces, with only cold food in smaller portions, less frequent changes of linen and fewer opportunities for recreation than the general population, did not state Eighth Amendment conditions claim based on lack of evidence that conditions "resulted in serious physical or emotional injuries or the grave risk of such harm").

*13 Holly objects to the magistrate judge's finding that he fails to demonstrate injury. He points specifically to his allegations that being in awkward positions, without adequate heat, clothing, or bedding, caused severe muscle pain and stiffness for ten days. He also reemphasizes the evidence that he received no toilet articles, hygiene products, eating utensils, or running water, without penological justification as he was allegedly not misbehaving in any way, and that these conditions caused severe emotional pain and exposure to bacterial infection.

The court finds no merit to Holley's objection. Unlike the plaintiff in the Hope case, 536 U.S. at 730, Holley was free to change position extensively while in restraints, as he could stand or sit or recline on his bunk. If he chose to remain in awkward positions, he cannot blame his sore muscles on defendants. By his own admission, the injury to his wrist caused by the handcuffs did not require medical treatment and subsided completely within days. This evidence simply does not support a finding that the ambulatory restraints caused Holley any significant or serious injury, as required to state an Eighth Amendment conditions claim.FN21 Shakka, 71 F.3d at 166.

Similarly, unlike the Hope case, Holley had regular access to food and liquids, could deposit his bodily waste in a toilet, and was not exposed to the hot sun without protection. He fails to demonstrate that any of the strip cell conditions, including deprivation of mattress and eating utensils, caused him anything more serious than temporary discomfort and embarrassment. The emotional effect of not being able to wipe himself, direct his urine, or eat with utensils does not compare with the level of humiliation at issue in Hope, where the inmate had no independent access to a toilet. Id. Simply put, the conditions and emotional stress Holley faced in ambulatory restraints are more analogous to the type of temporary discomforts and inconveniences at issue in the Beverati case, which the Fourth Circuit expressly found insufficient to support an Eighth Amendment conditions claim. 120 F.3d at 505 n. 5. While the Beverati inmates were not cuffed and shackled, they were subjected to the adverse conditions for a much longer period of time than Holley. For these reasons, Holley's objection must be overruled. The court will adopt the portion of the magistrate judge's report finding that Holley suffered no serious or significant physical or emotional injury as a result of the conditions to which he was subject in ambulatory restraints and will grant defendants' motion for summary judgment as to this claim.

b. Excessive Force

In the context of excessive force, the appropriate inquiry for the subjective component of an Eighth Amendment claim is whether the prison official "applied [force" in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Hudson, 503 U.S. at 6-7. The court must consider such factors as the amount of force used as related to the need for force, the threat reasonably perceived by the officers, and any attempts the officers made to "temper the severity of a forceful response." Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir.1996).

*14 To prove the objective component of his excessive force claim, the inmate "must show that correctional officers' actions, taken contextually, were `objectively harmful enough' to offend `contemporary standards of decency.'" Stanley v. Hejirika, 134 F.3d 629, 634 (4th Cir.1998) (quoting Hudson, 503 U.S. at 8). The objective component of an excessive force claim "can be met by the pain itself, even if an inmate has no enduring injury." Williams, 77 F.3d at 762 (omitting internal quotations). On the other hand, "[t]he Eighth Amendment's prohibition of `cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort `repugnant to the conscience of mankind.'" Hudson, 503 U.S. at 9-10 (omitting citation). "From the nature of an imnate's injury or lack of injury, the court may draw inferences "as to whether the use of force could plausibly have been thought necessary, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur." Whitley, 475 U.S. at 321. Prison administrators are entitled to broad deference in determining what policies and practices are necessary to preserve or restore security and order. Stanley, 134 F.3d at 634.

In short, the "core judicial inquiry [is] . . . the nature of the force—specifically, whether it was nontrivial and was applied . . . maliciously and sadistically to cause harm." Wilkins v. Gaddy, ___ U.S. ___, 130 S.Ct. 1175. 1179, ___ L.Ed.2d ___ (2010). The extent of the injury the inmate suffered is relevant to both of these determinations: as a factor in determining "whether use of force could plausibly have been thought necessary in a particular situation" and as "some indication of the amount of force applied." Id. at 1178.

The magistrate judge correctly finds that failure to show serious injury does not, by itself, preclude an excessive force claim. Wilkins, 130 S.Ct. at 1180. Taking the evidence in the light most favorable to Holley, the court concludes, however, that the only reasonable inference to be drawn from the type and extent of the injuries Holley has proven is that application of ambulatory restraints for 48 hours is not a use of force that offends contemporary standards of decency so as to satisfy the objective component of an excessive force claim. It is undisputed that the restraints are designed and applied to limit an inmate's movements and not to inflict any measure of physical harm on him. The restraints themselves do not prevent the restrained inmate from changing position, stretching his muscles, eating his meals, sleeping, or using the toilet. To the extent that the restraints make these functions less comfortable and more difficult to execute effectively, they fall squarely among those conditions of prison life that are "restrictive and even harsh" without rising to the level of unconstitutional punishment. Rhodes, 452 U.S. at 347. In response to an inmate's admittedly disruptive misconduct, a temporary limitation of an inmate's access to hygiene products, bedding, eating utensils, and freedom of movement, which causes the inmate no physical injury other than temporary discomfort and embarrassment, simply cannot qualify as a use of force that is "repugnant to the conscience of mankind."FN22

*15 Because Holley fails to present evidence establishing the objective component of his excessive force claim, defendants are entitled to summary judgment on this claim without further consideration of the subjective component of the claim. As such, the disputes between the parties concerning Holley's conduct before and during the restraint period are not material to the court's decision here. Even if Holley, once restrained, did not exhibit any further physical or verbal behavior suggesting he would injure himself or others if not restrained, the nature of the restraints themselves and their temporary application did not result in more than a de minimis amount of force and were therefore not objectively harmful enough to support an excessive force claim.FN3 The court will grant defendants' motion for summary judgment as to this claim.

3. Due Process

The magistrate judge recommends granting summary judgment as to Holley's claim that defendants violated his due process rights, in reliance on precedent from this court. See Johnson v. O'Brien, Case No. 7:08CV00022 (W.D.Va.2009) (finding no due process violation where inmate was held six hours in ambulatory restraints and three days in a stripped cell without a hearing). Holley objects, asserting that he was entitled to a hearing at some point during the 48—hour restraint period, in order to demonstrate that the restraints were no longer warranted by his conduct. He argues that confinement in restraints for two days, coupled with the stripped cell conditions, was "atypical" so as to give rise to due process protections. The court cannot agree.

A prisoner has no constitutionally protected liberty interest in remaining in a particular housing assignment. See Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir.1991). Changes "in a prisoners' location, variations of daily routine, changes in conditions of confinement (including administrative segregation), and the denial of privileges [are] matters which every prisoner can anticipate [and which] are contemplated by his original sentence to prison." Id. at 343. Liberty interests can arise from two sources, the Due Process Clause itself and state law. Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The Due Process Clause may create a liberty interest when the restraint imposed upon an inmate exceeds his sentence in an "unexpected manner." Id. State prison policies may also create liberty interests that are protected by the Due Process Clause when they "impos[e][an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484-86 (holding that prisoner had no liberty interest in being free from segregated confinement because it did not exceed his sentence or constitute an atypical, significant deprivation under state prison regulations).

To determine whether an inmate possessed a liberty interest protected by the Due Process Clause in avoiding a form of restraints, the court must "compare the conditions to which [he was] exposed in [the challenged restraints] with those [he] could expect to experience as an ordinary incident of prison life." Beverati, 120 F.3d at 503. Despite dire conditions that the inmate plaintiffs in the Beverati case allegedly suffered in administrative segregation, the court found that while the conditions "were more burdensome than those imposed on the general prison population, they were not so atypical that exposure to them for six months imposed a significant hardship in relation to the ordinary incidents of prison life." Id. at 504.

*16 The Fourth Circuit has affirmed at least two judgments in which this court held that relatively lengthy periods in ambulatory restraints and confinement under conditions similar to those alleged by Holley were not so atypical as to create a protected liberty interest. See Madison v. Kilbourne, Case No. 7:04CV00639, 2006 WL 2037572, *6 (W.D.Va.2006) (Turk, J.) (finding no due process violation where inmate was held in ambulatory restraints for 14 hours without a hearing), aff'd on this ground, vacated in part and remanded as to another claim. 228 Fed. App'x 293, *1 (4th Cir.2007); Moore v. Miller, Case No. 7:08CV00614, 2009 WL 113258 (W.D.Va.2009) (Conrad, J.) (finding no due process violation where inmate was held in ambulatory restraints for 26 hours without a hearing), aff'd, 349 Fed App'x 815 (4th Cir.2009).

Holley offers nothing to support a different holding in this case. As a segregation inmate at a maximum security prison, he is in leg irons with his hands cuffed behind his back, every time he leaves his cell, where he spends 23 out of 24 hours per day, unless he is in another secure area, such as the shower or recreation cage. When an inmate is transported to a situation where he needs to be in a sitting position in a chair, such as an attorney visit or a dental examination, supervisory officials may approve restraining him with his hands cuffed in front of his body and attached to a waist chain. Compared to an environment where such restrictive conditions are a daily occurrence, even for administrative reasons absent an inmate's misconduct, the court cannot find that the additional, temporary restriction of ambulatory restraints, which cause no physical injury and allow extensive freedom of movement, is so atypical as to "impose a significant hardship in relation to the ordinary incidents of life." Beverati, 120 F.3d at 504.

For the stated reasons, the court will overrule Holley's objection, adopt the portion of the report addressing this claim, and grant defendants' motion for summary judgment as to the Due Process claim regarding ambulatory restraints.

4. State Law Claims

Defendants did not move for summary judgment as to Holley's state law claims related to the ambulatory restraints incident.FN4 As the court has determined, however, that defendants are entitled to summary judgment as to Holley's claims under federal law, the court declines to exercise supplemental jurisdiction over any state law claims which were raised in the complaint, but were not addressed in defendants' motions for summary judgment. Such claims will be dismissed without prejudice, pursuant to 28 U.S.C. § 1367(c).

III. Conclusion

For the stated reasons, the court will adopt the portions of the magistrate judge's report that are consistent with this memorandum opinion, and will grant defendants' motions for summary judgment as to all of plaintiffs claims under federal law. An appropriate order will issue this day.

*17 The plaintiff is advised that he may appeal this decision pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure by filing a notice of appeal with this court within 30 days of the date of entry of this memorandum opinion and the accompanying order, or within such extended period as the court may grant pursuant to Rule 4(a)(5).

The Clerk is directed to send copies of this memorandum opinion and the accompanying final order to plaintiff and counsel of record for defendants.

FINAL ORDER

In accordance with the accompanying memorandum opinion, it is hereby

ADJUDGED AND ORDERED

as follows:

1. After de novo review of the portions of the Report and Recommendation of the United States Magistrate Judge to which the parties have objected, plaintiffs objections are overruled; defendants' objection is sustained, the Report (Dkt. No. 108) is ADOPTED to the extent that it is consistent with the accompanying memorandum opinion; and defendants' motions for summary judgment (Dkt. Nos. 33, 94, and 110) are GRANTED;

2. Plaintiffs supplement claims under state law that are not addressed in defendants' motions for summary judgment are DISMISSED without prejudice, pursuant to 28 U.S.C. § 1367(c); and

3. This action is stricken from the active docket of the court.

The clerk shall send a certified copy of this final order and the accompanying memorandum opinion to plaintiff and to counsel of record for the defendants.

Terry J. Moore, Pound, VA, pro se.

MEMORANDUM OPINION

GLEN E. CONRAD, District Judge.

*1 Plaintiff Terry J. Moore, a Virginia inmate proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983, with jurisdiction vested pursuant to 28 U.S.C. § 1343. In his complaint, plaintiff alleges that the defendant prison officials at Red Onion States Prison ("Red Onion") used excessive force against him and deprived him ofliberty interests without due process when they held him in ambulatory restraints for 26 hours. He seeks monetary, declaratory, and injunctive relief. Upon consideration of the complaint, the court finds that this action should be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted.FN1

Background

Moore alleges the following sequence of facts in his complaint. On December 13, 2007, Moore placed his arm in the "chuck hold box" and told Officers Miller, Brown, and Taylor to contact the sergeant for him. The officers leaned on the box, applying pressure to Moore's arm and threatened to put him in ambulatory restraints if he did not remove his arm from the box. Moore refused, using profanity, and said he would not move his arm until he was allowed to speak to the sergeant. This standoff continued for five or ten minutes. Then, Miller threatened to charge Moore with spitting on him. Moore used profanity again, leaned into the crack of the door, and made a spitting sound. Moore explains that the outside of his cell door has a metal belt along its side. He remembers that Miller was standing farthest away from the door crack. However, Miller called Sgt. Day and reported that Moore had spit on him through the door crack. Day told Miller to go to medical to be "checked out." Day then turned to Moore and told him that if he would pull his arm out of the box, Day would speak with him as requested. Moore did so and then spoke with Day for several minutes. Lt. Harrison called over the radio and asked Day if there was a problem. Day said, "Not now," Harrison told Day to place Moore in four-point restraints for spitting on Miller. Day told Harrison that Moore had pulled his arm out of the box as directed, but Harrison confirmed that Assistant Warden Rowlett had ordered four-point restraints for Moore. Day told Moore to "cuff up" to be placed in restraints for spitting on Miller, and Moore complied.

Moore describes the restraint process as follows. First, the inmate is ordered to remove his clothes. Then, he is cuffed and shackled with his hands in front. A chain is wrapped around the cuffs and shackles and secured with a black box over the cuffs. Once the restraint procedure is complete, the officers drape and secure a "suicide blanket" over the inmate, who is left bent slightly at the waist. Once the process is complete, the inmate is escorted to a cell where he remains for a time. Moore believes that the ambulatory restraints are used only when an inmate poses a threat to himself, another individual, or property.

*2 After Moore was restrained in this manner, a nurse checked his cuffs, but did not loosen them after Moore told her they were too tight. Moore remained in restraints for approximately 26 hours; he calls it "sadistic torture." About 3:00 p.m., an officer escorting the nurse on pill call noticed that Moore's wrists were bleeding from the cuffs being too tight. Officers then placed Moore in "soft cuff restraints." The restraints were fully removed around 4:00 p.m. on December 14, 2007.FN2

Moore filed an informal complaint to the institutional investigator, who responded that Moore had been charged with two disciplinary infractions in connection with the restraints incident. These charges were never served on Moore and are not "on file."

Moore brings the following claims related to the restraints incident:

1. Placement of ambulatory restraints for spitting out of the side of the door was cruel and unusual punishment.

2. Because Moore received no hearing before being placed in ambulatory restraints, the officers deprived him of liberty without due process.

3. Miller falsely accused Moore of spitting on him through the door crack, and Lt. Harrison and Sgt. Day knew the accusation was false, but nevertheless carried out the punishment as ordered by the assistant warden, which was cruel and unusual punishment and a violation of due process.

Moore seeks monetary damages and an injunction directing that he be transferred to a lower security facility within thirty days from judgment in his favor in this case.

The court filed Moore's complaint conditionally and advised him of the need to amend to state specific facts about the extent of his injuries, what requests he made regarding the tightness of the cuffs, and what responses he received. Moore responded, asserting that he did not need to amend, that he had made a clear statement of his claims.

Discussion

To state a cause of action under § 1983, a plaintiff must establish that he has been deprived of rights guaranteed by the Constitution or laws of the United States and that this deprivation resulted from conduct committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Factual allegations in support of a civil claim must be plausible on its face." Bell Atl. Corp. v. Twombyly, 550 U.S. 544, ___ 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007).

A. Excessive Force

The Eighth Amendment prohibits prison officials from using force unnecessarily and wantonly to inflict pain on inmates. Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). A claim that guards used excessive force against an inmate requires a dual inquiry: (1) the objective nature of the force used and the resulting harm and (2) the subjective intent of the officers. Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). The key inquiry under the subjective prong of this test is "whether the force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. at 8. In making this determination, the court must balance such factors as the need for the application of force, the relationship between the need and the amount of force actually applied, and the extent of injury inflicted. Id. at 7. De minimis injury can be conclusive evidence that the force used was also de minimis and, therefore, not violative of constitutional protections. See Norman v. Taylor, 25 F.3d 1259, 1263 (4th Cir.1994). Thus, absent the most extraordinary circumstances, an inmate cannot prevail on an excessive force claim unless he proves more than de minimis pain or injury. Id. The use of restraints to control prison inmates is not per se unconstitutional. Williams v. Benjamin, 943 F.2d 1572, 761 (4th Cir.1991).

*3 Moore simply does not allege that he suffered any significant injury while in restraints. He complains that the cuffs were too tight and that he immediately complained to the nurse, who checked them and thought they were fine. Later in the day, an officer noticed that Moore's wrists were bleeding and replaced the metal cuffs with soft restraints. Even after the court advised Moore of the need to state specific facts about the nature of his injuries, he failed to do so. Although he refers to ambulatory restraints as "sadistic torture," he fails to state any specific facts in support of this conclusory characterization. He does not allege facts indicating that he suffered anything more than a slight scratch and discomfort from the cuffs. He does not indicate that he sought or required medical treatment at any time during or after the restraint period. In short, Moore fails to allege facts on which he could prove that he suffered more than de minimis injury from his hours in ambulatory restraints. Thus, the court must dismiss his Eighth Amendment claim, pursuant to § 1915A(b)(1), as his allegations fail to support any such claim.FN3 See, e.g., Madison v. Kilbourne, Case No. 7:04CV00639, 2006 WL 2037572, No. *6 (W.D.Va.2006) (finding that 14—hours in ambulatory restraints was not excessive force), affd on this ground, opinion vacated in part and remanded as to other claims, 228 Fed. App'x 293, *1 (4th Cir.2007).

B. Due Process

"The Due Process Clause standing alone confers no liberty interest in freedom from state action taken within the sentence imposed." Sandin v. Conner, 515 U.S. 472, 480, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). (quotation marks and citation omitted). "Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law." Id. at 485. "[T]he Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement." Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005).

Sandin, 515 U.S. at 484. Changes "in a prisoners' location, variations of daily routine, changes in conditions ofconfinement (including administrative segregation), and the denial of privileges [are] matters which every prisoner can anticipate [and which] are contemplated by his original sentence to prison." Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir.1991).

Moore alleges that he should have been afforded a hearing before being placed under the restrictive conditions imposed by the ambulatory restraints for such a lengthy period of time. He admits, however, that he disobeyed a direct order to remove his arm from the box in a defiant attempt to force the officers into allowing him to speak to the sergeant. He also admits that he made a spitting gesture toward Miller, in defiance of Miller's threat to place him in ambulatory restraints, and made threatening and profane remarks to the officers. He admits that ambulatory restraints are used for inmates who pose a threat to others. Balancing these factors, the court cannot find that the ambulatory restraint conditions of which Moore complains were atypical so as to give rise to a protected liberty interest under the circumstances he alleges. The court concludes that he received the exact treatment that his threatening behavior and comments warranted under the established and well known practice of Red Onion as a maximum security prison.FN4 Madison, 2006 WL 2037572, *7 (finding that 14-hour stint in ambulatory restraints did not trigger federal due process right under Sandin). Thus, the application of ambulatory restraints did not trigger any federal due process right to a pre-restraint hearing. The court will dismiss all due process claims accordingly, pursuant to § 1915A(b)(1).

Conclusion

*4 For the stated reasons, the court concludes that the complaint in its entirety must be dismissed, pursuant to §. 1915A(b)(1), as the allegations do not support the elements of the claims Moore asserts. An appropriate order shall be issued this day.

The Clerk is directed to send copies of this memorandum opinion and accompanying order to plaintiff.

James M. Keyes, Jonesville, VA, pro se.

MEMORANDUM OPINION

KISER, Senior J.

*1 Plaintiff James M. Keyes, brings this against federal officials pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), with jurisdiction vested under 28 U.S.C. § 1331. Keyes alleges that the defendants subjected him to cruel and unusual punishment by refusing to house him in a single man cell and then in subsequently placing him in a holding cell in the Special Housing Unit. As relief, Keyes seeks $57,000 in damages. Upon review of the record, I conclude that the plaintiff has not stated a claim upon which relief can be granted and, therefore, dismiss the complaint without prejudice, pursuant to 28 U.S.C. § 1915A(b)(1).

I.

Keyes complains that in February, 2005 he arrived at the United States Penitentiary, Lee County ("USP Lee") and was placed in a two man cell, but did not have a cell mate. However, on August 8, 2005, Keyes was advised that he was going to be transferred to another cell and would be assigned a cell mate. Keyes alleges that he informed correctional personnel that due to "psychological reasons" he could not have a cell mate and physically resisted being removed from his cell and placed in another cell. Because of his resistance, Keyes was temporarily placed in a holding cell with allegedly inadequate shower and restroom facilities.

On August 10, 2005, Keyes claims he was removed from the holding cell, and was placed alone in a two-man cell. However, on August 11, 2005, he requested that Marcus Jones be assigned as his cell mate and, later that day, Jones was reassigned to the same cell. Keyes immediately began complaining to correctional personnel and "forewarn[ed]" the defendants that he was concerned that Jones might attack him or he might attack Jones, even though he admits that Jones was "the son of a good friend" and does not claim that Jones ever threatened him nor that Jones had a propensity for violence. Thereafter, Keyes made repeated requests to be assigned a single man cell or be placed into protective custody, but his requests were denied.

On September 23, 2005, while Jones was asleep, Keyes "pound[ed] Jones with punches." Immediately after assaulting his cell mate, Keyes was taken to the Special Housing Unit ("SHU"), but again he physically resisted being placed into a cell with another inmate. Accordingly, correctional employees placed him in hand and leg restraints attached to a belly chain, and put him in a holding cell which, unlike the other cells in the SHU, had no in-cell restroom or shower facilities. Keyes was released from ambulatory restraints approximately 30 hours later, and was provided with clean sheets and clothing. Keyes remained in the holding cell for 27 days, and alleges that during that time, because there were no restroom or shower facilities, he was required to use a "urine bottle" and "bed pan," had no in-cell showers or opportunities to wash his hands, and lost "approximately" 25 pounds. Keyes also complains that his personal property and hygiene items, including legal materials, were withheld while he was in the SHU. However, Keyes does not allege that he was denied food, medical care, or recreation opportunities, nor does he allege that he suffered any actual ill effects due to his temporary placement in the SHU.

II.

*2 A petition may be dismissed under 28 U.S.C. § 1915A(b)(1) if it is clear from the petition that the plaintiff is not entitled to relief. To state a cause of action under Bivens, a plaintiff must establish that he was deprived of rights guaranteed by the Constitution or laws of the United States and that this deprivation resulted from conduct committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).

I.

Although the Eighth Amendment protects prisoners from cruel and unusual living conditions, an inmate is not entitled to relief simply because of exposure to uncomfortable, restrictive, or inconvenient conditions of confinement, for, "[t]c) the extent that such conditions are restrictive or even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). As a result, in order to state a claim of constitutional significance regarding prison conditions, a plaintiff must demonstrate that the living conditions violated contemporary standards of decency and that prison officials were deliberately indifferent to those conditions. Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Additionally, the plaintiff must allege facts sufficient to show either that he has sustained a serious or significant mental or physical injury as a result of the challenged conditions or that the conditions have created an unreasonable risk of serious damage to his future health. Strickler v. Waters, 989 F.2d 1375, 1380-1381 (4th Cir.1993); Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). While having a cell mate or being placed in a holding cell with limited personal belongings, restroom, and shower facilities, may be inconvenient and unfortunate, Keyes has not alleged anything to suggest that these conditions violate contemporary standards of decency. See Shakka v. Smith, 71 F.3d 162, 168 (4th Cir.1995) (finding that merely being denied running water and/or the opportunity to shower for a period of days does not constitute a deprivation of constitutional magnitude). Further, although Keyes complains that he lost weight while housed in the holding cell, he does not allege that his weight loss was unintentional, that he actually became ill due to the conditions of which he now complains, nor that there were any lingering effects on his health. Further, as he concedes that he was provided with ample food and does not claim that he was denied medical attention during this period, I can find no support for his contention that merely a lack of in-cell shower and toilet facilities caused him to lose weight. Therefore, I find that Keyes has not alleged current or future injury and, thus, fails to state a claim under the Eighth Amendment.

Moreover, although Keyes complains that twice he was placed in a cell with inadequate restroom and showering facilities, he concedes that on both occasions he physically resisted being placed into a cell with those amenities because he would then be required to have a cell mate. Keyes does not allege any facts which reasonably suggest that he was actually in any danger if he was placed in a cell with another inmate. Rather, he complains only that he should not be exposed to such inmate's "self destructive conduct." As an inmate has no right to choose to have a single cell, I find that Keyes' unreasonable refusal to be placed into a multi-inmate cell resulted in his temporary incarceration in a cell with less comfortable amenities.

II.

*3 To the extent Keyes alleges that he was subjected to excessive force by being restrained with hand and leg restraints attached to a belly chain for thirty hours, it fails. To establish an Eighth Amendment excessive force claim, an inmate must satisfy a two-pronged standard comprised of both an objective inquiry (whether the harm plaintiff suffered was sufficiently serious enough to amount to a constitutional violation) and a subjective inquiry (whether the defendant acted with a sufficiently culpable state of mind). Williams v. Benjamin, 77 F.3d 756, 761 (4th 1996).

The subjective component of an excessive force claim requires an inmate to demonstrate that the force used by an institutional official, "inflicted unnecessary and wanton pain and suffering." Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). In evaluating such a claim, "the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on `whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'" Id. (quoting Whitley v. Albers, 475 U.S. 312, 32-21 (1986)). The Supreme Court and the Fourth Circuit have set out the following factors to consider in determining whether a prison official acted maliciously and sadistically: "the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response." Hudson, 503 U.S. at 7 (1992) (quotations omitted); Williams, 77 F.3d at 762. Also, the inmate must prove the correction official's actions were "`objectively harmful enough' to offend `contemporary standards of decency.' " Stanley v. Hejirika, 134 F.2d 629, 634 (4th Cir.1998) (quoting Hudson, 503 U.S. at 8). Although there is no requirement that an inmate suffer "serious" or "significant" pain or injury to demonstrate that a malicious or sadistic use of force was employed, he must allege "more than a de minimis pain or injury." Norman v. Taylor, 25 F.3d 1259, 1263 n. 4 (4th Cir.1994). "[A]bsent the most extraordinary circumstances, a plaintiff cannot prevail on an Eighth Amendment excessive force claim if his injury is de minimis." Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir.1998). However, a de minimis physical injury may amount to an Eighth Amendment violation if the force used was of the sort "repugnant to the conscience of mankind." In Norman v. Taylor, the Fourth Circuit stated:

*4 25 F.3d at 1263, n. 4 (citations omitted).

Although Keyes complains that he was restrained for thirty hours by hand and leg restraints attached to a belly chain, he does not allege he suffered any actual injury as a result of the restraint, thus any injury is de minimis and does not amount to a constitutional violation. Furthermore, Keyes has failed to allege any facts which establish those extraordinary circumstances on which a plaintiff can prevail on an excessive force claim when he suffers only de minimis injury. Merely a lack of due care for the prisoner's interests and safety fails to show the use of force which is "repugnant to the conscience of mankind." See Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)(finding that the infliction of pain in the course of a prison security measure, does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense). Keyes concedes that immediately prior to his placement in ambulatory restraints he violently attacked his sleeping cell mate and physically resisted correctional officers efforts to restrain him and place him in another cell. Further, Keyes does not allege that he was unable to move, stand, lay down, eat, and/or utilize the restroom because of those restraints. Accordingly, I find that correctional officers utilized a reasonable amount of force in restraining Keyes and leaving him in restraints until he remained peaceable and, thus, find he fails to state a claim of constitutional magnitude.

III.

Based on the foregoing, I find that Keyes has not presented any claims that constitute a violation of his constitutional rights. Therefore, I dismiss the complaint without prejudice pursuant to 28 U. S.C. § 1915A(b)(1).

The plaintiff is advised that he may appeal this decision pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure by filing a notice of appeal with this court within 30 days of the date of entry of this Order, or within such extended period as the court may grant pursuant to Rule 4(a)(5).

The Clerk is directed to send certified copies of this Memorandum Opinion and accompanying Order to plaintiff and to counsel of record for the defendants, if known.

Mohammed Saleh, Florence, CO, pro se.

Robin Barkett Moore, Wichita, KS, for Defendants.

MEMORANDUM AND ORDER

MURGUTA, J.

*1 Plaintiff, a federal inmate appearing pro se, brings this action against defendants M.E. Ray, Walter Wood, Raymond Darrow, "John Doe I" and the United States of America, alleging that while incarcerated at the United States Penitentiary, Leavenworth, Kansas, (USP Leavenworth), defendants placed him in administrative detention because of his Muslim faith in violation of his First Amendment right to religious freedom. Additionally, plaintiff alleges that defendants subjected him to excessive force, also due to his Muslim faith, when he was placed in ambulatory restraints on March 20, 2001, in violation of both his First and Eighth Amendment rights. Plaintiff has further alleged these acts have violated his statutory rights under the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb-1(a). This matter is before the court on plaintiffs Motion for Discovery (Doc. 31) and defendants' Motion to Dismiss or for Summary Judgment (Doc. 24).

I. Motion for Discovery

On July 16, 2003, this court granted defendants' Motion to Stay Discovery pending a ruling on defendants' dispositive motion. That same day, plaintiff filed the instant Motion for Discovery. In light of the courts July 16, 2003 order staying discovery, the court denies plaintiffs Motion for Discovery as moot.

II. Motion for Summary Judgment

A. FactsFN1

During the times relevant to this action, plaintiff was incarcerated at USP Leavenworth. On March 6, 2001, defendants removed plaintiff from general population and placed him in administrative detention. Plaintiff claims that defendants placed him in administrative detention due to an investigation into plaintiffs washing of his hands and feet, a religious ritual performed by followers of the Islamic faith. Defendants, on the other hand, assert they placed plaintiff in administrative detention pending an investigation into plaintiffs safety at the prison and attach as evidence the Administrative Detention Order stating this reason.

Senior Officer Specialist Douglas P. Nee was assigned to D cellhouse and was supervising inmates on Four Gallery, including plaintiff, who was housed in cell D-425. On March 20, 2001, at approximately 11:15 a.m., Lieutenant Torix informed Officer Nee that Five Gallery needed to be cleared of all inmates and that available cells on other ranges needed to be located for those inmates in Five Gallery. Specifically, Officer Nee was instructed to check with the single celled inmates on Four Gallery to see if the inmate had someone with whom he wanted to be celled. If an inmate did not state a preferred cellmate, that inmate was instructed that a cellmate would be assigned to them.FN2

At approximately 12:10 p.m., the Four Gallery inmates became disruptive due to the impending cell rotations. Lieutenant Torix was assaulted by an inmate near cell D-409. Other inmates on the gallery began breaking the fire sprinkler heads in their cells, which caused flooding, and several inmates broke the porcelain toilets in their cells and threw porcelain pieces out of their cells. Defendants contend that, based on the violent and assaultive behavior of the inmates on the gallery, the fact that one staff member already had been assaulted, the destruction of government property, and the refusal of the inmates to comply with institutional regulations and staff directives, defendants determined that use of force procedures would be used.

*2 Defendants assembled three force cell teams. During the use of force procedures, some inmates barricaded themselves in their cells, brandishing homemade weapons. Defendants determined that, at times, it was necessary to fire a 37 mm stun gun with a low impact round into the cell to subdue uncooperative inmates and, at other times, defendants introduced chemical agents through the vent in the inmate's cell in order to remove the inmate.

There is a dispute regarding whether plaintiff engaged in disruptive behavior during the disturbance. Plaintiff contends that he did not, yet defendant Darrow filed an incident report, charging plaintiff with engaging in a group demonstration and stating that plaintiff was yelling at other inmates not to cooperate. In any event, as a matter of procedure, inmates were requested to voluntarily submit to restraints. If an inmate voluntarily submitted to restraints, he was removed from his cell, placed in ambulatory restraints, FN3 and then placed back into either the same cell or another assigned cell.

Defendants contend that plaintiff voluntarily submitted to hand restraints, was removed from his cell, placed in ambulatory restraints, and returned to his cell without incident. Plaintiff asserts that he was extracted from his cell and that defendant Woods ordered the team to place him in ambulatory restraints. Plaintiff also claims that defendant Woods ordered the restraints to be extra tight. Defendant Woods testified that he did not give any such order.

Plaintiff contends that at approximately 4:40 p.m., he complained that his restraints were too tight but that the supervising lieutenant never showed up to loosen the restraints. Yet, defendants submit as evidence a completed Inmate Injury Assessment form, indicating that on March 20, 2001, at approximately 4:30 p.m., Physician's Assistant Haider Al-Rubiie conducted an injury assessment and medically evaluated plaintiff while plaintiff was in ambulatory restraints. According to both the Inmate Injury Assessment form and P.A. Al-Rubiie's sworn testimony, plaintiff voiced no complaints regarding pain or discomfort, and the assessment of plaintiffs ambulatory restraints did not indicate any problems. Then, according to the evidence in the record, P.A. Al-Rubiie conducted another medical evaluation of the plaintiff later that evening while plaintiff was in ambulatory restraints. At that time, plaintiffs circulation was within normal limits, the tightness of the restraints was normal, there was no evidence of injury to the wrist area, and plaintiff did not comment on pain or problems with the restraints.

The next morning, at approximately 4:25 a.m., Physician's Assistant Pierre E. Camps performed a medical evaluation on plaintiff while plaintiff was in ambulatory restraints. The evidence in the record shows that P.A. Camps checked the restraints for tightness by placing his finger between the restraints and plaintiffs wrist, that plaintiff was able to move all his extremities, that there was no evidence of injury to the wrists, and that plaintiff did not make any comments to P.A. Camps regarding pain or problems with the restraints.

*3 Approximately eighteen to twenty-four hours after plaintiff was placed in restraints, the restraints were removed.FN4 Plaintiff contends that, after the restraints were removed, defendant Woods stated to the warden that plaintiff had done nothing wrong but that, because plaintiff was a Muslim, it would have looked bad in front of other Muslims who were placed in restraints if plaintiff was left unrestrained. Defendant Woods testified that at no time did he advise the warden that plaintiff had been placed in restraints only because plaintiff was Muslim or that it would look bad if plaintiff was not placed in restraints when the other Muslim inmates were restrained.

B. Standards

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).

The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id. Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).

*4 The court acknowledges that plaintiff appears pro se and his response is entitled to a somewhat less stringent standard than a response filed by a licensed attorney. Hall v. Bellinon, 935 F.2d 1106, 1110 (10th Cir.1991). However, this does not excuse plaintiff from the burden of coming forward with evidence to support his claims as required by the Federal Rules of Civil Procedure and the local rules of this court. Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir.1988). Even a pro se plaintiff must present some "specific factual support" for his allegations. Id.

C. Discussion

Plaintiffs Complaint does not clearly allege the basis for invoking jurisdiction. Plaintiff first alleges that jurisdiction is invoked pursuant to 28 U.S.C. § 1331 and RFRA, 42 U.S.C. § 2000bb-1(c), and then proceeds to assert constitutional claims under the Eighth Amendment (Count 1) and the First Amendment (Count 11). Later in his Complaint, plaintiff asserts that he has filed a "Tort Claim," and attaches a claim he filed under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), along with a letter denying that claim. Plaintiff asserts in his response brief that he is suing under the FTCA.

Section 1346(b) grants the federal district courts jurisdiction over a certain category of claims for which the United States has waived its sovereign immunity and "render[ed]" itself liable. Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). This category includes claims that are: "[1] against the United States, [2] for money damages, . . . [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b).

Thus, to be actionable under § 1346(b), a claim must allege, inter alia, that the United States "would be liable to the claimant" as "a private person" "in accordance with the law of the place where the act or omission occurred." Construing this provision, the Supreme Court held that a constitutional tort claim could not contain such an allegation. F.D.I.C. v. Meyer, 510 U.S. 471, 477-78, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The Court stated: "[W]e have consistently held that § 1346(b)'s reference to the `law of the place' means law of the State—the source of substantive liability under the FTCA. By definition, federal law, not state law, provides the source of liability for a claim alleging the deprivation of a federal constitutional right. . . . [T]he United States simply has not rendered itself liable under § 1346(b) for constitutional tort claims." Id. (internal citations omitted).

Plaintiff in this case has alleged only constitutional tort claims based upon violations of the First and Eighth Amendments of the United States Constitution and RFRA. Accordingly, this court lacks jurisdiction over plaintiffs claims brought pursuant to the FTCA. See Johnson v. Sawyer, 47 F.3d 716, 727 (5th Cir.1995) (en banc) (holding that neither a violation of federal law nor the Constitution can provide the basis for a cause of action under FTCA; plaintiff must allege a violation of duty imposed by state law).

*5 With respect to plaintiffs assertion of jurisdiction under § 1331, the court will construe plaintiffs action as one brought under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).FN5 As noted by defendants, the United States has not waived sovereign immunity in Bivens actions. Meyer, 510 U.S. at 483-86; Chapoose v. Hodel, 831 F.2d 931, 935 (10th Cir.1987). To the extent that plaintiff seeks monetary damages from the defendants in their official capacities, the action must be construed as one against the United States. Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). As such, any claims for recovery against the United States and defendants in their official capacities for constitutional violations pursuant to Bivens are hereby dismissed. Pleasant v. Lovell, 876 F.2d 787, 793 (10th Cir.1989) (to maintain a Bivens cause of action, plaintiff must proceed against federal officials in their individual capacities). The court therefore analyzes plaintiffs Complaint as alleging federal constitutional and statutory violations against defendants in their individual capacities.

1. Eighth Amendment Claim

In an Eighth Amendment claim for excessive force, the court must determine "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillan, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Whether force is excessive in violation of the Eighth Amendment depends upon the circumstances confronting the officer as well as the nature and amount of force applied in reaction. Whitley v. Albers, 475 U.S. 312 321, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986).

Under Hudson, it is clear that, while the extent of injuries suffered by an inmate is relevant to whether the force involved was unnecessary and wanton, the mere absence of injury does not, itself, end the inquiry. Minor injury does not preclude an action for excessive force, but "de minimis uses of physical force" ordinarily will not support a claim. Hudson, 503 U.S. at 9-10. As such, a plaintiff need not show that he suffered serious injury, but the extent of his injury is relevant in evaluating the necessity and wantonness of the force.

In this case, there is no evidence in the record that plaintiff suffered any injury at all. Plaintiffs Complaint alleges that he suffered back pain and partial loss of feeling in his hands and feet. In his response brief, plaintiff also alleges he suffered psychological pain. However, the evidence in the record, which plaintiff does not controvert, shows that plaintiff never complained that his restraints were too tight. More significantly, the medical records pertaining to plaintiff include no entries indicating treatment for any physical injuries as alleged by plaintiff. To the contrary, plaintiff was medically evaluated three times, and the medical records indicate that each time plaintiff was evaluated, there appeared no signs of injury. Further, there is no evidence in the record that plaintiff sought medical treatment, either physical or psychological, after the restraints were removed. Plaintiffs cone' usory, unsupported allegations are simply insufficient to refute the medical records.

*6 Taking into account the lack of evidence of any injury sustained by plaintiff, the court turns to whether there is evidence in the record that defendants applied excessive force. An inmate may be restrained by the use of force so long as that force is applied in a good faith effort to maintain or restore discipline and not maliciously and sadistically for the very purpose of causing harm. Whitley, 475 U.S. at 319 ("The infliction of pain in the course of a prison security measure . . . does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense.").

Plaintiff has described, and the facts produced by defendants corroborate, that there was a disturbance on March 20, 2001, in plaintiffs housing unit (D-Cell House) by inmates protesting cell assignments. These facts demonstrate that prison officers had a legitimate concern in restoring order to the unit. Plaintiff claims that he was not participating in the disturbance, yet there is evidence in the record to the contrary. In any event, even taking plaintiffs allegations as true, the placement of plaintiff (and other inmates) in amubulatory restraints to quell a prison disturbance does not amount to cruel and unusual punishment. Plaintiffs allegations do not show that the defendants used more force than was necessary to maintain or restore discipline during a time when many of the inmates in D-Cell House were vigorously protesting cell assignments.

Additionally, plaintiff makes no allegation that defendants applied force in the actual placement in restraints. In fact, plaintiff alleges that he complied and cooperated completely, and there is no allegation that the manner in which defendants placed plaintiff in restraints was inappropriate. And the fact that plaintiff remained in ambulatory restraints for eighteen hours to twenty-four hours does not, itself, rise to the level of an Eighth Amendment violation. See Cunningham v. Eyman, 17 Fed. Appx. 449, 453-454 (7th Cir.2001) (finding no Eighth Amendment violation were prisoner spent sixteen hours in shackles and four to five hours in soiled clothing); Key v. McKinney, 176 F.3d 1083, 1086 (8th Cir.1999) (holding that prisoner who was restrained in handcuffs and shackles for twenty-four hours, making it more difficult for him to relieve himself, did not suffer a constitutional violation). Plaintiff makes no allegation that his movement was restricted while he was restrained or that he was deprived of food, water, or bathroom breaks. To the contrary, plaintiff was free to move about in his cell. As such, this case differs from the recently decided Supreme Court case Hose v. Pelzer 536 U.S. 730 738 122 S.Ct. 2508 153 L.Ed.2d 666 (2002), in which the Court found an Eighth Amendment violation where prison guards handcuffed an inmate, placed him in leg irons, shackled him to a hitching post in the outdoors for seven hours, forced the inmate to remove his shirt while the sun burned his skin, gave the inmate only one or two water breaks but no bathroom breaks, and taunted the inmate about his thirst. The Court determined that the guards "knowingly subjected [the inmate] to a substantial risk of physical harm, to unnecessary pain caused by the handcuffs and the restricted position of confinement for a 7-hour period, to unnecessary exposure to the heat of the sun, to prolonged thirst and taunting, and to a deprivation of bathroom breaks that created a risk of particular discomfort and humiliation." Id.

*7 Viewing all reasonable inferences in favor of plaintiff, the court concludes that the actions of defendants demonstrate that defendants took reasonable steps to quell a prison disturbance and do not demonstrate the type of malicious or sadistic behavior required for stating an Eighth Amendment violation. Defendants are entitled to summary judgment on this claim.

2. First Amendment Claim

Plaintiff alleges he was placed in administrative detention on March 6, 2001, "during an investigation into the performance of religious ablutions (washing hands and feet) by followers of the Islamic faith." (Complaint, p. 3). Plaintiff further claims that the March 20, 2001, incident involving ambulatory restraints occurred because he was Muslim and that, as a result, he was deprived of his right to practice the Islamic faith.

The court notes that plaintiffs response brief makes no argument to support any claim relating to a restraint or inhibition from freely practicing his religion, but appears more to clarify his claim as being that of religious retaliation. The court will nevertheless address plaintiffs free exercise allegation.

a. Free Exercise of Religion

A prison inmate is entitled to reasonable opportunity to practice his religion under the Free Exercise Clause of the First Amendment. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). Although inmates clearly retain their First Amendment right to free exercise of religion, incarceration necessarily limits that right. O'Lone v. Estate of Shabazz, 482 U.S. 342, 353, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). To state a free exercise claim, a plaintiff must first show that the official action burdened a religious belief rather than a philosophy or way of life. Wisconsin v. Yoder, 406 U.S. 205 215-19, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). Second, the burdened belief must be sincerely held by the plaintiff, and that plaintiff must demonstrate that the official action has interfered with the exercise or expression of her or his own deeply held faith. Thomas v. Review Bd., 450 U.S. 707, 714-16, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981).

In this case, plaintiff has not articulated any interference with the practice of his Muslim beliefs. Plaintiff offers nothing but his conclusory allegation that "[d]efendant John Doe I and defendant Woods were aware that their retaliatory actions . . . deprived him of his right to practice the Islamic faith," (Complaint, p. 3), but plaintiff has not alleged any facts showing how the defendants' acts interfered with that right. As previously noted, there is no allegation that his placement in detention and ambulatory restraints interfered with his bodily movement or daily activity. Clearly, defendants' actions did not interfere with plaintiffs exercise or expression of plaintiffs Islamic beliefs.

b. Retaliation

Prison officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights. Smith v. Maschner, 899 F.2d 940, 947 (10th Cir.1990). An inmate claiming retaliation must "allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Frazier v. Dubois, 922 F.2d 560, 562 n. 1 (10th Cir.1990). To establish retaliation, an inmate "must prove that `but for' the retaliatory motive, the incidents to which he refers, including disciplinary action, would not have taken place." Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.1998). Moreover, in the prison setting, a plaintiff "must show that `prison authorities' retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals."' Ladd v. Davis, 817 F.Supp. 81, 82 (D.Kan.1993) (citing Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir.1985)).

*8 Regarding plaintiffs claim that he was placed in administrative detention on March 6, 2001, in retaliation for practicing the Muslim religion, plaintiff has failed to allege any specific facts in support. The record indicates that prison officials questioned plaintiffs safety in the general population and that the move to administrative detention was based upon that reason. Plaintiffs conclusory allegations are not supported in the record and are, therefore, insufficient to survive summary judgment on this claim.

The court turns to plaintiffs allegation that he was placed in ambulatory restraints on March 20, 2001 in retaliation for practicing his religion. Plaintiff has acknowledged that there was an inmate disturbance in his housing unit on March 20, 2001, and that he, as well as other inmates, were placed in ambulatory restraints.FN6 There remains a factual dispute whether defendant Wood made the statement that plaintiff had done nothing wrong but that, because plaintiff was a Muslim, it would have looked bad in front of other Muslims who were placed in restraints if plaintiff were left unrestrained. Plaintiff asserts in his Complaint that defendant Woods made this statement, yet defendant Wood testified in a sworn affidavit that he made no such statement.

However, even assuming defendant Wood made the statement as plaintiff claims, the statement itself evidences a legitimate reason for placing plaintiff in restraints: treating all inmates on the gallery in a consistent manner. It is a reasonable conclusion that inmates receiving different or favorable treatment by prison officials may be perceived by other inmates as a sign that somehow the inmate has cooperated or complied with staff. In a correctional setting, such a perception could place the inmate in danger of retaliation from other inmates. In the prison context, prison officials must be given broad flexibility in managing penal facilities. Sandin v. Conner, 515 U.S. 472, 482-83, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Absent competent evidence of a discriminatory animus, this court will not second-guess defendants' decision to place plaintiff in ambulatory restraints in an effort to restore order to the unit and to ensure the future safety of plaintiff. Summary judgment on plaintiffs First Amendment claim is granted.

3. RFRA Claim

Plaintiff, in conclusory fashion, states that his claim falls within the broad language of RFRA, which states that government officials "shall not substantially burden a person's exercise of religion." 42 U.S.C. 2000bb-1(a) (2002). "[A] plaintiff establishes a prima facie claim pursuant to RFRA by proving the following three elements: (1) a substantial burden imposed by the federal government on a(2) sincere (3) exercise of religion." Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir.2001). Once a plaintiff has met his prima facie burden, the government must show that the imposition "is in furtherance of a compelling governmental interest." Id. at 962 (internal quotations and citation omitted). The Tenth Circuit has recognized that, in the prison context, the maintenance of safety and order is a compelling governmental interest. Id. at 962.

*9 Applying these legal standards, plaintiff clearly has not satisfied the threshold requirement for stating a RFRA claim. Plaintiff has failed to allege any facts, and the court finds nothing in the record, tending to show that defendants' actions burdened the free exercise of his religion. Even if plaintiff could satisfy all the elements of a prima facie RFRA claim, the actions of defendants were clearly within the government's compelling interest in maintaining safety and order in its prisons. Defendants are entitled to summary judgment on plaintiffs RFRA claim.

IT IS THEREFORE ORDERED that plaintiffs Motion for Discovery (Doc. 31) is denied as moot, and defendants' Motion to Dismiss or for Summary Judgment (Doc. 24) is granted. This case is hereby dismissed.