#### Remoi OKOCCI v. KLEIN, C.O., et al.

No. CIV.A. 02-2631.

United States District Court, E.D. Pennsylvania.

July 9, 2003.

*608Remoi Okocci, Federal Detention Center, Philadelphia, for Plaintiff, Pro Se.

James G. Sheehan, Nuriye C. Uygur, U.S. Attorney’s Office, Philadelphia, Matthew J. Connell, Holsten & Associates, Media, for Defendants.

*MEMORANDUM AND ORDER*

JOYNER, District Judge.

Plaintiff brings due process and equal protection claims under 42 U.S.C. § 1983 and defamation claims. Previously, this court has dismissed Plaintiffs Eighth Amendment claims against Defendants John Doe and Corrections Officer Klein1. This leaves the procedural due process, equal protection, and defamation claims against Sgt. Brown and Warden Wagner to be addressed. In their motion for summary judgment on the remaining claims, Defendants argue that Plaintiffs claims fail because Plaintiff was not deprived of his constitutional rights and further that Defendants are entitled to qualified immunity barring the claims. For the following reasons, Defendants’ motion shall be granted.

*Factual Background*

During a fire drill in the evening, “alien inmates” assembled in the prison yard at the Berks County Prison. While Plaintiff was in the prison yard, his cell was searched. Prison officials, Shift Commander John Doe and Correction Officer Klein handcuffed Plaintiff and his cellmate. Upon asking why he was being handcuffed, Shift Commander John Doe and Correction Officer Klein presented a shank with a tape handle2. Plaintiff denied that the shank was his and asked Shift Commander Doe to preserve the shank and to conduct fingerprint analysis. Plaintiff believed that the shank had been planted in his cell and that fingerprint analysis would reveal that it was not his. A few days later, Plaintiff was brought before Sgt. Brown for a disciplinary hearing on the charge of possessing the shank. Plaintiff asked Sgt. Brown several times for a fingerprint analysis of the shank, requests which Sgt. Brown denied. Sgt. Brown showed Plaintiff a picture of the “shank” and asked if it was his. Plaintiff denied that the “shank” was his and again asked for a fingerprint analysis. Sgt. Brown found Plaintiff guilty and sentenced him to twenty days in punitive segregation. Plaintiff appealed the denial of the fingerprint analysis to Warden Wagner who upheld Sgt. Brown’s decision.

*Legal Standard for Summarg Judgment*

Summary judgment is intended to prevent needless and costly trials where there are *no*genuine issues of material fact and the moving party is entitled to judgment as a matter of law. *Celotex Corp. v. Catrett, 477*U.S. 317, 322-32, 106 S.Ct. 2548, 91 L. Ed.2d 265 (1986). Summary judgment is proper . .if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judg*609ment as a matter of law.” Fed.R.Civ.P. 56(c).

In evaluating a motion for summary judgment, the evidence should be viewed and all reasonable inferences drawn in favor of the non-moving party. *Nieves v. Dragovich,*1997 WL 698490, *1, 1997 U.S. Dist. LEXIS 23410, *2 (E.D.Pa.1997) *citing Anderson v. Liberty Lobby, Inc.,*477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court will hold a pro se plaintiff bringing a civil rights suit to a less stringent standard than a trained lawyer, liberally construing the plaintiffs allegations. *Nieves,*1997 WL 698490, *1 *citing Hughes v. Rowe,*449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980). An issue of material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” *Liberty Lobby, Inc.,*477 U.S. at 248, 106 S.Ct. 2505.

Movants have the initial burden of showing the court a lack of genuine issues of material fact and can do so simply by pointing out that there is a lack of evidence to support the non-moving party’s case. Movants need not support a motion with affidavits or other materials negating the non-moving party’s claim. *Celotex,*477 U.S. at 322-23, 106 S.Ct. 2548. To rebut the motion, the non-moving party must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” *Id.*at 324, 106 S.Ct. 2548 quoting Fed.R.Civ.P. 56(e). The plaintiff must “present affirmative evidence” aside from the pleadings themselves to defeat a proper motion for summary judgment. *Nieves,*1997 WL 698490at *1 *quoting Liberty Lobby, 477*U.S. at 257, 106 S.Ct. 2505.

*Legal Standard for Qualified Immunity*

The goal of qualified immunity is to “avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.” *Harlow v. Fitzgerald,*457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Government officials performing discretionary functions aré entitled to qualified immunity as long as their actions could reasonably have been thought to be consistent with the rights they are alleged to have violated. *Id.*Qualified immunity should be defeated if the official “knew or should have known” that the action he was taking would violate the rights of the plaintiff or if he took the action with malicious intent to deprive the plaintiff of his constitutional rights. *Id.,*at 815, 102 S.Ct. 2727*quoting Wood v. Strickland,*420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). The action of the official must be considered in the context of whether the law on the issue was clearly established at the time the action occurred. If the law was not established clearly, qualified immunity holds since a public official “could not reasonably be expected to anticipate subsequent legal developments.” *Harlow, 457*U.S. at 818, 102 S.Ct. 2727. Stated another way, “the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” *Anderson v. Creighton,*483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). To determine whether qualified immunity bars a claim, two questions must be answered. Would a constitutional right have been violated on the facts alleged, taken in the light most favorable to the accusing party? *Saucier v. Katz,*533 U.S. 194, 201 150 L.Ed.2d 272, 121 S.Ct. 2151 (2001) *citing Siegert v. Gilley,*500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). If so, was that right clearly established in the law in terms of the circumstances such that the official *610should have known that his action would violate the right in question? *Id.*at 201-02, 121 S.Ct. 2151. If the answer to both of these questions is yes, then qualified immunity does not bar the claim. However, if the answer to both is no, then summary judgment on the basis of qualified immunity is appropriate. *Id.*

*Discussion*

a. Procedural Due Process

Defendants argue that Plaintiffs due process rights with respect to disciplinary hearings are determined by *Wolff v. McDonnell,*418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). According to the Supreme Court in that case, prisoners’ constitutional rights are subject to some restrictions. However, due process in prison disciplinary hearings requires that (1) the prisoner be given written notice of the claimed violation at least twenty-four hours in advance, (2) there must be- a “written statement by the factfinders as to the evidence relied on and reasons” for the disciplinary action and (3) the prisoner be given the opportunity to call witnesses and present documentary evidence in his defense. *Id.*at 564-66, 94 S.Ct. 2963. The right to have the opportunity to bring witnesses and evidence before the hearing is limited to situations where allowing this will not be “unduly hazardous to institutional safety or correctional goals.” *Id.*at 566, 94 S.Ct. 2963. The court recognizes the importance of protecting prison officials’ discretion to keep hearings reasonable by disallowing witnesses or limiting inmate’s access to collect statements or compile other evidence. *Id.*Although Plaintiff has some right to present evidence in a disciplinary hearing, that right is significantly tempered by discretion on the part of prison officials. *Id.,*also *Jones v. N.Carolina Prisoners’ Labor Union,*433 U.S. 119, 125-28, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977).

Plaintiff counters that, in fact, he is a detainee, not a prisoner, so his rights should be controlled by *Bell v. Wolfish,*441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), rather than *Wolff.*Plaintiff does in fact appear to be a detainee, rather than a prisoner3. In *Bell,*pretrial detainees challenged the constitutionality of various conditions of their confinement. That *Bell*is controlling does not diminish the role of *Wolff*in determining the extent of Plaintiffs rights under the Due Process Clause of the 14th amendment. The *Bell*Court held that in evaluating the constitutionality of restrictions or conditions of pretrial detention, a court should assess whether the conditions are in fact punishment of the detainee. *Id.*at 535, 99 S.Ct. 1861. The *Bell*Court also established that pretrial detainees’ rights are at least equivalent to the rights afforded prisoners, including the due process protections for disciplinary hearings that *Wolff*establishes. *Id.*at 545, 94 S.Ct. 2963.

However, Plaintiff takes this a step further in arguing that, as a detainee, he is actually entitled to stronger due process protection for disciplinary hearings than a prisoner would receive under *Wolff.*According to this argument, Plaintiff would essentially have a constitutional right to have the prison prepare evidence for him. This procedural due process right is not established in the law, certainly not with the level of clarity for the *611prison officials required by *Harlow, Anderson,*and *Saucier,*and not to the degree that a prison official should have known that in denying the fingerprint analysis he would be violating Plaintiffs due process rights. We, therefore, find that defendants are entitled to summary judgment on the basis of qualified immunity on the procedural due process issue.

b. Equal Protection

The Equal Protection clause of the Fourteenth Amendment can be understood as protecting similarly situated parties from differences in treatment based on impermissible considerations. The Equal Protection clause bars purposeful discrimination. In order to demonstrate a violation of equal protection rights in this case, Plaintiff must show that parties similarly situated were permitted fingerprint analyses and that the denial of the analysis in Plaintiffs case was purposeful discrimination. *Government of Virgin Islands v. Harrigan,*791 F.2d 34, 36 (3rd Cir.1986); *Sabatini v. Reinstein,*1999 WL 636667, at *2, 1999 U.S. Dist. LEXIS 12820, *4-5 (E.D.Pa.1999).

Plaintiff argues that since possession of controlled substances and contraband possession are both Class I offenses in the prisoner’s handbook and since urinalysis is required in drug possession cases, the denial of a fingerprint analysis in his case constitutes a violation of his equal protection rights.

This claim fails for two reasons. First, drug charges and possession of a knife are two very distinct charges. It would be a stretch to claim that possession of a shank and possession of drugs are the same thing. In addition, Plaintiff has stated that he knows of no situations where persons charged with possession of a shank were given fingerprint analysis 4 However, even if possession of a shank and possession of drugs were considered similar situations, Plaintiff has failed to provide evidence of an purposeful discrimination, which is required for an equal protection claim. Plaintiff has alleged that he was discriminated against on the basis of his status as an alien and that he believes that there are instructions for corrections officers to open disciplinary files on aliens5. However, these allegations are insufficient evidence of an purposeful discrimination since (1) Plaintiff is not certain whether the instructions are posted where he believes them to be and (2) there are compelling state interests in opening files on alien inmates at the prison. Since Plaintiffs claim does not rise to the level of a violation of his constitutional rights, summary judgment for defendants is proper.

c. Substantive Due Process

Plaintiff argues that there is a substantive due process violation stemming from his allegation that the guard planted the shank in Plaintiffs cell. He alleges that Sgt. Brown’s denial of the fingerprint analysis constitutes an “intentional and callous” disregard for Plaintiffs rights6. In addition, Plaintiff alleges that Warden Wagner’s refusal to overturn Sgt. Brown’s decision evidenced an “intentional and callous disregard” for Plaintiffs rights7.

This claim fails as a matter of law for several reasons. First, while there appear to be no cases in the Third Circuit that involve the fifing of unfounded *612charges against a prisoner resulting in disciplinary action, courts in this district have consistently found that such claims fail as a matter of law, as long as the requirements of *Wolff*are met, as they are here. *Urbanski v. Horn,*1998 WL 661581, *3, 1998 U.S. Dist. LEXIS 15031, *14 (E.D.Pa.1998). Second, any claim like this has been dealt with as a procedural due process claim, not a substantive due process claim. *Id.*The Third Circuit does not recognize substantive due process claims in cases like these. *Id.*Finally, “the substantive component of the due process clause can only be violated by government employees when their conduct amounts to an abuse of official power that shocks the conscience.” *Rauso v. Vaughn,*2000 W.L. 873285, *10 (E.D.Pa.2000), *citing Gross v. Taylor*1997 WL 535872 at *15, *citing Fagan v. Vineland,*22 F.3d 1296, 1303 (3rd Cir.1994). In exercising their discretion to deny Plaintiff the fingerprint analysis, Sgt. Brown and Warden Wagner did not “abuse” their official power. Nor does their use of their power “shock the conscience.” *Rauso,*2000 WL 873285 *10. Therefore, there is no substantive due process claim recognized in this complaint.

d. Supervisory Liability

The doctrine of respondeat superior may not be used under 42 U.S.C. § 1983. *Nieves,*1997 WL 698490, at *6 citing *Blanche Road Corp. v. Bensalem Township,*57 F.3d 253, 263 (3rd Cir.1995) *citing Monell v. Dept. of Social Services,*436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In order to find a supervisor liable under § 1983, the Plaintiff must “show some affirmative conduct” by the supervisor “which played a role in the violation. Such personal conduct may be shown by demonstrating that [the supervisor] ‘participated in violating plaintiffs rights, or that he directed others to violate them, or that he, as the person in charge ... had knowledge of and acquiesced in his subordinates’ violations.’ ” *Nieves,*1997 WL 698490 at *6, *quoting Moon v. Dragovich,*1997 WL 180333, *2, 1997 U.S. Dist. LEXIS 4786, *2 (E.D.Pa.1997) and *Baker v. Monroe Township,*50 F.3d 1186, 1190 (3rd Cir.1995). In addition, supervisory liability requires a causal connection between the supervisor’s actions and the violation of plaintiffs rights. *Id.; Shaw v. Strackhouse,*920 F.2d 1135, 1147 (3rd Cir.1990); *Sample v. Diecks,*885 F.2d 1099, 1118 (3rd Cir.1989).

Failure to train and supervise is usually raised in the context of municipal liability under 42 U.S.C. § 1983. However, courts have held that a supervisor may be found individually liable under § 1983 if a failure to properly supervise and train the offending employee caused a deprivation of constitutional rights. *Andrews v. Fowler,*98 F.3d 1069, 1078 (8th Cir.1996) *citing Tilson v. Forrest City Police Dep’t,*28 F.3d 802, 806, *cert. denied,*514 U.S. 1004, 115 S.Ct. 1315, 131 L.Ed.2d 196 (1995). Plaintiff must demonstrate that the failure to provide that specific training can reasonably be said to reflect deliberate indifference to or tacit authorization of offending acts. *Fowler,*98 F.3d at 1078. In establishing deliberate indifference, Plaintiff must show that the supervisor had notice that training procedures and supervision were inadequate and were likely to result in constitutional violation. *Belcher v. City of Foley,*30 F.3d 1390, 1395-6 (11th Cir.1994), *Andrews*at 1078, *citing, Thelma D. by Delores A. v. Board of Educ.,*934 F.2d 929, 934 (8th Cir.1991), *citing, Harris,*489 U.S. at 396, 109 S.Ct. 1197.

In order for Warden Wagner to be liable, Warden Wagner or his subordinates must have violated Plaintiffs constitutional rights. Plaintiff alleges that unidentified prison officials planted the shank in his cell. However, Plaintiff has present*613ed no evidence to support this claim beyond his allegations in his deposition. These statements offer no hard evidence and are, therefore, insufficient to overcome a motion for summary judgment.

We, therefore, find that Plaintiff has failed to show that there is a genuine issue of material fact as to whether his constitutional rights were violated, and whether Warden Wagner exhibited deliberate indifference to this violation. Summary judgment shall be granted to Warden Wagner for both the equal protection and due process claims.

In addition, under the doctrine of constructive possession, Plaintiff is responsible for contraband found in his cell. *White v. Kane,*860 F.Supp. 1075, 1079 (E.D.Pa.1994). *See Griffin v. Spratt,*969 F.2d 16 (3rd Cir.1992). The doctrine has been extended so far as situations where other inmates claimed responsibility for contraband found during cell searches. *Id.*Finally, Sgt. Brown and Warden Wagner were well within their discretion under *Wolff*in finding the guard’s report more credible than Plaintiffs testimony and denying Plaintiff fingerprint analysis of the shank.

e. Municipal Liability

Claims against individual officials in their official capacity are the equivalent of a claim against the municipality that employs him. *Kentucky v. Graham,*473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Where suit is brought against a municipality under § 1983, the municipality is only liable when the plaintiff can show that the municipality itself, by implementing a municipal policy, regulation or decision either formally adopted or informally adopted through custom, actually caused the alleged constitutional transgression. *Monell v. N.Y. Department of Social Services,*436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611; *Colburn v. Upper Darby Township,*946 F.2d 1017, 1027 (3rd Cir.1991); *City of Canton v. Harris,*489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The municipality is liable where its policy or custom itself violates the Constitution or when the custom or policy, while not unconstitutional in and of itself, is the “moving force” behind the constitutional violation. *Colburn,*946 F.2d at 1027 *quoting, Polk County v. Dodson,*454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). The policymaker must have authorized policies that led to the violations or permitted practices that were so permanent and well settled as to establish acquiescence. *Simmons v. City of Philadelphia,*947 F.2d 1042, 1064 (3rd Cir.1991), *cert. denied,*503 U.S. 985, 112 S.Ct. 1671, 118 L.Ed.2d 391

A municipality may be liable for deficient policies regarding hiring and training where (1) the municipality’s hiring and training practices are inadequate and (2) the municipality was deliberately indifferent to the rights of others in adopting them, such that the “failure to train reflects a deliberate or conscious choice by a municipality.” *Andrews v. Fowler,*98 F.3d at 1076, quoting, *Harris,*489 U.S. at 389, 109 S.Ct. 1197. In addition, the alleged deficiency in the hiring procedures must have actually caused the injury. *Benavides v. County of Wilson,*955 F.2d 968, 972 (5th Cir.), *cert. denied,*506 U.S. 824, 113 S.Ct. 79, 121 L.Ed.2d 43 (1992). In order to find defendant hable under a failure to train theory, the plaintiff must show deliberate indifference on the part of municipality to the rights of the plaintiff. *Harris,*489 U.S. at 388, 109 S.Ct. 1197. The municipality must have had actual or constructive notice that training was inadequate to protect constitutional rights, which notice is implied where failure to train officers or employees is so likely to result in violation of constitutional rights *614that the need for training is patently obvious. *Thelma D.,*934 F.2d at 934, *citing, Harris,*489 U.S. at 390, 109 S.Ct. 1197. “... [I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy is so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent...” *Harris,*489 U.S. at 389-90, 109 S.Ct. 1197. Notice of deficiency can also be found where the need for additional training is not obvious, but where a pattern of constitutional violations could put the municipality on notice that employees’ responses to recurring issues are not enough to protect constitutional rights. *Thelma D.,*934 F.2d at 935, *citing Harris,*489 U.S. at 397, 109 S.Ct. 1197. *Montgomery v. DeSimone,*159 F.3d 120 (3rd Cir.1998). Finally, the identified deficiency in training must be closely related to the constitutional violation, such that there is a “causal nexus.” *Colburn,*946 F.2d at 1028-1030, *citing, Harris,*489 U.S. at 391, 109 S.Ct. 1197.

Defendants have argued that this suit is the equivalent of a suit against Berks County. In addition, defendants argue that Plaintiff failed to properly plead in that the complaint did not allege a cause of action based on policy or custom that caused the Plaintiff to suffer a violation of constitutionally guaranteed rights. Defendants assert that Plaintiff has not identified a policy or custom through discovery on which to place his theory of recovery. Finally, Defendants assert a lack of evidence.

Plaintiff seems to be arguing that using 28 U.S.C. § 1367(a), he can include the governmental entity as a pendent party defendant and that state law might allow recovery on a respondeat superior basis for an employer. Plaintiff argues that the inmate handbook provides a clear indication of a written institutional policy that a mere denial of a charge could still result in a finding of guilt. He argues that officers were instructed to open disciplinary files against I.N.S. detainees and that there is an informally-adopted policy by custom in which inmates found with planted shanks were not provided opportunity to provide documentary evidence8. Plaintiff argues that Warden Wagner is the policymaker and that the municipality is liable.

Plaintiffs reference to the inmate handbook as indicating that the denial of a charge could still result in a finding of guilt does not demonstrate an institutional policy that caused the violation of his constitutional rights. This policy is consistent with the law which affords prison officials a great deal of discretion to make determinations about the relative credibility of the parties involved in a disciplinary hearing. *White v. Kane,*860 F.Supp. 1075, 1079 (E.D.Pa.1994); *Jones v. N. Carolina Prisoners’ Labor Union,*433 U.S. 119, 129, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977). While a detainee may deny the charges, the presiding prison official may find the officer who found the shank more credible than the detainee. This determination is within the hearing official’s authority and discretion.

Second, Plaintiff has provided no evidence that there is a pattern of prison officials planting evidence in detainees’ cells in order to bring false charges. While this kind of activity might signal a pattern of violations of constitutional rights, Plaintiff has not met his burden of production under *Celotex*with regard to this claim and so summary judgment is granted in favor of Defendants on this claim as well.

*615f. Defamation

Plaintiffs defamation claim under § 1983 fails as a matter of law. In order to state a claim under § 1983 for defamation, Plaintiff must show that Defendants injured a constitutionally protected interest in Plaintiffs reputation. *Garner v. Township of Wrightstown,*819 F.Supp. 435, 440 (E.D.Pa.1993). A § 1983 action does not arise when Defendant has defamed Plaintiff and injured his reputation without other damages. *Id.*at 441, *citing, Kulwicki v. Dawson,*969 F.2d 1454, 1468 (3rd Cir.1992). Plaintiff must meet the “reputation plus” damages standard which requires monetary or professional damages in addition to damages to Plaintiffs reputation. *Id.*at 442. In the case at bar, the finding of guilt in the disciplinary hearing does not constitute an injury to Plaintiffs constitutional interest in his reputation for two reasons. First, the hearing officials were within their discretion to find Plaintiff guilty. Second, Plaintiff has not presented evidence to meet the “reputation plus” standard.

In countering the motion for summary judgment, Plaintiff argues that, even if a defamation claim under § 1983 cannot stand, pendent jurisdiction allows federal court to entertain state claims under 28 U.S.C. § 1367 pursuant to 42 Pa.C.S.A. § 8343(a). He argues that the disciplinary conviction on his prison record is defamatory in nature and has been published by the defendants. Plaintiff argues that this disciplinary hearing affects his I.N.S. detention, noting C.F.R. regulations on factors to consider in determining whether to further detain or release.

The test for a state defamation claim requires Plaintiff to allege: (1) defamatory character of communication; (2) its publication by Defendant; (3) its application to Plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be applied to Plaintiff; (6) special harm resulting to Plaintiff from its publication; and (7) abuse of a conditionally privileged occasion. *Clemente v. Espinosa,*749 F.Supp. 672 (E.D.Pa.1990) citing 42 Pa.C.S.A. § 8343(a)(1).

Plaintiff has failed to meet the requirements of a defamation claim. First, Plaintiff fails to meet the requirement of a defamatory statement. A statement is defamatory “if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third parties from associating or dealing with him.” *Espinosa,*749 F.Supp. at 676, *quoting, Cosgrove Studio and Camera Shop, Inc. v. Pane,*408 Pa. 314, 318, 182 A.2d 751 (1962). The court must look at what a recipient either “correctly, or mistakenly but reasonably, understands” the communication to mean. *Espinosa,*749 F.Supp. at 676-77, quoting, Restatement (Second) of Torts § 563 (1977). The finding of guilt in the disciplinary hearing did not constitute a defamatory statement since it was within the discretion of Sgt. Brown to find Plaintiff so. In addition, Plaintiff has failed to make a showing of special harm, another of the requirements of a defamation claim.

Even under the exception to special harm rule for slander where Plaintiff may succeed in a defamation claim without proof of special harm where the spoken words are slander per se, Plaintiffs defamation claim is insufficient. *Espinosa,*749 F.Supp. at 677. There are four categories of words that constitute slander per se: words imputing: criminal offense, loathsome disease, business misconduct, serious sexual misconduct. *Id.*citing Restatement (Second) of Torts § 570 (1977). A statement constitutes slander per se as an accusation of criminality when it charges either directly or indirectly the commission of a criminal offense punisha*616ble by imprisonment. *Espinosa,*749 F.Supp. at 679, *citing, Burns v. Supermarkets General Corp.,*615 F.Supp. 154, 157 (E.D.Pa.1985). The case at bar does not constitute slander per se as an accusation of criminality since the disciplinary hearing’s finding of guilt was proper. Summary judgment is therefore granted for all defendants on the defamation claim.

An order follows.

*ORDER*

AND NOW, this 9th day of July, 2003, upon consideration of Defendants’ Motion for Summary Judgment and Plaintiffs response thereto, it is hereby ordered that the Motion is GRANTED and Judgment is hereby entered in favor of all of the defendants as a matter of law.

1

. Via order dated November 15, 2002

2

. Amended Complaint, pg. 2

3

. Pretrial detainees are “persons who have been charged with a crime, but who have not yet been tried on that charge." *Bell v. Wolfish,*441 U.S. 520, 523, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The term detainee also includes those in custody awaiting hearing or deportation by the Immigration or Naturalization Service. *Ortega v. Rowe,*796 F.2d 765 (5th Cir.1986)

4

. Exhibit A, Deposition of Remoi Okocci, pg. 43, lines 3-5, pg. 44, line 15, pg. 45, line 5.

5

. Exhibit A, Deposition of Remoi Okocci, pg. 35, lines 23-25. na. 36. lines 1-8

6

. Amended Complaint, pg. 5

7

. Amended Complaint, pg. 8

8

. Plaintiff's Response to Motion for Summary Judgment, pg. 11