1

BLD-131 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-4062

___________

BENJAMIN VELASQUEZ,

Appellant

v.

DAVID DIGUGLIELMO; JOHN K. MURRAY; A.S. WILLIAMSON;

MICHAEL A. LORENZO; MR. RADLE; THOMAS DOHMAN;

WILLIAM BANTA; MYRON STANISHEFSKI; RICHARD STEFANIC;

FELIPE ARIAS; TIMOTHY I. MARK; JEFFREY A. BEARD;

CRNP HOLLY SCHWEITZER

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2:09-cv-00517

District Judge: Honorable Juan R. Sanchez

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

February 22, 2013

Before: SCIRICA, HARDIMAN and GREENAWAY, JR, Circuit Judges

(Opinion filed: March 19, 2013)

_________

OPINION

_________

PER CURIAM
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Benjamin Velasquez, a Pennsylvania state inmate proceeding pro se, appeals from 

an order of the United States District Court for the Eastern District of Pennsylvania 

granting Appellees’ motions for summary judgment. Because this appeal does not 

present a substantial question, we will summarily affirm the District Court’s order. See

3d Cir. L.A.R 27.4; I.O.P. 10.6.

I.

At all times relevant to his complaint, Velasquez was incarcerated at SCI 

Graterford in Graterford, Pennsylvania. He suffers from anxiety and insomnia for which 

he has been prescribed Klonopin and other similar medications intermittently over the 

past ten years. In 2007, a doctor or psychologist at SCI Graterford discontinued his 

Klonopin prescription.

In December 2010, Velasquez discussed the renewal of his anxiety and insomnia 

medication with Schweitzer, a Certified Registered Nurse Practitioner. Schweitzer 

prescribed Remeron; however, Velasquez experienced negative side effects. He 

complained to Schweitzer, who arranged for him to meet with psychiatrist Dr. Fishstein.

On January 10, 2008, Velasquez saw Schweitzer in the dispensary area, told her 

that he was still experiencing side effects, and requested new medication. He asked her 

who her boss was and mentioned that he was going to write to her boss because he was 

not being treated for his medical condition. Subsequently, Schweitzer completed an 

incident report claiming that Velasquez had engaged in inappropriate contact. Five days 
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later, Schweitzer reviewed Velasquez’s chart and discussed her security and medication 

concerns with Dr. Polmueller, the head of psychiatric services. She expressed a concern

that Velasquez had become verbally intimidating when she declined to discuss his 

medication issues on January 10th. 

On January 16th, the Psychiatric Review Team (“PRT”) held a meeting to review 

Velasquez’s need for psychiatric care. At this meeting, the PRT decided to remove 

Velasquez from the mental health roster. The PRT also determined that it was 

unnecessary to treat his insomnia with medication. On February 11, 2008, Licensed 

Psychology Manager Robert Dromboski informed Velasquez that he had been removed 

from the mental health roster and that the medical department would be coordinating all 

of his care. Afterwards, Dromboski sent an email to Schweitzer reporting on his meeting 

with Velasquez.

On February 18, Velasquez filed an administrative grievance regarding officials’ 

failure to treat his insomnia and other medical problems. The next day, Schweitzer sent a 

letter to William Radle, the lieutenant assigned to internal security, describing the fear 

she felt during her encounter with Velasquez and noting her continued safety concerns 

because of the PRT’s delay in enacting its decision regarding his mental health care. She 

requested a separation from Velasquez because of her fear. On February 20, Radle 

placed Velasquez in administrative custody in the Restricted Housing Unit (“RHU”) 

pending his investigation of Schweitzer’s claims.
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The Program Review Committee (“PRC”) saw Velasquez on February 27 and 

decided to return him to the general population the following day. Deputy 

Superintendant Murray notified Schweitzer of this decision through email. Velasquez 

subsequently withdrew his February 18 grievance.

On February 28, Schweitzer responded to the email regarding the PRC’s decision. 

In her email, she clarified that it was not just Velasquez’s inappropriate demands for 

medication that caused her concern, but also his behavior, which she perceived as 

threatening. She and Dr. Fishstein met with Murray and described encounters with 

Velasquez where he was intimidating and threatening. Afterwards, Murray informed 

Radle that he was placing Velasquez in the RHU because he presented a “danger to 

himself or others.” Murray also believed a separation was warranted.

After being returned to the RHU, Velasquez experienced a delay in receiving his 

medications. The PRC reviewed his placement on March 5 and continued his 

administrative custody status, noting that a transfer petition was pending. On March 9, 

Dr. Arias visited Velasquez, and Velasquez requested medication for insomnia. The next 

day, Velasquez’s appeal of his placement was denied, and the denial was upheld through 

the appeal process.

On March 19, Dr. Stefanic addressed Velasquez’s medical needs with regards to, 

inter alia, his insomnia. He ordered Velasquez to attempt to obtain a natural sleep pattern 

because the mental health providers did not believe he had any mental health disorder 
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preventing him from sleeping. On April 9, Velasquez filed a grievance alleging that he 

was being denied treatment for insomnia. The grievance coordinator rejected it on the 

basis that this issue had been addressed by his withdrawn grievance. Velasquez’s appeal 

was denied upon a finding that his health care issues had been addressed.

Velasquez appeared before the PRC on May 28, and the PRC continued his 

placement in the RHU. His appeals of this decision were subsequently denied. On May 

29, Velasquez filed a grievance alleging that his placement in the RHU was in retaliation 

for his medical grievances and also violated his due process rights. However, this 

grievance was denied, and the denial was upheld through the appeal process.

On June 2, prison officials submitted a permanent transfer petition requesting that 

Velasquez be permanently transferred and separated from Schweitzer based upon a 

pattern of increasingly demanding and intimidating behavior. The petition was approved 

on June 16, and Velasquez was transferred to SCI Huntingdon on June 22.

Velasquez filed a complaint pursuant to 42 U.S.C. § 1983 in February 2010.1 

Appellees filed motions to dismiss, which the District Court denied without prejudice. 

On October 25, 2010, the District Court ordered Velasquez to file an amended complaint 

alleging each defendant’s personal involvement, and Velasquez filed his amended 

complaint in December 2010. Drs. Arias and Stefanic filed a motion to dismiss on 

 

1 Velazquez’s original complaint asserted, inter alia, an Eighth Amendment claim for 

deliberate indifference based upon prison medical personnel’s alleged failure to promptly 
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December 23, 2010, and Schweitzer filed a motion to dismiss on December 30, 2010. On 

September 12, 2011, the District Court denied the motion to dismiss filed by the doctors 

and granted Schweitzer’s motion in part, dismissing Velasquez’s Eighth and Fourteenth 

Amendment claims against her with prejudice. After conducting discovery, Appellees 

filed motions for summary judgment, which the District Court granted on October 1, 

2012. Velasquez timely filed this appeal.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review 

over the District Court’s order granting summary judgment. See Giles v. Kearney, 571 

F.3d 318, 322 (3d Cir. 2009). Summary judgment is appropriate only when 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). “The moving party has the burden 

of demonstrating that there is no genuine issue as to any material fact, and summary 

judgment is to be entered if the evidence is such that a reasonable fact finder could find 

only for the moving party.” Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 

2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). We may 

summarily affirm on any basis supported by the record if the appeal does not present a 

substantial question. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

III.

 

discontinue his Trazodone prescription and adequately treat his resulting urologic issues. 
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Section 1983 provides private citizens with a means to redress violations of federal 

law committed by state officials. See 42 U.S.C. § 1983. To establish a claim under § 

1983, a plaintiff “must establish that she was deprived of a federal constitutional or 

statutory right by a state actor.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009).

Velasquez first alleges that Drs. Stefanic and Arias violated his Eighth 

Amendment rights by failing to treat him for anxiety and insomnia while he was in the 

RHU. He also contends that Dr. Stefanic violated his First Amendment rights by denying 

him medication for his insomnia in retaliation for his grievance and oral complaints about 

his medical care. However, we agree with the District Court that Velasquez failed to 

exhaust his administrative remedies with respect to these claims.

Under the Prison Litigation Reform Act (“PLRA”), inmates must exhaust their 

administrative remedies before filing a suit alleging specific acts of unconstitutional 

conduct by prison officials. 42 U.S.C. § 1997e(a). A prisoner must exhaust these 

remedies “in the literal sense;” no further avenues in the prison’s grievance process 

should be available. Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004). “[I]t is the 

prison’s requirements, and not the PLRA, that defines the boundaries of proper 

exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007).

The Pennsylvania Department of Corrections’ (“DOC”) grievance system requires 

an inmate to first file a grievance with the facility grievance coordinator. See Pa. Dep’t 

 

However, Velasquez did not assert this claim in his amended complaint.
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of Corr. Policy Statement, DC-ADM 804, Part IV.A.8. The inmate may appeal the 

coordinator’s decision to the facility manager, and then may file a final appeal to the 

Secretary’s office. See id. at Part IV.C.1, 2 and Part IV.D.1. Here, the record reflects 

that Velasquez withdrew his first grievance, did not file a final appeal of the denial of his 

second grievance, and only raised issues regarding his placement in administrative 

custody in his third grievance. Therefore, he did not administratively exhaust his claims 

against Drs. Stefanic and Arias in accordance with DC-ADM 804, and the District Court 

properly granted summary judgment as to these claims.2

Velasquez next alleges that Appellees violated his First Amendment rights by 

placing him in administrative custody and transferring him to SCI Huntingdon in 

retaliation for his grievances about his medical care. He also alleges that Schweitzer 

colluded in the retaliation by fabricating reports regarding her security concerns after her 

interaction with him on January 10, 2008. To sustain a retaliation claim under § 1983, an 

inmate must demonstrate that (1) he engaged in constitutionally protected conduct; (2) he 

suffered adverse action; and (3) the constitutionally protected conduct was “a substantial 

or motivating factor” for the adverse response. See Carter v. McGrady, 292 F.3d 152, 

 

2 We further agree with the District Court that Velasquez did not exhaust his 

administrative remedies by mailing a letter to Secretary Beard regarding his concerns that 

he was not receiving adequate medical care for his insomnia. Furthermore, Velasquez 

did not properly exhaust these claims by using the procedures set forth in Pa. Dep’t of 

Corr. Policy Statement DC-ADM 802 to appeal the PRC’s decision regarding his 

placement in the RHU. DC-ADM 802 specifically governs challenges to administrative 

custody, and DC-ADM 804 remains applicable to challenges unrelated to custody status.
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157, 58 (3d Cir. 2002); see also Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). With 

respect to the causal link, if the prisoner makes a prima facie showing that his 

constitutionally protected conduct was a motivating factor in the decision to discipline, 

the defendant then has the burden of showing that the same disciplinary action would 

have been taken even without the protected activity. See Rauser, 241 F.3d at 334.

We agree with the District Court that Velasquez has not met his burden of 

demonstrating that his grievance submitted on February 18 was a substantial or 

motivating factor for placing him the RHU and transferring him to SCI Huntingdon.3 

The record indicates that Radle received Schweitzer’s letter detailing her security 

concerns and requesting a separation from Velasquez before making the initial decision 

to place Velasquez in the RHU on February 20. Radle had no knowledge that Velasquez 

had filed a grievance when he removed him from the general population, and Velasquez 

has not provided any evidence to refute this assertion. Radle’s affidavit also establishes 

that the procedure at SCI Graterford is to place the inmate in administrative custody 

pending an investigation into safety concerns raised by staff members, and Velasquez has 

not provided any evidence that this would not have occurred absent his grievance. 

 

3 Appellees did not dispute that Velasquez established the first two elements of a 

retaliation claim. Nevertheless, even if they had, his use of the grievance system 

qualifies as protected conduct, see Milhouse v. Carlson, 652 F.3d 371, 373-74 (3d Cir. 

1981), and his RHU placement and transfer constitute sufficient adverse action. See

Allah v. Seiverling, 229 F.3d 220, 224 (3d Cir. 2000) (holding that retaliation may be 

actionable even when the retaliatory action does not involve a liberty interest).
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Furthermore, Deputy Superintendant Murray made the decision to return 

Velasquez to the RHU on February 29 after receiving additional information from 

Schweitzer regarding her reasons for her separation request and after receiving 

information from Dr. Fishstein detailing his concerns about Velasquez. When this 

decision was made, Velasquez had already withdrawn his February 18 grievance. 

Accordingly, his grievance cannot be considered a substantial motivating factor in 

Murray’s decision; even so, Velasquez has not provided any evidence that Murray had 

any knowledge of this grievance.

Velasquez also failed to establish that Schweitzer’s reports about her security 

concern were substantially motivated by his February 18 grievance because there is no 

evidence that she was aware of this grievance at any time before he filed his amended 

complaint. Furthermore, Velasquez himself admitted that the encounter with Schweitzer 

occurred and agreed with her description of the encounter. There is evidence that 

Schweitzer was aware of earlier complaints made by Velasquez and his family members, 

and certain informal, oral complaints to prison personnel have been held to constitute 

protected activity. See, e.g., Pearson v. Welborn, 471 F.3d 732, 740-41 (7th Cir. 2006). 

However, there is no evidence that Schweitzer was aware of the substance of these 

informal complaints; instead, the record indicates that Schweitzer’s security requests 

were a culmination of her concerns she had before learning of Velasquez’s complaints. 
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Accordingly, the District Court properly granted summary judgment to Appellees on 

Velasquez’s claims of retaliation.

Velasquez next claims that DOC officials violated his Eighth Amendment rights 

by being deliberately indifferent to his need for treatment for insomnia. Correctional 

officials cannot be “considered deliberately indifferent simply because they failed to 

respond directly to the medical complaints of a prisoner who was already being treated by 

a prison doctor.” Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993); see also Spruill v. 

Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (non-medical prison officials will not be charged 

with deliberate indifference absent a reason to believe or actual knowledge that medical 

staff are mistreating a prisoner). Here, Velasquez did receive medical treatment for his 

insomnia; therefore, the District Court properly granted summary judgment to Appellees 

on this claim.

Finally, we agree that Velasquez’s due process claims are meritless. First, 

Velasquez’s transfer did not violate his due process rights because he has no 

constitutionally protected liberty interest in prison transfers. See Olim v. Wakinekona, 

461 U.S. 238, 245-48 (1983). Additionally, his four-month confinement in the RHU does 

not constitute an atypical or significant hardship. See Griffin v. Vaughn, 112 F.3d 706, 

708 (3rd Cir. 1997) (“[E]xposure to the conditions of administrative custody for periods 

of as long as 15 months . . . did not deprive [the inmate] of a liberty interest and [] he was 

not entitled to procedural due process protection.”); see also Sandin v. Conner, 515 U.S. 
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472, 484 (1995) (an inmate must demonstrate that the process used amounted to an 

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

IV.

For the foregoing reasons, no substantial question is presented and we will affirm 

the judgment of the District Court.4 See 3d Cir. L.A.R 27.4; I.O.P. 10.6.

 

4 We have considered Velasquez’s Eighth Amendment and due process claims against 

Schweitzer and conclude that the District Court properly dismissed them, as Velasquez 

failed to establish how Schweitzer was personally involved in the alleged denial of 

treatment for his insomnia and the decisions to place him in the RHU and then transfer 

him to SCI Huntingdon. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) 

(quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).