Case 2:13-cv-00657-CRE Document 1 Filed 05/08/13 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RUSSELL SHOATZ, a/k/a RUSSELL :

SHOATS

:

:

Plaintiff,

:

: Case No.

v.

:

:

JOHN E. WETZEL, in his official

:

capacity as Secretary of the Pennsylvania :

Department of Corrections; LOUIS S.

:

FOLINO, in his official capacity as Superintendent of the State Correctional Institution at Greene; and JOHN KERESTES, in his official capacity as

: : : ELECTRONICALLY FILED :

Superintendent of the State Correctional Institution at Mahanoy.

: : JURY TRIAL DEMANDED

:

Defendants.

COMPLAINT Plaintiff Russell Shoatz, a/k/a Russell Shoats (“Shoatz”), by and through his

undersigned counsel, files the following Complaint.

Introduction

Russell Shoatz is a 69-year-old who has been locked in solitary confinement at

various State Correctional Institutions for the past 21 consecutive years, and 28 of the past

30 years. Shoatz is a father, grandfather, great-grandfather, human rights advocate, and

published author. For the last 23 years, Shoatz has had an impeccable disciplinary record,

receiving only one misconduct for a rule violation when he covered a vent in his cell that

was blowing cold air in an attempt to stay warm.

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Sentenced to life in prison without the possibility of parole in 1972, Shoatz escaped from imprisonment in 1977 and in 1980. After he was recaptured, Shoatz was held in solitary confinement until being released to the general prison population at SCI Pittsburgh in 1982. Upon release to the general population, Shoatz committed himself to abiding by the rules and regulations of the prison. Toward this end he became involved with the Pennsylvania Association of Lifers (PAL), an officially-approved prison organization dedicated to advancing the interests of life-sentenced prisoners.
In late 1982, Shoatz was one of a group of prisoners serving life sentences at the SCI Pittsburgh who began discussing ways to change the PAL to better serve the needs of the membership. Shoatz wanted the PAL to work with their non-incarcerated family members and public supporters to lobby the state legislature to repeal life without parole sentences. The membership of the PAL expanded from approximately 12 people to more than 100. The night that the old leadership was impeached and Shoatz appointed interim President in spring 1983, he was placed in solitary confinement. Pennsylvania prison officials have refused to release him from solitary confinement ever since.
For a 19-month period from November 1989 to June 1991, Shoatz was housed in the general prison population at the federal penitentiary in Leavenworth, Kansas. During his time in general population, Shoatz was an exemplary prisoner and did not commit any prison rule infractions. Despite this fact, following his transfer back to the state system, Shoatz was immediately placed back in solitary confinement where he remains to this day.
For the better part of 30 years, Shoatz has lived in virtual isolation confined to a 7 x 12 cell for 23-24 hours per day, 7 days a week. The continuous prolonged exposure to the

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brutal conditions of solitary confinement have caused Shoatz physical and mental harm and anguish, and imposed a significant hardship on him in relation to the ordinary incidents of prison life. Prison officials refuse to explain what Shoatz must do in order to be released into the general prison population, and continue to warehouse him in solitary confinement based on an irrational fear of and animosity toward his human rights activism and perceived dissident politics. For Shoatz, it seems that death is his only hope of being released from the torturous conditions of solitary confinement.
Jurisdiction and Venue 1. This is an action for injunctive, declaratory and monetary relief for violation of the Eighth and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983. 2. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4), and 2201. 3. This Court is the appropriate venue pursuant to 28 U.S.C. § 1391(b)(2) because most of the events and omissions giving rise to the claims occurred, and most of the witnesses to these events and omissions reside, in the Western District of Pennsylvania.
Parties 4. Plaintiff Russell Maroon Shoatz (Inmate No. AF-3855) is 69-year old adult individual who has been held in solitary confinement continuously for the past 21 years (since June 1991) at the State Correctional Institutions at Mahanoy (“SCI Mahanoy”), Greene (“SCI Greene”) and Dallas (“SCI Dallas”).

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5. Defendant John E. Wetzel is the Secretary of the Pennsylvania Department of Corrections (“DOC”). Defendant Wetzel is responsible for the overall operation of the DOC. Defendant Wetzel is sued in his official capacity.
6. Defendant Louis S. Folino is the Superintendent at SCI Greene. Defendant Folino is responsible for the overall operation of SCI Greene. Defendant Folino is sued in his official capacity.
7. Defendant John Kerestes is the Superintendent at SCI Mahanoy. Defendant Kerestes is responsible for the overall operation of SCI Mahanoy. Defendant Kerestes is sued in his official capacity.
Factual Allegations 8. Pennsylvania correctional institutions, including SCI Mahanoy, SCI Greene, and SCI Dallas, have two types of housing, general population and Restricted Housing Units (hereafter “solitary confinement”). 9. Shoatz has been continuously held in solitary confinement for the past 21 years (since June 1991). 10. From June 1991 to January 1995, Shoatz was held in solitary confinement at SCI Dallas. 11. From January 1995 to March 28, 2013, Shoatz was held in solitary confinement at SCI Greene. 12. Presently, Shoatz is being held in solitary confinement at SCI Mahanoy. 13. For the past 21 years, Shoatz has been confined to a cell that measures approximately 7 feet x 12 feet.

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14. For the past 21 years, Shoatz has been confined to a cell for 23-24 hours per day seven days per week.
15. For the past 21 years, Shoatz has been confined to a cell that is illuminated by lights 24 hours per day.
16. For the past 21 years, Shoatz has been confined to a cell that exposes him to air temperature that is colder than the air temperature in the general prison population.
17. For most of the past 21 years, Shoatz has received only 3-4 hours of sleep per night.
18. For the past 21 years, Shoatz has been confined to a cell that contains a steel bed, steel toilet and sink, steel desk and stool, and a steel cabinet. As such, Shoatz has had little room to exercise or walk around in his cell.
19. For the past 21 years, Shoatz has been permitted to go to a fenced-in exercise pen five days per week for one hour, weather permitting. The fenced-in exercise pen contains no weights, balls, or exercise equipment of any kind.
20. For the past 21 years, Shoatz has been required to eat all meals alone in his cell.
21. For the past 21 years, Shoatz has been given only 15-20 minutes to eat his meals.
22. For the past 21 years, Shoatz has been served different food than the prisoners in the general prison population.
23. For the past 21 years, Shoatz has been permitted only three showers per week.

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24. For the past 21 years, Shoatz has been prohibited from participating in educational activities.
25. For the past 21 years, Shoatz has been prohibited from participating in vocational activities.
26. For the past 21 years, Shoatz has been prohibited from participating in organizational activities.
27. For the past 21 years, Shoatz has been permitted only one non-legal visit per week.
28. For the past 21 years, Shoatz has been prohibited from having physical contact with his visitors, including with family members.
29. For the past 21 years, Shoatz has been subjected to a mandatory strip search and the possibility of a body-cavity search every time he leaves his cell.
30. For the past 21 years, Shoatz has been placed in shackles every time he leaves his cell.
31. For the past 21 years, Shoatz has been kept in shackles whenever he is moved outside his cell, including during his non-contact visits with his family.
32. For the past 21 years, Shoatz has been permitted in his cell one box measuring approximately 2.5 cubic feet to contain all personal belongings, including his clothing and medical records.
33. For the past 21 years, Shoatz has been regularly moved to a different cell at least every 90 days.

Case 2:13-cv-00657-CRE Document 1 Filed 05/08/13 Page 7 of 13
34. During the past 21 years, Shoatz has not had a contentious interaction with any prison official or staff member.
35. During the past 21 years, Shoatz has not been issued a serious misconduct. 36. During the past 21 years, Shoatz was issued only one misconduct for covering an air conditioning vent because he was cold. 37. DOC has a “no talking” policy for prisoners in solitary confinement. 38. DOC has sealed the steel doors of the cells in solitary confinement. 39. The conditions imposed upon Shoatz for the past 21 years are significantly harsher than those imposed on prisoners in general population. 40. The conditions of Shoatz’s incarceration in solitary confinement almost totally deprive him of human contact, physical activity, personal property, and mental stimulation. 41. The DOC maintains a Restricted Release List (RRL). A prisoner cannot be placed on the RRL without the authorization of the Secretary. A prisoner who is on the RRL may not be released from the RRL without the authorization of the Secretary. 42. Shoatz is on the RRL. Shoatz has never been provided any reasons as to why he is on the RRL 43. Shoatz is not provided notice when he is reviewed for release from the RRL. 44. Shoatz is not provided notice of any decisions taken by any prison officials, including the DOC Secretary, to keep him on the RRL. 45. Shoatz has never been told what he must do to be removed from the RRL.

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46. Every 90 days, an entity called the Program Review Committee (“PRC”) is supposed to hold a meeting to determine whether Shoatz should continue to be held in solitary confinement.
47. The review by the PRC is a perfunctory proceeding, and the extension of Shoatz’s solitary confinement is automatic.
48. On May 22, 2012, Shoatz attended a PRC review and requested a full and detailed accounting of the evidence relied upon in continuing his solitary confinement.
49. The PRC refused to provide that information, stating that he had already been given the reasoning on previous occasions.
50. On May 23, 2012, Shoatz appealed the PRC review to Defendant Folino, and again requested a detailed and complete explanation of the basis for his continuing solitary confinement.
51. On June 29, 2012, Superintendent Folino denied Shoatz’s appeal and dismissed his request for a detailed and complete explanation of the basis for his continuing solitary confinement.
52. However, the only reason given by the PRC for Shoatz’s continuing solitary confinement has been that he is “an escape risk in a less secure status.”
53. During his 18 years at SCI Greene, Shoatz was never once visited by Defendant Folino.
54. Neither the PRC nor any DOC official engages in a meaningful evaluation of whether Shoatz is an escape risk in a less secure status.

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55. DOC facilities are more secure than ever. Prisoners in the general prison population are generally unable to escape. According to DOC official statistics, there has been only one escape from a DOC facility during the past ten years.
56. DOC has repeatedly refused to inform Shoatz of how he can change his behavior in order to be removed from solitary confinement.
57. In addition to the PRC review, separate security and psychological reviews are required before Shoatz can be released from solitary confinement.
58. Shoatz’s most recent security review occurred on November 10, 2010. Prior to that, the last time Shoatz had a security review was on June 4, 1998.
59. Shoatz’s most recent psychological review occurred on November 4, 2010. This review determined that “mental health concerns are irrelevant in considering release of [Shoatz] from [solitary confinement].”
60. The officials charged with determining whether or not Shoatz will be released from solitary confinement have little or no interaction with him prior to making their determination.
61. No meaningful attempt has been made by either the PRC or other DOC officials to determine if Shoatz is fit for release into the general population or a less restricted status.
62. Shoatz will likely spend the rest of his life isolated in solitary confinement. 63. Defendants are aware of the risks and harms inherent in long-term solitary confinement.

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64. Defendants are aware that long-term solitary confinement causes psychosis, cognitive impairment, physiological harm, and lasting, often permanent psychological trauma.
65. Defendants are aware that long-term solitary confinement results in greater incidences of self-harm, suicide, psychological deterioration, debilitating emotional suffering, and sleep disorders.
66. Defendants are aware that the risk of serious harm increases as time spent in solitary confinement increases.
67. In June 1995, Thomas James, who was Special Assistant to the DOC Commissioner, conducted a review to determine whether Shoatz should remain in solitary confinement.
68. James recognized that Shoatz’s extended stay in solitary confinement (at that time four years) was atypical and unique.
69. James admitted that holding a prisoner in solitary confinement for 90 days poses a risk of significant psychological harm and that he, therefore, typically recommends returning a prisoner to general population after just 90 days.
70. The continuous exposure to the conditions of solitary confinement for 21 consecutive years has exposed Shoatz to an unduly high risk of psychological harm and, in fact, has caused him actual mental anguish and suffering, including increased stress, heightened anxiety, severe difficulty concentrating, short-term memory problems, chronic depression, agoraphobia, and unfathomable emotional pain and suffering.

Case 2:13-cv-00657-CRE Document 1 Filed 05/08/13 Page 11 of 13
71. Defendants are aware that Shoatz has experienced serious mental and psychological harm as a result of his extended time in solitary confinement.
72. The continuous exposure to the conditions of solitary confinement for 21 consecutive years has caused Shoatz physical injury and pain, including cataracts, prostatitis, peripheral artery disease, heel spurs, arthritis, and hypertension/high blood pressure.
73. Defendants are aware that Shoatz has experienced serious physical injury and pain as a result of his extended time in solitary confinement.
74. As a result of Defendants’ acts and omissions, Shoatz has suffered severe mental anguish and other psychological damage, along with an unwarranted deprivation of the liberties and privileges granted other prisoners.
75. As a result of Defendants’ acts and omissions, Shoatz has been deprived of numerous basic human needs, including environmental stimulation, social interaction, psychological health, emotional wellbeing, physical health, sleep, exercise, nutrition and fundamental human dignity.
76. Defendants’ refusal to release Shoatz from solitary confinement was made with deliberate indifference to his condition, and in reckless disregard or knowing violation of his rights.
Causes of Action 77. By the foregoing conduct, Defendants have violated Shoatz’s right to be free of cruel and unusual punishment, as guaranteed by the Eighth Amendment of the United States Constitution.

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78. Shoatz is likely to remain in solitary confinement for the foreseeable future and, as a result, is likely to suffer continuing and debilitating psychological and physical injury, pain, and suffering.
79. Continuing to keep Shoatz in solitary confinement is in violation of contemporary standards of human decency and constitutes cruel and unusual punishment prohibited by the Eighth Amendment.
80. By the foregoing conduct, Defendants have subjected and continue to subject Shoatz to an atypical and significant hardship, and have violated and continue to violate Shoatz’s right to procedural and substantive due process, as guaranteed by the Fourteenth Amendment of the United States Constitution.
Prayer for Relief WHEREFORE, plaintiffs pray that this Honorable Court grant the following relief: A. Declare Defendants’ conduct unlawful; B. Enjoin and restrain Defendants from incarcerating Shoatz in solitary confinement or other similar conditions and order Shoatz’s placement in the general population; C. Award compensatory damages; D. Award punitive damages; E. Grant attorneys’ fees and costs; F. Trial by jury; and G. Such other relief as the Court deems just and proper.

Case 2:13-cv-00657-CRE Document 1 Filed 05/08/13 Page 13 of 13

Dated: May 8, 2013

Respectfully submitted,
s/ Richard L. Etter Richard L. Etter PA I.D. No. 92835 Stefanie A. Lepore PA I.D. No. 312998 REED SMITH LLP Reed Smith Centre 225 Fifth Avenue Pittsburgh, PA 15222-2716 Telephone: (412) 288-3806/3877
Daniel M. Kovalik PA I.D. No. 69065 Five Gateway Center Pittsburgh, PA 15222 Telephone: (412) 562-2518
Dustin McDaniel PA I.D. No. 314618 Abolitionist Law Center P.O. Box 8654 Pittsburgh, PA 15221 Telephone: (412) 651-7485
Attorneys for Plaintiff Russell Shoatz

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RUSSELL SHOATZ a/k/a RUSSELL

)

SHOATS,

)

)

Plaintiff,

)

)

v.

)

)

JOHN E. WETZEL, in his individual and )

official capacities as Secretary ofthe

)

Pennsylvania Department of Corrections; )

and LOUIS S. FOLINO, in his individual )

and official capacities as Superintendent of )

the State Correctional Institution at Greene, )

Defendants.

)

Civil Action No. 2: 13-cv-0657
United States Magistrate Judge Cynthia Reed Eddy

MEMORANDUM OPINION AND ORDER Presently pending are the cross Motions for Summary Judgment filed by the parties (ECF Nos. 61 and 67). The issues have been fully briefed and the factual record has also been thoroughly developed. (ECF Nos. 62, 63 , 68, 69, 70, 79, 80, 81 , 82, 83, 84, and 85). The motion is ripe for disposition. As will be explained in detail, the Court finds that genuine issues of material fact exist which preclude the Court from granting summary judgment to either party. 1
Factual Background The summary judgment record before the Court presents two starkly different positions of why one man spent over two consecutive decades in solitary confinement.2 The parties agree

All parties have consented to jurisdiction by the undersigned Magistrate Judge. See 28 U.S.C. § 636 et seq.; Consent to Trial I Jurisdiction by United States Magistrate Judge (ECF Nos. 9 and 10).
At the time Plaintiff initiated this lawsuit, he was housed in the Restricted Housing Unit at SCI-Mahanoy on Restricted Release List status. According to the Declaration Shoatz submitted in support of his motion for summary judgment, on August 28, 2013, he was transferred to SCI-Frackville, where he was held in solitary confmement. On September 23 , 2013, he was placed in a three-phase step down program, which he successfully completed on December 17, 2013 . On January 14, 2014, he was transferred to SCI-Graterford, where he was held in
1

that since 1974, Plaintiff, Russell Shoatz a/k/a Russell Shoats ("Shoatz"), has been a state
prisoner committed to the custody of the Pennsylvania Department of Corrections ("DOC") and
was held in solitary confinement for over 22 consecutive years (from June 1991 until February
2014).3 The parties also agree that Shoatz has a violent criminal history, described as follows
by the United States Court of Appeals for the Third Circuit in Shoats v. Horn, 213 F.3d 140, 141
(3d Cir. 2000):
In 1970, Shoats was convicted of first degree murder for his part in an attack on a Philadelphia police guardhouse. Shoats participated in the attack as a member of a black revolutionary group that sought to eradicate all authority. One police officer was killed and another seriously wounded in the attack. Shoats was sentenced to life imprisonment. Seven years later, in September 1977, Shoats and several other inmates took over a cell block at the Huntingdon State Correctional Institution as part of an attempt to escape. Shoats injured several guards with a knife, and along with three other prisoners, attempted to escape from the prison as planned. Two of the inmates were captured immediately and a third was killed during the escape. Shoats remained at large until he was captured in October 1977.
While Shoats was a fugitive, he entered the home of a prison guard and forced him, his wife, and their five year old son to drive him in their car to a location outside Cokesburg, Pennsylvania. Shoats then ordered the hostages to enter the woods where he left them tied to a tree for almost four hours. Shoats was captured, and convicted of escape, robbery, kidnapping and simple assault. He was later transferred to Fairview State Hospital for the criminally insane. In March 1979, Shoats had guns smuggled in to him and escaped from that maximum security institution, again taking a
solitary confmement. Approximately one month later, on February 20, 2014, he was released to the general population at SCI-Graterford. (Declaration of Russell Shoatz, ECF No. 63-1 ).
From the summary judgment record, it appears that Shoatz was ftrst placed in solitary confmement in 1980, upon his capture from his escape from Fairview State Hospital. He was transferred to general population in 1982. He was returned to solitary confmement during the Spring of 1983 "due to influence within Lifers organization." In November 1989, Shoatz was temporarily transferred to a federal prison, BOP Leavenworth . While there, he was initially held in solitary confinement, but then was released to general population. During his time at BOP Leavenworth, he was placed in solitary confinement on two occasions during investigations being conducted of all Pennsylvania prisoners who had been transferred to BOP Leavenworth. On both occasions, Shoatz was found to not have engaged in any rule violations and was released to general population. In June 1991 , Shoatz was returned to SCI-Dallas and was returned to solitary confmement. Shoatz remained in solitary confinement continuously until February 20, 2014.
2

hostage. In addition to escape and taking hostages, Shoats also has a history of threatening and assaulting his fellow inmates, and of causing disruptions at the institutions in which he is incarcerated. !d. at 141. Beyond these facts, the parties agree on little else.
Standard of Review Summary judgment is appropriate 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). Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007). A factual dispute is genuine if a reasonable jury could find for the non-moving party, and is material if it will affect the outcome of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). At the summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249; see also Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (a court may not weigh the evidence or make credibility determinations). Rather, the court must consider all evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007). To prevail on summary judgment, the moving party must affirmatively identify those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving party can discharge the burden by showing that "on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party." In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003); see also Celotex, 477 U.S. at 325. If the moving party meets this initial burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to material facts," but
3

must show sufficient evidence to support a jury verdict in its favor. Boyle v. Cty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). However, if the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to [the non-movant's] case, and on which [the non-movant] will bear the burden of proof at trial," Rule 56 mandates the entry of summary judgment because such a failure "necessarily renders all other facts immaterial." Celotex Corp., 477 U.S . at 322-23; Jakimas v. Roffman-La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).
Notably, these summary judgment rules do not apply any differently where there are cross-motions pending. Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008). As stated by the Court of Appeals for the Third Circuit, " ' [c]ross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.' "Id. (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241,245 (3d Cir. 1968)).
Discussion Shoatz argues that Defendants violated the Eighth Amendment's prohibition against cruel and unusual punishment by keeping him in solitary confinement for more than 22 years and that Defendants also deprived him of his substantive and procedural due process rights in violation of the Fourteenth Amendment to the U.S. Constitution. Not surprisingly, Defendants strongly contest all of Shoatz's claims.
4

A. Statute of Limitations and Exhaustion Defendants first argue that some of Shoatz's claims are barred by the statute of
limitations and/or on the basis that Shoatz did not sufficiently exhaust his administrative remedies under the Prison Litigation Reform Act ("PLRA"). These arguments will be addressed seriatim.
Statute ofLimitations Defendants argue that any claims brought under 42 U.S.C. § 1983 which seek relief for injury which occurred prior to May 8, 2011, are barred by the applicable statute of limitations. It is well established that there is no independent statute of limitations for bringing a claim under 42 U.S.C. § 1983 in federal court. Instead, the United States Court of Appeals for the Third Circuit has determined that "the [forum] state's statute of limitations for personal injury" applies to claims filed under 42 U.S.C. § 1983. Sameric Corp. of Delaware, Inc. v. City ofPhi/a., 142 F.3d 582, 599 (3d Cir. 1988). The statute of limitations for personal injury actions in Pennsylvania is two years. See 42 Pa. Cons. Stat. Ann.§ 5524.; Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993). A § 1983 cause of action "accrues when the plaintiff knew or should have known of the injury upon which its action is based." Sameric, 142 F.3d at 599. However, the continuing violation doctrine must be considered to properly address tolling of the statute of limitations. The continuing violation theory is an "equitable exception to the timely filing requirement" that applies "when a defendant's conduct is part of a continuing practice." West v. Phi/a. Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995) (superseded in part by statute, Lilly Ledbetter Fair Pay Act, Pub.L. No. 111-2, 123 Stat. 5 (2009)). This doctrine allows untimely actions to be considered timely "so long as the last act evidencing the continuing practice falls within the
5

limitations period" by instructing the court to "grant relief for the earlier related acts that would otherwise be time barred." Brenner, 927 F.2d at 1295. The Court of Appeals for the Third Circuit has held that "[t]o prevail on a continuing violation theory, however, the plaintiff must show more than the occurrence of isolated or sporadic acts ... ." Jewett v. Int'l Tel. and Tel. Corp. , 53 F. 2d 89, 91 (3d Cir. 1981 ). A "continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation." Sandutch v. Muraski, 684 F.2d 252, 254 (3d Cir. 1982) (quoting Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981)), abrogated on other grounds by Klehr v. A. 0. Smith Corp. , 521 U.S. 179 (1997).
Our appellate court has also identified three factors for courts to consider when
addressing the issue of whether a defendant's acts constitute a continuing practice or sporadic incidents. Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001). These factors are:
(1) subject matter jurisdiction- whether the violations constitute the same type of discrimination, tending to connect them in a continuing violation; (2) frequency whether the acts are recurring or more in the nature of isolated incidents; and (3) degree of permanence - whether the act had a degree of permanence which should trigger the plaintiffs awareness of and duty to assert his/her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate. The consideration of ' degree of permanence' is the most important of the factors . !d. Although the continuing violations doctrine has been applied most often to discrimination claims, it is applicable in other contexts, including procedural due process claims brought under § 1983. !d. at 292 (citing Centifanti v. Nix, 865 F.2d 1422, 1432 - 33 (3d Cir. 1989)). Shoatz has not alleged a series of distinct alleged wrongs but rather he has alleged that Defendants' conduct is part of a continuing practice. Based on this reasoning, the continuing violations doctrine is appropriate in this context and Shoatz is entitled to bring suit challenging all conduct that was a part of that violation, even conduct that occurred outside the limitations period.
6

Exhaustion ofAdministrative Remedies The PLRA, 42 U.S.C. § 1997(e)(a), provides as follows:
No action shall be brought with respect to prison conditions under section 1983 of this title by a prisoner confined in jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. In sum, the PLRA requires prisoners to completely exhaust their administrative remedies prior to filing a federal claim. Jones v. Bock, 549 U.S. 199, 202-03 (2007). Whether an inmate has exhausted administrative remedies is a question of law that is to be determined by the court, even if that determination requires the resolution of disputed facts. See Small v. Camden Cty, 728 FJd 265, 271 (3d Cir. 2013) Gudges may resolve factual disputes relevant to the exhaustion issue without the participation of a jury). Defendants argue that Shoatz failed to exhaust any claims except for his Fourteenth Amendment claim related to the appeal of his May 22, 2012, PRC Review. The Court finds that the summary judgment record does not support Defendants' exhaustion defense. While Shoatz's appeal clearly challenges the lack of alleged notice and reason for his continued "lockdown," the appeal also specifically states that the PRC Hearing governed his "continued housing in the Restricted Housing Unit (RHU) on 23 hour lockdown on the Restricted Release List (RRL)." The appeal further states that his "20 plus years in the RHU's without one major rule infraction should have cause them to investigate said records more clearly. " (ECF No. 81-18). Significantly, the appeal also states as follows: Alternatively, I'd ask that you immediately take steps to have me removed from the RRL and be allowed into the general prison population. Otherwise let this Appeal also serve as my Notice that legal action will begin to correct the violations of the 8th Amendment's prohibition against Cruel and Unusual Punishment, and the 14th
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Amendment's Due process and Equal Protection clauses, and seeking release from the RHU and monetary damages in my situation. (ECF No. 81-18 at 8) (emphasis added). The Court is unclear of what else Shoatz could have done to grieve his Eighth Amendment issue. Therefore, based on the summary judgment record, the Court must deny Defendants' request for summary judgment on this ground. B. Personal Involvement of Defendant Wetzel4 Defendant Wetzel argues that he is entitled to the entry of summary judgment because Shoatz has presented insufficient evidence that he was personally involved in the complained of violations of Shoatz's Eighth and Fourteenth Amendment rights. This argument is advanced regardless of the fact that under DOC policy the sole decision-maker in determining whether a prisoner on the RRL will remain in solitary confinement or be released is the Secretary of the DOC. Defendant Wetzel testified in his deposition that he was aware of his role as the sole decision-maker regarding the solitary confinement of Shoatz and he acknowledged that he could have initiated a review of any RRL prisoner's solitary confinement at any time. The summary judgment record also establishes that Defendant Wetzel had been contacted repeatedly by Shoatz's family members and other advocates who advised him that Shoatz "has suffered severe psychological anguish and his physical health has been worsened by the stress of prolonged isolation." In fact, in June 2012, Defendant Wetzel personally met with Theresa Shoatz (Shoatz's daughter), Heidi Boghossian (Executive Director ofNational Lawyers Guild), and Bret Grote, Esquire, to discuss Shoatz's prolonged solitary confinement and its negative impact on
After the filing of Defendants ' motion for summary judgment, Plaintiff voluntarily withdrew his claims against Defendant Kerestes; by Text Order of February 1, 2016, Defendant Kerestes was dismissed from this case. (ECF No. 86).
8

Shoatz's health and well-being. (Wetzel Deposition 19:16-20:6, 23:22-24:8; 28:4-6, 52:9-53:6; 138:1-25; 139: 1-17).
This evidence is sufficient to present a genume Issue of material fact for Jury consideration. C. Eighth Amendment Claims
The Eighth Amendment prohibits the infliction of"cruel and unusual punishments." U.S. Const. amend. VIII; Whitley v. Albers, 475 U.S. 312,318-19 (1986). The United States Supreme Court has interpreted this prohibition to impose affirmative duties on prison officials to "provide humane conditions of confinement." Farmer v. Brennan, 511 U.S. 825, 832 (1994); Allah v. Bartkowski, 574 F. App'x 135, 138 (3d Cir. 2014) (quoting Betts v. New Castle Youth Dev. Ctrs., 621 F.3d 249,256 (3d Cir. 2010)). When an Eighth Amendment claim arises in the context of a challenge to conditions of confinement, the relevant inquiry is whether the prisoner has been deprived of the "minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Atkinson v. Taylor, 316 F.3d 257, 272 (3d Cir. 2003). A prisoner must establish that he has been denied "basic human needs, such as food, clothing, shelter, sanitation, medical care and personal safety" from physical assault. Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997).
In order to succeed on an Eighth Amendment conditions of confinement claim, a plaintiff must demonstrate both that he has been denied "the minimal civilized measure of life's necessities" and that this was done while defendants had a "sufficiently culpable state of mind." Farmer, 511 U.S. at 834. With respect to the first requirement, conditions cited by an inmate must be "objectively, sufficiently serious [and] must result in the denial of the minimal civilized measure of life's necessities." !d. (internal citation and quotation omitted). Only "extreme
9

deprivations" are sufficient to make out a conditions of confinement claim. Hudson v. McMillen,
503 U.S. 1, 8-9 (1992). There is no static test for determining whether conditions are "cruel and
unusual." Instead, the Eighth Amendment "must draw its meaning from the evolving standards
of decency that mark the progress of a maturing society." Rhodes v. Chapman, 452 U.S. 337,
346 (1981) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). A plaintiff must prove that the
deprivation is sufficiently serious when viewed within the context of "contemporary standards of
decency."5 Helling v. McKinney, 509 U.S. 25, 36 (1993); see also Farmer, 511 U.S. at 833-34.
"Some conditions of confinement may establish an Eighth Amendment violation 'in
combination' when each would not do so alone, but only when they have a mutually enforcing
effect that produced the deprivation of a single, identifiable human need such as food, warmth, or
exercise ...." Wilson v. Seiter, 501 U.S. 294, 304 (1991) (emphasis in original).
In June, 2015, Justice Kennedy in a concurring opinion in a recent capital case, Davis v. Ay ala, ---- U.S. ---, 135 S. Ct. 2187 (20 15), spoke out on the issue of solitary confmement even though it admittedly had "no direct bearing on the precise legal questions presented by this case." Id at 2208. Ayala had " served the great majority of his more than 25 years in custody in ' administrative segregation' or, as it is better known, solitary confmement." !d. Justice Kennedy noted:
The human toll wrought by extended terms of isolation long has been understood, and questioned by writers and commentators .. .. One hundred and twenty-five years ago, this Court recognized that, even for prisoners sentenced to death , solitary confinement bears ' a further terror and peculiar mark of infamy.' In re Medley, 134 U.S . 160, 170 ( 1890); see also id., at 168, I0 S.Ct. 384 ("A considerable number of the prisoners fell , after even a short [solitary] confinement, into a semi-fatuous condition ... and others become violently insane; others, still committed suicide"). . . There are indications of a new and growing awareness in the broader public of the subject of corrections and of solitary confmement in particular. (internal citations omitted). . . Of course, prison officials must have discretion to decide that in some instances temporary, solitary confmement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exact a terrible price. . . See, e.g., Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U.J .L. & Pol'y 325 (2006) (common side effects of solitary confmement include anxiety, panic, withdrawal, hallucinations, selfmutilation, and suicidal thoughts and behaviors).
Davis, 135 S.Ct. at 2209- 2210.
10

It is well established that the Eighth Amendment protects not only inmates' physical
health, but their mental health as well.6 As the Court of Appeals for the Third Circuit stated,
The touchstone is the health of the inmate. While the prison administration may punish, it may not do so in a manner that threatens the physical and mental health of prisoners.
There is a fundamental difference between depriving a prisoner of privileges he may enjoy and depriving him of the basic necessities of human existence. Isolation may differ from normal confinement only in the loss of freedom and privileges permitted to other prisoners. The duration and conditions of confinement cannot be ignored in deciding whether such confinement meets constitutional standards.
Young v. Quinlan, 960 F.2d 351, 364 (3d Cir. 1992) (reversed on other grounds) (emphasis
added) .
With respect to the second element, an inmate must demonstrate deliberate indifference
to prison conditions on the part of prison officials. Farmer, 511 U.S. at 833; Wilson, 501 U.S. at
297; Rhodes, 452 U.S. at 347. This requires a court to determine, subjectively, whether the
officials acted with a sufficiently culpable state of mind. !d.
[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official 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. . . . The Eighth Amendment does not outlaw cruel and unusual "conditions"; it outlaws cruel and unusual "punishments."
On February 24, 2015, the Civil Rights Division of the Department of Justice issued its final investigative report entitled " Investigation of the Pennsylvania Department of Corrections' Use of Solitary Confinement on Prisoners with Serious Mental Illness and/or Intellectual Disabilities," detailing "the dehumanizing and cruel conditions that attend the Pennsylvania Department of Corrections' ("DOC") use of solitary confmement at six prison facilities, including SCI-Greene, where prisoners are reportedly confmed to a cell, less than 100 square feet, for twenty-three hours a day, exposed to unsanitary and inhospitable conditions, and subjected to the excessive use of restraints." Young v. Martin, 801 F.3d 172, 183-84 (3d Cir. 2015) (Report posted on the DOJ website at www .justice.gov/sites/default/files/crt/legacy/20 14/02/25/pdoc_fmding_2-24-14.pdt). The report " concludes that the long-term use of solitary confmement on mentally ill prisoners ' violate[s] the Eighth Amendment's prohibition against ' cruel and unusual punishments'." ld. (citing DOJ investigative report at 3).
11

Farmer, 511 U.S. at 838. Thus, a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it. A trier of fact may infer the existence of this subjective state of mind from the fact that the risk of harm is obvious. Id. at 842.
With this standard in mind, the Court turns to Shoatz's claims that as a result of his prolonged solitary confinement he suffered violations of his rights under the Eighth Amendment.
Was Shoatz Subjected To A Sufficiently Serious Condition Shoatz alleges that his prolonged years in solitary confinement deprived him of social interaction, environmental stimulation, and mental health. Defendants argue that the Supreme Court has yet to conclude that long term segregation in and of itself violates the Eighth Amendment and that the "essence of Shoatz's Eighth Amendment claim is that he was subjected to the same conditions generally applicable to all inmates on AC status in DOC Restricted Housing Unit." (Defs' Br. in Supp. of Mot. for Summ. 1. at 17, ECF No. 68). According to Shoatz, his prolonged solitary confinement caused him to "experience serious mental health harms, including years of chronic depression, bouts of suicidal ideation, high levels of anxiety, severe difficulty concentrating, short term memory loss, fear of leaving his cell, depression, emotional numbing, and an inability to form intimate relationships. (PI's Brief in Support of Mot for Surnm. 1. at 6, ECF No. 62). In support of this allegation, Plaintiff has submitted evidence in the form of an expert's report by James Gilligan, M.D., a board certified psychiatrist. According to Dr. Gilligan since leaving solitary confinement, Shoatz exhibits symptoms of "depression and of post-traumatic stress." (Expert Report of Dr. James Gilligan, ECF No. 63-6, at 15). He further opined as follows,
12

But I believe that his emotional numbing and incapacity for intimacy, both of which are among the primary symptoms of posttraumatic stress syndromes, are the most serious and disabling symptoms of psychopathology from which he suffers. And both of these symptoms would appear to be direct sequelae of having spent virtually his entire adult life in complete and coerced social isolation (and sensory deprivation) - which is among the most abnormal and pathogenic environments in which it is possible to place a human being. !d. Shoatz argues that his extraordinary length of solitary confinement deprived him of basic human needs and thus exposed him to a substantial risk of medical harm. (PI's Br. in Support of Mot for Summ J. at 4- 9 , ECF No. 62). The summary judgment record reflects that at least since December of 2008, Shoatz was inquiring of the mental health staff at SCI-Greene about the possible health effects of long term restrictive housing. For example, Shoatz argues that Defendants deprived him of sleep, one of life's basic needs. He alleges that he suffered chronic insomnia for at least the last six years while he was incarcerated at SCI-Greene and "[h]is inability to sleep was exacerbated by Defendants leaving a light on in his cell 24 hours per day."
!d. at 8. Shoatz also alleges that his prolonged years in solitary confinement deprived him of
physical health and exercise. See Wilson v. Seiter, 501 294, 304 (1991) (citing Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (outdoor exercise required when prisoners otherwise confined in small cells almost 24 hours per day)). Shoatz was permitted to enter the exercise cage five hours per week. Each time Shoatz left his cell he was subjected to what he describes as "visual strip-searches." After three years, Shoatz began going to the exercise cage only once or twice per week because he feared the degrading strip-searches.
Shoatz has also submitted evidence in the form of an expert's report by Juan E. Mendez, the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
13

Treatment or Punishment, an expert on international standards applicable to prolonged solitary confinement. Mr. Mendez opined as follows:
the conditions of detention of Mr. Russell Shoatz, in particular his indefinite solitary confinement eventually lasting 29 years, constituted cruel, inhuman or degrading punishment under customary international law standards. . . . [E]ven if isolation of inmates is not per se contrary to those practices, indefinite or excessively prolonged regimes of solitary confinement like the one suffered by Mr. Shoatz certainly do. In addition to the excessive duration and indefinite nature, his isolation contradicts the trend of all civilized Nations in that it was imposed on the basis of status determinations unrelated to any conduct in his part, and through a meaningless procedure that did not afford him a serious chance to challenge the outcome. (Expert Testimony of Juan E. Mendez, ECF No. 63-8 at 11- 12). While Shoatz may have been subjected to the same conditions as other inmates on administrative custody status, the fact remains that Shoatz endured these conditions for 22 consecutive years. As the Supreme Court stated in Hutto, solitary confinement may be unconstitutional "depending on the duration of the confinement and the conditions thereof." Hutto, 437 U.S. at 685-86. Therefore, the Court finds that for purposes of this motion, Shoatz has produced sufficient evidence for a reasonable fact finder to determine that the cumulative effect of over 22 years in consecutive solitary confinement constitutes a sufficiently serious deprivation of at least one basic human need, including but not limited to sleep, exercise, social contact and environmental stimulation. It is obvious that being housed in isolation in a tiny cell for 23 hours a day for over two decades results in serious deprivations of basic human needs. Thus, the Court finds that the objective prong of the Farmer test has been satisfied.
14

Were The Prison Officials "Deliberately Indifferent " To The Risk ofHarm
In Farmer, the Supreme Court defined "deliberate indifference" in the context of
conditions of confinement as follows:
We hold ... that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health and 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. This approach comports best with the text of the Amendment as our cases have interpreted it. The Eighth Amendment does not outlaw cruel and unusual "conditions"; it outlaws cruel and unusual "punishments."
Farmer, 511 U.S. at 837. The Supreme Court further clarified in Hope v. Pelzer, 536 U.S. 730,
738 (2002), that courts "may infer the existence of this subjective state of mind from the fact
that the risk of harm is obvious."
Shoatz argues that Defendants knew the risks associated with prolonged isolation and
knew that Shoatz in particular was suffering from his prolonged isolation, yet did nothing to
abate his situation. Defendants argue that "while the summary judgment shows that the
Corrections Defendants were certainly aware that Shoatz was confined in the Restricted Housing
Unit under the prevailing conditions of the DOC's Administrative Custody regime - and that
they were generally aware of what such conditions entailed - there is no evidence in the
summary judgment record to establish that any of the Corrections Defendants believed that these
conditions were harming Shoatz to the point of an Eighth Amendment violation. Rather, the
evidence is to the contrary." (Defs ' Br. at 26, ECF No. 68).
In his deposition, Defendant Folino admitted that he has known since the mid-1980s that
prisoners are at a greater risk of psychological harm the longer they remain in solitary
confinement. (Folino Dep. at 45 :10 - 47:24). Defendant Folino also testified that he was aware
15

that Shoatz had not had a psychological review for at least 10 years pnor to his 2010 psychological review. The summary judgment record evidence reflects that Defendant Folino knew of the risks and harms faced by Shoatz from letters, emails, and phone calls from family and other advocates seeking Shoatz's release from solitary confinement.
The summary judgment record demonstrates that Defendant Wetzel was similarly aware of the general risks inherent in prolonged solitary confinement and specifically aware of Shoatz' s situation. Defendant Wetzel was contacted repeatedly by family members of Shoatz and other advocates who informed Defendant Wetzel that Shoatz was suffering severe psychological anguish and his physical health had worsened by the stress of prolonged isolation. Defendant Wetzel also testified that he was aware that cell-side visits by mental health staff with RHU inmates were flawed and that the DOC policy has since been changed to correct this problem.
As I noted in my memorandum opinion denying Defendants' motion to dismiss, "as one district court observed 'a conclusion ... that prolonged isolation from social and environmental stimulation increases the risk of development of mental illness does not strike this court as rocket science'." Shoatz v. Wetzel, 2014 WL 294988, at *4, n.3 (W.D.Pa. Jan. 27, 2014) (quoting McClary v. Kelly, 4 F. Supp.2d 195, 209 (W.D.N.Y. 1998), ECF No. 29); Wilkerson v. Stalder, 639 F. Supp.2d 654, 680 (M.D.La. 2007) (" [a]ny person in the United States who reads or watches television should be aware that lack of adequate exercise, sleep, social isolation, and lack of environmental stimulation are seriously detrimental to a human being' s physical and mental health."). Accordingly, the Court finds that Shoatz has introduced evidence sufficient to allow a reasonable fact finder to find that Defendants were deliberately indifferent to the health and safety of Shoatz in continuing to impose the condition of prolonged solitary confinement. It will be for the jury to make the necessary credibility determinations.
16

D. Fourteenth Amendment Claims The Fourteenth Amendment prohibits a state from "depriv[ing] any person of life, liberty,
or property, without due process of law." U.S. Const. amend. XIV, § 1. To the extent Shoatz is attempting to assert a substantive due process claim, he must prove that he was deprived of a protected property interest by arbitrary or capricious government action. See Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 590 (3d Cir. 1998). Similarly, "[a] procedural due process analysis involves a two-step inquiry: (1) does the complaining party have a protected liberty or property interest and, if so, (2) does the available process comport with all constitutional requirements." Bowen v. Ryan, 2006 WL 3437287 (M.D.Pa. Nov. 29, 2006), affd, 248 F. App'x 302 (3d Cir. 2007); see also Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000) ("Shoats f').
As this Court noted in its adjudication of Defendants' motion to dismiss, Shoatz' s claim is determined by reference to the Court of Appeals for the Third Circuit' s decision in Shoats l In that case, our court of appeals found that Shoatz' s virtual isolation for eight years clearly gave rise to procedural due process protections under the analysis mandated by Sandin v. Conner, 515 U.S. 472, 484 (1995). Nonetheless, relying upon Hewitt, 459 U.S. 460 (1983), the court of appeals found that informal, periodic review of Shoatz' s administrative custody satisfied the requirements of due process. Shoats I, 213 F.3d at 147.
The Court can easily find that Shoatz' s continued solitary confinement for over 22 years satisfies the requirement that a liberty interest is implicated, but that finding does not end the inquiry for purposes of procedural process.7 See also Bowen v. Ryan, 248 F. App'x 302, 304-05
Defendants argue that Shoatz' s placement on the Restricted Release List ("RRL") does not implicate a constitutionally protected due process right. If Shoatz were challenging his placement on the RRL, Defendants would be correct. See Hu ertas v. Sec 'y Dept. of Corrections, 533 F. Appx. 64, 67 n. 6 (3d Cir. 20 13) (fmding that placement on the RRL does not implicate a constitutionally protected due process right.) However, the summary judgment record reflects that Shoatz is not contesting his placement on the RRL ; rather, he is pursuing an "as applied" challenge, particular to his situation.
17

(3d Cir. 2007) ("[T]wenty years in administrative custody is clearly an atypical and significant hardship sufficient to trigger the procedural protections of the Due Process Clause, implicating a liberty interest within the contemplation of the Fourteenth Amendment. ..."). The question then becomes does the available process comport with all constitutional requirements. Such process must include "some notice of the charges against [a prisoner] and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative custody." Shoats I, 213 F.3d at 145 (quoting Hewitt v. Helms, 459 U.S. 460, 476 (1983)).
In 2004, four years after the decision in Shoats L the DOC instituted the Restricted
Release List ("RRL"), a process for designating certain prisoners for indefinite solitary confinement. The Secretary of the DOC is the final decision maker as to whether a prisoner gets placed on the RRL, whether the prisoner remains on the RRL, and whether the prisoner is removed from the RRL.
Shoatz was placed on the RRL at its inception. It is not his initial placement on the RRL which he now challenges; rather, he challenges the periodic review process he received while on the RRL. Until October 2012, prisoners on the RRL did not receive a mandatory review of their RRL status. Review of an RRL prisoner's classification was discretionary, which meant the Secretary would not review or assess a prisoner's RRL status unless the Superintendent of the prison recommended that the prisoner be removed from the RRL. (ECF No. 63, Exh. 15, DCADM 802 §§ 1(B), 4(B) (effective date June 13, 2008); Exh. 16, DC-ADM 802 §§ 1(B), 2(D), 4(B) (effective date June 7, 2011)). According to Shoatz, no Superintendent reviewed his RRL status until February 2014.
Shoatz alleges that Defendants violated his rights under the Due Process Clause of the Fourteenth Amendment as follows:
18

1. The Program Review Committee ("PRC") lacked the authority to remove Shoatz from solitary confinement on RRL status, never considered the appropriateness of his continuing solitary confinement on RRL status, and failed to provide Shoatz with the rationale for his continued solitary confinement;
2. The reviews conducted in 2010 and 2012 at SCI Green were deficient because Shoatz was not notified in advance when they were occurring, was not permitted to participate, was not informed of the rationale sustaining his solitary confinement; and the ultimate decision-maker, the DOC secretary, did not participate;
3. Folino categorically refused to consider changed circumstances in assessing the justification for Shoatz' s solitary confinement; and
4. Shoatz was not reviewed by the sole decision-maker regarding his solitary confinement, the DOC secretary, until February 2014.
(PI's Br. in Supp. of PI ' s Mot. for Summ. Judg., at 15, ECF No . 62D; PI ' s Br. in Opp'n to Defs '
Mot for Summ. J. at 15 - 16, ECF No. 79). Defendants respond that the fact that Shoatz was on
the RRL does not change the analysis of the issue - he was afforded all the process he was due
when he was given periodic reviews of his custody status. (Defs ' Br. at 34, ECF No. 68).
The essential elements of minimal due process required in the prison environment are
easily satisfied by the detailed policies and procedures which control the placement of inmates in
administrative segregation in Pennsylvania state prisons. Whether those policies and procedures
were followed in a meaningful manner is disputed by the parties. While it is for the Court to
determine what process was due Shoatz, it is for the jury to decide whether he received that
process.
E. Qualified Immunity
"The doctrine of qualified immunity shields officials from civil liability so long as their
conduct 'does not violate clearly established statutory or constitutional rights of which a
19

reasonable person would have known." Mullenix v. Luna, --U.S.---, 136 S.Ct. 305, 308 (2015) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "A clearly established right is one that is 'sufficiently clear that every reasonable official would have understood that what he is doing violates that right.' " !d. (quoting Reichle v. Howards, 566 U.S.---, 132 S.Ct. 2088, 2093 (2012)). The Supreme Court of the United States has stated that it does " 'not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.' " !d. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Courts are not to define clearly established law at a high level of generality; rather "[t]he dispositive question is 'whether the violative nature of particular conduct is clearly established."' !d. (quoting al-Kidd, 563 U.S. at 742). "This inquiry 'must be undertaken in light of the specific context of the case, not as a broad general proposition." !d. (quoting Brosseau v. Haugen, 543 U.S. 194, 198 2004 (per curiam) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). "Put simply, qualified immunity protects 'all but the plainly incompetent or those who knowingly violate the law."' !d. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Therefore, to determine qualified immunity, the court must consider whether the facts alleged, taken in the light most favorable to the plaintiff, "show the officer's conduct violated a constitutional right," and also "ask whether the right was clearly established." Saucier, 533 U.S. at 201.
In the case sub judice, Defendants claim that they are entitled to qualified immunity on any Eighth Amendment conditions of confinement claim or Fourteenth Amendment due process claim asserted by Shoatz. Defendants argue that: (1) they did not violate Shoatz's constitutional rights, (2) "there has been no case which has clearly established an inmate's right not to be held
20

in solitary confinement for an extended period of time," (3) "there has been no case decided
which has clearly established than an inmate has a liberty interest arising from placement on the
DOC's Restricted Release under the terms of the DOC's DC-ADM 802 policy; and (4) "there
has been no case decided which has clearly established that the due process protections
established by the DOC's DC-ADM 802 policy for inmates confined in Administrative Custody
status ... violates the due process clause of the Fourteenth Amendment, even where the inmate
claims that such reviews are perfunctory or cursory." (Defs Br. at 40-41, ECF No. 68).
Shoatz responds that Defendants mischaracterize his claims as facial challenges, when in
fact his challenges are "as-applied" challenges, particular to his situation. As Shoatz explains,
"He does not contest RHU conditions generally. He does not contest his placement on the RRL.
And he does not contest the constitutionality of the DOC's DC-ADM 802 policy." (PI's Br. in
Opp'n, at 31, ECF No. 79).
The Court agrees with Shoatz's position on this issue. As our Court of Appeals
recognized in Young v. Quinlan, 960 F.2d 351, 363-64 (3d Cir. 1992), superseded by statute on
other grounds as stated in Ghana v. Holland, 226 F.3d 175, 184 (3d Cir. 2000),
Segregated detention is not cruel and unusual punishment per se, as long as the conditions of confinement are not foul, inhuman or totally without penological justification. (internal citations omitted). It may be a necessary tool of prison discipline, both to punish infractions and to control and perhaps protect inmates whose presence within the general population would create unmanageable risks. (internal citations omitted). Courts, though, have universally condemned conditions of segregation inimicable to the inmate-occupants' physical health, and, in some instances, have also considered conditions that jeopardize the mental health or stability of the inmates so confined. The touchstone is the health of the inmate. While the prison administration may punish, it may not do so in a manner that threatens the physical and mental health of prisoners. See Hutto [v. Finney, 437 U.S. 678, 685-87 (1978)]; Peterkin v. Jeffes, 855 F.2d 1021, 1029-30 (3d Cir. 1988)].
The law with regard to the deliberate indifference standard has been clear since at least
21

1976, when the United States Supreme Court decided Estelle v. Gamble, 429 U.S. 97, 104 (1976). Furthermore, in 1978, the Supreme Court stated that " [c]onfinement in a prison or in an isolation cell is a form of punishment subject to scrutiny under Eighth Amendment standards." Hutto v. Finney, 437 U.S. 678, 685 (1978). In Hutto, the Court explained that "punitive isolation is not necessarily unconstitutional, but it may be, depending on the duration of the confinement and the conditions thereof." !d. at 686 (" [T]he length of time each inmate spent in isolation was simply one consideration among many"). See also In re Medley, 134 U.S. 160, 168 (1890) (recognizing that in solitary confinement "[a] considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide[.]".)
The summary judgment record, when viewed in the light most favorable to Shoatz, raises genuine issues of material fact as to whether Defendants violated the Eighth Amendment in light of clearly established case law which prohibits deliberate indifference to prisoner health, the recognized risks and harms of solitary confinement, and the requirement to consider the duration of solitary confinement.
Similarly, Shoatz has presented sufficient evidence to preclude a finding of qualified immunity on his due process claims. Shoatz is not claiming a liberty interest because he was placed on the RRL nor is he making a facial challenge to DOC policy. Rather, as he explains, Shoatz has raised an as applied challenge to the deprivation of his liberty interest through the failure to provide notice and a meaningful opportunity to be heard and challenge his prolonged solitary confinement and to the "conscience-shocking" decisions to continue him in solitary confinement for an exceptionally long period of time without providing sufficient procedural protections.
22

In 2000, our court of appeals held that eight years in administrative custody, where, for example, an inmate is confined to his cell for 23 hours each day, eats meals by himself, and is prohibited from participating in organization activities, is atypical and implicates a protected liberty interest. Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000). The appellate court also stated that an "informal, nonadversary review at which the prisoner has the opportunity to state his views satisfies the requires of due process." !d. at 144 (quoting Hewitt v. Helms, 459 U.S. 460, 476 (1983)). The procedures afforded, or more specifically the alleged lack thereof, is the crux of Shoatz' s due process claims in this litigation.
The law with regard to the due process required when a prisoner's liberty interest is at stake has been clear since at least 1983, when the Supreme Court decided Hewitt v. Helms, 459 U.S. 460 (1983). The summary judgment record, when viewed in the light most favorable to Shoatz, raises genuine issues of material fact as to whether Shoatz's has been deprived of the process he is due under the Fourteenth Amendment.
Given the summary judgment record presented, at this stage of the litigation, the Court finds that Defendants are not entitled to qualified immunity. F. Injunctive Relief
Defendants argue that because Shoatz has been transferred to SCI-Graterford, his claims for injunctive relief are moot. Shoatz concedes that his claim for injunctive relief against Defendant Folino is mooted by his transfer and Defendant Folino's retirement. (PI's Br. in Opp'n, at n.5, ECF No. 79). However, Shoatz argues that the DOC's underlying conduct and/or policies remain at issue and, thus, his claims for injunctive relief against those policies are not moot. The Court finds Shoatz's argument persuasive. Because Defendant Wetzel has a position of state-wide authority in the DOC and thus Shoatz' s transfer to another prison within the DOC
23
•

does not take him outside of Defendant Wetzel's control, the Court finds that claims for injunctive relief against Defendant Wetzel are not moot. See Mohammad v. Kelchner, No. 303cv1134, 2005 WL 1138468, *7 (M.D. Pa. Apr. 27, 2005); Dantzler v. Beard, No. 09-275, 2010 WL 1008294, *11 n.lO (W.D. Pa. Mar. 15, 2010).
Conclusion The evidence presented in the summary judgment record is wide-ranging, and it bears emphasizing that this Court's findings are limited to the particular facts involving Russell Shoatz alk/a Russell Shoats. As stated at the outset of this Memorandum Opinion, the parties are in disagreement about the vast majority of the issues raised in this lawsuit, which results in the existence of genuine issues of material fact. It is for a jury to decide these factual issues. An appropriate Order follows.
AND NOW, this 12th day of February, 2016, For the reasons set forth in the Memorandum Opinion, it is hereby ORDERED that Plaintiffs Motion for Summary Judgment is DENIED and Defendants' Motion for Summary Judgment also is DENIED as the Court finds that disputes of material fact exist which must be resolved by ajury.
~U~l~cL~
CYJlt aReed Eddy United States Magistrate Judge
24

cc: Richard L. Etter Reed Smith LLP (via CM/ECF electronic notification) Stefanie Lepore Burt Reed Smith LLP (via CM/ECF electronic notification) Bret Grote Abolitionist Law Center (via CM/ECF electronic notification) Daniel M. Kovalik United Steelworkers of America (via CMIECF electronic notification) Dustin McDaniel Abolitionist Law Center (via CMIECF electronic notification) Harold J. Engel (via CM/ECF electronic notification) Mary Lynch Friedline Office of Attorney General (via CM/ECF electronic notification) Scott A. Bradley Office of the Attorney General (via CM/ECF electronic notification) Yana L. Warshafsky Office of the Attorney General (via CMIECF electronic notification)
25

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RUSSELL SHOATZ a/k/a RUSSELL

)

SHOATS,

)

)

Plaintiff,

)

)

v.

)

)

JOHN E. WETZEL, in his official capacity )

as Secretary of the Pennsylvania

)

Department of Corrections; LOUIS S.

)

FOLINO, in his official capacity as

)

Superintendent of the State Correctional

)

Institution at Greene; and JOHN

)

KERESTES, in his official capacity as

)

Superintendent of the State Correctional

)

Institution at Mahanoy,

)

)

Defendants.

Civil Action No. 2: 13-cv-0657
United States District Magistrate Cynthia Reed Eddy

MEMORANDUM OPINION AND ORDER Presently pending is the Motion to Dismiss filed by Defendants, with brief in support (ECF Nos. 12 and 13), the Brief in opposition filed by Plaintiff (ECF No. 23), and the Reply Brief filed by Defendants (ECF No. 24). For the reasons that follow, the Motion will be denied.1
Factual Background Plaintiff, Russell Shoatz a/k/a Russell Shoats, is a state prisoner committed to the custody of the Pennsylvania Department of Correction.2 This action was initiated by Plaintiff on May 8,

1

All parties have consented to jurisdiction by the undersigned Magistrate Judge. See 28

U.S.C. § 636 et seq.; Consent to Trial / Jurisdiction by United States Magistrate Judge (ECF Nos.

9 and 10).

2

At the time Plaintiff initiated this lawsuit, he was housed in the Restricted Housing Unit

at SCI-Mahanoy on Restricted Release List status. On September 4, 2013, Defendants notified

the Court that on or about August 27, 2013, Plaintiff had been transferred to SCI-Frackville,

1

2013, by the filing of a counseled prisoner civil rights Complaint. (ECF No. 1). Named as Defendants are the Secretary of Corrections, John E. Wetzel, and the Superintendents of SCIGreene, Louis S. Folino, and SCI-Mahanoy, John Kerestes.
Plaintiff has been held in solitary confinement continuously since June of 1991, approximately twenty-two (22) years. He alleges that the “specific conditions of his solitary confinement - conditions which he has been subjected to for over 21 consecutive years - amount to cruel and unusual punishment under the Eighth Amendment.” Br. at 1-2. He also claims that under his specific circumstances, Defendants have failed to afford him all of the process he is due, thus, violating both his procedural and substantive due process rights under the Fourteenth Amendment. Plaintiff seeks declaratory and injunctive relief, including placement in general population, as well as compensatory and punitive damages.
Defendants have filed the instant Motion to Dismiss, with brief in support, in which they seek to have Plaintiff’s claims dismissed with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). The matter has been fully briefed and is ripe for disposition.
Standard of Review A motion to dismiss pursuant Rule 12(b)(6) challenges the legal sufficiently of the complaint. When reviewing a motion to dismiss, the Court must accept all well-pleaded facts and allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff. Burtch v. Milberg Factors, Inc., 62 F.3d 212, 220 (3d Cir. 2011), cert. denied, -- U.S. --, 131 S. Ct. 1861 (2012) (citing In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010)). However, as the Supreme Court of the United States made clear in Bell Atlantic Corp. v. Twombly, such
where he was being evaluated for consideration for removal from the Restricted Release List. It appears from a review of the DOC Inmate Locator that Plaintiff is now being housed at SCIGraterford. See http://www.portal.state.pa.us/portal/server.pt/community/ inmate_information (last viewed January 24, 2014).
2

“[f]actual allegations must be enough to raise a right to relief above the speculative level.” 550 U.S. 554, 555 (2007). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that, while the Complaint need not contain detailed factual allegations, it must contain more than a “formulaic recitation of the elements” of a constitutional claim and must state a claim that is plausible on its face) (quoting Twombly, and providing further guidance on the standard set forth therein).
To determine the legal sufficiency of a complaint after Twombly and Iqbal, the United States Court of Appeals for the Third Circuit instructs that a district court must make a three-step approach when presented with a motion to dismiss for failure to state a claim. Santiago v. Warminster Twp., 629 F.3d 121, 130 n.7 (3d Cir. 2010) (noting that although Iqbal describes the process as a “two-pronged approach,” it views the case as outlining three steps) (citing Iqbal, 556 U.S. at 675). First, “the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.” Id. at 130 (quoting Iqbal, 556 U.S. at 675) (alteration in original). Second, the court “should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 556 U.S. at 679). Third, ‘”where there are wellpleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.’” Id. (quoting Iqbal, 556 U.S. at 679).
Courts generally consider the allegations of the complaint, attached exhibits, and matters of public record in deciding motions to dismiss. Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Factual allegations within documents described or identified in the complaint also may be considered if the plaintiff’s claims are based upon those documents. Id. (citations omitted). In addition, a district court may consider indisputably authentic documents without converting a motion to dismiss into a motion for summary
3

judgment. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Lum v. Bank of America, 361 F.3d 217, 222 (3d Cir. 2004) (in resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally should consider “the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.”).
Moreover, the United States Court of Appeals for the Third Circuit has held that, in civil rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint regardless of whether the plaintiff requests to do so - when dismissing a case for failure to state a claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
Discussion A. Claims Brought under the Eighth Amendment
As noted supra, Plaintiff alleges that the specific conditions of his solitary confinement, namely conditions which he has been subjected to for over twenty-two consecutive years, amount to a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. See U.S. Const. amend. VIII.
Courts consider the conditions of confinement as a whole because several deprivations in combination may constitute a constitutional violation when they have a mutually enforcing effect that produce the deprivation of a single, identifiable human need, such as health, safety, food, warmth, or exercise. See Wilson v. Seiter, 501 U.S. 294, 298, 304 (1991). For a condition of confinement to be considered cruel and unusual it must be: (i) grossly disproportionate to the severity of the crime warranting punishment, (ii) involve the wanton and unnecessary infliction of pain, or (iii) deprive inmates of the minimal civilized measure of life’s necessities. Rhodes v.
4

Chapman, 452 U.S. 337, 347 (1981). The prison environment itself may not be so brutal or unhealthy as to be in itself a punishment. Bell v. Wolfish, 441 U.S. 520, 539 (1979).
A plaintiff asserting a claim of cruel and unusual conditions of confinement under the Eighth Amendment must satisfy a two-part test, with an objective and a subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the objective component, a plaintiff must show that the conditions to which he is subjected are “sufficiently serious,” and to satisfy the subjective component, the plaintiff must show that the defendants are deliberately indifferent to his health or safety. Id.
The standard for determining whether prison conditions satisfy the Eighth Amendment’s objective component focuses on whether the conditions are contrary to “the evolving standards of decency that mark the progress of a maturing society, ” Id. at 833-34, or whether the inmate has been denied “the minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Such things as food, sleep, clothing, shelter, medical attention, reasonable safety, sleep, and exercise have been recognized by courts as basic physical human needs subject to deprivation by conditions of confinement.
In Young v. Quinlan, 960 F.2d 35, 364 (3d Cir. 1992), the Court of Appeals for the Third Circuit discussed conditions of segregation in the context of the objective component of a claim for violation of the Eighth Amendment as follows:
Segregated detention is not cruel and unusual punishment per se, as long as the conditions of confinement are not foul, inhuman or totally without penological justification. It may be a necessary tool of prison discipline, both to punish infractions and to control and perhaps protect inmates whose presence within the general population would create unmanageable risks. Courts, though, have universally condemned conditions of segregation inimicable to the inmate-occupants physical health, and, in some instances, have also considered conditions that jeopardize the mental health or stability of the inmates so confined. The touchstone is the health of the inmate. While the prison
5

administration may punish, it may not do so in a manner that threatens the physical and mental health of prisoners.
There is a fundamental difference between depriving a prisoner of privileges he may enjoy and depriving him of the basic necessities of human existence. Isolation may differ from normal confinement only in the loss of freedom and privileges permitted to other prisoners. The duration and conditions of confinement cannot be ignored in deciding whether such confinement meets constitutional standards.
To meet the subjective requirement, a plaintiff must allege that defendants were aware of
or deliberately indifferent to the health risks posed by the conditions of his long-term solitary
confinement. See Farmer, 511 U.S. at 837; Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir.
2001). The United States Supreme Court has defined “deliberate indifference” in the context of
conditions of confinement as follows:
We hold . . . that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official 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. This approach comports best with the text of the Amendment as our cases have interpreted it. The Eighth Amendment does not outlaw cruel and unusual “conditions”; it outlaws cruel and unusual “punishments.”
Farmer, 511 U.S. at 837.
In Hope v. Pelzer, 536 U.S. 730, 738 (2002), the United States Supreme Court further
clarified that the court “may infer the existence of this subjective state of mind [deliberate
indifference] from the fact that the risk of harm is obvious.” Additionally, in the context of
prison conditions, assuming a sufficiently serious deprivation has occurred, deliberate
indifference may be indicated by the lack of a legitimate penological justification for the
condition. Id. at 737-38.
6

Defendants argue that Plaintiff’s Complaint “appears to be nothing more than ‘a general attack upon the penal system in Pennsylvania’s RHU units;’ more specifically, a general attack on the conditions imposed by the DOC’s Administrative Custody regime for those inmates on RRL status.” Defs’ Br. at 9. The Court disagrees.
The Complaint clearly contains allegations regarding the specific conditions that Plaintiff has been subjected to during his prolonged continual isolation, including deprivation of human contact, physical activity, personal property, and mental stimulation. Additionally, Plaintiff alleges that his cell “exposes him to air temperature that is colder than the air temperature in the general prison population;” Complaint at ¶ 16, and that he “has received only 3-4 hours of sleep per night.” Id. at ¶ 17. Throughout his Complaint, Plaintiff alleges facts sufficient to plausibly establish the objective requirement of his Eighth Amendment claim.
Likewise, the Court finds that Plaintiff has also alleged facts sufficient to plausibly establish the subjective requirement of his Eighth Amendment claim. For example, he has alleged, inter alia, that each of the Defendants are aware of the excessive risk that long-term solitary confinement causes, such as severe emotional, mental, and physical damage. Complaint at ¶¶ 63-66. In his Complaint, Plaintiff states that his lengthy period of solitary confinement has caused him mental anguish and suffering, including “increased stress, heightened anxiety, severe difficulty concentrating, short-term memory problems, chronic depression, agoraphobia, and unfathomable emotional pain and suffering.” Complaint at ¶ 70. He further alleges that he has suffered physical injury and pain, including cataracts, prostatis, peripheral artery disease, heel spurs, arthritis, and hypertension / high blood pressure. Id. at ¶ 72.
Further, the Complaint contains allegations that each of the Defendants are aware of the actual mental and psychological harm and physical injury and pain suffered by Plaintiff as a
7

result of his extended time in solitary confinement. As noted by the court in Wilkerson v. Stalder, 639 F.Supp.2d 654, 680 (M.D.La. 2007), “[a]ny person in the United States who reads or watches television should be aware that lack of adequate exercise, sleep, social isolation, and lack of environmental stimulation are seriously detrimental to a human being's physical and mental health.” 3
For these reasons, the Court finds that Plaintiff’s Complaint adequately alleges an Eighth Amendment cruel and unusual punishment claim. The duration of Plaintiff’s solitary confinement has continued for a sufficient length of time that relief on his Eighth Amendment claim is plausible. Therefore, Defendants’ motion to dismiss Plaintiff’s Eighth Amendment claim will be denied. B. Claims Brought under the Fourteenth Amendment
Plaintiff also claims that Defendants’ actions in failing to follow DOC regulations and procedures for periodic review of his administrative custody assignment amounts to a violation of the Due Process Clause of the Fourteenth Amendment.
1. Procedural Due Process Courts use a two-step inquiry to determine whether a plaintiff has stated a valid procedural due process claim. See Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989). First, the court determines “whether the nature of the interest is one within the contemplation of the ‘liberty or property’ language of the Fourteenth Amendment.” Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000) (citing Fuentes v. Shevin, 407 U.S. 67 (1972)) (Shoats I). If the court finds that the plaintiff has alleged such a deprivation, it will then proceed to the
3 Further, as one district court observed “a conclusion . . . that prolonged isolation from social and environmental stimulation increases the risk of development of mental illness does not strike this court as rocket science.” McClary v. Kelly, 4 F. Supp.2d 195, 209 (W.D.N.Y. 1998).
8

second stage of the inquiry, asking “whether the procedures attendant upon that deprivation were constitutionally deficient.” Thompson, 490 U.S. at 460; Shoats I, 213 F.3d at 143 (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
In this case, the answer to the threshold question - whether Plaintiff suffered a deprivation of a protected liberty interest by virtue of his extended solitary confinement - is easily resolved. In Shoats I, our appellate court held that Plaintiff had a protected liberty interest because his placement in solitary confinement for eight (8) consecutive years caused him to suffer a “substantial adverse impact” that exceeds his sentences, as well as an “atypical and significant hardship” in relation to “the ordinary incidents of prison life.” Shoats I, 213 F.3d 143-44. Since Shoats I, Plaintiff has continued to be confined in solitary confinement, and according to the Complaint he has also been subjected to more restrictive conditions, i.e., the sealing of the steel doors of his cell and the “no talking” policy. See Complaint at ¶¶ 37-38.
There is no disagreement among the parties that Plaintiff has a protected liberty interest that has been adversely affected by his indefinite segregation in administrative custody. However, Defendants argue that Plaintiff’s procedural due process claim is barred by the doctrine of claim preclusion or res judicata because there is complete identity between this action and Plaintiff’s prior litigation in which he challenged his solitary confinement, i.e., Shoats I.4
“Res judicata, also known as claim preclusion, bars a party from initiating a second suit against the same adversary based on the same ‘cause of action’ as the first suit.” Duhaney v. Att'y Gen. of the United States, 621 F.3d 340, 347 (3d Cir. 2010). “Under res judicata, a final

4

“Res judicata” bars relitigation of the same cause of action between the same parties

where there is a prior judgment, whereas “collateral estoppel” bars relitigation of a particular

issue or determinative fact.

9

judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94 (1980); see also United States v. 5 Unlabeled Boxes, 572 F.3d 169, 173 (3d Cir. 2009). “The purpose of claim preclusion is to avoid piecemeal litigation of claims arising from the same events.” Churchill v. Star Enters., 183 F.3d 184, 194 (3d Cir. 1999). The party seeking to invoke claim preclusion must show that there has been “(1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on the same cause of action.” Duhaney, 621 F.3d at 347 (citation omitted).
The parties do not dispute that the first two factors of claim preclusion have been met final judgment and privity. The parties do dispute, however, whether the third prong has been met. Defendants argue that Plaintiff’s claims in the instant action are identical to his claims in Shoats I in which he challenged his continued placement in solitary confinement on procedural grounds. Plaintiff argues that in Shoats I Plaintiff challenged his solitary confinement through 1997, whereas the instant action relates to Plaintiff’s continued placement in solitary confinement after twenty-one years. Plaintiff argues that this case falls within the “continuing course of conduct” exception to res judicata and that the instant claims stem from events that post-date the prior judgment. Pl’s Br. at 14.
The Court finds Defendants’ argument unavailing. “Res judicata applies . . . only to claims arising prior to the entry of judgment. It does not bar claims arising subsequent to the entry of judgment and which did not then exist or could not have been sued upon in the prior action.” Alexander & Alexander, Inc. v. Van Impe, 787 F.2d 163, 166 (3d Cir. 1986) (citing Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 329 (1955) (original emphasis); see also Allegheny Int'l, Inc. v. Allegheny Ludlum Steel Corp., 40 F.3d 1416, 1430 (3d Cir. 1994) (citing
10

same); Gates v. Rohm & Haas Co., 265 F.R.D. 208, 219 (E.D.Pa. 2010) (“The entire point of claim preclusion is to prevent future actions on grounds that could have been raised in an earlier action, not to prevent future actions on grounds that did not yet exist (and therefore could not have been raised) in an earlier action.”) (original emphasis).
Accordingly, the Court finds that Plaintiff’s prior due process claims in Shoats I do not preclude his procedural due process claims in this case.
In the alternative, Defendants contend that Plaintiff’s Complaint fails to state a procedural due process claim. Plaintiff counters that “he is not alleging a per se violation of the Fourteenth Amendment, but rather that he alleges that Defendants failed to follow the established procedures in such a way that - under his specific circumstances - amounts to a violation of his Fourteenth Amendment right to procedural due process.” Pl’s Br. at 13-14.
The Complaint identifies a wide range of alleged procedural deficiencies, which include the following:
1. Plaintiff was never provided any reasons as to why he is on the Restricted Release List (“RRL”);
2. Plaintiff is not provided notice when he is reviewed for release from the RRL; 3. Plaintiff is not provided notice of any decisions taken by any prisons, including the DOC Secretary, to keep him on the RRL; 4. Plaintiff has never been told what he must do to be removed from the RRL; 5. The review by the Program Review Committee (“PRC”) is a perfunctory proceeding, and the extension of Plaintiff’s solitary confinement is automatic; 6. The PRC refuses to provide Plaintiff with a full and detailed accounting of the evidence relied upon in continuing his solitary confinement;
11

7. Defendant Superintendent Folino has denied Plaintiff’s request for a detailed and complete explanation of the basis of his continued solitary confinement, other than replying that Plaintiff is “an escape risk in a less secure status;” and
8. Neither the PRC nor any DOC official has engaged in a meaningful evaluation of whether Plaintiff is an escape risk in a less secure status.
The United States Supreme Court has recognized that notice of the factual basis underlying one’s segregated confinement and a fair opportunity for rebuttal “are among the most important procedural mechanisms for purposes of avoiding erroneous deprivations” of liberty interests. Wilkinson v. Austin, 545 U.S. 209, 225-26 (2005). The Court finds that there is a potential set of facts which, consistent with the facts alleged in the Complaint, could show that Plaintiff is entitled to relief for Defendants’ failure to provide sufficient process. Accordingly, Defendants’ motion to dismiss Plaintiff’s procedural due process claim will be denied. Determination of the process due would be premature at this early stage of the litigation, where Plaintiff has yet to produce evidence to support his allegations.
2. Substantive Due Process “[T]he Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions ‘regardless of the procedures used to implement them.’ ” Zimmerman v. Burch, 494 U.S. 113, 125 (1990). Official conduct violates substantive due process if it “is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Evans v. Sec’y of Dept. of Corr., 645 F.3d 650, 660 (3d Cir. 2011) (citing City of Sacramento v. Lewis, 253 U.S. 833, 847 n. 8 (1988)). Our Court of Appeals has explained that As a general matter, it is governmental “conduct intended to injure” that is “most likely to rise to the conscience-shocking level.” Lewis, 523 U.S. at 849, 118 S.Ct. 1708 (internal citations and quotation marks omitted). Conscience-shocking behavior may also arise in the form of injuries produced by deliberate
12

indifference, although, where the conduct was not intentional, it is a “closer call[ ].” Id. “Negligently inflicted harm,” by contrast, “is categorically beneath the threshold of constitutional due process” and will never be conscience shocking. Id. (citing Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). Id. “[I]n the custodial situation of a prison, forethought about an inmate’s welfare is not only feasible, but obligatory,” and therefore a “deliberate indifference” standard of culpability is appropriate for establishing a conscience-shocking conduct. Miller v. City of Phila.,174 F.3d 368, 375 (3d Cir. 1999) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 851 (1998)). Here, Plaintiff alleges that Defendants’ “failure to provide constitutionally sufficient procedures . . . capable of recognizing the illegitimacy of holding Shoatz as an escape risk constitutes deliberate indifference that shocks the conscience.” Pl’s Br. at 15-16. The Court finds that the factual allegations of the Complaint sufficiently support a substantive due process claim. Accordingly, this portion of Defendants' motion to dismiss also will be denied.
Conclusion For all the foregoing reasons, the Motion to Dismiss filed by Defendants will be denied. An appropriate Order follows.
AND NOW, this 27th day of January, 2014, It is hereby ORDERED that the Motion to Dismiss filed by Defendants is DENIED in its entirety. In accordance with Federal Rule of Civil Procedure 12(a)(4)(A), Defendants’ responsive pleading shall be served on or before February 10, 2014.
s/Cynthia Reed Eddy Cynthia Reed Eddy United States Magistrate Judge
13

cc: Richard L. Etter Reed Smith LLP Email: retter@reedsmith.com Stefanie Lepore Burt Reed Smith LLP Email: slepore@reedsmith.com Bret Grote Abolitionist Law Center Email: bretgrote@abolitionistlawcenter.org Daniel M. Kovalik United Steelworkers of America Email: dkovalik@usw.org Dustin McDaniel Abolitionist Law Center Email: dsmcdan@gmail.com Harold J. Engel Email: halengel@gmail.com Scott A. Bradley Office of the Attorney General Email: sbradley@attorneygeneral.gov
14

 
 Case 2:13-cv-00657-CRE Document 50 Filed 11/21/14 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RUSSELL SHOATZ, a/k/a RUSSELL :

SHOATS

:

:

Plaintiff,

:

:

v.

:

:

JOHN E. WETZEL, in his individual and :

official capacity as Secretary of the

:

Pennsylvania Department of Corrections; :

LOUIS S. FOLINO, in his individual and :

official capacity as Superintendent of the :

State Correctional Institution at Greene; : and JOHN KERESTES, in his individual :

and official capacity as Superintendent of :

the State Correctional Institution at

:

Mahanoy.

:

Case No.
ELECTRONICALLY FILED JURY TRIAL DEMANDED

Defendants.

COMPLAINT

Plaintiff Russell Shoatz, a/k/a Russell Shoats (“Shoatz”), by and through his

undersigned counsel, files the following Complaint.

Introduction

Russell Shoatz is a 69-year-old who has been locked in solitary confinement at

various State Correctional Institutions for the past 21 consecutive years, and 28 of the past

30 years. Shoatz is a father, grandfather, great-grandfather, human rights advocate, and

published author. For the last 23 years, Shoatz has had an impeccable disciplinary record,

receiving only one misconduct for a rule violation when he covered a vent in his cell that

was blowing cold air in an attempt to stay warm.

Case 2:13-cv-00657-CRE Document 50 Filed 11/21/14 Page 2 of 13
Sentenced to life in prison without the possibility of parole in 1972, Shoatz escaped from imprisonment in 1977 and in 1980. After he was recaptured, Shoatz was held in solitary confinement until being released to the general prison population at SCI Pittsburgh in 1982. Upon release to the general population, Shoatz committed himself to abiding by the rules and regulations of the prison. Toward this end he became involved with the Pennsylvania Association of Lifers (PAL), an officially-approved prison organization dedicated to advancing the interests of life-sentenced prisoners.
In late 1982, Shoatz was one of a group of prisoners serving life sentences at the SCI Pittsburgh who began discussing ways to change the PAL to better serve the needs of the membership. Shoatz wanted the PAL to work with their non-incarcerated family members and public supporters to lobby the state legislature to repeal life without parole sentences. The membership of the PAL expanded from approximately 12 people to more than 100. The night that the old leadership was impeached and Shoatz appointed interim President in spring 1983, he was placed in solitary confinement. Pennsylvania prison officials have refused to release him from solitary confinement ever since.
For a 19-month period from November 1989 to June 1991, Shoatz was housed in the general prison population at the federal penitentiary in Leavenworth, Kansas. During his time in general population, Shoatz was an exemplary prisoner and did not commit any prison rule infractions. Despite this fact, following his transfer back to the state system, Shoatz was immediately placed back in solitary confinement where he remains to this day.
For the better part of 30 years, Shoatz has lived in virtual isolation confined to a 7 x 12 cell for 23-24 hours per day, 7 days a week. The continuous prolonged exposure to the

Case 2:13-cv-00657-CRE Document 50 Filed 11/21/14 Page 3 of 13
brutal conditions of solitary confinement have caused Shoatz physical and mental harm and anguish, and imposed a significant hardship on him in relation to the ordinary incidents of prison life. Prison officials refuse to explain what Shoatz must do in order to be released into the general prison population, and continue to warehouse him in solitary confinement based on an irrational fear of and animosity toward his human rights activism and perceived dissident politics. For Shoatz, it seems that death is his only hope of being released from the torturous conditions of solitary confinement.
Jurisdiction and Venue 1. This is an action for injunctive, declaratory and monetary relief for violation of the Eighth and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983. 2. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4), and 2201. 3. This Court is the appropriate venue pursuant to 28 U.S.C. § 1391(b)(2) because most of the events and omissions giving rise to the claims occurred, and most of the witnesses to these events and omissions reside, in the Western District of Pennsylvania.
Parties 4. Plaintiff Russell Maroon Shoatz (Inmate No. AF-3855) is 69-year old adult individual who has been held in solitary confinement continuously for the past 21 years (since June 1991) at the State Correctional Institutions at Mahanoy (“SCI Mahanoy”), Greene (“SCI Greene”) and Dallas (“SCI Dallas”).

Case 2:13-cv-00657-CRE Document 50 Filed 11/21/14 Page 4 of 13
5. Defendant John E. Wetzel is the Secretary of the Pennsylvania Department of Corrections (“DOC”). Defendant Wetzel is responsible for the overall operation of the DOC. Defendant Wetzel is sued in his individual and official capacity.
6. Defendant Louis S. Folino is the Superintendent at SCI Greene. Defendant Folino is responsible for the overall operation of SCI Greene. Defendant Folino is sued in his individual and official capacity.
7. Defendant John Kerestes is the Superintendent at SCI Mahanoy. Defendant Kerestes is responsible for the overall operation of SCI Mahanoy. Defendant Kerestes is sued in his individual and official capacity.
Factual Allegations 8. Pennsylvania correctional institutions, including SCI Mahanoy, SCI Greene, and SCI Dallas, have two types of housing, general population and Restricted Housing Units (hereafter “solitary confinement”). 9. Shoatz has been continuously held in solitary confinement for the past 21 years (since June 1991). 10. From June 1991 to January 1995, Shoatz was held in solitary confinement at SCI Dallas. 11. From January 1995 to March 28, 2013, Shoatz was held in solitary confinement at SCI Greene. 12. Presently, Shoatz is being held in solitary confinement at SCI Mahanoy. 13. For the past 21 years, Shoatz has been confined to a cell that measures approximately 7 feet x 12 feet.

Case 2:13-cv-00657-CRE Document 50 Filed 11/21/14 Page 5 of 13
14. For the past 21 years, Shoatz has been confined to a cell for 23-24 hours per day seven days per week.
15. For the past 21 years, Shoatz has been confined to a cell that is illuminated by lights 24 hours per day.
16. For the past 21 years, Shoatz has been confined to a cell that exposes him to air temperature that is colder than the air temperature in the general prison population.
17. For most of the past 21 years, Shoatz has received only 3-4 hours of sleep per night.
18. For the past 21 years, Shoatz has been confined to a cell that contains a steel bed, steel toilet and sink, steel desk and stool, and a steel cabinet. As such, Shoatz has had little room to exercise or walk around in his cell.
19. For the past 21 years, Shoatz has been permitted to go to a fenced-in exercise pen five days per week for one hour, weather permitting. The fenced-in exercise pen contains no weights, balls, or exercise equipment of any kind.
20. For the past 21 years, Shoatz has been required to eat all meals alone in his cell.
21. For the past 21 years, Shoatz has been given only 15-20 minutes to eat his meals.
22. For the past 21 years, Shoatz has been served different food than the prisoners in the general prison population.
23. For the past 21 years, Shoatz has been permitted only three showers per week.

Case 2:13-cv-00657-CRE Document 50 Filed 11/21/14 Page 6 of 13
24. For the past 21 years, Shoatz has been prohibited from participating in educational activities.
25. For the past 21 years, Shoatz has been prohibited from participating in vocational activities.
26. For the past 21 years, Shoatz has been prohibited from participating in organizational activities.
27. For the past 21 years, Shoatz has been permitted only one non-legal visit per week.
28. For the past 21 years, Shoatz has been prohibited from having physical contact with his visitors, including with family members.
29. For the past 21 years, Shoatz has been subjected to a mandatory strip search and the possibility of a body-cavity search every time he leaves his cell.
30. For the past 21 years, Shoatz has been placed in shackles every time he leaves his cell.
31. For the past 21 years, Shoatz has been kept in shackles whenever he is moved outside his cell, including during his non-contact visits with his family.
32. For the past 21 years, Shoatz has been permitted in his cell one box measuring approximately 2.5 cubic feet to contain all personal belongings, including his clothing and medical records.
33. For the past 21 years, Shoatz has been regularly moved to a different cell at least every 90 days.

Case 2:13-cv-00657-CRE Document 50 Filed 11/21/14 Page 7 of 13
34. During the past 21 years, Shoatz has not had a contentious interaction with any prison official or staff member.
35. During the past 21 years, Shoatz has not been issued a serious misconduct. 36. During the past 21 years, Shoatz was issued only one misconduct for covering an air conditioning vent because he was cold. 37. DOC has a “no talking” policy for prisoners in solitary confinement. 38. DOC has sealed the steel doors of the cells in solitary confinement. 39. The conditions imposed upon Shoatz for the past 21 years are significantly harsher than those imposed on prisoners in general population. 40. The conditions of Shoatz’s incarceration in solitary confinement almost totally deprive him of human contact, physical activity, personal property, and mental stimulation. 41. The DOC maintains a Restricted Release List (RRL). A prisoner cannot be placed on the RRL without the authorization of the Secretary. A prisoner who is on the RRL may not be released from the RRL without the authorization of the Secretary. 42. Shoatz is on the RRL. Shoatz has never been provided any reasons as to why he is on the RRL 43. Shoatz is not provided notice when he is reviewed for release from the RRL. 44. Shoatz is not provided notice of any decisions taken by any prison officials, including the DOC Secretary, to keep him on the RRL. 45. Shoatz has never been told what he must do to be removed from the RRL.

Case 2:13-cv-00657-CRE Document 50 Filed 11/21/14 Page 8 of 13
46. Every 90 days, an entity called the Program Review Committee (“PRC”) is supposed to hold a meeting to determine whether Shoatz should continue to be held in solitary confinement.
47. The review by the PRC is a perfunctory proceeding, and the extension of Shoatz’s solitary confinement is automatic.
48. On May 22, 2012, Shoatz attended a PRC review and requested a full and detailed accounting of the evidence relied upon in continuing his solitary confinement.
49. The PRC refused to provide that information, stating that he had already been given the reasoning on previous occasions.
50. On May 23, 2012, Shoatz appealed the PRC review to Defendant Folino, and again requested a detailed and complete explanation of the basis for his continuing solitary confinement.
51. On June 29, 2012, Superintendent Folino denied Shoatz’s appeal and dismissed his request for a detailed and complete explanation of the basis for his continuing solitary confinement.
52. However, the only reason given by the PRC for Shoatz’s continuing solitary confinement has been that he is “an escape risk in a less secure status.”
53. During his 18 years at SCI Greene, Shoatz was never once visited by Defendant Folino.
54. Neither the PRC nor any DOC official engages in a meaningful evaluation of whether Shoatz is an escape risk in a less secure status.

Case 2:13-cv-00657-CRE Document 50 Filed 11/21/14 Page 9 of 13
55. DOC facilities are more secure than ever. Prisoners in the general prison population are generally unable to escape. According to DOC official statistics, there has been only one escape from a DOC facility during the past ten years.
56. DOC has repeatedly refused to inform Shoatz of how he can change his behavior in order to be removed from solitary confinement.
57. In addition to the PRC review, separate security and psychological reviews are required before Shoatz can be released from solitary confinement.
58. Shoatz’s most recent security review occurred on November 10, 2010. Prior to that, the last time Shoatz had a security review was on June 4, 1998.
59. Shoatz’s most recent psychological review occurred on November 4, 2010. This review determined that “mental health concerns are irrelevant in considering release of [Shoatz] from [solitary confinement].”
60. The officials charged with determining whether or not Shoatz will be released from solitary confinement have little or no interaction with him prior to making their determination.
61. No meaningful attempt has been made by either the PRC or other DOC officials to determine if Shoatz is fit for release into the general population or a less restricted status.
62. Shoatz will likely spend the rest of his life isolated in solitary confinement. 63. Defendants are aware of the risks and harms inherent in long-term solitary confinement.

Case 2:13-cv-00657-CRE Document 50 Filed 11/21/14 Page 10 of 13
64. Defendants are aware that long-term solitary confinement causes psychosis, cognitive impairment, physiological harm, and lasting, often permanent psychological trauma.
65. Defendants are aware that long-term solitary confinement results in greater incidences of self-harm, suicide, psychological deterioration, debilitating emotional suffering, and sleep disorders.
66. Defendants are aware that the risk of serious harm increases as time spent in solitary confinement increases.
67. In June 1995, Thomas James, who was Special Assistant to the DOC Commissioner, conducted a review to determine whether Shoatz should remain in solitary confinement.
68. James recognized that Shoatz’s extended stay in solitary confinement (at that time four years) was atypical and unique.
69. James admitted that holding a prisoner in solitary confinement for 90 days poses a risk of significant psychological harm and that he, therefore, typically recommends returning a prisoner to general population after just 90 days.
70. The continuous exposure to the conditions of solitary confinement for 21 consecutive years has exposed Shoatz to an unduly high risk of psychological harm and, in fact, has caused him actual mental anguish and suffering, including increased stress, heightened anxiety, severe difficulty concentrating, short-term memory problems, chronic depression, agoraphobia, and unfathomable emotional pain and suffering.

Case 2:13-cv-00657-CRE Document 50 Filed 11/21/14 Page 11 of 13
71. Defendants are aware that Shoatz has experienced serious mental and psychological harm as a result of his extended time in solitary confinement.
72. The continuous exposure to the conditions of solitary confinement for 21 consecutive years has caused Shoatz physical injury and pain, including cataracts, prostatitis, peripheral artery disease, heel spurs, arthritis, and hypertension/high blood pressure.
73. Defendants are aware that Shoatz has experienced serious physical injury and pain as a result of his extended time in solitary confinement.
74. As a result of Defendants’ acts and omissions, Shoatz has suffered severe mental anguish and other psychological damage, along with an unwarranted deprivation of the liberties and privileges granted other prisoners.
75. As a result of Defendants’ acts and omissions, Shoatz has been deprived of numerous basic human needs, including environmental stimulation, social interaction, psychological health, emotional wellbeing, physical health, sleep, exercise, nutrition and fundamental human dignity.
76. Defendants’ refusal to release Shoatz from solitary confinement was made with deliberate indifference to his condition, and in reckless disregard or knowing violation of his rights.
Causes of Action 77. By the foregoing conduct, Defendants have violated Shoatz’s right to be free of cruel and unusual punishment, as guaranteed by the Eighth Amendment of the United States Constitution.

Case 2:13-cv-00657-CRE Document 50 Filed 11/21/14 Page 12 of 13
78. Shoatz is likely to remain in solitary confinement for the foreseeable future and, as a result, is likely to suffer continuing and debilitating psychological and physical injury, pain, and suffering.
79. Continuing to keep Shoatz in solitary confinement is in violation of contemporary standards of human decency and constitutes cruel and unusual punishment prohibited by the Eighth Amendment.
80. By the foregoing conduct, Defendants have subjected and continue to subject Shoatz to an atypical and significant hardship, and have violated and continue to violate Shoatz’s right to procedural and substantive due process, as guaranteed by the Fourteenth Amendment of the United States Constitution.
Prayer for Relief WHEREFORE, plaintiffs pray that this Honorable Court grant the following relief: A. Declare Defendants’ conduct unlawful; B. Enjoin and restrain Defendants from incarcerating Shoatz in solitary confinement or other similar conditions and order Shoatz’s placement in the general population; C. Award compensatory damages; D. Award punitive damages; E. Grant attorneys’ fees and costs; F. Trial by jury; and G. Such other relief as the Court deems just and proper.

Case 2:13-cv-00657-CRE Document 50 Filed 11/21/14 Page 13 of 13

Dated: October 14, 2014

Respectfully submitted,
s/ Richard L. Etter Richard L. Etter PA I.D. No. 92835 Stefanie A. Lepore PA I.D. No. 312998 REED SMITH LLP Reed Smith Centre 225 Fifth Avenue Pittsburgh, PA 15222-2716 Telephone: (412) 288-3806/3877
Daniel M. Kovalik PA I.D. No. 69065 Five Gateway Center Pittsburgh, PA 15222 Telephone: (412) 562-2518
Dustin McDaniel PA I.D. No. 314618 Bret Grote PA I.D. No. 317273 Abolitionist Law Center P.O. Box 8654 Pittsburgh, PA 15221 Telephone: (412) 651-7485
Attorneys for Plaintiff Russell Shoatz

 
 Department of Justice Office of Public Affairs
FOR IMMEDIATE RELEASE Thursday, April 14, 2016
Justice Department Closes Investigation After Pennsylvania Department of Corrections Takes Significant Steps to Reform its Use
of Solitary Confinement
The Justice Department announced today that it has closed its investigation into the Pennsylvania Department of Corrections (PDOC) following significant improvements made by PDOC to its policies and practices that are intended to protect prisoners with serious mental illness and intellectual disabilities from the harmful effects of solitary confinement.
The department opened its statewide investigation into the use of solitary confinement on prisoners with serious mental illness and intellectual disabilities in May 2013 after finding a pattern of constitutional violations as well as violations of the Americans with Disabilities Act at the State Correctional Institution in Cresson, Pennsylvania. After working in cooperation with PDOC to conduct an intensive review of prisons across the state, on Feb. 24, 2014, the department notified PDOC that the same violations discovered at Cresson were present across the system.
In its closing letter to PDOC, the department noted that PDOC demonstrated its commitment to reforming its use of solitary confinement by working closely with the department and beginning improvements at the outset of the investigation. Since then, PDOC has worked to ensure that prisoners with serious mental illness and/or intellectual disabilities are no longer subjected to solitary confinement and are instead provided with specialized treatment to meet their individualized needs. The closing letter also identifies areas where continued efforts at improvement would be appropriate.
“Solitary confinement should be used only when necessary—never as a default solution,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division. “Today, Pennsylvania is headed in the right direction. We commend the state for beginning to reform its system to ensure that prisoners with serious mental illness and intellectual disabilities receive care, rather than suffer harm. Those prisoners are in a much better position than they were three years ago to return to the community.”
“Our civil rights enforcement efforts have led the Pennsylvania Department of Corrections to provide effective mental health treatment to all prisoners throughout the Commonwealth so that they can successfully reenter their communities,” said U.S. Attorney David J. Hickton of the Western District of Pennsylvania. “We remain dedicated to vigorously enforcing the civil rights of those who have serious mental illness throughout Pennsylvania, regardless of their situation.”
The department initiated this investigation under the Civil Rights of Institutionalized Persons Act (CRIPA), which prohibits a pattern or practice of deprivation of constitutional rights of individuals confined to state or local government-run correctional facilities. This investigation was conducted by attorneys with the Civil Rights Division’s Special Litigation Section and the U.S. Attorney’s Office of the Western District of Pennsylvania. Additional information about the Civil Rights Division is available on its website at www.justice.gov/crt.

Recently, the department also conducted a broader review of solitary confinement – and other forms of “restrictive housing” – to formulate policy solutions for reducing the use of these practices throughout the nation’s criminal justice system. The department concluded that while there are occasions when correctional officials have no choice but to segregate inmates from the general population, as a matter of policy, this practice should be used rarely, applied fairly and subjected to reasonable constraints. The department’s report, including a series of “Guiding Principles” for limiting the use of restrictive housing, is available on its website at https://www.justice.gov/restrictivehousing.

Closing Letter to PDOC 16-450 Civil Rights Division Civil Rights - Special Litigation USAO - Pennsylvania, Western Topic: Civil Rights

Updated April 14, 2016

 
 U.S. Department of Justice
Civil Rights Division

Assistant Attorney General

Washington, D.C. 20530

The Honorable Tom Wolf Office of the Governor 225 Main Capitol Building Harrisburg, Pennsylvania 17120

APR 14 2016

Re: Investigation ofthe Pennsylvania Department of Corrections' Use of Solitary Confinement on Prisoners with Serious Mental Illness and/or Intellectual Disabilities
Dear Governor Wolf:
This refers to the Department of Justice' s investigation into the Pennsylvania Department of Corrections' ("PDOC") use of solitary confinement on prisoners with serious mental illness or intellectual disabilities ("SMI/ID"), pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997. 1 Two years ago, we issued our findings that PDOC subjected prisoners with SMVID to solitary confinement under conditions that violated their constitutional rights and their rights under Title II of the Americans with Disabilities Act, 42 U.S.C §§ 12131-12134. In light of the significant improvements in PDOC's policies and practices regarding solitary confinement for this vulnerable population, we are pleased to report that we are closing our investigation.

PDOC has demonstrated significant commitment to reforming its use of solitary confinement on prisoners with SMI/ID. It worked quickly to address concerns that we flagged starting with our initial onsite tours in August 2013. Notably, PDOC had already initiated some changes before we even issued our findings. To be sure, institutional change takes many years to fully implement, but nearly three years after we began our statewide investigation, PDOC's leadership remains committed to seeing slated reforms through to completion.
Today, PDOC is headed in the right direction.2 In deciding to close this investigation, we considered the following factors: (1) PDOC worked closely with the Department of Justice and our experts to change policies and procedures that lay the groundwork for protecting prisoners with SMI/ID from inappropriate and harmful solitary confinement that violates their rights under federal law; (2) PDOC implemented initial reforms, and we confirmed its efforts through site

1 We opened this statewide investigation in May 20 I3 after our initial 20 II investigation of the State Correctional Institution at Cresson revealed statewide concerns.
2 Indeed, several of the reforms PDOC has instituted are in line with the Department of Justi ce's guiding principles on the use of restrictive housing. See U.S. Dep't of Justice, Report and Recommendations on the Use ofRestrictive Housing 94- 103 (20 16), https://www. justice.gov/dag/file/81 555 1/download.

visits and document review; and (3) PDOC addressed-or provided sufficient plans to addressour primary concerns about those initial reforms. The improvements we have seen since our February 2014 findings, together with PDOC's commitment to sustainable reform, give us confidence that the same pattern or practice of violations we found early in our investigation does not exist today.
PDOC's reforms include a number ofpositive changes that go to the heart ofour investigation.
1. Solitary Confinement and Discipline. PDOC now works to ensure that prisoners with SMIIID are not subjected to solitary confinement.3 Instead, prisoners are diverted to specialized treatment units. For serious misconduct charges, prisoners with SMIIID are also now evaluated by mental health staff to consider mitigated sanctions. For non-violent misconduct charges, prisoners with SMI/ID no longer face discipline hearings at all because resolutions are reached informally. And, prisoners are no longer permitted to be disciplined for self-injurious behavior as they were in the past.
2. Out-of-Cell Options. PDOC has begun implementing new procedures that require its prison personnel to offer out-of-cell activities and treatment to prisoners with SMI/ID for 20 hours per week,4 and often more, to meet each prisoner's individual treatment needs. Prisoners receive these out-of-cell options in the specialized treatment units that are now less stark than in the past and feature colorful murals and recovery-based messages. During our site visits, prisoners appeared to be succeeding in these units, as demonstrated by fewer incidents of harm, increased medication compliance, and greater participation in offered treatment. Prisoners have even graduated from these specialized units to continue their treatment in less restrictive general population units.
3. Mental Health Diagnosis and Classification. PDOC has expanded its mental health5 diagnostic and classification processes so that thousands more prisoners benefit from its treatment units. In the past, prisoners could be subjected to solitary confinement as long as they were not experiencing active mental health symptoms. Today, all prisoners with a current or past serious mental illness diagnosis are diverted to treatment units and thus protected from the harmfu l effects of solitary confinement.
4. Mental Health Care Delivery. PDOC has begun streanllining its delivery of mental health care by designating certain facilities to specialize in treatment for prisoners with disabilities. Now, prisoners with SMJJID experience concentrated mental health services, therapeutic
3 We use the term so litary confmcment to refer to all forms of restrictive housing. The Department of Justice' s report defined restrictive housing as any type of detention that involves three basic elements:
• Removal fi:om the general population, whether voluntarily or involuntarily;
• Placement in a locked room or cell, whether alone or with another inmate; and • [nability to leave the room or cell for the vast majority of the day, typically 22 hours or more. !d at 3.
4 PDOC requires that out-of-cell activities be offered on weekends as well.
5 Prisoners with intellectual disabilities will be discussed separately below.
2

activities, and specialized mental health staff. This streamlining allows prisoners to utilize expanded specialized treatment and general population units specifically designed to support prisoners with SM1/ID. Also, prisoners now have the benefit of nearly 100 new mental health staff to support their needs.
5. Training. PDOC has trained hundreds of corrections officers and peer specialists to reinforce the efforts of mental health staff and to support prisoners in need of treatment. Today, prisoners interact with officers who are specifically trained in suicide prevention and assessment of risks, mental illness symptoms and management of those symptoms, the impact of solitary confinement on prisoners with SMI/ID, and communication and deescalation techniques. Also, more than 500 prisoners have reportedly been certified as peer specialists. During our site visits, prisoners told us that these officers and peer specialists have served as valuable resources to them by helping them understand their mental illness and manage their symptoms.
Dming 2015, we conducted onsite tours to monitor PDOC's initial reforms following our findings. Those tours revealed several areas where continued improvement is needed. In response to our concerns, PDOC assured us that it will continue to implement further reforms in the areas discussed below:
1. Specialized Treatment Units. PDOC should ensure that the newly developed specialized treatment units do not devolve into restrictive housing style units. This requires full implementation of systems to encourage meaningful participation in out-of-cell activities and monitor prisoners who _are not participating to determine whether they need a higher level of mental health care. And it requires sufficient staffing levels to enhance the out-of-cell treatment. PDOC should also ensure that staff members do not inappropriately restrict access to structured and unstructured programming. Structured programming is especially important for prisoners whose beha0'iors are a result of their mental illness, and PDOC should ensure that these prisoners receive the treatment they need instead ofreceiving room confinement as punishment for their symptoms.
While PDOC has made changes to the physical structure of some of these units, it should continue these efforts to create the necessaxy therapeutic environment. It should also monitor a prisoner's entire length of stay in some of these units, not just when a prisoner has been on administrative custody status for an extended period of time, to avoid possible mental health deterioration.
2. Restraint Use. While PDOC appears to be using the restraint chair less frequently overall, it should do more to reduce restraint chair use on prisoners with mental health issues specifically. To that end; PDOC should fully implement its new policies that emphasize deescalation and require appropriate oversight to restraint chair placements. This implementation and oversight will help PDOC continue the downward trend, especially for prisoners with SMIIID.
3. Mental Health Staffing. Mental health and support staff positions should continue to expand to accommodate the increased needs ofPDOC's system. While PDOC has a plan to
3

add 140 new positions through fiscal year 2017, it should continue to evaluate its staffing needs to reach sustainable reforms.
4. Mental Health Recordkeeping. PDOC should improve its mental health recordkeeping, which continues to impede continuity of care and successful treatment. To that end, it should fully implement initial steps begun in July 2015 to automate all aspects of medical and mental health recordkeeping through an electronic system, and evaluate its effectiveness in improving treatment.
5. Mental Health Commitments. PDOC should ensure that prisoners are afforded the level of mental health care they need, including mental health commitments. Although PDOC is implementing expanded commitment units, clinicians should be able to recommend those units based solely on clinical judgment that is not influenced by the high threshold set by Pe1msylvania commitment laws. And PDOC should continue to evaluate its mental health commitment capacity to achieve sustainable reforms.
6. Identification of Prisoners with Intellectual Disabilities. PDOC should appropriately identify prisoners with intellectual disabilities. This is especially important for those without a co-occurring serious mental illness to ensure that these prisoners are protected under PDOC's new procedures against the harmful effects of solitary confinement. While PDOC has initiated a review of prisoners who scored below 70 during intellectual screening to examine the prisoner's adaptive functioning, it should expand these reviews to prisoners with
IQ scores of 70 and above, consistent with standards set by the American Psychiatric
Association. 6
7. Quality Assurance. Quality assurance mechanisms should be expanded to better analyze data and execute corrective action plans. While PDOC continues to develop more sophisticated tracking measures to identify individual and systemic concerns related to mental health issues-including waitlists for specialized programs, self-injurious or suicidal behavior trends, out-of-cell time, and restraint chair usage~it should continue to refine these measures to monitor and implement its reforms.
In addition to these seven areas, PDOC has also committed to work towards diverting people with mental illness from the front door of the criminal justice system through supporting mental health courts and participating in the state's new Forensic Interagency Task Force.7 And, PDOC has assured us that it will continue to expand re-entry programs that address the system's back door by partnering with residential group homes and ensuring prisoners can access the state' s Medical Assistance health benefits program prior to release.
6 See American Psychiatric Associatio n, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL D ISORDERS 37 (5th ed. 2013) ("IQ test scores are approximations of conceptual functioning but may be insufficient to assess reasoning in real-life situations and mastery of practical tasks. For example, a person with an IQ score above 70 may have such severe adaptive behavior problems in social judgment, social understanding, and other areas of adaptive functioning that the person's actual ftmctioning is comparable to that of individuals with a lower JQ score.").
7 The Forensic Interagency Task Force brings together law enforcement and treatment agencies to work collaborativcly on diverting people with mental illness from the criminal justice system and correctional facilities.
4

We are confident that, through the reforms PDOC has initiated and with its committed pursuit ofreforms going forward, thousands ofprisoners with SMI/ID throughout PDOC's system will experience improvements in their treatment and care.

* * * * *
Though we are closing our investigation, we will continue to receive and review any complaints regarding conditions within the Pennsylvania Department of Corrections prison system, and we will closely scrutinize allegations related to the housing and treatment of prisoners with SMIIID. Please be advised that if we have reasonable cause to believe that PDOC engages in a pattern or practice of unconstitutional violations in the future, we have the authority to open another CRIPA investigation to pursue injunctive remedies and corrective action.

We would like to thank Secretary ofCorrections John Wetzel and his stafffor their

cooperation throughout our investigation. For any questions about this letter, please contact

Steven H. Rosenbaum, Chief of the Civil Rights Division's Special Litigation Section, at

(202) 616-3244.8

.

Sincerely,

Vanita Gupta Principal Deputy Assistant Attorney General United States Department of Justice Civil Rights Division

cc: John E . Wetzel

Secretary

,

Pennsylvania Department of Con·ections

Theron Perez Department of Corrections Office of Chief Counsel

David J. Hickton United States Attorney United States Attorney's Office Western District ofPennsylvania

8 Please note that this letter is a public document, and it will be posted on the Civil Rights Division's website.
5

 
 Case: 2:13-cv-657 As of: 09/18/2016 10:59 AM EDT 1 of 13
CLOSED,CONMAG
U.S. District Court Western District of Pennsylvania (Pittsburgh) CIVIL DOCKET FOR CASE #: 2:13−cv−00657−CRE

SHOATZ v. WETZEL et al Assigned to: Magistrate Judge Cynthia Reed Eddy Cause: 42:1983pr Prisoner Civil Rights
Plaintiff

Date Filed: 05/08/2013 Date Terminated: 05/12/2016 Jury Demand: Both Nature of Suit: 555 Prisoner Civil Rights (Prison Condition) Jurisdiction: Federal Question

RUSSELL SHOATZ also known as RUSSELL SHOATS

represented by Richard L. Etter Reed Smith LLP 225 Fifth Avenue Suite 1200 Pittsburgh, PA 15222 412−288−3806 Fax: 412−288−3063 Email: retter@reedsmith.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stefanie Lepore Burt Reed Smith LLP 225 Fifth Avenue Pittsburgh, PA 15222 412−288−3877 Email: sburt@reedsmith.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bret Grote Abolitionist Law Center PO Box 8654 Pittsburgh, PA 15221 412−654−9070 Email: bretgrote@abolitionistlawcenter.org ATTORNEY TO BE NOTICED

Daniel M. Kovalik United Steelworkers of America 60 Boulevard of the Allies Room 807 Pittsburgh, PA 15222 (412) 562−2518 Fax: 412.562.2429 Email: dkovalik@usw.org ATTORNEY TO BE NOTICED

Dustin McDaniel Abolitionist Law Center P.O. Box 8654 Pittsburgh, PA 15221 412−651−7485 Email: dsmcdan@gmail.com ATTORNEY TO BE NOTICED

Harold J. Engel 12128 Early Lilacs Path Clarksville, MD 21029 410−531−9078

Case: 2:13-cv-657 As of: 09/18/2016 10:59 AM EDT 2 of 13
Email: halengel@gmail.com PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant JOHN E. WETZEL in his individual official capacity as Secretary of the Pennsylvania Department of Corrections
Defendant LOUIS S. FOLINO in his individual and official capacity as Superintendent of the State Correctional Institution at Greene
Defendant JOHN KERESTES in his official capacity as Superintendent of the State Correctional Institution at Mahanoy TERMINATED: 02/01/2016

represented by Mary Lynch Friedline Office of Attorney General Fifth Floor, Manor Complex 564 Forbes Avenue Pittsburgh, PA 15219 (412) 565−3520 Email: mfriedline@attorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott A. Bradley Office of the Attorney General 564 Forbes Avenue 6th Floor, Manor Complex Pittsburgh, PA 15219 (412) 565−7680 Email: sbradley@attorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Yana L. Warshafsky Office of the Attorney General 564 Forbes Avenue Manor Complex Pittsburgh, PA 15219 412−565−5706 Fax: 412−565−3019 Email: ywarshafsky@attorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mary Lynch Friedline (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott A. Bradley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Yana L. Warshafsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mary Lynch Friedline (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott A. Bradley (See above for address)

Case: 2:13-cv-657 As of: 09/18/2016 10:59 AM EDT 3 of 13
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Yana L. Warshafsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/08/2013
05/08/2013 05/09/2013 05/09/2013 05/30/2013 06/03/2013 06/03/2013 06/03/2013 06/04/2013
06/18/2013 06/18/2013 06/21/2013 07/03/2013 07/03/2013 07/08/2013 07/09/2013

# Docket Text
1 COMPLAINT against LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL (Filing fee, including Administrative fee, $400, receipt number 0315−2780406), filed by RUSSELL SHOATZ. (Attachments: # 1 Civil Cover Sheet, # 2 Summons for John E. Wetzel, # 3 Summons for Louis S. Folino, # 4 Summons for John Kerestes) (ksa) (Entered: 05/08/2013)
Summons Issued as to *LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL* (ksa) (Entered: 05/08/2013)
2 NOTICE of Appearance by Stefanie A. Lepore on behalf of RUSSELL SHOATZ. (Lepore, Stefanie) (Entered: 05/09/2013)
3 NOTICE of Appearance by Dustin McDaniel on behalf of RUSSELL SHOATZ. (McDaniel, Dustin) (Entered: 05/09/2013)
4 NOTICE of Appearance by Scott A. Bradley on behalf of LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Bradley, Scott) (Entered: 05/30/2013)
5 WAIVER OF SERVICE Returned Executed by RUSSELL SHOATZ. JOHN E. WETZEL waiver sent on 5/8/2013, answer due 7/8/2013. (Lepore, Stefanie) (Entered: 06/03/2013)
6 WAIVER OF SERVICE Returned Executed by RUSSELL SHOATZ. LOUIS S. FOLINO waiver sent on 5/8/2013, answer due 7/8/2013. (Lepore, Stefanie) (Entered: 06/03/2013)
7 WAIVER OF SERVICE Returned Executed by RUSSELL SHOATZ. JOHN KERESTES waiver sent on 5/8/2013, answer due 7/8/2013. (Lepore, Stefanie) (Entered: 06/03/2013)
8 ORDER : Rule 26 Meeting to be conducted on or before 6/21/2013. Willingness to proceed before Magistrate Judge due by 6/21/2013. A Case Management Conference has been scheduled for 7/9/2013 at 10:00 AM before Magistrate Judge Cynthia Reed Eddy. Signed by Magistrate Judge Cynthia Reed Eddy on 6/4/2013. (jlh ) (Entered: 06/04/2013)
9 CONSENT to Trial/Jurisdiction by US Magistrate Judge by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Bradley, Scott) (Entered: 06/18/2013)
10 CONSENT to Trial/Jurisdiction by US Magistrate Judge by RUSSELL SHOATZ. (Lepore, Stefanie) (Entered: 06/18/2013)
11 PROPOSED DISCOVERY PLAN pursuant to Rule 26(f) by RUSSELL SHOATZ. (Lepore, Stefanie) (Entered: 06/21/2013)
12 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Attachments: # 1 Proposed Order) (Bradley, Scott) (Entered: 07/03/2013)
13 BRIEF in Support re 12 Motion to Dismiss for Failure to State a Claim filed by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Bradley, Scott) (Entered: 07/03/2013)
14 NOTICE of Appearance by Daniel M. Kovalik on behalf of RUSSELL SHOATZ. (Kovalik, Daniel) (Entered: 07/08/2013)
ORDER : The 7/9/2013 Case Management Conference has been continued until 8/13/2013 at 11:00 AM before Magistrate Judge Cynthia Reed Eddy. Signed by

Case: 2:13-cv-657 As of: 09/18/2016 10:59 AM EDT 4 of 13

07/09/2013 07/09/2013 07/09/2013 07/31/2013 07/31/2013 08/01/2013 08/13/2013
08/13/2013 08/20/2013 08/21/2013
09/04/2013 09/06/2013 09/17/2013 10/21/2013

Magistrate Judge Cynthia Reed Eddy on 7/9/2013. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jlh ) (Entered: 07/09/2013)
15 Unopposed MOTION for Extension of Time to File Response/Reply as to 13 Brief in Support of Motion, 12 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by RUSSELL SHOATZ. (Attachments: # 1 Proposed Order) (Kovalik, Daniel) (Entered: 07/09/2013)
16 Minute Entry for proceedings held before Magistrate Judge Cynthia Reed Eddy: Case Management Conference held on 7/9/2013. Conference continued until August 13, 2013 at 11:00 A.M. (Court Reporter: none) (bsc) (Entered: 07/09/2013)
17 ORDER granting 15 Motion for Extension of Time to File Response to 12 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. Plaintiff shall file his Response in opposition on or before 9/3/2013. Signed by Magistrate Judge Cynthia Reed Eddy on 07/09/2013. (bsc) (Entered: 07/09/2013)
18 MOTION for attorney Harold J. Engel to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315−2873472) by RUSSELL SHOATZ. (Engel, Harold) (Entered: 07/31/2013)
19 Errata re 18 Motion to Appear Pro Hac Vice by RUSSELL SHOATZ. Reason for Correction: Failed to attach additional documents. (Attachments: # 1 Affidavit, # 2 Exhibit A, # 3 Proposed Order) (Engel, Harold) (Entered: 07/31/2013)
ORDER granting 18 Motion for Harold J. Engel to Appear Pro Hac Vice. Signed by Magistrate Judge Cynthia Reed Eddy on 08/01/2013. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (Eddy, Cynthia) (Entered: 08/01/2013)
Text Minute Entry for proceedings held before Magistrate Judge Cynthia Reed Eddy: Case Management Conference held on 8/13/2013. The parties are to file a revised proposed Case Management Order on or before August 16, 2013. (Court Reporter: none) Text−only entry; no PDF document will issue. This text−only entry constitutes a Minute of the Court or Notice on the matter. (bsc) (Entered: 08/13/2013)
Set Response: Plaintiff's Response to Motion to Dismiss 12 shall be filed on or before 9/30/2013. Defendants may file a Reply to the Response on or before October 21, 2013. (bsc) (Entered: 08/13/2013)
20 Joint Proposed Case Management Order by RUSSELL SHOATZ. (Kovalik, Daniel) Modified on 8/21/2013 to add additional docket text. (ksa) (Entered: 08/20/2013)
21 CASE MANAGEMENT ORDER: Amended Pleadings due by 10/17/2013. Joinder of Parties due by 10/17/2013. Discovery due by 12/13/2013. Plaintiffs Expert Reports due by 1/13/2014. Defendants Expert Reports due by 2/13/2014. Expert Depositions to be completed by 3/13/2014. Summary Judgment due by 4/13/2014. Response to Summary Judgment due by 5/13/2014. Post−discovery/ Settlement Conference scheduled for 1/6/2014 at 10:00 AM in Room 10160 before Magistrate Judge Cynthia Reed Eddy. Signed by Magistrate Judge Cynthia Reed Eddy on 8/21/13. (jlh) (Entered: 08/21/2013)
22 STATUS REPORT by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Bradley, Scott) (Entered: 09/04/2013)
Set/Reset Hearings: A mediation conference is scheduled in this case for October 30, 2013 at 10:00 AM, in Courtroom 9A. Prior to the mediation, Plaintiff's counsel is to advise the court whether Plaintiff intends to appear at the mediation via video conferencing so necessary arrangements can be made. (kcc) (Entered: 09/06/2013)
23 BRIEF in Opposition re 12 Motion to Dismiss for Failure to State a Claim filed by RUSSELL SHOATZ. (Lepore, Stefanie) (Entered: 09/17/2013)
24 REPLY re 23 Brief in Opposition to Motion filed by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Bradley, Scott) Modified on 10/22/2013 to edit docket text. (ksa) (Entered: 10/21/2013)

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10/30/2013 11/04/2013 11/04/2013 11/04/2013 11/05/2013
11/05/2013
11/08/2013 11/12/2013
11/12/2013 12/18/2013 01/27/2014

REPORT of Prisoner Mediation: Mediation Result: Per email received from Selina Shultz, the case Did Not Settle but there is progress and the mediation is still open and the parties are going to continue to try and resolve it. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (sdm, ) Modified on 10/31/2013 to add text−only info. (ksa) (Entered: 10/30/2013)
25 Unopposed MOTION to Amend/Correct 21 Scheduling Order and Extend Time to Complete Discovery by RUSSELL SHOATZ. (Attachments: # 1 Exhibit A, # 2 Proposed Order) (Lepore, Stefanie) Modified on 11/5/2013 to add document linkage and ERROR: MULTIPLE RELIEF DOCUMENT FILED AS ONE RELIEF; RE−FILED BY COURT. (ksa) (Entered: 11/04/2013)
TEXT NOTICE. Counsel are advised that the Court has scheduled a telephone status conference in this case for Tuesday, November 12, 2013 at 11:30 am. Plaintiff's counsel shall initiate the call and have Defendant's counsel on the line before calling into chambers − 412−208−7490. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (bsc) Modified on 11/5/2013 to add text−only info. (ksa) (Entered: 11/04/2013)
MOTION for Extension of Time to Complete Discovery by RUSSELL SHOATZ. (Filed with document 25 ) (ksa) (Entered: 11/05/2013)
ORDER granting 25 Motion to Amend/Correct Scheduling Order. The parties are further ORDERED to file a Proposed Joint Amended Case Management Order on or before 10:00 AM on 11/12/2013. The telephone status conference scheduled for 11/12/2013 will take place as previously ordered. Signed by Magistrate Judge Cynthia Reed Eddy on 11/5/2013. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (Eddy, Cynthia) (Entered: 11/05/2013)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 25 Motion to Amend/Correct. ERROR: Document incorrectly linked. CORRECTION: Linked to appropriate document. This message is for informational purposes only. CLERK'S OFFICE QUALITY CONTROL MESSAGE. ERROR: MULTIPLE Relief Motion Filed as One Relief. CORRECTION: Attorney Lepore advised in future that Motions of this nature are to be filed using the Motion Event and clicking on all the reliefs sought in said motion. Clerk of Court added/docketed Motion to Extend Time to Complete Discovery. This message is for informational purposes only. (ksa) (Entered: 11/05/2013)
26 JOINT Amended Proposed Case Management Order by RUSSELL SHOATZ. (Etter, Richard) Modified on 11/13/2013 to add additional docket text. (ksa) (Entered: 11/08/2013)
27 AMENDED CASE MANAGEMENT ORDER: Amended Pleadings due by 1/15/2014. Fact Discovery due by 3/13/2014. Expert Discovery to be completed by 6/13/2014. Plaintiff's Expert Reports due by 4/14/2014. Defendants' Expert Reports due by 5/14/2014. Summary Judgment due by 7/14/2014. Response to Summary Judgment due by 8/13/2014. Post−discovery status/settlement Conference set for 4/8/2014 10:00 AM in Courtroom 10A before Magistrate Judge Cynthia Reed Eddy. Signed by Magistrate Judge Cynthia Reed Eddy on 11/12/13. (bsc) (Entered: 11/12/2013)
TEXT Minute Entry for proceedings held before Magistrate Judge Cynthia Reed Eddy: Telephone Status Conference held on 11/12/2013. An Amended Case Management Order will be entered. Discovery is NOT stayed during the pendency of the Motion to Dismiss. (Court Reporter: none) Text−only entry; no PDF document will issue. This text−only entry constitutes a Minute of the Court or Notice on the matter. (bsc) (Entered: 11/12/2013)
28 NOTICE of Appearance by Bret Grote on behalf of RUSSELL SHOATZ. (Grote, Bret) (Entered: 12/18/2013)
29 MEMORANDUM OPINION and ORDER denying 12 Motion to Dismiss for Failure to State a Claim. Signed by Magistrate Judge Cynthia Reed Eddy on 1/27/2014. (bsc) (Entered: 01/27/2014)

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01/27/2014 02/10/2014 02/10/2014 02/20/2014 02/21/2014
02/24/2014 03/13/2014 03/13/2014 03/14/2014
03/15/2014
05/12/2014 05/12/2014
05/12/2014

Update Answer Deadline: Answer due from All Defendants 2/10/2014. (bsc) Modified on 1/29/2014 to indicate date answer is due. (ksa) (Entered: 01/27/2014)
30 MOTION for Extension of Time to File Answer re 1 Complaint, filed by RUSSELL SHOATZ by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Attachments: # 1 Proposed Order) (Bradley, Scott) (Entered: 02/10/2014)
TEXT ORDER granting 30 Defendants' Motion for Extension of Time to Answer Complaint. Defendants' Answer shall be filed on or before February 20, 2014. Signed by Magistrate Judge Cynthia Reed Eddy on 2/10/2014. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bsc) (Entered: 02/10/2014)
31 ANSWER to 1 Complaint, by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Bradley, Scott) (Entered: 02/20/2014)
TEXT ORDER. Counsel are reminded of the deadlines established in the Amended Case Management Order 27 : Fact Discovery due by 3/13/2014. Expert Discovery to be completed by 6/13/2014. Plaintiff's Expert Reports due by 4/14/2014. Defendants' Expert Reports due by 5/14/2014. Summary Judgment due by 7/14/2014. Response to Summary Judgment due by 8/13/2014. Post−discovery status/settlement Conference set for 4/8/2014 10:00 AM in Courtroom 10A before Magistrate Judge Cynthia Reed Eddy. Signed by Magistrate Judge Cynthia Reed Eddy on 2/21/2014. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bsc) (Entered: 02/21/2014)
32 STATUS REPORT by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Bradley, Scott) (Entered: 02/24/2014)
33 MOTION to Amend/Correct 27 Case Management Order, by RUSSELL SHOATZ. (Attachments: # 1 Scheduling Motion Certificate, # 2 Proposed Order #1, # 3 Proposed Order #2) (Burt, Stefanie) (Entered: 03/13/2014)
MOTION for Extension of Time to Complete Discovery by RUSSELL SHOATZ. (Filed with document 33 ) (ksa) (Entered: 03/14/2014)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 33 Motion to Amend/Correct. ERROR: MULTIPLE Relief Motion Filed as One Relief. CORRECTION: Attorney Burt advised in future that Motions of this nature are to be filed using the Motion Event and clicking on all the reliefs sought in said motion. Clerk of Court added/docketed Motion for Extension of Time to Complete Discovery. This message is for informational purposes only. (ksa) (Entered: 03/14/2014)
34 JOINT AMENDED CASE MANAGEMENT ORDER granting 33 Motion to Amend/Correct & Motion for Extension of Time to Complete Discovery. Discovery due by 5/12/2014. Plaintiff's Expert Reports due by 6/12/2014, Defendants' Expert Reports due by 6/26/2014, Expert Depositions to be completed by 7/3/2014. Summary Judgment due by 8/29/2014, Response to Summary Judgment due by 9/26/2014. Status Conference set for 5/16/2014 10:00 AM in Courtroom 10A before Magistrate Judge Cynthia Reed Eddy. Signed by Magistrate Judge Cynthia Reed Eddy on 3/15/2014. (bsc) (Entered: 03/15/2014)
35 MOTION to Amend/Correct 34 Scheduling Order, MOTION for Extension of Time to Complete Discovery by RUSSELL SHOATZ. (Attachments: # 1 PROPOSED JOINT AMENDED CASE MANAGEMENT ORDER, # 2 Proposed Order) (Burt, Stefanie) Modified on 5/13/2014 document linkage corrected. Document linked to document 34 . (ksa) (Entered: 05/12/2014)
TEXT ORDER granting 35 Motion to Amend/Correct; granting 35 Motion for Extension of Time to Complete Discovery. The status conference originally scheduled for 5/16/14 has been rescheduled to 8/14/14 at 10:00 A.M. Signed by Magistrate Judge Cynthia Reed Eddy on 5/12/2014. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bsc) (Entered: 05/12/2014)
36 SECOND AMENDED CASE MANAGEMENT ORDER: Discovery due by 7/11/2014. Plaintiff's Expert Reports due by 8/8/2014. Defendants' Expert Reports due by 8/22/2014. Expert Depositions to be completed by 9/5/2014. Summary Judgment

Case: 2:13-cv-657 As of: 09/18/2016 10:59 AM EDT 7 of 13

05/13/2014 07/01/2014 07/02/2014 07/11/2014
07/11/2014 07/31/2014 08/01/2014 08/01/2014 10/02/2014 10/15/2014 10/16/2014 10/16/2014

motions due by 10/3/2014. Response to Summary Judgment motions due by 10/17/2014. Post discovery/status Conference scheduled for 8/14/2014 10:00 AM in Courtroom 10A before Magistrate Judge Cynthia Reed Eddy. Signed by Magistrate Judge Cynthia Reed Eddy on 5/12/2014. (bsc) (Entered: 05/12/2014)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 35 Motion to Amend/Correct, Motion for Extension of Time to Complete Discovery. ERROR: Document incorrectly linked. CORRECTION: Linked to appropriate document. This message is for informational purposes only. (ksa) (Entered: 05/13/2014)
37 MOTION to Amend/Correct 36 Case Management Order and Extend Time to Complete Discovery by RUSSELL SHOATZ. (Attachments: # 1 Proposed Order, # 2 Exhibit) (Burt, Stefanie). Added MOTION to Extend Time on 7/2/2014 (map). (Entered: 07/01/2014)
38 ORDER granting 37 MOTION to Amend/Correct 36 Case Management Order and Extend Time to Complete Discovery. Discovery due by 7/31/2014. A Status Conference has been scheduled for 7/11/2014 at 10:00 AM in Room 10160 before Magistrate Judge Cynthia Reed Eddy. Signed by Magistrate Judge Cynthia Reed Eddy on 7/2/2014. (jlh ) (Entered: 07/02/2014)
Minute Entry for proceedings held before Magistrate Judge Cynthia Reed Eddy: Status Conference held on 7/11/2014. Stefanie Burt and Bret Grote appeared as counsel for Plaintiff; Scott Bradley appeared as counsel for Defendants. The status conference was continued until 8/1/2014 at 10:00 AM to allow the parties to engage in settlement discussions. The parties were also instructed that if the 7/31/2014 discovery deadline needs to be extended, they are to file a motion to that effect prior to the deadline expiring. (Court Reporter: none) Text−only entry; no PDF document will issue. This text−only entry constitutes a Minute of the Court or Notice on the matter. (bap) (Entered: 07/11/2014)
ORDER: A Status Conference is scheduled for 8/1/2014 at 10:00 AM in Room 10160 before Magistrate Judge Cynthia Reed Eddy. Signed by Magistrate Judge Cynthia Reed Eddy on 07/11/2014. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bap) (Entered: 07/11/2014)
39 Joint MOTION for Extension of Time to Complete Discovery by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Attachments: # 1 Proposed Order) (Bradley, Scott) (Entered: 07/31/2014)
40 ORDER granting 39 Motion for Extension of Time to Complete Discovery. Discovery due by 11/6/2014. Post Discovery/Settlement Conference scheduled for 11/12/2014 at 10:00 AM in Room 10160 before Magistrate Judge Cynthia Reed Eddy. Signed by Magistrate Judge Cynthia Reed Eddy on 8/1/2014. (jlh ) (Entered: 08/01/2014)
Minute Entry for proceedings held before Magistrate Judge Cynthia Reed Eddy: Status Conference held on 8/1/2014. Richard Etter for Plaintff; Scott Bradley for Defendant. (Court Reporter: none) Text−only entry; no PDF document will issue. This text−only entry constitutes a Minute of the Court or Notice on the matter. (bap) (Entered: 08/01/2014)
41 NOTICE of Appearance by Mary Lynch Friedline on behalf of LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Friedline, Mary) (Entered: 10/02/2014)
42 MOTION for Protective Order by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Attachments: # 1 Exhibit s A−E, # 2 Proposed Order) (Bradley, Scott) (Entered: 10/15/2014)
ORDER Response/Briefing Schedule re 42 Motion for Protective Order. The Response is due by 10:00 AM on 10/20/2014. Signed by Magistrate Judge Cynthia Reed Eddy on 10/16/14. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (Eddy, J.) (Entered: 10/16/2014)
43 MOTION to Amend/Correct 1 Complaint, by RUSSELL SHOATZ. (Attachments: # 1 Brief in Support, # 2 Exhibit, # 3 Proposed Order) (Grote, Bret) (Entered: 10/16/2014)

Case: 2:13-cv-657 As of: 09/18/2016 10:59 AM EDT 8 of 13

10/16/2014 10/17/2014 10/17/2014 10/17/2014
10/20/2014 10/21/2014 10/21/2014 10/21/2014
11/21/2014
11/21/2014 11/22/2014
11/24/2014 11/24/2014

45 BRIEF in Support re 43 Motion to Amend/Correct filed by RUSSELL SHOATZ. (ksa) (Entered: 10/17/2014)
44 ORDER granting 43 Motion for leave to amend Complaint to add individual capacity suits against all Defendants. Signed by Magistrate Judge Cynthia Reed Eddy on 10/17/2014. (bsc ) (Entered: 10/17/2014)
ORDER: The Status Conference previously scheduled for 11/12/14, is rescheduled for 11/21/14 at 10:00 AM in Room 10160 before Magistrate Judge Cynthia Reed Eddy. Signed by Magistrate Judge Cynthia Reed Eddy on 10/17/14. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (Eddy, J.) (Entered: 10/17/2014)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 43 Motion to Amend/Correct. ERROR: Document should have been filed as two separate documents. CORRECTION: Attorney Grote advised in future that documents of that nature are to be filed as separate documents. Clerk of Court docketed Brief in Support of Motion to Amend Complaint. This message is for informational purposes only. (ksa) (Entered: 10/17/2014)
46 BRIEF in Opposition re 42 Motion for Protective Order filed by RUSSELL SHOATZ. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit) (Grote, Bret) Modified on 10/21/2014 to edit docket text. (ksa) (Entered: 10/20/2014)
47 NOTICE of Appearance by Yana L. Warshafsky on behalf of LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Warshafsky, Yana) (Entered: 10/21/2014)
48 REPLY to 46 Reply Brief re 42 Motion for Protective Order filed by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Warshafsky, Yana) Modified on 10/23/2014. (jsp) (Entered: 10/21/2014)
49 ORDER granting 42 Motion for Protective Order. It is ORDERED that the deposition of John E. Wetzel be taken in Harrisburg at a time and date mutually agreeable to the Parties. It is further ORDERED that the pending notice of deposition or subpoena seeking testimony from Shirley Moore Smeal in this matter be and is hereby QUASHED. Signed by Magistrate Judge Cynthia Reed Eddy on 10/21/2014. (bsc) (Entered: 10/21/2014)
TEXT Minute Entry for proceedings held before Magistrate Judge Cynthia Reed Eddy: Status Conference held on 11/21/2014. Richard L. Etter and Dustin McDaniel appeared as counsel for Plaintiff; Mary Lynch Friedline and Yana L. Warshafsky appeared as counsel for Defendants. An amended case management order will be forthcoming. Court Reporter: none) Text−only entry; no PDF document will issue. This text−only entry constitutes a Minute of the Court or Notice on the matter. (bsc) (Entered: 11/21/2014)
50 First AMENDED COMPLAINT against All Defendants. All Defendants answer due 12/5/2014, filed by RUSSELL SHOATZ. (McDaniel, Dustin) Modified on 11/24/2014 to add additional docket text. (ksa) (Entered: 11/21/2014)
51 THIRD CASE MANAGEMENT ORDER: Plaintiff's Expert Reports due by 1/15/2015; Defendants' Expert Reports due by 3/13/2015; Summary Judgment motions due by 4/30/2015. Responses to Summary Judgment motions due by 5/29/2015. Replies, if any, due by 6/9/2015. Telephone Conference set for 2/2/2015 02:00 PM before Magistrate Judge Cynthia Reed Eddy. Presumptive trial date is 11/16/2015. Signed by Magistrate Judge Cynthia Reed Eddy on 11/22/2014. (bsc) Modified on 11/24/2014 to correct date defendants' expert reports are due. (ksa) (Entered: 11/22/2014)
Update Answer Deadline: Answer due from LOUIS S. FOLINO on 12/5/2014; JOHN KERESTES on 12/5/2014; JOHN E. WETZEL on 12/5/2014. (ksa) (Entered: 11/24/2014)
Update Deadlines: 51 Case Management Order. Text−only entry; no PDF document will issue. This text−only entry constitutes the Courts order or notice on the matter. Defendants Expert Reports due by 3/13/2015. (ksa) (Entered: 11/24/2014)

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12/05/2014 01/12/2015 01/12/2015 02/02/2015
02/17/2015
04/29/2015 04/29/2015 04/30/2015
06/15/2015 06/15/2015
07/15/2015 07/15/2015
07/15/2015

52 ANSWER to 50 Amended Complaint by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Bradley, Scott) (Entered: 12/05/2014)
53 MOTION to Extend Time to Complete Plaintiff's Expert Reports by RUSSELL SHOATZ. (Attachments: # 1 Proposed Order) (Grote, Bret) (Entered: 01/12/2015)
TEXT ORDER granting 53 unopposed Motion to Extend Time to Complete Plaintiff's Expert Reports. Said reports shall be produced by 2/15/2015. Signed by Magistrate Judge Cynthia Reed Eddy on 1/12/2015. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bsc) (Entered: 01/12/2015)
TEXT Minute Entry for proceedings held before Magistrate Judge Cynthia Reed Eddy: Telephone Conference held on 2/2/2015. Attorneys Etter and Grote appeared on behalf of Plaintiff; Attorney Bradley appeared on behalf of Defendants. The telephone status conference will be continued until February 17, 2015 at 2:00 PM. Plaintiff's counsel shall initiate the call and have all parties on the line. Counsel shall call in to Chambers at 412−208−7490. (Court Reporter: none) Text−only entry; no PDF document will issue. This text−only entry constitutes a Minute of the Court or Notice on the matter. (bsc) (Entered: 02/02/2015)
TEXT Minute Entry for proceedings held before Magistrate Judge Cynthia Reed Eddy: Telephone Conference held on 2/17/2015. Attorney Grote appeared on behalf of Plaintiff; attorneys Bradley and Warshafsky appeared on behalf of Defendants. Deadlines established in Court's Third Case Management Order remain in effect. Conference concluded. (Court Reporter: none) Text−only entry; no PDF document will issue. This text−only entry constitutes a Minute of the Court or Notice on the matter. (bsc) (Entered: 02/17/2015)
54 MOTION to Extend Time to File Motion for Summary Judgment by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Attachments: # 1 Proposed Order) (Warshafsky, Yana) (Entered: 04/29/2015)
55 Errata re 54 Motion to Extend Time by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. Reason for Correction: Additional Information Provided. (Attachments: # 1 Proposed Order) (Warshafsky, Yana) (Entered: 04/29/2015)
56 TEXT ORDER granting 54 Defendants' Motion to Extend Time to file summary judgment motion. Defendants' are granted an extension until 6/15/2015 to file their summary judgment motion and Plaintiff's deadlines are adjusted accordingly. Signed by Magistrate Judge Cynthia Reed Eddy on 4/29/2015. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bsc) Modified on 5/1/2015 to correct typo. (ksa) (Entered: 04/30/2015)
57 MOTION to Extend Time to File Motion for Summary Judgment by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Attachments: # 1 Proposed Order) (Warshafsky, Yana) (Entered: 06/15/2015)
58 TEXT ORDER granting 57 Motion to Extend Time to file summary judgment motion. Defendants are granted an extension until 7/15/2015 to file their summary judgment motion and Plaintiff's deadlines are adjusted accordingly. Signed by Magistrate Judge Cynthia Reed Eddy on 6/15/2015. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bsc) (Entered: 06/15/2015)
59 MOTION to Extend Time to File Motion for Summary Judgment by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Attachments: # 1 Proposed Order) (Warshafsky, Yana) (Entered: 07/15/2015)
60 ORDER granting 59 Motion to Extend Time to file summary judgment motion. Defendants' are granted an extension until 7/30/15 to file their summary judgment motion and Plaintiff's deadlines are adjusted accordingly. Signed by Magistrate Judge Cynthia Reed Eddy on 7/15/15. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (Eddy, J) (Entered: 07/15/2015)
61 MOTION for Summary Judgment by RUSSELL SHOATZ. (Attachments: # 1 Proposed Order, # 2 Brief in Support, # 3 Statement of Facts, # 4 Exhibit 1, # 5 Exhibit

Case: 2:13-cv-657 As of: 09/18/2016 10:59 AM EDT 10 of 13

07/15/2015 07/15/2015
07/16/2015
07/21/2015
07/30/2015 07/30/2015
08/06/2015 08/06/2015 08/06/2015 08/06/2015
08/07/2015 08/07/2015

2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Exhibit 11, # 15 Exhibit 12, # 16 Exhibit 13, # 17 Exhibit 14, # 18 Exhibit 15, # 19 Exhibit 16, # 20 Exhibit 17, # 21 Exhibit 18, # 22 Exhibit 19, # 23 Exhibit 20, # 24 Exhibit 21, # 25 Exhibit 22) (Grote, Bret) (Entered: 07/15/2015)
62 BRIEF in Support re 61 Motion for Summary Judgment, filed by RUSSELL SHOATZ. (ksa) (Entered: 07/16/2015)
63 CONCISE STATEMENT OF MATERIAL FACTS re 61 Motion for Summary Judgment, by RUSSELL SHOATZ. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22) (ksa) (Entered: 07/16/2015)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 61 Motion for Summary Judgment. ERROR: Document should have been filed as two separate documents. CORRECTION: Attorney Grote advised in future that documents of that nature are to be filed as separate documents. Clerk of Court docketed Brief in Support of Motion for Summary Judgment and Concise Statement of Material Facts. This message is for informational purposes only. (ksa) (Entered: 07/16/2015)
64 TEXT ORDER Response/Briefing Schedule re 61 Plaintiff's Motion for Summary Judgment. Defendants shall file a brief in opposition on or before 8/31/2015. Plaintiff, if he so chooses, may file a Reply by 9/4/2015. Signed by Magistrate Judge Cynthia Reed Eddy on 7/21/2015. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bsc) (Entered: 07/21/2015)
65 MOTION to Extend Time to File Motion for Summary Judgment by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Attachments: # 1 Proposed Order) (Warshafsky, Yana) (Entered: 07/30/2015)
66 TEXT ORDER granting 65 Defendants' Motion to Extend Time to file summary judgment. Defendants' Motion for Summary Judgment is due on or before August 6, 2015. Plaintiff's response deadline is adjusted accordingly. Signed by Magistrate Judge Cynthia Reed Eddy on 7/30/2015. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bsc) (Entered: 07/30/2015)
67 MOTION for Summary Judgment by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Attachments: # 1 Proposed Order) (Bradley, Scott) (Entered: 08/06/2015)
68 BRIEF in Support re 67 Motion for Summary Judgment filed by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Bradley, Scott) (Entered: 08/06/2015)
69 CONCISE STATEMENT OF MATERIAL FACTS re 67 Motion for Summary Judgment by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Bradley, Scott) (Entered: 08/06/2015)
70 Appendix to 69 Concise Statement of Material Facts by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Attachments: # 1 Exhibit Nos. 1−5, # 2 Exhibit No. 6, # 3 Exhibit No. 7, # 4 Exhibit Nos. 8−20, # 5 Exhibit Nos. 21−29, # 6 Exhibit Nos. 30−34, # 7 Exhibit No. 35 (Wetzel Dep), # 8 Exhibit No. 36 (Folino Dep), # 9 Exhibit No. 37 (Kerestes Dep), # 10 Exhibit No. 38 (Winfield Dep)) (Bradley, Scott) (Entered: 08/06/2015)
71 MOTION to Strike 68 Brief in Support of Motion for Summary Judgment by RUSSELL SHOATZ. (Attachments: # 1 Proposed Order) (Grote, Bret) (Entered: 08/07/2015)
72 MOTION for Leave to File Excess Pages, nunc pro tunc, in Brief in Support of Motion for Summary Judgment by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Attachments: # 1 Proposed Order) (Bradley, Scott) (Entered: 08/07/2015)

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08/10/2015
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73 ORDER granting 72 Motion for Leave to File Excess Pages nunc pro tunc, in Brief in Support of Motion for Summary Judgment. Signed by Magistrate Judge Cynthia Reed Eddy on 8/10/15. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (Eddy, J.) (Entered: 08/10/2015)
74 ORDER denying as moot 71 Motion to Strike 68 Brief in Support of Motion. Plaintiff may exceed the page limitation if necessary in his Response. Signed by Magistrate Judge Cynthia Reed Eddy on 8/10/15. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (Eddy, J.) (Entered: 08/10/2015)
75 TEXT ORDER Response/Briefing Schedule re 67 Defendants' Motion for Summary Judgment. Plaintiff shall file a Brief in Opposition on or before 9/18/2015. Defendants' Reply may be filed on or before 10/2/2015. Signed by Magistrate Judge Cynthia Reed Eddy on 8/19/2015. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bsc) (Entered: 08/19/2015)
76 MOTION to Extend Time to File Response/Reply to Plaintiff's 61 Motion for Summary Judgment by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Attachments: # 1 Proposed Order) (Warshafsky, Yana) Modified on 9/1/2015 document linkage corrected. Document linked to document 61 . (ksa) (Entered: 08/31/2015)
77 TEXT ORDER granting 76 Motion for Extension of Time to File Response to Plaintiff's Motion for Summary Judgment 61 . Responses due by 9/30/2015; Reply due by 10/8/2015. No future requests for extensions will be granted. Signed by Magistrate Judge Cynthia Reed Eddy on 9/1/2015. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bsc) (Entered: 09/01/2015)
78 ORDER : The Presumptive trial date of 11/16/2015 has been canceled until further ORDER of COURT. Signed by Magistrate Judge Cynthia Reed Eddy on 9/18/15. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jlh) (Entered: 09/18/2015)
79 BRIEF in Opposition re 67 Motion for Summary Judgment filed by RUSSELL SHOATZ. (Grote, Bret) (Entered: 09/18/2015)
80 RESPONSIVE 69 Concise Statement of Material Facts by RUSSELL SHOATZ. (Grote, Bret) (Entered: 09/18/2015)
81 Appendix to 80 Counter Statement of Facts by RUSSELL SHOATZ. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit) (Grote, Bret) (Entered: 09/18/2015)
CONCISE STATEMENT OF ADDITIONAL MATERIAL FACTS re 61 Motion for Summary Judgment, by RUSSELL SHOATZ. (Filed with document 80 ) (ksa) (Entered: 10/07/2015)
82 RESPONSE to Motion re 61 MOTION for Summary Judgment filed by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Bradley, Scott) (Entered: 09/30/2015)
83 COUNTER STATEMENT OF FACTS in Response to Plaintiff's 63 Concise Statement of Material Facts by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Bradley, Scott) (Entered: 09/30/2015)
84 COUNTER STATEMENT OF FACTS re Statement of Additional Material Facts in Plaintiff's 80 Counter Statement of Facts by LOUIS S. FOLINO, JOHN KERESTES, JOHN E. WETZEL. (Bradley, Scott) (Entered: 10/06/2015)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 80 Counter Statement of Facts. ERROR: Document should have been filed as two separate documents. CORRECTION: Attorney Grote advised in future that documents of that nature are to

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be filed as separate documents. Clerk of Court docketed Concise Statement of Additional Material Facts. This message is for informational purposes only. (ksa) (Entered: 10/07/2015)
85 REPLY BRIEF re 82 Response to Motion for summary judgment filed by RUSSELL SHOATZ. (Grote, Bret) (Entered: 10/08/2015)
86 TEXT ORDER − Based on Plaintiff's representation that he withdraws his claims for relief against Defendant Kerestes, see ECF No. 79 foot note 1, Defendant Kerestes is hereby DISMISSED from this lawsuit. Signed by Magistrate Judge Cynthia Reed Eddy on 2/1/2016. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bsc) Modified on 2/2/2016 to edit docket text. (ksa) (Entered: 02/01/2016)
87 MEMORANDUM OPINION AND ORDER denying 61 Plaintiff's Motion for Summary Judgment and denying 67 Defendants' Motion for Summary Judgment as the Court finds that disputes of material fact exist which must be resolved by a jury. Signed by Magistrate Judge Cynthia Reed Eddy on 2/12/2016. (bsc) (Entered: 02/12/2016)
88 ORDER: A Status Conference is scheduled for 3/3/16 at 2:00 PM in Room 10160 before Magistrate Judge Cynthia Reed Eddy for the purpose of scheduling further proceedings. All counsel must attend and bring their calendars to the conference. Signed by Magistrate Judge Cynthia Reed Eddy on 2/18/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (Eddy, J.) (Entered: 02/18/2016)
Minute Entry for proceedings held before Magistrate Judge Cynthia Reed Eddy: Status / Scheduling Conference held on 3/3/2016. In attendance for Plaintiff were: Richard L. Etter, Stefanie Lepore Burt, Bret Grote, Dustin McDaniel, and Harold J. Engel. In attendance for Defendants were Mary Lynch Friedline and Scott A. Bradley. The parties indicated a willingness to return to mediation before Judge Kenneth Benson. The Court discussed the Pretrial Order which will be entered on this date. (Court Reporter: none) Text−only entry; no PDF document will issue. This text−only entry constitutes a Minute of the Court or Notice on the matter. (bsc) (Entered: 03/03/2016)
89 PRETRIAL ORDER: Plaintiff's Pretrial Statement and witness list due by 5/2/2016. Defendants' Pretrial Statement and Witness list due by 5/9/2016. Motions in Limine due by 6/3/2016; Response to Motions in Limine due by 6/10/2016. Points for Charge, Proposed Verdict Slips, and Voir Dire due by 6/17/2016. Exhibit Lists due by 6/27/2016. Stipulations due by 6/27/2016. Preliminary Pretrial Conference set for 6/27/2016 02:00 PM in Courtroom 10A before Magistrate Judge Cynthia Reed Eddy. Final Pretrial Conference set for 7/7/2016 02:00 PM in Courtroom 10A before Magistrate Judge Cynthia Reed. Jury Selection and Trial set for 7/11/2016 09:30 AM in Courtroom 10A before Magistrate Judge Cynthia Reed Eddy. Signed by Magistrate Judge Cynthia Reed Eddy on 3/3/2016. (bsc) (Entered: 03/03/2016)
90 ORDER : A Conference Call has been scheduled for 5/12/2016 at 02:00 PM before Magistrate Judge Cynthia Reed Eddy. Counsel for the plaintiff shall initiate the call. Signed by Magistrate Judge Cynthia Reed Eddy on 5/5/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jlh) (Entered: 05/05/2016)
91 REPORT of Mediation: Case has been resolved. The parties are reminded of their obligation to complete the ADR questionnaire and submit within 5 days of the conclusion of the ADR process. The questionnaire can be accessed at www.pawd.uscourts.gov. Click on the ADR icon. Mediation session was held on 5/2/2016. (Benson, Kenneth) (Entered: 05/10/2016)
Minute Entry for proceedings held before Magistrate Judge Cynthia Reed Eddy: Telephone Conference held on 5/12/2016. Attorneys Richard L. Etter and Bret Grote appearing for Plaintiff; attorneys Mary Lynch Friedline and Yana L. Warshafsky appearing for Defendants. Counsel confirmed that a settlement in principle has been reached. (Court Reporter: none) Text−only entry; no PDF document will issue. This text−only entry constitutes a Minute of the Court or Notice on the matter. (bsc) (Entered: 05/12/2016)

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92 ORDER FOR STATISTICAL CLOSING. Signed by Magistrate Judge Cynthia Reed Eddy on 5/12/2016. (bsc) (Entered: 05/12/2016)
93 STIPULATION of Dismissal by RUSSELL SHOATZ. (Burt, Stefanie) (Entered: 07/07/2016)
94 ORDER APPROVING 93 Stipulation of Dismissal filed by RUSSELL SHOATZ. Signed by Magistrate Judge Cynthia Reed Eddy on 7/25/2016. (jlh) (Entered: 07/25/2016)