LISA PUPO LENIHAN, Chief Magistrate Judge.
Plaintiff, Todd Tarselli, is an inmate in the custody of the Pennsylvania Department of Corrections currently incarcerated at the State Correctional Institution at Greene ("SCI-Greene") in Waynesburg, Pennsylvania. Plaintiff initiated this action on September 24, 2010, by filing a Complaint against the following Defendants: Corrections Officer Harkleroad, Corrections Officer J.M. Smith, Lieutenant Tanner, Major Winfield, Superintendent Folino, and Chief Grievance Officer Dorina Varner. His Complaint asserts liability pursuant to 42 U.S.C. § 1983, alleging violations of due process and his rights under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment in connection with the confiscation of art supplies and related items from his cell on January 25, 2010, and the revocation of his art permit.
Defendants filed an Answer to Plaintiff's Complaint on December 9, 2010 (ECF No. 20), and following discovery, filed a Motion for Summary Judgment on July 1, 2011 (ECF No. 43). In support of their motion, Defendants attached four exhibits containing over one-hundred twenty pages of documents relating to Plaintiff's claims. (ECF No. 46.) Defendants also filed a Brief in Support of Summary Judgment (ECF No. 44) and a Concise Statement of Material Facts (ECF No. 45). In response, Plaintiff filed a Brief in Opposition to Summary Judgment (ECF No. 55), Responsive Concise Statement of Material Facts (ECF No. 56), Statement of Undisputed Material Facts (ECF No. 57), Statement of Genuine Issues of Material Fact (ECF No. 58) and over eighty pages of exhibits (ECF No. 59). Defendants filed a Reply to Plaintiff's Brief in Opposition to Summary Judgment (ECF No. 64), and Responses to Plaintiff's Statement of Undisputed Material Facts (ECF No. 66) and Statement of Genuine Issues of Material Facts (ECF No. 67).
Following an alleged escape attempt at SCI-Rockview, Plaintiff was transferred to the Restricted Housing Unit ("RHU") and placed on the Restricted Release List ("RRL") at SCI-Greene in December 1997. (ECF No. 45 at 1; No. 46-1 at 1-9; No. 56 at 16.) Plaintiff remained in the RHU until July 1999, at which point he was released to general population. (ECF No. 45 at 1; No. 46-1 at 2; No. 56 at 16.) Following an incident in April 2001, in which Plaintiff was allegedly observed whispering with other inmates under suspicious circumstances, Plaintiff's cell was searched and a large piece of black velour, a razor blade and extra pillow cases and towels were found. (ECF No. 45 at 2; No. 46-1 at 2-3; No. 49-1 at 2.) Plaintiff claimed that the black velour was given to him by a staff member in the art department, but security determined that there was enough material to make a rope or dark clothing that could be used in an escape. (ECF No. 45 at 2; No. 46-1 at 3; No. 56 at 16.) As a result, Plaintiff was issued a misconduct, found guilty and assessed 45 days of disciplinary confinement, after which he remained in the RHU on RRL status. (ECF No. 45 at 2; No. 46-1 at 3; No. 56 at 16.) The Program Review Committee, which included Defendant Winfield, recommended Plaintiff's release from the RRL in August 2008 subject to a detailed step-down plan involving close supervision. (ECF No. 45 at 2; No. 46-1 at 3, 5; No. 49-1 at 3; No. 56 at 16.) The proposed step-down plan was approved and Plaintiff was returned to general population in October 2008. (ECF No. 45 at 2; No. 46-1 at 5, 6; No. 49-1 at 3; No. 56 at 16.) Defendant Winfield stressed that in order to continue in general population, Plaintiff's conduct could in no way be perceived as plotting or planning an escape. (ECF No. 45 at 2; No. 49-1 at 3; No. 56 at 16.)
After returning to general population in October 2008, Plaintiff began asking about ordering art supplies and obtaining an updated art permit, as he had an art permit that had been issued in 1999. (ECF No. 45 at 3; No. 46-2 at 3, 10-13, 18; No. 49-1 at 3; No. 56 at 17.) The art permit at SCI-Greene permits inmates to order, and keep in their cells, potentially hundreds of art items. (ECF No. 45 at 3; No. 46-3 at 34; No. 56 at 17.) According to Defendant Winfield, she had reservations permitting Plaintiff to order art supplies given Plaintiff's escape history and previous incident involving the black velour. (ECF No. 45 at 3; No. 46-2 at 15; No. 49-1 at 3-4.) She initially limited Plaintiff's purchases and advised security to watch for efforts by Plaintiff to collect too much of any one thing, but by August and September of 2009, staff began to relax some of the restrictions. (ECF No. 45 at 3, 4; No. 46-2 at 31-33; No. 49-1 at 3-4.)
During a random cell search on January 18, 2010, Officers discovered in Plaintiff's cell two standard art boards that appeared to be loosened or torn at the edge. (ECF No. 45 at 4; No. 46-2 at 43; No. 56 at 17.) Upon inspection, the art boards were found to have hidden compartments which contained pornographic magazines. (ECF No. 45 at 4; No. 46-2 at 43; No. 56 at 17.) As a result, Plaintiff was issued a misconduct report and pled guilty to charges of altering property and possessing contraband. (ECF No. 45 at 4; No. 46-2 at 43; No. 56 at 17.)
Following the January 18, 2010 incident, Defendant Winfield instructed the Security Department to conduct a thorough search of Plaintiff's cell and confiscate all art-related items as well as anything else that seemed suspicious. (ECF No. 45 at 4; No. 49-1 at 4.) Because of the altered items discovered in Plaintiff's cell on January 18, 2010, and because Plaintiff presented escape concerns and had a history of possessing art-related materials as potential implements of escape, Defendant Winfield felt that security concerns justified the removal of all art-related items. (ECF No. 45 at 4; No. 49-1 at 4.) Defendant Winfield also revoked Plaintiff's art permit and directed that he not be permitted to purchase more art supplies. (ECF No. 45 at 5; No. 46-3 at 32; No. 49-1 at 4.)
Defendants Harkleroad and Smith conducted the confiscation of all art-related items from Plaintiff's cell on January 25, 2010, per Defendant Winfield's instructions, and removed a substantial amount of material from the cell, including two large boxes and several oversized items. (ECF No. 45 at 5; No. 46-4 at 4, 5; No. 56 at 17.) This included items that were both covered and not covered by Plaintiff's art permit. (ECF No. 1 at 7.) Plaintiff asserts that, during the search, Defendant Harkleroad came across artwork that was critical of the DOC and made intimidating and racially insensitive statements toward Plaintiff. (ECF No. 1 at 8.)
After the search, Defendant Harkleroad sat with Plaintiff for several hours and inventoried all the confiscated items, listing them on seven confiscation slips. (ECF No. 45 at 5; No. 46-4 at 4; No. 56 at 17.) During the inventory process, Defendant Harkleroad separated items that were altered or not allowed and designated them to be destroyed by noting a "D" in the disposition column of the confiscation slip. (ECF No. 45 at 5; No. 46-3 at 2-8; No. 46-4 at 5; No. 56 at 17.) However, this designation did not necessarily result in destruction and some of these items may have been returned to the boxes. Certain items Plaintiff was not permitted to retain were destroyed per DOC policy after the inventory. (ECF No. 45 at 5, 6; No. 46-4 at 5.) With respect to the remaining items confiscated, Plaintiff was given the option of shipping them home— which he chose not to do— or having them destroyed. (ECF No. 45 at 7; No. 46-3 at 21.) The items were not destroyed, but instead remained in the security office. (ECF No. 45 at 7; No. 46-4 at 11.)
On February 6, 2010, Plaintiff filed a grievance wherein he complained of the comments made to him by Defendant Harkleroad during the search of his cell on January 25, 2010. (ECF No. 1-5 at 2-3.) He also argued that the DOC could not confiscate his property without due process and require him to ship the items or they would be destroyed; that the revocation of his art permit was an unreasonable over-reaction to security concerns; that confiscation of art-related items not covered by the art permit such as personal sketches, art books, and art magazines, violated the First Amendment; and that one of the books seized was a used book and not "property of another" as described by Defendant Harkleroad. (ECF No. 1-5 at 2-3.) Defendant Tanner responded by denying Plaintiff's grievance on February 16, 2010, noting that Defendant Harkleroad had denied making the alleged statements and their concern was that Plaintiff was "once again testing the parameters of involving [himself] in another escape attempt." (ECF No. 1-6 at 2.) Plaintiff appealed on February 28, 2010, arguing that the incident involving the art boards used to conceal pornographic magazines was in no way related to "plotting or planning an escape." (ECF No. 1-7 at 2.) Instead he was simply trying to hide the magazines so he could keep them. (ECF No. 1-7 at 2.) Defendant Folino denied Plaintiff's appeal on March 2, 2010, (ECF No. 1-8 at 2), and Plaintiff filed his last appeal on March 12, 2010, (ECF No. 1-9 at 2-3), which was denied by Defendant Varner on March 31, 2010 (ECF No. 1-10 at 2).
Plaintiff served 90 days in disciplinary custody for the January 18, 2010, misconduct involving the altered art boards and pornographic magazines, and he remained in the RHU on AC status until early 2011, when he was once again released back into general population. (ECF No. 45 at 8; No. 49-1 at 5; No. 56 at 18.)
After Plaintiff filed this lawsuit and a motion to preserve his property, a second inventory of his property was performed on October 26, 2010, by Officer Tait. (ECF No. 45 at 7; No. 46-3 at 10-19; No. 46-4 at 11.) Officer Tait's inventory matched Defendant Harkleroad's inventory from January 25, 2010, except with respect to a few items. She found several things that were not destroyed although originally designated for destruction, and a few items not accounted for on the confiscation slips. (ECF No. 45 at 7; No. 46-3 at 10-19; No. 46-4 at 12.) Officer Tait also could not locate a pencil sharpener and a large roll of craft paper that were listed on the confiscation slips. (ECF No. 45 at 7-8; No. 46-3 at 10-19; No. 46-4 at 12.)
Plaintiff was permitted to inspect his confiscated property on June 8, 2011, at which point he looked at a large priority envelope containing several inches of papers and drawings and said that things were missing, namely drawings critical of the DOC. (ECF No. 45 at 10; No. 46-4 at 13; No. 56 at 19.) Additionally, several larger items that had been identified on the original confiscation slips from January 25, 2010, could not be located. (ECF No. 39 at 1.) After several attempts to locate the items were unsuccessful, Plaintiff was reimbursed for the cost of the items. (ECF No. 39 at 3.)
After consultation with the Office of Attorney General, SCI-Green's Security Captain, Craig Haywood, was willing to consider returning some of Plaintiff's confiscated property, particularly his books and the large priority envelope containing several inches of papers and personal drawings, as those items did not appear to raise the same security concerns or risks associated with the art-related items and supplies. (ECF No. 45 at 10; No. 46-4 at 13; No. 49-1 at 11-12.) However, after Plaintiff inspected the property on June 8, 2011, and suggested that drawings had been removed from the priority envelope, counsel for Defendants advised Captain Haywood and Plaintiff that the envelope and its contents should be retained as potential evidence, and not returned. (ECF No. 45 at 10-11; No. 46-4 at 13; No. 56 at 19.)
On June 21, 2011, while the superintendent's assistant was making copies of the drawings contained in the priority envelope for defense counsel and Plaintiff, she discovered a drawing that contained pieces of broken staple taped carefully onto a sketch of a ram's head. (ECF No. 45 at 11; No. 49-1 at 12, 14; No. 46-4 at 13.) Defendants contend that the staple pieces were not easy to see and had not been discovered in the prior inventories by Defendant Harkleroad and Officer Tait, but the staples were clearly contraband and/or altered property in violation of DOC policy. (ECF No. 45 at 11; No. 49-1 at 12; No. 46-4 at 13.) With this discovery, Captain Haywood states that he has serious safety and security concerns with allowing Plaintiff access to personal drawings and books that were removed from his cell on January 25, 2010. (ECF No. 45 at 11; No. 49-1 at 12.) However, Plaintiff denies he ever had any staples hidden in his artwork or anywhere in his property. (ECF No. 56 at 19.)
Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, the record indicates that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element to that party's case and for which that party will bear the burden of proof at trial.
To establish individual liability under section 1983, "[a] defendant must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior."
Defendants assert that there is no evidence that Defendants Tanner, Folino, or Varner had any involvement in the search and confiscation of Plaintiff's property or in the revocation of Plaintiff's art permit and their "involvement" was limited to the roles each played in responding to Plaintiff's grievance and appeals, which is insufficient to establish personal involvement under section 1983. Plaintiff, however, asserts that Defendants misconstrue his claims against these three Defendants alleging that Defendants Tanner, Folino, and Varner were aware of the alleged constitutional violations and "failed to remedy a wrong when they [had] an obligation to do so." (ECF No. 55 at 35.) In support, Plaintiff cites to
As Defendants correctly note, participation in the after-the-fact review of a grievance or appeal is not enough to establish personal involvement. See
Plaintiff claims that the confiscation of his personal property
The Due Process Clause of the Fourteenth Amendment guarantees that "[n]o State shall .. . deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV. The procedural aspect of the Due Process Clause guarantees the availability of certain procedural mechanisms, typically the right to notice and a hearing, before the government can deprive an individual of a liberty or property interest. In the context of confiscating an inmate's property, however, the Supreme Court has held that meaningful post-deprivation remedies for the loss provide sufficient due process for negligent deprivations of property,
The threshold question in assessing Plaintiff's procedural due process claim is whether he was deprived of a protected property interest. A property interest may arise from "existing rules or understandings that stem from an independent source such as state law."
Plaintiff claims that he was denied a "meaningful" post-deprivation remedy because the grievance system did not afford for the return of his non-contraband property. However, the failure of a prison official to provide a favorable response to an inmate grievance does not demonstrate that the process was inadequate, meaningless, or otherwise constitutionally infirm. See
To the extent Plaintiff claims that the grievance system did not provide for a "meaningful" post-deprivation remedy due to Defendant Tanner's involvement as a grievance officer, his claim is also without merit. DC-ADM 804
Defendant Tanner was not named or accused of any wrongdoing in Plaintiff's grievance, and while Defendant Tanner cannot recall whether Defendant Winfield's order to confiscate art-related items from Plaintiff's cell passed through him as one of the Security Lieutenants, he states that he was not present for, or involved in, the January 25, 2010 search and confiscation of Plaintiff's property. (ECF No. 46-4 at 9.) According to Defendant Tanner, his knowledge and understanding of the search and confiscation issues that day came from his investigation of Plaintiff's grievance. (ECF No. 46-4 at 9.) Nevertheless, prison regulations do not, in themselves, confer a liberty interest protected by due process, and the failure of prison officials to follow DOC policy does not, in and of itself, result in a violation of due process. See
In the instant case, the Court concludes that Plaintiff had an adequate post-deprivation remedy that was available to him through the prison grievance system and he has not shown that this remedy was not meaningful. As such, the Court finds that Defendants are entitled to summary judgment as to this claim.
Plaintiff asserts that the confiscation of art-related items not governed by the art permit — his personal sketches, artwork, art books and art magazines — violated his First Amendment right to freedom of speech and expression. The Court notes that it could find no authority to support Plaintiff's claim that he has a protectable First Amendment interest in the right to possess artwork, drawings and publications, and while the Court does not hold that Plaintiff has such a protectable interest, it will assume, for purposes of this analysis, that such an interest exist.
The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." U.S. CONST. amend. I. The First Amendment is applicable to the states via the Fourteenth Amendment.
In
With respect to the first
It is well established that safety and internal security are legitimate goals for prison administrators.
Defendants have demonstrated that a potential for danger existed had Plaintiff been permitted to retain access of his art-related items, even those items not governed by the art permit. Given Plaintiff's prior history involving escape and the discovery that Plaintiff had altered art boards to fashion hidden compartments, the concern held by Defendant Winfield and security was that Plaintiff was testing the waters of his new relaxed restrictions in general population by engaging in conduct through his art-related items that could potentially implicate serious security matters. While Plaintiff was only concealing pornography in the hidden compartments in his art boards, it is not unreasonable to think that, given Plaintiff's track record, he could have used the compartments to hide instruments of escape. Given the deference owed to prison officials, and for the reasons stated above, the Court finds that Defendants have established that the confiscation of Plaintiff's art-related items, including those items not governed by the art permit, was rationally related to legitimate penological interests concerning institutional security.
Under the second
Plaintiff asserts that he has no alternative ways to express himself artistically because Defendants confiscated everything art-related, including art related literature books on loan from the prison library. He states that the intent of the Defendants "was a total and complete suffocation of any artistic expression." (ECF No. 55 at 14.) Defendants, however, suggest that Plaintiff is still able to express himself artistically by drawing on standard paper and he is also able to possess a wide variety of material of a political, economic, and legal nature. With respect to the library books that were part of the confiscation on January 25, 2010, Defendants assert that the books were returned to the library and no one is preventing Plaintiff from re-obtaining those books or other art publications either via the library or outside purchase. (ECF No. 64 at 5; No. 65-1 at 2.) While in general population, Plaintiff is permitted to have three library books per week and may purchase outside publications in accordance with prison policy, but Plaintiff has not submitted any purchase requests. (ECF No. 64 at 5; No. 65-1 at 2.) Clearly, there are alternative means of artistic expression open to Plaintiff and these must be taken into account in determining the overall reasonableness of Defendants' decision to confiscate the art-related items from Plaintiff's cell on January 25, 2010. Therefore, the Court finds that the second
The third
Under the fourth
In sum, the balancing test required under
Plaintiff contends that Defendants violated his right to equal protection because he was denied his right to freedom of speech/expression and due process. Specifically, he asserts that all Pennsylvania DOC inmates are similarly situated in that they are afforded freedom of speech and due process protections not inconsistent with their status as prisoners but he was denied these protections as a result of intentional or purposeful discrimination due to his status as an artist. (ECF No. 55 at 33.) He asserts that Defendants' intentional or purposeful discrimination is evidenced by the fact that they confiscated "everything art-related," as opposed to only those art supplies covered by the art permit. (ECF No. 55 at 34.) Plaintiff also appears to assert that he was treated differently from other inmates who have abused a privilege in that he was sanctioned to an indefinite loss of his privilege for a first offense when other inmates are subjected to a loss of privilege for a prescribed period of time. (ECF No. 55 at 34-35.)
The Equal Protection Clause of the Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV. This is not a command that all persons be treated alike, but, rather, a direction that all persons similarly-situated be treated alike. See
First, Plaintiff asserts that he was discriminated against in comparison to other inmates, but he does not claim discrimination based on membership in a protected class.
Here, Plaintiff alleges that he was treated differently from other inmates in general because he was not afforded First Amendment and due process protections. However, Plaintiff fails to demonstrate that he was in fact treated differently because, as discussed supra, he was not denied these rights. Next, to the extent Plaintiff alleges that he was treated differently from other inmates who have abused a privilege in that he should have been sanctioned to a loss of his art privilege for a prescribed period of time under DC-ADM 801 disciplinary policy,
Because Plaintiff has failed to present facts demonstrating that he was treated differently than similarly situated inmates as a result of intentional or purposeful discrimination, summary judgment will be entered in favor of Defendants with regard to Plaintiff's equal protection claims.
For the reasons set forth above, Defendants are entitled to summary judgment with respect to Plaintiff's claims. An appropriate order will be entered.