IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GARY BANKS,

 Plaintiff,

v.

LT. MARK MOZINGO, et al.,

 Defendant.

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Civil Action No. 08 - 4E

District Judge David S. Cercone

Magistrate Judge Lisa Pupo Lenihan

Doc. No. 63

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that Defendants’ Motion for Summary Judgment (doc.

no. 63) be granted.

II. REPORT

Plaintiff, Gary Banks, commenced this action pursuant to the Civil Rights Act of

1871, 42 U.S.C. § 1983. He has been determined by the Pennsylvania Department of Corrections

(DOC) to be among the most difficult of prisoners, resulting in his placement in the Long Term

Segregation Unit (LTSU). which was used to house the most violent, disruptive and defiant

prisoners within the system.1

 He was placed in the LTSU prior to the spring of 2001, shortly after

it was created at the State Correctional Institute at Pittsburgh, and remained there2

 until it was

discontinued in February of 2007 and thereafter became the Special Management Unit (SMU) .

1. See, e.g., [Ronald] Banks v. Beard, 399 F.3d 134, 136-141 (3d Cir. 2005) (describing LTSU),

rev'd, 548 U.S. 521 (2006). Commitment to the LTSU is open-ended and subject to the

discretion of prison officials. Banks, 399 F.3d at 137. A prisoner is initially committed for 90

days and may earn his way out of the LTSU upon good behavior. Id.

2. The LTSU was maintained at the State Correctional Institute in Fayette following the closure

of SCI Pittsburgh.

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The remaining Defendants in this action include the following individuals: Lt. Mark Mozingo; Lt.

Mackey; Correctional Officer Meeker; Correctional Officer Deran; Correctional Officer Stoker;

Correctional Officer Richter (incorrectly identified as “Richie” in the Caption of the Amended

Complaint); Correctional Officer Faulkner; Correctional Officer Burton; Lt. Berrier; Jeffrey A.

Beard, Secretary of the Pennsylvania Department of Corrections (DOC); and Health Care

Administrator Robert Tretinik. Plaintiff claims that the Defendants violated his rights as protected

by the First, Fourth, Eighth and Fourteenth Amendments of the United States Constitution.

B. Plaintiff's Allegations

On March 10, 2008, Plaintiff filed an Amended Complaint concerning events that

occurred from May 13 through June 15, 2006 (doc. no. 6). In his first claim, he alleges that on May

14, 2006, he smeared feces on the walls of cell LB-1009 where the sprinkler already was pulled out. 

At that time, Lt. Mozingo, performed an illegal extraction with Defendants Meeker and Doran and

several others. Plaintiff claims Defendant Mozingo sprayed him twice with mace when he refused

orders. Then, Mozingo left and came back with another extraction team in uniform. He complied

with the order to cuff up and was escorted to a “strip cage” and placed in illegal restraints waist

chains, hand cuffs and ankle cuffs. He then was placed in cell LB-2021 with no mattress, blanket,

running water, t-shirt or underwear. He claims that Defendant Mozingo used the mace maliciously

and sadistically for the purpose of causing harm. He further complains that he was denied medical

assistance in that he could not wipe his face or clean the chemical agent off of his body and out of

his eyes because there was no running water. He claims he was placed in security restraints with

a black transportation box to sleep in and a cold cell with no mattress with shackles on his ankles,

waist chain, wrist restraints and denied all other basic necessities where his eyes and skin burned

for days and he was denied medical needs. He claims that Defendants created an environment which

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is unhealthy by using physical and psychological torture tactics. He states that Defendants violated

DOC policy on use of restraints as well as their professional code of ethics.

His second claim is that on May 15, 2006, Correctional Officer Knizer handed him

his lunch tray, which had a spit of tobacco on it. Plaintiff came loose from his security restraint and

began to smear feces on his cell wall in LB-1021 and then calmed down. Lt. Mozingo came upstairs

and they had unpleasant words between them. Mozingo then noticed that Plaintiff was out of his

security restraint and Plaintiff was extracted from his cell and placed in the strip cage where he was

placed in a restraint chair and a spit mask. Plaintiff alleges that the extraction team tightened the

chair belts so as to cut off his circulation. After nine hours, Lt. Mozingo and R.N. Ryan took

Plaintiff out of the restraint chair, placed him in ankle, wrist and waist restraints attached to a

security black box, and placed him in cell LA-1007 for two days. Plaintiff claims he suffered

injuries, including swelling of his right hand, cuts in his wrist, stomach discomfort for holding his

bowel movements while in the restraint chair, poor circulation, and inability to sleep while in

restraints.

Plaintiff’s third claim is that on May 18, 2006, he smeared feces on his cell walls and

security camera because he was being monitored illegally without psychiatric approval. Lt.

Mozingo and Defendants Richter, Fisher, Stoner and Faulkner extracted Plaintiff from his cell and

placed him in the cell LB-1010 where a spit mask was placed on his face. Plaintiff alleges that

Defendant Richter used an electric shield to electrocute him during the extraction while Defendant

Richter used the hand held IBID to electrocute him until he defecated down his legs while

Defendants Mozingo, Faulkner, and Stoner yelled at him to stop resisting. Plaintiff was forced to

a strip cage and placed in ankle, wrist and waist restraints attached to a security black box, and

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placed him in unsanitary cell LB-1010 for two days. Plaintiff claims he suffered injuries as a result

of his restraints and was denied all basic necessities including pen, paper and mail.

Plaintiff’s fourth claim is that on May 21, 2006, he was extracted from his cell for

smearing feces on the walls and camera in order to get a shower. After his shower, Lt. Mozingo

ordered him to cuff up and forced him to walk out of the shower naked to the strip cage where he

was placed in wrist and waist restraints and taken back to cell LB-1010, which was covered with

Plaintiff’s feces. He further claims that the cell was illuminated twenty-four (24) hours a day, which

caused him sleep deprivation. Plaintiff claims he suffered injuries as a result of his restraints.

Plaintiff’s fifth claim is that on May 30, 2006, he smeared feces on the security

camera, floor and window of his cell to prevent observation of his cell and to get a shower. Lt.

Berrier and his extraction team escorted Plaintiff to the shower and afterward, Plaintiff was taken

to the strip cage and placed in ankle, wrist and waist restraints and taken back to cell LB-1010,

which was covered with Plaintiff’s feces. Plaintiff claims he suffered injuries as a result of his

restraints, including sleep deprivation, cuts due the ankle shackles, denied running water, toilet

paper, soap, and shoes.

Plaintiff’s sixth claim is that on June 5, 2006, Lt. Mozingo removed Plaintiff’s ankle

shackles after twenty-one days. As a result, Plaintiff suffered deep cuts on his ankles. He claims

that he was living in cell LB-1010 since May 17, 2006 without basic necessities such as toilet paper,

soap, and tooth brush.

Plaintiff’s seventh claim is that on June 6, 2006, he smeared feces on the camera, cell

door and windows. The extraction team placed him in the shower and afterward made him walk

naked to the strip cage. On the way, Defendant Richter stepped on Plaintiff’s feet, elbowed him in

the face and pushed him. When Plaintiff spit at Richter, Defendant Mackey sprayed him with a

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chemical agent and denied him medical treatment afterward. Plaintiff claims he suffered injuries

as a result of his restraints.

Plaintiff’s eighth claim is that on June 9, 2006, he smeared feces on the camera, cell

door and windows. The extraction team placed him in the shower while the workers half cleaned

his cell. Afterward, he was forced to walk naked to the strip cage where he was placed in restraints

and a spit hood. Plaintiff claims he suffered injuries as a result of his restraints, including sleep

deprivation and psychological problems.

Plaintiff’s ninth claim concerns his confinement in the LTSU. Specifically, he 

claims that he did not volunteer for participation in the LTSU psychological experiments and did

not volunteer for the psychologist to submit diagnoses, evaluations or examinations. which have

caused him to exhibit destructive behavior such as smearing feces, self defecating, paranoia, rage

and depression. He claims that Defendants have violated his right to petition the government for

redress of grievances, his right to be free from unreasonable seizures, his right to due process, and

his right to be free from cruel and unusual punishments, including the right to be placed in general

population, the right to telephone calls, the right to work pay or idle pay, the right to parole, etc. He

claims that Jeffrey Beard created the LTSU for alleged behavior modification purposes but in reality,

it’s purpose is for medical experimentation.

B. Standard of Review

Presently pending is Defendants' Motion for Summary Judgment (doc. no. 63). 

Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, the

pleadings, depositions, answers to interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to

judgment as a matter of law. Fed. Rule Civ. Proc. 56(c). Summary judgment may be granted

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against a party who fails to adduce facts sufficient to establish the existence of any element essential

to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986) (party can move for summary judgment by "pointing out to the

district court that there is an absence of evidence to support the non-moving party's case."). The

moving party bears the initial burden of identifying evidence that demonstrates the absence of a

genuine issue of material fact. Once that burden has been met, the non-moving party must set forth

". . . specific facts showing that there is a genuine issue for trial . . ." or the factual record will be

taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita

Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). An issue is genuine only if the evidence

is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242 (1986). The inquiry, then, involves determining " 'whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.' " Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir.

1990), cert. denied, 501 U.S. 1218 (1991) (quoting Anderson, 477 U.S. at 251-52). If a court

concludes that "the evidence is merely colorable . . . or is not significantly probative," then summary

judgment may be granted. Anderson, 477 U.S. at 249-50.

C. Liability under 42 U.S.C. § 1983

Plaintiff's Complaint seeks to assert liability against Defendants pursuant to 42 U.S.C.

§ 1983. To state a claim under 42 U.S.C. § 1983, a plaintiff must meet two threshold requirements. 

He must allege: 1) that the alleged misconduct was committed by a person acting under color of

state law; and 2) that as a result, he was deprived of rights, privileges, or immunities secured by the

Constitution or laws of the United States. West v. Atkins, 487 U.S. 42 (1988); Parratt v. Taylor, 451

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U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-

331 (1986).

To establish personal liability against a defendant in a section 1983 action, that

defendant must have personal involvement in the alleged wrongs; liability cannot be predicated

solely on the operation of respondeat superior. Rizzo v. Goode, 423 U.S. 362 (1976). Accordingly,

individual liability can be imposed under section 1983 only if the state actor played an "affirmative

part" in the alleged misconduct. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988);

Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986). Personal involvement by a defendant can

be shown by alleging either personal direction or actual knowledge and acquiescence in a

subordinate's actions. Rode, 845 F.2d at 1207.

The issues at bar concern whether Defendants have violated any of Plaintiff’s

constitutional rights. His claims are discussed seriatim below.

D. First Amendment

The First Amendment provides:

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to

assemble, and to petition the Government for a

redress of grievances.

U.S. Const. Amend. I.

Plaintiff baldly alleges that Defendants have violated his right to access to the courts. 

The First Amendment guarantees prisoners the fundamental right to meaningful access to the courts. 

Bounds v. Smith, 430 U.S. 817 (1977). However, this right is not unlimited.

[The Constitution] does not guarantee inmates the wherewithal to

transform themselves into litigating engines capable of filing

everything from shareholder derivative actions to slip-and-fall claims. 

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The tools it requires to be provided are those that the inmates need in

order to attack their sentences, directly or collaterally, and in order to

challenge the conditions of their confinement. Impairment of any

other litigating capacity is simply one of the incidental (and perfectly

constitutional) consequences of conviction and incarceration.

Lewis v. Casey, 518 U.S. 343, 355 (1996).

Thus, the Supreme Court has instructed that the right to access to the courts means

that a prisoner must be provided with a “reasonably adequate opportunity” to present claimed

violations of fundamental constitutional rights to the courts. Id. at 351 (citation omitted). To ensure

this right, the state must provide indigent inmates with the materials necessary to draft and mail legal

documents. Bounds, 430 U.S. at 824-25. Notwithstanding, the right of access does not require that

indigent inmates be provided with unlimited free postage or materials; a state is entitled to adopt

reasonable restrictions in light of prison budgetary considerations. See Bach v. Coughlin, 508 F.2d

303, 307 (7th Cir. 1974).

In Lewis v. Casey, 518 U.S. 343 (1996), the Supreme Court held that, in order to

successfully challenge a denial of the right of access to the courts, it is not enough for an inmate to

establish that the law library provided was inadequate or he was denied access either to the law

library or to legal materials; rather, he must establish that such inadequacies in the library or in

accessing legal materials caused him actual harm. In Christopher v. Harbury, 536 U.S. 403 (2002),

the Supreme Court set forth specific criteria that a court must consider in determining whether a

plaintiff has alleged a viable claim of right to access to the courts. Specifically, the Supreme Court

held that, in order to state a claim for denial of access to courts, a party must identify all of the

following in the complaint: 1) a non-frivolous, underlying claim: 2) the official acts frustrating the

litigation; and 3) a remedy that may be awarded as recompense but that is not otherwise available

in a future suit. Christopher, 536 U.S. at 415.

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The Court explained that the first requirement mandated that the plaintiff specifically

state in the complaint the underlying claim in accordance with the requirements of Rule 8(a) of the

Federal Rules of Civil Procedure to the same degree as if the underlying claim was being pursued

independently. Christopher, 536 U.S. at 417. In this regard, the statement must be sufficiently

specific to ensure that the district court can ascertain that the claim is not frivolous and that the "the

'arguable' nature of the underlying claim is more than hope." Id. The second requirement requires

a Plaintiff to clearly allege in the Complaint the official acts that frustrated the underlying litigation. 

Third, a Plaintiff must specifically identify a remedy that may be awarded as recompense in a

denial-of-access case that would not be available in any other future litigation. Id. at 414.

Here, Plaintiff has failed to identify any legal action he was unable to pursue as a

result of Defendant’s alleged actions. He makes a statement that he missed a court date due to one

of his cell extractions, but does not identify what action such court date pertained to. Nor has he

alleged a remedy that may be awarded as recompense but that is not otherwise available in a future

suit. Thus, Defendants are entitled to summary judgment as to Plaintiff’s claimed denial of access

to courts.3

E. Fourth Amendment - Illegal Seizure

3. In addition, to the extent Banks is alleging a violation of his right to use the prison grievance

procedures, he can not state a claim. Inmate grievance procedures, in themselves, do not confer

a liberty interest protected by the due process clause in the inmate grievance procedures. See,

e.g., Rhoades v. Adams, 194 F. App’x. 93 (3d Cir. 2006); McGuire v. Forr, Civ. No. 94-6884,

1996 WL 131130 (E. D. Pa. Mar. 21, 1996), aff'd, 101 F.3d 691 (3d Cir. 1996); Antonelli v.

Sheahan, 81 F.3d 1422, 1430 (7th Cir.1996).

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Plaintiff also claims that he has a right to be free from unreasonable seizures. This

claim seeks to impose liability under the Fourth Amendment, which provides as follows.

The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

First, the Fourth Amendment's proscription against unreasonable searches does not

apply to a prisoner's cell or to prisoner's property. See Hudson v. Palmer, 468 U.S. 517, 526 (1984)

(holding that an inmate has no reasonable expectation of privacy in his prison cell entitling him to

the protections of the Fourth Amendment). Consequently, Plaintiff's allegations construed as a claim

alleging an illegal cell search and seizure of his property do not state a violation of his Fourth

Amendment rights.

Second, inmates retain only a “limited right to bodily privacy” under the Fourth

Amendment. Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir.1992) . To the extent that Plaintiff is trying

to raise a Fourth Amendment claim regarding Defendants’ actions in placing him in bodily restraints

and/or walking him naked from the shower to the strip cell, such actions must be considered under

the Eighth Amendment; extending a Fourth Amendment remedy to Plaintiff is unwarranted. See

Perez v. Hewitt, Civ. No. 04-10112, 2008 WL 780628, 3 (S.D.N.Y. March 24, 2008) (quoting

Hudson, 468 U.S. at 530) (“Our holding that respondent does not have a reasonable expectation of

privacy enabling him to invoke the protections of the Fourth Amendment does not mean that he is

without a remedy.... The Eighth Amendment always stands as a protection against cruel and unusual

punishments.”); Peckham v. Wisconsin Dept. of Corrections, 141 F.3d 694, 699 (7th Cir. 1998) (J.

Easterbrook concurring) (“What Hudson and Johnson hold is that convicts lack any reasonable

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expectation of privacy that may be asserted against their custodians and that searches of cells and

other places where contraband may be hidden, including the space under one's clothing, need not

be justified by any particular quantum of suspicion. That principle should not be impugned.”). Thus,

Defendants are entitled to summary judgment with respect to Plaintiff's Fourth Amendment claims.

F. The Eighth Amendment

Plaintiff makes several allegations that invoke liability under the Eighth Amendment,

which provides as follows.

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

U.S. Const. amend. VIII.

The Eighth Amendment protects individuals against the infliction of "cruel and

unusual punishments.” This protection, enforced against the states through the Fourteenth

Amendment, guarantees incarcerated persons humane conditions of confinement. In this regard,

prison officials must ensure that inmates receive adequate food, clothing, shelter and medical care,

and must "take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511

U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).

Notwithstanding, not every injury raises constitutional concerns. A prison official

violates the Eighth Amendment only when two requirements are met. The inmate must show that: 

1) he suffered a risk of "serious" harm; and 2) prison officials showed "deliberate indifference" to

such risk. Farmer, 511 U.S. at 834. The first element is satisfied when the alleged "punishment"

is "objectively sufficiently serious." Id. In determining whether a prisoner has alleged a risk that

is objectively serious, a court must consider not only the seriousness of the potential harm and the

likelihood that the harm will actually occur, but evidence that unwilling exposure to that risk violates

contemporary standards of decency. In other words, the prisoner must show that the risk of which

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he complains is not one that today's society chooses to tolerate. Helling v. McKinney, 509 U.S. 25,

35 (1993).

The second criterion, deliberate indifference, requires an inmate to show that the

prison official had a sufficiently culpable state of mind. The Supreme Court clarified this deliberate

indifference standard in Farmer as follows.

We reject petitioner's invitation to adopt an objective test for

deliberate indifference. We hold instead 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." An act or omission unaccompanied by

knowledge of a significant risk of harm might well be something

society wishes to discourage, and if harm does result society might

well wish to assure compensation. . . . But an official's failure to

alleviate a significant risk that he should have perceived but did not,

while no cause for commendation, cannot under our cases be

condemned as the infliction of punishment.

Farmer, 511 U.S. at 837-838 (emphasis added).

1. Conditions of Confinement

Plaintiff alleges that the conditions of his confinement in the LTSU violated the

Eighth Amendment prohibition against cruel and unusual punishment. Plaintiff fails to submit any

evidence to demonstrate that the conditions of his confinement in the LTSU deprived him of any

basic human need such as food, clothing, shelter, sanitation, medical care or personal safety. Neither

classification nor confinement to segregation, either administrative or punitive, implicates the Cruel

and Unusual Punishment Clause of the Eighth Amendment unless the conditions themselves are

cruel and unusual. Hutto v. Finney, 437 U.S. 678, 686 (1978); Spaight v. Coughlin, 104 F.3d 350

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(Table), 1996 WL 518507 (2d Cir. 1996), cert. denied, 117 S.Ct. 972 (1997); Young v. Quinlan, 960

F.2d 351, 363 (3d Cir. 1992); Sheley v. Dugger, 833 F.2d 1420, 1428-29 (11th Cir. 1987); Gibson

v. Lynch, 652 F.2d 348, 352 (3d Cir. 1981) ("administrative segregation and solitary confinement

do not, in and of themselves, constitute cruel and unusual punishment") (citing Hutto), cert. denied,

462 U.S. 1137 (1983).

The Constitution does not mandate comfortable prisons. Rhodes, 452 U.S. at 349. 

Prisons housing "persons convicted of serious crimes cannot be free of discomfort." Id. Accord

Griffin v. Vaughn, 112 F.3d. 703 (3d Cir. 1997) (restrictive conditions in administrative custody in

the Pennsylvania state correctional institutions, in and of themselves, do not violate the Eighth

Amendment).

The Superior Court of Pennsylvania recently rejected a similar Eighth Amendment

claim regarding the LTSU wherein it made the following observations.

The basic conditions in this most restrictive of units designed

for the most severe behavioral problems in the prison population are,

perhaps not surprisingly, very unpleasant. There is a regular problem

of feces throwing and the accompanying stench, which has been

recently only partially corrected by a modification of the cell doors. 

Another practice of stopping up toilets until they run over and flood

the cells, is not uncommon and can lead to similar unsanitary

conditions. Although the institution has a specialized team to go in

and clean and sanitize after such incidents, the evidence suggests that

there are sometimes periods of delay during which the inmates are

residing and even eating their meals within the sight and smell of

human waste. There was no evidence, however, that inmates['] food

itself was contaminated with this waste. Although petitioners allege

that the staff actively encourage the throwing of feces, the evidence

did not support this allegation.

As noted above, the inmates in the LTSU have 23 hours of

solitary confinement in their cells per day with one hour a day in the

yard. There is considerable noise described as banging and

screaming on the unit at all hours of the day and night and the lights

are left on twenty-four hours a day. Many of the inmates are

described as suffering from mental and emotional illnesses, although

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the severely mentally ill are apparently housed in a separate unit. This

Court had the opportunity to visit the Psychiatric Unit which is

staffed with a full-time nurse, and the inmates appear well managed

and orderly. It is not clear to this Court whether the mental and

emotional conditions demonstrated in the LTSU contribute or cause

the extreme behavioral issues that landed these inmates in the LTSU

or whether those types of conditions are in part caused by long

periods of solitary confinement in such a unit.

There have been problems with the heat during which the

cells have been quite cold during the winter months, although extra

blankets appear to have been available at those times. ... At times,

pepper spray is used to control unruly inmates, and the spray lingers

in the air, causing problems for the surrounding inmates.

. . .

To punish the LTSU inmates for misconducts, they are

sometimes put in “alternate housing,” which involves being put into

a cell without the inmate's property or clothing, with a smock and no

underclothing to wear, a mattress and a “security blanket.” According

to the LTSU policy, where an inmate's misconduct has involved the

use of the mattress, such as using it to create a barricade or destroying

it for any purpose, this alternate housing would exclude a mattress

and require the inmate to sleep on a metal bed frame or on the

concrete slab. ... While in this alternate housing, if the inmate's

misconduct has involved misuse of food or utensils (cups or

containers have at times been used to collect fluids or feces to use

against staff or other inmates), the inmate will be given only a

“nutritional food loaf” to eat during the duration of the punishment,

which is a frozen concoction of rice and some sort of starch. This is

done only for short durations until the inmate is brought into

conformity and the process is done under medical supervision. The

water is also controlled from outside the cell during these

punishments to avoid the inmate causing a flood, although water to

drink is apparently made available every few hours. ... In one

instance, Mr. Rivera testified to having been put in a “four-point

restraint” for a misconduct, which constituted being chained to a

metal bed frame by all four limbs, during which restraint he was

unable to use the bathroom and was forced to soil himself with urine

and feces. Prison officials noted this was after he attacked a guard

and had to be forcefully removed from his cell.

. . . A counselor is available on the unit once a month, but

must share time with all the inmates and there is no privacy for

counseling. . . . There is a system of inmate reviews which includes

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monthly reviews by the Unit Management Team and quarterly

reviews by a Program Review Committee. These reviews, in

addition to the established grievance procedures, provide

opportunities for the inmates to discuss problems and grievances that

they might have with the conditions of their confinement as well as

to have their behavioral status reviewed and possibly some of their

disciplinary custody time set aside.

Rivera v. Pennsylvania Dept. of Corrections 837 A.2d 525, 530-532 (Pa. Super. 2003).

The Superior Court held that the conditions of confinement in the LTSU, as explained

above, did not deprive the prisoners of the minimal civilized measure of life's necessities, or at least

a single, identifiable human need. Rivera, 837 A.2d at 534 (Pa.Super. 2003) (citing Wilson v. Seiter,

501 U.S. 294 (1991)). Like Rivera, Plaintiff has failed to evidence conditions that will satisfy the

objective component of an Eighth Amendment claim. Accord Griffin v. Vaughn, 112 F.3d. 703 (3d

Cir. 1997) (holding that the restrictive conditions in administrative custody in the Pennsylvania state

correctional institutions, in and of themselves, do not violate the Eighth Amendment); Fortson v.

Kelchner, Civ. No. 08-532, 2009 WL 693247, at *3 (W. D. Pa. Mar. 13, 2009) (granting

Defendants' Motion to Dismiss as to Plaintiff's Eighth Amendment claim regarding confinement in

the RHU and SMU); Pressley v. Blaine, 544 F.Supp.2d 446, 453 (W. D. Pa. 2008) (holding that

1080 days of disciplinary confinement did not implicate the Eighth Amendment); Dantzler v. Beard,

Civ. No. 05-1727, 2007 WL 5018184, at *11-12 (W.D. Pa. Dec. 6, 2007) (holding that the

conditions of confinement in the SMU and LTSU did not amount to cruel and unusual punishment

in violation of the Eighth Amendment); Woods v. Abrams, Civ. No. 06-757, 2007 WL 2852525, 14

(W. D. Pa. Sep. 27, 2007) (holding that the conditions of confinement in the LTSU did not satisfy

the objective component of an Eighth Amendment claim); [Gary] Banks v. Beard, Civ. No. 03-659,

2006 WL 2192015, at *11 (W. D. Pa. Aug. 1, 2006) (same). Consequently, Defendants are entitled

to summary judgment as to this claim.

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2. Unsanitary Conditions

Plaintiff further alleges that he was confined in unsanitary conditions from May 18,

2006 through June 9, 2006, while he was confined in the LTSU. Specifically, Plaintiff complains

about the presence of feces in his cell and the fact that he was housed in a dry cell for periods of

time. The record is clear that, to the extent there was feces in Plaintiff’s cell, Plaintiff was

responsible for putting it there. It is also clear that efforts were made to clean Plaintiff’s cell

windows and camera each time he was extracted therefrom. Plaintiff’s allegations simply do not

rise to the level of an Eighth Amendment violation. See Schaeffer v. Schamp, Civ. No. 06-1516,

2008 WL 2553474, at *6 (W. D. Pa. June 25, 2008) (holding that plaintiff's "claims that he was

placed in a hard cell for ten days without a mattress, soap, toilet paper, running water, legal supplies,

his prescription medication and only received one meal a day" were insufficient to constitute an

Eighth Amendment violation); Williams v. Campbell, Civ. No. 07-885, 2008 WL 2816089, *4 (E.

D. Pa. July 18, 2008); Fortune v. Basemore, Civ. No. 04-377, 2008 WL 4525373, 12 (W. D. Pa.

Sept. 29, 2008) (denial of exercise and showers for fifteen days did not result in an Eighth

Amendment violation); Allebach v. Sherrer, Civ. No. 04-287, 2005 WL 1793726 (D.N.J. July 27,

2005) (holding that denial of running water, religious items, visitation, recreation, use of the

telephone, mattress and clothing for thirty-six (36) days was not cruel and unusual punishment under

the Eighth Amendment).4

 Thus, summary judgment should be entered in favor of the defendants

with regard to Plaintiff’s cell amenity related conditions of confinement claims.

3. Excessive Force

4. Accord O'Leary v. Iowa State Men's Reformatory, 79 F.3d 82, 83 (8th Cir. 1996) (inmate

deprived of underwear, blankets, mattress, exercise, visits did not state an Eighth Amendment

violation); Seltzer-Bey v. Delo, 66 F.3d 961, 963 (8th Cir.1995) (inmate placed in strip cell

without clothing, bedding, or running water, with a concrete floor, a concrete slab for a bed, and

cold air blowing on him did not state an Eighth Amendment violation). 

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Plaintiff’s predominant claim is that Defendants used excessive force by their use of

OC spray, body restraints, a restraint chair, and electric taser devices between May 13, 2006 and

June 9, 2006. The Cruel and Unusual Punishments Clause of the Eighth Amendment protects

inmates against the application of excessive force by correctional officers. See Whitley v. Albers,

475 U.S. 312, 318-19 (1986). What is required to prove an Eighth Amendment violation "varies

according to the nature of the alleged constitutional violation." Hudson v. McMillian, 503 U.S. 1,

5 (1992). In an excessive force claim, the core judicial inquiry is "whether force was applied in a

good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose

of causing harm." Hudson v. McMillian, 503 U.S. 1, 7 (1992). Factors relevant to this inquiry

include: the need for application of force; the relationship between that need and the amount of

force used; the threat reasonably perceived by the responsible officials; and any efforts made to

temper the severity of a forceful response. Hudson, 503 U.S. at 7 (citations omitted). The absence

of serious injury is a relevant, but not dispositive, additional factor to be considered in the subjective

analysis. Id.

In reviewing excessive force cases in the prison context, the Supreme Court has

instructed as follows.

When the ever-present potential for violent confrontation and

conflagration, ripens into actual unrest and conflict, the admonition

that a prison's internal security is peculiarly a matter normally left to

the discretion of prison administrators, carries special weight. Prison

administrators should be accorded wide-ranging deference in the

adoption and execution of policies and practices that in their

judgment are needed to preserve internal order and discipline and to

maintain institutional security. That deference extends to a prison

security measure taken in response to an actual confrontation with

riotous inmates, just as it does to prophylactic or preventive measures

intended to reduce the incidence of these or any other breaches of

prison discipline. It does not insulate from review actions taken in

bad faith and for no legitimate purpose, but it requires that neither

judge nor jury freely substitute their judgment for that of officials

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who have made a considered choice. Accordingly, in ruling on a

motion for a directed verdict in a case such as this, courts must

determine whether the evidence goes beyond a mere dispute over the

reasonableness of a particular use of force or the existence of

arguably superior alternatives. Unless it appears that the evidence,

viewed in the light most favorable to the plaintiff, will support a

reliable inference of wantonness in the infliction of pain under the

standard we have described, the case should not go to the jury.

Whitley v. Albers, 475 U.S. 312, 321-322 (1986) (internal quotations omitted).

As an initial matter, the Court notes that a prison guard’s use of a restraint chair, body

restraints, OC spray or IBID taser gun does not, in and of itself, allege a violation of the Eighth

Amendment. See, e.g., Fuentes v. Wagner 206 F.3d 335, 345 (3d Cir. 2000) (defendants entitled to

summary judgment with regard to use of restraint chair where there was no evidence that prison

officials placed him in the chair maliciously and sadistically to cause harm); Dixon v. Toole, 225

F. App’x 797, 799 (11th Cir. 2007) (no Eighth Amendment violation with respect to four point

restraints where prisoner suffered no physical injury); Parks v. Williams 157 F. App’x 5, 6 (9th Cir.

2005) (same); Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004) (holding that a “single use

of the taser gun causing a one-time shocking” against a “hostile, belligerent, and uncooperative”

arrestee in order to effectuate the arrest was not excessive force in the totality of the circumstances);

Jasper v. Thalacker, 999 F.2d 353, 354 (8th Cir. 1993) (using stun gun to subdue an unruly inmate

did not violate Eighth Amendment where plaintiff failed to prove that the officers used the stun gun

“sadistically or maliciously” to cause harm); Caldwell v. Moore, 968 F.2d 595, 602 (6th Cir. 1992)

(use of stun gun against disruptive prisoner to restore discipline and order does not violate Eighth

Amendment); Michenfelder v. Sumner, 860 F.2d 328, 336 (9th Cir. 1988) (policy of allowing use

of taser guns on inmate who refuses to submit to a strip search does not constitute cruel and unusual

punishment).

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Thus, the Court must review the evidence presented regarding the specific instances

alleged in the Amended Complaint.5 The record facts are as follows. 

On May 14, 2006, Plaintiff’s cell flooded due to a broken sprinkler. On that date,

Plaintiff wrote on his cell walls and windows with feces. At approximately 3:30 p.m., the shift

commander, Charles Simpson, authorized a cell extraction of inmate Banks and placement into RIPP

restraints (doc. no. 63-1, p. 3).6 Banks was also cleared for the use of Oleoresin Capsicum (OC)

(commonly known as pepper spray) 7and the Electronic Body Immobilizing Device (EBID)

(commonly known as a taser).8 After these authorizations were in place, the ventilation system was

shut down and Lt Mozingo assembled a Modified Cell Extraction Team (also known as a Force

Compliance Team), consisting of Officer Doran - equipped with a baton, Officer Cummings -

equipped with leg shackles, Officer Yatchyshyn - equipped with hand held EBID, Officer Meeker

equipped with the RIPP Treatment Belt. The following can be observed in the video footage of the

May 14, 2006 events. Mozingo and his team approached Plaintiff’s cell LB 1009, which was

smeared with feces, and asked if he would agree to be handcuffed and removed from his cell

voluntarily. Plaintiff refused and barricaded the food aperture with a security blanket to prevent the

officers from handcuffing him. When Plaintiff refused multiple orders to remove the barricade and

submit himself to be handcuffed, defendant Mozingo administered a short burst of OC into

5. As exhibits to its Motion Defendant provided videotapes of each of the 7 incidents Plaintiff

complained of, each of which was reviewed by the court.

6. As Defendants point out, the videotape evidence reveals that RIPP restraints are a type of

fabric restraint belt that secures and inmate’s hands to his waist.

7. OC spray causes involuntary closure of the eyes, respiratory inflammation, and temporary

loss of muscular strength and coordination.

8. An EBID is a non-lethal electrical device used to temporarily immobilize an individual (doc.

no. 63-1, p. 47).

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Plaintiff’s cell. Plaintiff remained at his cell door window screaming at the guards and barricaded

his door with his mattress yelling “try it now bitch.” A second burst of OC was administered and

Plaintiff remained standing in his cell clapping his hands. There is no indication in the videotape

that the pepper spray caused any irritation to his eyes or skin.

At that point, the team left and Mozingo assembled a full Extraction Team consisting

of Officer Doran - equipped with a EBID shield, Officer Cummings - responsible for high right,

Officer Yatchyshyn - responsible for high left equipped with handcuffs, Officer Meeker - low right

equipped with hand held EBID, Officer Skobel - low left equipped with leg shackles, Officer

Hayden - equipped with handcuffs, tether and baton, and RN Hovanic to provide medical care. The

Extraction Team commenced to Plaintiff’s cell where he complied with Mozingo’s orders and was

voluntarily handcuffed and removed from his cell. Plaintiff was taken to the shower, strip searched,

and then given a clean shirt and undershorts. He was re-cuffed, shackled, and placed in RIPP

restraints and taken to cell LB 2021, known as a hard cell without a mattress or personal property

and in which the water had been temporarily shut off. The videotape further shows that immediately

after being secured in the new cell, Plaintiff began trying to escape from his RIPP restraints and

threatening the officers.

About twenty minutes after he was secured in cell LB 2021, Nurse Hovanic attempted

to perform a medical assessment. At that time, Plaintiff stated that he did not have any injuries and

refused assessment and eye flush for OC gas use (doc. no. 63-1, p. 56). As a result of his behavior,

Plaintiff was issued misconduct no. A737226 charging him with destroying, altering or tampering

with property in regards to the damaged sprinkler found in Plaintiff’s cell (doc. no. 63-1, p. 41).

On May 15, 2006, at approximately 9:30 a.m., Plaintiff broke the RIPP Treatment

Belt where the left handcuff attaches to the belt and covered his cell wall with feces. He

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continuously pounded on his cell window with the broken handcuff and stated that he broke the

sprinkler in his cell. Because he previously had broken the sprinklers in two other cells, the water

was turned off in his cell so it was unknown whether the sprinkler was broken. From 9:30 to 10:50

he threatened staff, pounded on the windows and stated that he was going to destroy every cell that

he was placed in. It was determined that Plaintiff would be placed in the Restraint Chair and a Cell

Extraction Team was assembled consisting of Officer Akorn - equipped with the EBID shield,

Officer Burton - responsible for high right, Officer McKay - high left equipped with handcuffs,

Officer Knizer - low right equipped with hand held EBID, Officer Addis - low left, Officer Smith -

equipped with handcuffs, tether and baton, and Nurse Bilitski for any medical attention (doc. no. 63-

1, p. 63). The videotape shows that the team went to Plaintiff’s cell where he complied with the

initial orders to submit himself for handcuffing. He was removed from his cell, placed in a holding

area, strip searched and then placed in the restraint chair, where he immediately began yelling and

threatening to beat the officers. In addition, he taunted the officers to make the restraints tighter,

stating “this ain’t gonna stop me,” “is that the best you can do?” “pull harder,” and “I’m comin’

outta’ this shit.” He was given misconduct no. A737230 charging him with threatening an employee

or their family with bodily harm and destroying, altering or tampering with property, i,e., the broken

RIPP belt. 

According to his medical chart, at 12:52, Plaintiff was secured in the restraint chair

and the straps were checked for tightness and his circulation was examined by the medical

department (doc. no. 63-2, p. 7). At 2:50, Nurse Noel examined Plaintiff who complained of

swelling of his right hand. He was offered exercise to all four points but only wanted to exercise

his arms, which he was allowed to do for two minutes. All four extremities were then checked for

circulation. At 5:00 p.m., Plaintiff complained of chest pain and was examined by medical. His

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pulse was regular and his lungs were clear and he was offered exercise to all four points, which he

did. No cardiac issues were found (doc. no. 63-2, p. 7). Approximately eight and one-half hours

later, around 8:00 p.m., Plaintiff was removed form the restraint chair and evaluated by the medical

department. The medical examination of Plaintiff conducted after he was removed from the restraint

chair revealed a bruise on his right wrist (doc. no. 63-2, p. 5). The nail blanching test was performed

with normal results. Plaintiff was advised to keep his wrist elevated and was placed on sick call for

the following day. On May 16, 2006, Plaintiff was examined by PA Chris Meyer who found no

visible cuts and good capillary refill (doc. no. 63-2, p. 8).

Plaintiff complains that he suffered pain due to having to hold his bowel movements

while he was in the restraint chair. He further states that he suffered pain and swelling and loss of

feeling in his hands, shoulders, ankles and feet. He further complains that he was placed in shackles

and a cold cell after he was removed from the restraint chair. The Court notes that Plaintiff was

placed in the chair for using his excrement to destroy his cell by writing on the walls with it. The

human body only produces a limited amount of excrement in a day. It seems somewhat unrealistic

that Plaintiff would need to move his bowels again in so short a time. Moreover, no where does he

claim that he asked to use the restroom while he was in the restraint chair and was refused by any

of the Defendants. Finally, when Plaintiff complained of medical concerns, he was seen by the

medical department in a timely manner. 

On May 18, 2006, Plaintiff smeared feces on himself, his cell door window and

in-cell security camera making it impossible to see inside Plaintiff’s cell, which created a security

concern (doc. no. 63-2, p. 25). A Cell Extraction Team was assembled by Lt. Mozingo to remove

Plaintiff from his cell so that it could be cleaned. The team consisted of the following: Officer

Mozingo - equipped with OC; Officer Fisher - equipped with the EBID shield; Officer Akorn -

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responsible for high right; Officer Faulkner - high left with handcuffs; Officer Richter - low right

with hand held IBID; Officer Keller -responsible for low left; Officer Stoner -equipped with baton,

handcuffs and tether; RN Bilohlavek - responsible for medical attention. Plaintiff was cleared for

OC and EBID and the ventilation was shut off (doc. no. 63-2, p. 25) in cell LB 1010. Plaintiff

complied with orders and submitted himself to be voluntarily handcuffed. After the cell door was

opened, Plaintiff allegedly bit defendant Stoner on the hand, who was wearing two pair of plastic

gloves which were torn during the incident. At that point, Plaintiff was taken down onto his bed and

the hand-held EBID was applied. Plaintiff complains that he was electrocuted until he defecated

down his legs. He was taken out of his cell to a holding area where he was strip-searched. During

the entire period, Plaintiff was verbally assaultive and threatened the officers that he was going to

throw shit on them and he was taking them all to court. Nurse Bilohlavek photographed the marks

left on Plaintiff by the EBID and a cut on his right hand. Plaintiff was given clean clothes and black

box restraints were applied. Plaintiff then was returned to his cell, which had been cleaned.

As a result, Plaintiff was issued misconduct nos. A756643 and A756644. In

A756644, Plaintiff was charged with destroying, altering, tampering with property, using abusive

language, refusing to obey an order and threatening an employee or his family based on the

declaration by Officer Richter as follows.

On the above time and date this officer was assigned

to the central bubble. While monitoring the camera

cells I noticed inmate Banks spreading feces on his

camera and the cell walls. The inmate was ordered

over the intercom system to stop spreading feces. He

then replied you come the fuck down here and stop

me. He then proceeded to state that he would kill

anyone who entered his cell.

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Doc. No. 63-2, p. 44. In misconduct no. A756643, Plaintiff was charged with assault, threatening

an employee with bodily harm, and using abusive language, based on the following report by

Defendant Stoner.

On the above date and time, I was attempting to place

a spit hood onto inmate CT 8731 Banks. While

putting the hood on Banks bit me tearing my gloves

and leaving my hand red and swollen. Also, Banks

threatened me by stating as soon as you slip up I’m

going to throw shit in your mouth.

Doc. No. 63-2, p. 45.

On May 21, 2006. Plaintiff again completely covered his cell door window and

in-cell security camera with feces, making it impossible for the officers to see inside Plaintiff’s cell. 

Banks was in leg shackles and refused to have them removed on May 20, 2006. When Banks

refused orders by Mozingo to uncover his window and camera, a cell extraction team was approved

by Lt. Berrier. The team included the following: Officer Mozingo - equipped with OC; Officer

Akorn - equipped with the EBID shield; Officer Stoner - responsible for high right; Officer Faulkner

- high left with handcuffs; Officer Richter - low right with hand held IBID; Officer Addis -

responsible for low left with shackles; Officer Knizer -equipped with baton, handcuffs and tether;

and RN Kutcher - responsible for medical attention (doc. no. 63-3, pp. 3-4). When the team arrived

at Plaintiff’s cell, he complied with orders and submitted himself to be handcuffed. Because he was

covered in feces, he was removed from his cell and taken to a shower cell where he was allowed to

bathe. After his shower, while naked, Plaintiff was handcuffed and moved to a strip cage where he

was searched and given a clean T shirt and boxers and then handcuffed in front. Plaintiff sat secured

in the strip cell for a period of time while his cell was cleaned. Throughout this period of time,

Plaintiff can be heard on the video yelling, taunting, and laughing at the guards. Plaintiff can also

be heard threatening to take the officers to court. When Plaintiff’s cell window and camera were

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cleaned, Plaintiff was escorted from the strip cell back to his cell where he was given a clean

mattress and placed back into his cell. Immediately upon being placed in his cell, Plaintiff began

yelling “I’ll see ya’ll another day.” He claims his walls were not cleaned and still had feces on them. 

He further claims that the lights were on twenty-four hours a day, which cause him sleep

deprivation. Finally, he claims that his restraints cause him pain and discomfort. Plaintiff was

issued misconduct no. A756656 charging him with destroying, altering, damaging or tampering with

property due to his actions in covering his cell and clothing with feces. 

On May 30, 2006, Plaintiff again spread feces on his cell door window, the floor and

in-cell security camera making it impossible for the officers to see inside Plaintiff’s cell. When

Banks refused orders from Unit Manager Zaken to remove the feces from his window and camera,

a cell extraction team was approved by Captain Nickleson. The team included the following: Lt.

Berrier - equipped with OC; Officer Akorn - equipped with the EBID shield; Officer Burton -

responsible for high right; Officer T. Smith - high left with handcuffs; Officer Cummings - low right

with hand held IBID; Officer Knizer -responsible for low left with shackles; Officer Richter -

equipped with baton, handcuffs, tether and spithood; and RN Kutcher - responsible for medical

attention (doc. no. 63-3, p. 42). When the team arrived at Plaintiff’s cell, he complied with orders

and submitted himself to be handcuffed and a spit hood was applied. Plaintiff was removed from

his cell and strip searched. He then was escorted to a shower cell where he was allowed to bathe. 

After his shower, Plaintiff was given a clean T shirt and boxers and then put back in restraints,

which were checked by Nurse Kutcher (doc. no. 63-4, pp. 4-6). When Plaintiff’s cell window and

camera were cleaned, he was escorted back to his cell. Plaintiff was issued misconduct no. A729069

charging him with using obscene language and refusing to obey an order (doc. no. 63-3, p. 64).

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On June 5, 2006, a Force Compliance Team was assembled for the purpose of

removing Plaintiff’s RIPP restraints and leg shackles. This team included Lt. Mozingo - equipped

with OC; Officer T. Smith; Officer Richter -equipped with handcuffs and tether; Officer Faulkner -

equipped with spithood; Officer Stoner - equipped with hand held EBID and flex cuff cutter; and

RN Bilohlavek - responsible for medical attention (doc. no. 63-4, p. 8). Plaintiff voluntarily

complied with orders, was removed from his cell, his restraints were removed and he was returned

to his cell. Plaintiff alleges that the restraints left his ankles cut “very badly.” A review of

Plaintiff’s medical records reveals that nurse Bilohlavek examined Plaintiff upon removal of the

restraints and determined that he had no cuts on ankles or left wrist, and that a cut on his right wrist

appeared to be old and healing (doc. no. 63-4, p. 26). 

The next day, June 6, 2006, Plaintiff again spread feces on himself, his cell door, and

the in-cell security camera. Plaintiff also urinated on his cell floor and swept the urine under his

door and into the pod area (doc. no. 63-4, p. 29). When Plaintiff refused to comply with the

directions of Unit Manager Zaken to remove the feces from his door and camera, a cell extraction

team was assembled by Defendant Mackey. This team included the following: Lt. Mackey -

equipped with OC; Officer Stoner - equipped with the EBID shield; Officer Burton - responsible for

high right; Officer Faulkner - high left with handcuffs; Officer Richter - low right equipped with

hand held IBID; Officer Knizer -responsible for low left and equipped with shackles; Officer Smith -

equipped with baton, handcuffs, tether and RIPP restraints; and RN Vilgoss - responsible for

medical attention (doc. no. 63-4, p. 31. Prior to the extraction, Plaintiff was medically cleared for

the use of OC and the EBID. When the team arrived at Plaintiff’s door, he agreed to voluntarily cuff

up. The video tape shows that Plaintiff was removed from his cell, escorted to the showers, and

allowed to bathe. Throughout his time in the shower, Plaintiff was at the shower cell door screaming

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and threatening the officers. After showering, Plaintiff was re-cuffed and escorted to a holding area

where he continued to issue threats. Plaintiff was given clean clothes and then placed in RIPP

restraints and escorted back to his cell. Upon arrival at his cell, Plaintiff turned and spit and

Defendant Mackey administered a burst of OC to subdue Plaintiff, who was then placed in his cell

and secured without further incident. Nurse Vilgoss examined his restraints for tightness (doc. no.

63-5, p. 5). Plaintiff was observed rinsing his eyes with his sink in his cell. When Nurse Vilgoss

returned later, Plaintiff refused to have his RIPP restraints checked (doc. no. 63-5, p. 7). Plaintiff

was issued misconduct nos. A729080 charging him with using obscene language and refusing to

obey an order (doc. no. 63-4, p. 47) and Misconduct No. A729081charging him with using abusive

language, refusing to obey an order, and assault with bodily fluids (doc. no. 63-4, p. 48).

On June 9, 2006, Plaintiff smeared feces on himself, his cell, and the in-cell security

camera. He also urinated on his cell floor and forced the urine out into the common area of the pod

(doc. no. 63-5, p. 10). A cell extraction team was assembled by Defendant Mackey. This team

included the following: Lt. Mackey - equipped with OC; Officer Burton - equipped with the EBID

shield; Officer Albright - responsible for high right; Officer Staley - high left with handcuffs; Officer

Faulkner - low right equipped with hand held IBID; Officer Knizer -responsible for low left and

equipped with shackles; Officer Smith - equipped with baton, handcuffs, tether and RIPP restraints;

and RN Kutcher - responsible for medical attention (doc. no. 63-5, p. 12). Prior to the extraction,

Plaintiff was medically cleared for the use of OC and the EBID. When the team arrived at Plaintiff’s

door, he agreed to voluntarily cuff up. The video tape shows that Plaintiff was removed from his

cell, escorted to the showers, and allowed to bathe. After showering, Plaintiff was re-cuffed and

escorted to a holding area where he was given clean clothes and then placed in RIPP restraints and

escorted back to his cell. The RIPP restraints were checked by Nurse Kutcher and Plaintiff was

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returned to his cell. Plaintiff was issued misconduct no. A729087 charging him with assault,

possession of a dangerous substance, encouraging unauthorized group activity and destroying

property (doc. no. 63-5, p. 36) and misconduct no. A729086 charging him with threatening an

employee with bodily harm (doc. no. 63-5, p. 37). 

The Court first notes that all of the actions taken by officers identified above are in

accordance with the Pennsylvania Department of Corrections (DOC) policy regarding the Use of

Force, DC-ADM 201-1 (doc. no. 63-1, pp. 44-52). More importantly, examining the circumstances

of this case under the appropriate factors, it is clear that the force applied was not so excessive as

to present a cognizable Eighth Amendment claim. Plaintiff’s actions in repeatedly destroying his

cell created the confrontations; force was applied for reasonably short periods necessary to subdue

Plaintiff; and Plaintiff did not sustain any significant injuries. Contrary to Plaintiff's assertions, the

use of the stun gun and chemical agent does not prove that the amount of force was excessive. Soto

v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984) (“The use of mace, tear gas or other chemical agent

of the like nature when reasonably necessary ... to subdue recalcitrant prisoners does not constitute

cruel and inhuman punishment,” even if the inmate is handcuffed). Moreover, the brief application

of the EBID was reasonably necessary to control Plaintiff. See Hunter v. Young, 238 F. App’x 336,

339 (10th Cir. 2007) (finding use of taser gun not objectively unreasonable); Jeffers v. Gomez, 267

F.3d 895, 910-11 (9th Cir. 2001) (a prison security measure that is undertaken for the protection of

prison officials and the inmate population is constitutional when it is applied in good-faith).

As instructed by the United States Supreme Court, “[u]nless it appears that the

evidence, viewed in the light most favorable to the plaintiff, will support a reliable inference of

wantonness in the infliction of pain under the standard we have described, the case should not go

to the jury.” Whitley v. Albers, 475 U.S. 312, 321-322 (1986). The Eighth Amendment does not

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protect an inmate against an objectively de minimis use of force. Smith v. Mensinger, 293 F.3d 641,

649 (3d Cir. 2002). As recognized by the Court of Appeals for the Third Circuit “[t]here exists some

point at which the degree of force used is so minor that a court can safely assume that no reasonable

person could conclude that a corrections officer acted maliciously and sadistically.” Reyes v.

Chinnici 54 Fed. Appx. 44, 48-49, 2002 WL 31546515, 4 (3d. Cir. Nov. 18, 2002) (holding force

was de minimis where corrections officer punched inmate in the shoulder to avoid being spit on). 

Accord Thomas v. Ferguson, 361 F.Supp .2d 435, 439-41 (D.N.J. 2004) (finding that, “[e]ven if

proven to be true and for no necessary purpose, Defendants' alleged conduct ... does not meet the

Constitutional standard for a claim of a malicious and sadistic use of force ‘repugnant to the

conscience of mankind,’ ” where inmate alleged he was punched and shoved by corrections

officers); Wilson v. Reinhart, 2003 WL 21756393 (D. Del. Jul.29, 2003) (same where officer

sprayed inmate in the face with mace).

Here, Plaintiff's allegations and the record evidence, including the medical evidence,

fail to describe a use of force that is “repugnant to the conscience of mankind.” Indeed, such a use

of force is objectively de minimis and insufficient to establish an Eighth Amendment violation. 

Here, Plaintiff’s actions in smearing feces all over his cell walls and windows rendered him a danger

both to himself and to everyone else he came in contact with. His placement in restraints was based

on his own conduct and obviously was taken to prevent him from endangering himself and others. 

The restrictions imposed on Plaintiff were non-punitive, instead designed to prevent him from

harming himself or destroying property. Unfortunately, Plaintiff was able to repeatedly engage in

this behavior despite being placed in restraints while in his cell. However, there simply is no

evidence upon which a reasonable juror could conclude that any of the Defendants’ actions were

taken maliciously and sadistically to inflict harm. See, e.g., Trammel v. Keane, 338 F.3d 155 (2d

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Cir. 2003) (holding that defendants did not disregard substantial risk to inmate's safety by placing

him on behavior action plan that “while indeed onerous, even harsh, was reasonably calculated to

correct [the inmate's] outrageous behavior.”); Key v. McKinney, 176 F.3d 1083 (8th Cir. 1999)

(holding that inmate who was restrained in handcuffs and leg shackles did not suffer a serious

deprivation of the minimal civilized measure of life's necessities, as required for Eighth Amendment

claim, where, although shackles made it more difficult for inmate to sleep and relief himself, he was

not deprived of bedding, food, or bathroom facilities, and he was checked on by a nurse and guard

at regular intervals); Hartsfield v. Vidor, 199 F.3d 305 (6th Cir. 1999) (finding no Eighth

Amendment violation where prisoner was punished for damaging his cell by being kept in restraints

for two eight-hour periods where he was denied fresh water and use of the toilet); LeMaire v. Maass,

12 F.3d 1444, 1460 (9th Cir. 1993) (holding that use of full in-cell restraints, which make it difficult

to sleep, eat, drink water, or stay warm, under existing regulations to maintain security and safety

do not reflect “deliberate indifference” or malice and sadism); Bruscino v. Carlson, 854 F.2d 162

(7th Cir. 1988) (upholding handcuffing, shackling, boxing of the handcuffs, spread-eagling, and

rectal searches as reasonable measures in view of the history of violence at the prison and the

incorrigible, undeterrable character of the inmates), cert. denied, 491 U.S. 907 (1989); Williams v.

Burton, 943 F.2d 1572 (11th Cir. 1991) (holding that placing a disruptive inmate in four-point

restraints with adhesive tape covering his mouth was both prudent and proper and did not violate

the Constitution), cert. denied, 505 U.S. 1208 (1992); Jiles v. Breen-Smith, Civ. No. 08-464, 2009

WL 4827065, 7 (W. D. Wis. Dec. 8, 2009) (specifically holding that this particular plaintiff in this

particular case has no Eighth Amendment claim because he has not shown that defendants

disregarded a substantial risk of serious harm to him); Jarrett v. Bouchard, Civ. No. 05-195, 2006

WL 2632460 (W. D. Mich. Sept.13, 2006) (finding no Eighth Amendment violation where plaintiff

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was restrained and his jaw was injured as a result of the restraint after he attempted to spit on

defendants as they were removing him from the shower stall because there was no evidence that the

officer did so intentionally). Accord McDowell v. Sherrer, 2008 WL 4542475, 1 (D.N.J. Oct. 7,

2008) (granting summary judgment to prison guards with respect to cell extraction based on

videotape evidence). Consequently, Defendants are entitled to summary judgment as to this claim.

3. Failure to Provide Medical Treatment

Plaintiff also asserts an Eighth Amendment claim alleging failure to provide medical

treatment. To state an Eighth Amendment violation in the context of medical treatment, an inmate

must show prove two elements: 1) plaintiff was suffering from a "serious medical need," and 2)

prison officials were deliberately indifferent to the serious medical need. Gamble v. Estelle, 439

U.S. 897 (1978).

The first showing requires the court to objectively determine whether the medical

need was "sufficiently serious." A medical need is "serious" if it is one that has been diagnosed by

a physician as mandating treatment, or one that is so obvious that even a lay person would easily

recognize the necessity for a doctor's attention. Gaudreault v. Municipality of Salem, 923 F.2d 203,

208 (1st Cir. 1990), cert. denied, 500 U.S. 956 (1991); Monmouth County Correctional Institutional

Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988).

The second prong requires a court subjectively to determine whether the officials

acted with a sufficiently culpable state of mind. Deliberate indifference may be manifested by an

intentional refusal to provide care, delayed medical treatment for non-medical reasons, a denial of

prescribed medical treatment, or a denial of reasonable requests for treatment that results in suffering

or risk of injury. Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993).

a. Serious Medical Need

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A plaintiff alleging constitutionally inadequate medical treatment must submit

medical evidence of a "serious medical need" sufficient to satisfy the objective component of the

test. Boring v. Kozakiewicz, 833 F.2d 468 (3d Cir. 1987), cert. denied, 485 U.S. 991 (1988). In

Boring, the Court of Appeals for the Third Circuit determined that, because plaintiffs failed to

produce expert testimony that their injuries were "serious," they failed to meet their burden of proof. 

The court explained that expert testimony would not necessarily be required in situations where the

seriousness of injury or illness would be apparent to a lay person, e.g., a gunshot wound. Boring,

833 F. 2d at 473 (citing City of Revere v. Massachusetts General Hosp., 463 U.S. 239 (1983)). With

respect to an ulnar nerve injury and migraine headaches, however, the Court concluded that a fact

finder would not be able to determine that the condition was "serious" because the need for

treatment did not appear to be "acute." Id. With respect to a scalp condition and complaints about

dental care, the Court found that the complaints merely reflected a disagreement over the proper

method of treatment. In so concluding, the Court noted that "courts will not ‘second-guess the

propriety or adequacy of a particular course of treatment [which] remains a question of sound

professional judgment.'" Id. (quoting Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762

(3d Cir. 1979)). Finally, with respect to a prior knee injury, the Court found that the evidence did

not establish an acute condition.

As laymen, the jury would not be in a position to decide

whether any of the conditions described by plaintiffs could be

classified as "serious." In these circumstances, the district court

properly required expert medical opinion and in its absence properly

withdrew the issue from the jury.

Boring, 833 F.2d at 474 (citations omitted). 

Here, Plaintiff has not included any evidence to whatsoever to substantiate the

existence of any serious medical need. Moreover, as Defendants point out, the record evidence

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belies his contentions in this regard. As with the medical complaints in Boring, a lay person would

not be able to conclude that Plaintiff’s unsubstantiated allegations of mental illness constituted a

"serious medical need" sufficient to invoke the Gamble standard without expert testimony or

evidence. Thus, Plaintiff has failed to meet his burden of demonstrating a genuine issue of fact

about whether Defendants ignored a critical or escalating medical situation or that their actions

posed a substantial risk of serious harm. Because evidence of this nature is required in order for an

inmate's claim to succeed, Plaintiff's failure to meet this burden is fatal to his case. Accord Banks

v. Beard, Civ. No. 03-659, 2006 WL 2192015, 13 (W. D. Pa. Aug. 1, 2006) (holding that injuries

such as cuts, scrapes, scratches, bruises and a swollen black eye simply do not in themselves reflect

trauma that necessarily calls for immediate medical treatment from a physician).

b. Deliberate Indifference

Moreover, even if the court were to conclude that Plaintiff has demonstrated the

existence of a serious medical need, a finding this Court specifically does not make, he has failed

to demonstrate that Defendants were deliberately indifferent to it. The "deliberate indifference"

standard for purposes of liability under section 1983 is a stringent standard of fault requiring proof

that a defendant disregarded a known or obvious consequence of his action. Board of County

Commissioners of Bryan County v. Brown, 520 U.S. 397, 410 (1997). The defendant must be both

aware of facts from which the inference could be drawn that a substantial harm exists and he must

also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). An official is not

deliberately indifferent if "he fails to alleviate a significant risk that he should have identified." Id. 

Moreover, deliberate indifference to a serious medical need of a prisoner is distinguishable from a

negligent diagnosis or treatment of a medical condition; only the former conduct violates the Eighth

Amendment. Medical malpractice may give rise to a tort claim in state court but does not

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necessarily rise to the level of a federal constitutional violation. Kost v. Kozakiewicz, 1 F.3d 176,

185 (3d Cir. 1993); Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993).

The Supreme Court explained the difference between negligence and constitutional

claims in Estelle v. Gamble, 429 U.S. 97, 104 (1978). In that case, the prisoner, Gamble, was

injured when a bale of cotton fell on him while he was unloading a truck. He went to the unit

hospital where a medical assistant checked him for a hernia and sent him back to his cell. He

returned to the hospital where he was given pain pills by an inmate nurse and then was examined

by a doctor. The following day, his injury was diagnosed as a lower back strain; he was prescribed

a pain reliever and a muscle relaxant. Over the course of several weeks, Gamble was seen by

several doctors who prescribed various pain relievers and provided him with medical work excuses. 

Ultimately, despite his protests that his back hurt as much as it had the first day, medical staff

certified Gamble to be capable of light work. During the next two months, Gamble received a

urinalysis, blood test, blood pressure measurement, and pain and blood pressure medication. 

Subsequently, a medical assistant examined Gamble and ordered him hospitalized for treatment of

irregular cardiac rhythm.

The Supreme Court held that Gamble's allegations failed to state a claim upon which

relief could be granted against the defendant, both in his capacity as a treating physician and as the

medical director of the Corrections Department.

Gamble was seen by medical personnel on 17 occasions

spanning a 3-month period . . .. They treated his back injury, high

blood pressure, and heart problems. Gamble has disclaimed any

objection to the treatment provided for his high blood pressure and

his heart problem; his complaint is "based solely on the lack of

diagnosis and inadequate treatment of his back injury." The doctors

diagnosed his injury as a lower back strain and treated it with bed

rest, muscle relaxants and pain relievers. Respondent contends that

more should have been done by way of diagnosis and treatment, and

suggests a number of options that were not pursued. The Court of

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Appeals agreed, stating: "Certainly an x-ray of (Gamble's) lower

back might have been in order and other tests conducted that would

have led to appropriate diagnosis and treatment for the daily pain and

suffering he was experiencing." But the question whether an X-ray

or additional diagnostic techniques or forms of treatment is indicated

is a classic example of a matter for medical judgment. A medical

decision not to order an X-ray, or like measures, does not represent

cruel and unusual punishment. At most it is medical malpractice, and

as such the proper forum is the state court under the Texas Tort

Claims Act.

Gamble, 427 U.S. at 107 (internal citations omitted) (emphasis added).

The Plaintiff's allegations, like Gamble's, do not state a constitutional violation, a

prerequisite for recovery under 42 U.S.C. § 1983. The record evidence reveals that the Defendants

acted responsibly in attending to his medical needs. While an intentional refusal to provide any

medical treatment to an inmate suffering from a serious medical need manifests deliberate

indifference and is actionable under the Eighth Amendment, the Eighth Amendment does not require

that a prisoner receive every medical treatment that he requests or that is available elsewhere. A

disagreement as to the appropriate choice of medical treatment does not give rise to a constitutional

violation because the "right to be free from cruel and unusual punishment does not include the right

to the treatment of one's choice." Layne v. Vinzant, 657 F.2d 468, 473 (1st Cir. 1981). Mere

disagreements over medical judgment do not state Eighth Amendment claims as there are typically

several acceptable ways to treat an illness. Young v. Quinlan, 960 F.2d 351, 358 n.18 (3d Cir.

1992); White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990).

Taken as true, the Plaintiff's allegations and the record evidence simply do not show

that Defendants acted with deliberate indifference to his serious medical needs for purposes of

imposing liability under the Eighth Amendment's prohibition against cruel and unusual punishment.

Specifically, there is nothing that suggests that Defendants knew that Plaintiff faced a substantial

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risk of serious harm and disregarded that risk by failing to take reasonable measures to abate it. 

Thus, Defendants are entitled to summary judgment with respect to this claim.

G. Fourteenth Amendment

Plaintiff’s final claim arises under the Fourteenth Amendment, which provides as

follows.

Section 1. All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United States

and the State wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

U.S. Const. amend. XIV, §1 (emphasis added).

Three kinds of section 1983 claims may be brought against the State under the Due

Process Clause of the Fourteenth Amendment. Zinermon v. Burch, 494 U.S. 113, 125 (1990). First,

a plaintiff may bring suit under section 1983 for a violation of his specific rights as guaranteed by

the Bill of Rights. Id. Second, a plaintiff may assert a Fourteenth Amendment claim under the

“procedural” aspect of the Due Process Clause, which guarantees fair procedure for the deprivation

of a constitutionally-protected interest in life, liberty or property. Id. Third, a plaintiff may assert

a claim under the “substantive” prong of the Due Process Clause, which bars certain arbitrary,

wrongful government actions regardless of the fairness of the procedures used to implement them. 

Id. (quoting Daniels v. Williams, 474 U.S. at 331)).

The discussion above reveals that Plaintiff has failed to state a claim upon which

relief may be granted with respect to his specific rights as guaranteed in the Bill of Rights by the

First, Fourth, and Eighth Amendments. Consequently, his remaining claims will be analyzed under

the procedural and substantive prongs of the due process clause.

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1. Procedural Due Process

The Due Process Clause does not protect every change in the conditions of

confinement having a substantial adverse impact on a prisoner. Meachum v. Fano, 427 U.S. 215,

224 (1976). The Due Process Clause shields from arbitrary or capricious deprivation only those

facets of a convicted criminal's existence that qualify as "liberty interests." Hewitt v. Helms, 459

U.S. 460 (1983); Morrissey v. Brewer, 408 U.S. 471 (1972). The types of protected liberty interests

are not unlimited. The interest must rise to more than an abstract need or desire and must be based

on more than a unilateral hope. Rather, an individual claiming a protected interest must have a

legitimate claim of entitlement to it. Greenholtz v. Inmates of Nebraska Penal and Correctional

Complex, 442 U.S. 1, 7 (1979) (citation omitted). 

Thus, the threshold question presented by Petitioner's claim is whether Defendants'

actions impacted a constitutionally-protected liberty interest. A liberty interest may arise either from

the Due Process Clause itself, or from a statute, rule, or regulation. Hewitt, 459 U.S. at 466.

a. Liberty Interest Inherent in Due Process Clause

A liberty interest inherent in the Constitution arises when a prisoner has acquired a

substantial, although conditional, freedom such that the loss of liberty entailed by its revocation is

a serious deprivation requiring that the prisoner be accorded due process. Gagnon v. Scarpelli, 411

U.S. 778, 781 (1973). Interests recognized by the Supreme Court that fall within this category

include the revocation of parole, Morrissey, 408 U.S. at 471, and the revocation of probation,

Gagnon, 411 U.S. at 778. The Due Process Clause, however, does not create an inherent liberty

interest to remain free from restricted housing units. See, e.g., Hewitt, 459 U.S. at 468; Wolff, 418

U.S. at 556; Montayne v. Haymes, 427 U.S. 236, 242 (1976); Sheehan v. Beyer, 51 F.3d 1170, 1175

(3d Cir. 1995); Layton v. Beyer, 953 F.2d 839, 845 (3d Cir. 1992). 

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Plaintiff’s first due process claim alleges that Jeffrey Beard created the LTSU for

alleged behavior modification purposes but in reality, it’s purpose is for medical experimentation. 

He claims that he did not volunteer for participation in the LTSU psychological experiments and did

not volunteer for the psychologist to submit diagnoses, evaluations or examinations, which have

caused him to exhibit destructive behavior such as smearing feces, self defecating, paranoia, rage

and depression. This argument is based Washington v. Harper, 494 U.S. 210, 221-22 (1990) where

the Supreme Court held that a prisoner possesses a significant liberty interest in avoiding the

unwanted administration of antipsychotic drugs that is inherent under the Due Process Clause of the

Fourteenth Amendment.

Although Banks asserts that the LTSU constitutes a psychological experiment, there

are no facts alleged to substantiate this. In response to Defendants' motion for summary judgment,

Banks was required to come forward with evidence in support of this claim. Because he has failed

to do so, Defendants are entitled to summary judgment as to this claim. Accord Brown v.

Pennsylvania Dept. of Corrections, Civ. No. 07-1436, 290 F. App’x 463, 465-466 (3d Cir. 2008).

Accordingly, Plaintiff can succeed under the Due Process Clause only if state law or

regulation has created a constitutionally-protected liberty interest in remaining free from LTSU

confinement.

b. Liberty Interest Created by Law or Statute

In Sandin v. Conner, 515 U.S. 472 (1995) the Supreme Court dramatically narrowed

the range of liberty interests created by law and regulation. Prior to Sandin, courts reviewed the

specific language of the pertinent law or regulation to determine whether the language was

unmistakably mandatory in character such that it created a liberty interest. The Supreme Court

announced a new rule in Sandin for determining whether a prisoner had a protected liberty interest

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created under statute or regulation by shifting the focus of inquiry from the specific language of the

law or regulation to whether the deprivation suffered by the prisoner imposes an "atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin,

515 U.S. at 483 (emphasis added).

To the extent that Plaintiff is claiming that Defendants’ actions in placing him in the

LTSU violated his rights under the Due Process Clause of the Fourteenth Amendment, he is barred

from raising that claim under the statute of limitations. In this regard, the limitations period for civil

actions brought under 42 U.S.C. § 1983 is determined by state law.9 Under Pennsylvania law, the

applicable limitations period for civil rights actions asserted under 42 U.S.C. § 1983 is two years. 

See 42 Pa. Cons. Stat. § 5524. Plaintiff was placed in the LTSU in 2001. Thus, he is barred from

raising any due process claim regarding his initial placement in the LTSU.

Thus, the only claim Plaintiff can raise under the procedural due process clause

concerns his continued placement in the LTSU or similar housing. There is no liberty interest

created directly by the Fourteenth Amendment that prevents an inmate from being subjected to

programs such as the SMU and/or the LTSU. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005)

("[T]he Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse

conditions of confinement."). Accord Smith v. Dodrill, Civ. No. 07-2295, 2009 WL 62175 (M. D.

Pa. Jan. 8, 2009); Spencer v. Kelchner, Civ. No. 06-1099, 2007 WL 88084 (M .D. Pa. Jan. 9, 2007);

Dantzler v. Beard, Civ. No. 05-1727, 2007 WL 5018184 (W. D. Pa. Dec. 6, 2007); Francis v.

Dodrill, Civ. No. 04-1694, 2005 WL 2216582 (M. D. Pa. Sept.12, 2005). Cf. Johnson v. Hill, 910

F.Supp. 218, 220 (E. D. Pa. 1996) (holding that, absent a state-created liberty interest that does not

9 See Wilson v. Garcia, 471 U.S. 261, 272-76 (1985) (42 U.S.C. § 1983).

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exist in Pennsylvania, prisoner placement is a matter of prison administration and a prisoner has no

constitutional right to be placed in any particular cell or housing unit).

Thus, in order to succeed on his procedural due process claim, Plaintiff first must

demonstrate that his confinement in the LTSU imposed an atypical and significant hardship in

relation to the ordinary incidents of prison life. See Sandin v. Conner, 515 U.S. 472, 484 (1995). 

In Sandin, the Supreme Court held that an inmate's assignment to disciplinary segregation for thirty

days did not impose an "atypical, significant deprivation" that implicated an inmate's liberty interest.

Id. at 486. In reaching this conclusion, the Court explained that disciplinary segregation at the

prison generally "mirrored those conditions imposed upon inmates in administrative segregation and

protective custody," the inmate's confinement in segregation "did not exceed similar, but totally

discretionary, confinement in either duration or degree of restriction," and the inmate's segregation

would not "inevitably affect the duration of his sentence." Id. at 486-87.

The Court was confronted with a much different situation in Wilkinson v. Austin, 545

U.S. 209, 221 (2005) where it held that placement in Ohio's maximum-security prison, the Ohio

State Penitentiary (OSP), did implicate an inmate's liberty interest. The Court concluded that

assignment to the OSP "impose[d] an atypical and significant hardship under any plausible

baseline," and listed several factors that distinguished such confinement from the disciplinary

segregation at issue in Sandin: 

For an inmate placed in the OSP, almost all human contact is

prohibited, even to the point that conversation is not permitted from

cell to cell; the light, though it may be dimmed, is on for 24 hours;

exercise is for 1 hour per day, but only in a small indoor room. Save

perhaps for the especially severe limitations on all human contact,

these conditions likely would apply to most solitary confinement

facilities, but here there are two added components. First is the

duration. Unlike the 30-day placement in Sandin, placement at [the

maximum-security prison] is indefinite and, after an initial 30-day

review, is reviewed just annually. Second is that placement

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disqualifies an otherwise eligible inmate for parole consideration. 

While any of these conditions standing alone might not be sufficient

to create a liberty interest, taken together they impose an atypical and

significant hardship within the correctional context. It follows that

respondents have a liberty interest in avoiding assignment to [the

maximum-security prison].

Austin, 545 U.S. at 223-24 (citations omitted).

Upon finding a protected liberty interest, the Court next utilized the framework

established in Mathews v. Eldridge, 424 U.S. 319 (1976), to evaluate the sufficiency of the particular

procedures in determining what process was due an inmate whom Ohio seeks to place in the OSP. 

In Mathews, the Court held that the requirements of due process, which are flexible and should be

tailored to the situation, requires consideration of three distinct factors:

First, the private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such interest through

the procedures used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the Government's

interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural

requirement would entail.

Mathews, 424 U.S. at 335.

Applying Mathews procedural due process balancing test, the Supreme Court held

that Ohio's Policy provided a sufficient level of process for placement in the OSP. Such procedures

required the inmate to receive notice of the factual basis for his placement, opportunities for rebuttal,

and multiple levels of review of any decision recommending supermax placement. Austin, 545 U.S.

at 228.

Applying these teachings to the matter at hand, this Court holds that Plaintiff’s

continued confinement in the LTSU constitutes an atypical and significant hardship in relation to

the ordinary incidents of prison life under any plausible baseline applicable to the Sandin analysis. 

This Court makes this holding based on its knowledge of the specific conditions of confinement in

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the LTSU as noted in its many cases concerning such confinement as well as the published opinions

concerning the same. See, e.g., Brown v. Pennsylvania Dept. of Corrections, 290 F. App’x 463,

465-466 (3d Cir. 2008); Banks v. Beard, Civ. No. 03-659, 2006 WL 2192015, 15 (W. D. Pa. Aug.

1, 2006). Thus, the question becomes whether Banks received the process that was due for his

continued confinement.

Utilizing the Mathews balancing test, our Court of Appeals for the Third Circuit has

determined that a state prisoner in long-term administrative segregation received all the process he

was due where post-transfer periodic review of his placement in segregation provided the inmate

with a meaningful opportunity to challenge the grounds of his continued segregation. See Shoats

v. Horn, 213 F.3d 140, 144 (3d Cir. 2000). The federal courts in Pennsylvania, including the Court

of Appeals for the Third Circuit, have applied the ruling in Shoats to Pennsylvania prisoners housed

in restricted housing units such as the LTSU and the SMU. See McKeithan v. Beard, 322 F. App’x

194, 199 (3d Cir. 2009) (holding that prisoner’s due process claim failed because he received

periodic reviews while in the LTSU); Brown v. Pennsylvania Dept. of Corrections, 290 F. App’x,

463, 465-466 (3d Cir. 2008) (same); Dantzler v. Beard, Civ. No. 05-1727, 2008 WL 744740, 1 (W.

D. Pa. March 18, 2008) (same for LTSU and SMU). Moreover, the Court of Appeals for the Third

Circuit repeatedly has affirmed the holding in Shoats that post-transfer periodic review comports

with due process requirements for prisoners serving lengthy sentences who are housed in restrictive

administrative custody for indefinite periods of time. See, e.g., Gans v. Rozum, 267 F. App’x, 178,

180-181 (3d Cir. 2008) (prisoner in AC status eleven years ); Williams v. Sebek, 299 F. App’x 104,

107 (3d Cir. 2008) (holding that inmate’s continued confinement in administrative custody for five

and a half years did not require a remedy because the record showed that he was receiving the

required periodic reviews of his status by the Program Review Committee); Brown v. D.O.C. PA,

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265 F. App’x 107, 110 (3d Cir. 2008) (same); Bowen v. Ryan, 248 F. App’x, 302, 304 (3d Cir.

2007) (prisoner in AC status twenty years on restricted release status); Delker v. McCullough, 103

F. App’x, 694 (3d Cir. 2004) (holding that periodic reviews by corrections officials of life prisoner

in AC status for thirty years satisfied procedural due process requirements).

In the current action, Plaintiff complains about his placement and continued

confinement in the LTSU and similar restricted housing units. As stated above, any claim

concerning his initial placement in the LTSU is barred by the two-year statute of limitations. To the

extent he is complaining about his continued placement, he has failed to submit any evidence that

he is not receiving regular period reviews and that such reviews do not provide a meaningful

opportunity to review his continued placement. As such, Defendants are entitled to summary

judgment as to Plaintiff’s due process claims. See Brown v. Pennsylvania Dept. of Corrections, 290

F. App’x, 463, 466 (3d Cir. 2008) (holding that summary judgment was properly granted against a

prisoner who failed to satisfy his burden under Rule 56(e)).

2. Substantive Due Process

As a final matter, the Court will consider whether Plaintiff can state a claim under

the substantive prong of the Due Process Clause. The constitutional right to "substantive due

process" under the Fourteenth Amendment protects individuals against arbitrary governmental

action regardless of the fairness of the procedures used to implement them.10 The Supreme Court

has declined to set forth a precise rule outlining the contours of "arbitrary" conduct. 

Notwithstanding, in County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998), the court instructed

10. See Collins v. Harker Heights, 503 U.S. 115, 126 (1992) (the Due Process Clause was

intended to prevent government officials from abusing power, or employing it as an instrument

of oppression); Wolff v. McDonnell, 418 U.S. 539, 558 (1974) ("The touchstone of due process

is protection of the individual against arbitrary action of government.").

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that the substantive component of the Due Process Clause only can be violated by governmental

employees only when their conduct amounts to an abuse of official power that "shocks the

conscience." In so holding, the court reiterated its long standing jurisprudence that only the most

egregious official conduct can be said to be "arbitrary" in the constitutional sense. Id. at 849. The

court further instructed that courts should employ a variable range of culpability standards,

dependant upon on the circumstances of the case, in determining whether certain actions rise to a

constitutionally “shocking” level. Id.

In Lewis, the court was confronted with the actions of a policeman who killed a

motorcyclist during the course of a high speed chase. In determining what substantive due process

standard should be applied to the facts before it, the court noted the different circumstances and

government interests attendant in high speed police chases as opposed to those attendant in the

pretrial custody setting. In light of this recognition, the court determined that the "intent to harm"

standard was appropriate to determine whether the defendant’s conduct rose to constitutional

significance because, like prison officials facing a riot, police facing a rapidly evolving and

potentially dangerous situation are required to make quick decisions without the benefit of time for

deliberation. The court noted that in non-emergency situations such as pre-trial detention where

circumstances are not fast moving, the lower standard of "deliberate indifference” should be applied

to determine whether a defendant’s actions rise to a constitutionally shocking level. Id. at 851.

The actions at issue in Plaintiff’s complaint concern his placement and continued

confinement in the LTSU and the actions of Defendants while he was confined therein. No

emergent circumstances are evident from the record. Thus, the appropriate standard to determine

whether defendants’ actions “shock the conscience" and thereby offend constitutional guarantees,

is whether defendants' actions and/or omissions can be characterized as “deliberately indifferent.” 

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The record evidence demonstrates that Defendants’ actions were so offensive as to “shock the

conscience” for purposes of imposing liability under 42 U.S.C. § 1983. Thus, Plaintiff has failed

to demonstrate that he was exposed to arbitrary government action in violation of right to

substantive due process. Consequently, Defendants are entitled to summary judgment as to such

claim.

H. State Law Claims

Plaintiff includes in his Amended Complaint state law claims of violations of the

Pennsylvania Constitution. A federal court has “supplemental jurisdiction” over claims that are

“part of the same case or controversy” as a claim over which the court has original jurisdiction. 28

U.S.C. § 1367(a). Subsection 1367(c) authorizes a federal court to decline jurisdiction over state

claims even though the court has federal jurisdiction when:

1. the claim raises a novel or complex issue of State law;

2. the claim substantially predominates over the claim or claims

over which the district court has original jurisdiction;

3. the district court has dismissed all claims over which it has

original jurisdiction; or

4. in exceptional circumstances, there are other compelling

reasons for declining jurisdiction.

28 U.S.C. §1367(c).

When “the claim over which the district court has original jurisdiction is dismissed

before trial, the district court must decline to decide the pendent state claims unless considerations

of judicial economy, convenience, and fairness to the parties provide an affirmative justification for

doing so.” Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995). This Report

recommends the dismissal of the Plaintiff’s Amended Complaint. It follows that the Plaintiff’s state

law claims should be dismissed as considerations of judicial economy, convenience, and fairness

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to the parties do not provide an affirmative justification for retaining jurisdiction. Accord Lovell

Manufacturing v. Export-Import Bank of the U.S., 843 F.2d 725, 734 (3d Cir. 1988).

III. CONCLUSION

For the reasons set forth above, it is respectfully recommended that Defendants’

Motion for Summary Judgment (doc. no. 63) be granted.

In accordance with the applicable provisions of the Magistrate Judges Act [28 U.S.C.

§ 636(b)(1)(B) & (C)] and Rule 72.D.2 of the Local Rules of Court, the parties shall have fourteen

days from the date of the service of this report and recommendation to file written objections thereto.

Any party opposing such objections shall have fourteen days from the date on which the objections

are served to file its response. A party’s failure to file timely objections may constitute a waiver of

that party’s appellate rights.

_______________________

Lisa Pupo Lenihan

U.S. Magistrate Judge

Dated: February 26, 2010

Gary Banks, CT-8731 

SCI Graterford 

Box 244

Route 29

Graterford, PA 19426-0246 

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