United States Magistrate Judge Cynthia Reed Eddy

United States District Judge Kim R. Gibson MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

For the reasons set forth below, it is respectfully recommended that Defendants' Motion for Summary Judgment (ECF No. 68) be granted.

II. REPORT

A. Relevant Procedural History

Plaintiff, Toshmingo H. Imes ("Plaintiff" or "Imes") is a state prisoner committed to the custody of the Pennsylvania Department of Corrections ("DOC") and currently confined at State Correctional Institution - Chester ("SCI-Chester"). Imes brings suit pursuant to 42 U.S.C. § 1983 against a number of DOC officials and employees for alleged violations of his Eighth and Fourteenth Amendment Rights. Specifically, Imes brings (1) a Fourteenth Amendment due process claim alleging that his rights were violated when he was placed in in the Security Threat Group Management Unit ("STGMU") without notice or a hearing and (2) an Eighth Amendment condition of confinement claim alleging that while in the STGMU program, he was subjected to cruel and unusual punishment.

Discovery is complete and Defendants have filed the instant Motion for Summary Judgment, with brief in support. (ECF Nos. 68 and 69.) Imes has filed a Brief and Response in opposition Defendants' Motion for Summary Judgment. (ECF Nos. 78 and 79.) The issues have been fully briefed and the factual record has also been thoroughly developed. (ECF Nos. 70, 71, and 80.) The motion is ripe for disposition.

B. Relevant Factual History

The Court has viewed the summary judgment record in the light most favorable to Imes.

Defendants filed the instant motion for summary judgment in which they argue that Imes's due process claim fails because placement in the STGMU did not trigger a liberty interest. Alternatively, Defendants argue they are entitled to qualified immunity on this claim. As to Imes's Eighth Amendment claim, Defendants argue that Plaintiff cannot show that he was subjected to a sufficiently serious deprivation required for an Eighth Amendment violation. Imes filed a well-argued, detailed response in opposition.

Imes was first placed in DOC custody on December 31, 2010. See Cell History (ECF No. 79-7, Exh. 7). When he arrived in the DOC, he acknowledged being a past member of the Bloods gang, but claimed to be "inactive." As part of routine security measures, the DOC monitors anyone identified with past or current gang affiliation. Declaration of Robert Snyder, at ¶ 3 (ECF No. 71). Based on the DOC monitoring, Imes was deemed to be high ranking in the Bloods organization and a suspected "shot caller."

From December 13, 2010, until January 7, 2011, Imes was housed at SCI-Graterford. He was transferred to SCI-Cambria on January 7, 2011, where he remained until February 25, 2011, at which time he was transferred SCI-Somerset. Cell History (ECF No. 79, Exh. 7). The summary judgment reflects that while at SCI-Somerset, Imes had a good disciplinary record with no misconducts. On November 27, 2013, Imes was placed in administrative custody pending investigation of suspected gang activity within the facility. On December 10, 2013, at the conclusion of the investigation, he was released to general population as the security staff was unable to confirm Imes's involvement in that matter. Declaration of Robert Snyder (ECF No. 71-1).

The decision to place Imes in the STGMU program occurred after a weekend in May of 2014, when several incidents of gang violence and attacks involving competing factions within the Bloods gang had erupted at several facilities within the DOC, including SCI-Somerset. While security staff could not substantiate Imes's direct involvement, a determination was made by DOC management that the STGMU program would be appropriate and beneficial for Imes and that security concerns justified an immediate transfer from the SCI-Somerset setting. Id. According to the Snyder Declaration, the official transfer petition indicates "executive privilege" as the rationale for transfer, which reflects the discretion and authority of DOC officials and management to make placement decisions in the interests of safety and security. Id. at ¶ 5.

Imes was transferred from SCI-Somerset to the newly opened STGMU program at SCI-Forest on May 8, 2014. See Cell History (ECF No. 79-7 Exh. 7). According to the summary record evidence, Imes worked through four (4) phases of the STGMU program at SCI-Forest, and was transferred to SCI- Chester on April 21, 2015, where he completed the last and final phase of the STGMU program.

C. The STGMU Program and Conditions at SCI-Forest

The STGMU is a non-punitive program that opened at SCI-Forest in 2014. The program is designated for inmates who have poor prison adjustment, numerous misconducts, and/or known gang affiliations through a validation process which is overseen by the DOC's Office of Special Investigations ("OSI"). Declaration of Angelo Lopez, former Unit Manager of the STGMU at SCI-Forest (ECF No. 71-1; Exh. 1, ¶ 3.) The goal of the STGMU program is to change inmates' behavior via movement through five phases of programming and take steps toward being able to return to a general population setting. The program uses a variety of programs, in-cell training and video tools, progressive privileges, including commissary, out-of-cell activities, and close monitoring by Unit Team and psychology staff to assure that inmates progress and achieve the benefits of the program. (Id. at ¶ 5.)

Inmates are technically coded as "AC status" while in the STGMU program. The STGMU program at SCI-Forest is housed in K block, a newly constructed "RHU" block setting, where inmates are single-celled. However, inmates in the STGMU are in a special "program," and are not treated like other AC inmates. For example, starting with Phase 4, inmates in the program have increasing opportunities for out-of-cell and group activities and privileges, unlike DC or AC inmates in the RHU. (Id . at ¶ 5; Ex. 2, STGMU 2015 Inmate Handbook, "Inmate Management Phases.) As inmates progress through the program, they are moved to different pods within K unit (or at least different tiers within pods) and achieve more freedom and privileges. (Id . at ¶3.)

The STGMU program encompasses five steps or phases and each phase offers progressively more privileges and services. (Id . at ¶ 6; Exh. 2 at 3-4.) The phases are explained in the STGMU Handbook which is provided to each inmate in the program and the STGMU Unit Team also meets with the inmate upon arrival to go over the program in detail. There is an STGMU Program Plan for each phase which reflects the goals and action steps specific to the individual inmate.

As the inmate progresses through the program, privileges are steadily increased. When inmates reach Phase 1, they are given the opportunity to select their preferred region to be housed in to complete Phase 1 of the program, along with a temporary Z code, as they reintegrate into the general population setting. Phase 1 consists of a minimum of 180 days in general population.

D. Imes's Experience in the STGMU

The summary judgment record reflects that Imes arrived at SCI-Forest on May 8, 2014. Within days of his arrival, he met with members of the Program Review Committee ("PRC") who provided him with information about the STGMU program and its expectations and rules. On May 15, 2014, he again met with the PRC at which time he indicated a willingness to participate in the program. The Program Review Report reflects that Imes "stated that he is a Blood," but did not know why he was placed in the program. (ECF No, 71-1 at 32). Imes was advised that he could appeal the placement decision and was informed about that appeal procedure. Id. It appears that on July 24, 2015, Imes did in fact file a Grievance (No. 518924), which was denied by the Grievance Officer at SCI-Somerset on August 1, 2014. (ECF No. 79-3.)

Imes was in Phase 5 from May 8, 2014 to June 24, 2014. He completed Phase 5 in seven (7) weeks. It was noted that during this time he maintained stable adjustment, had successfully completed six (6) in-cell assignments, and had shown motivation to comply with the program. Imes entered Phase 4 on June 24, 2014, and completed this phase on September 24, 2014. He met monthly with his Unit Team and had PRC reviews every 90 days. On July 9, 2014, he met with the PRC team "concerning a questionable letter and [Imes] denie[d] having any gang reference." ECF No. 71-1 at 27. On August 15, 2014, Imes told his Counselor that he was wrongly placed in the STGMU as he was not actively participating in a gang, but did he deny gang affiliation.

On October 17, 2014, Imes entered Phase 3. During this time, Imes received additional commissary privileges, visitation, and was placed on the general labor pool. He successfully completed Phase 3 and on December 26, 2014, he entered Phase 2. During Phase 2, Imes attended group activities such as dayroom, program groups, and group yard. He had the freedom to move unrestrained around the housing unit. He met monthly with his Unit Team and had PRC reviews every 90 days. On March 13, 2015, Imes was advised that his referral packet for Phase 1 had been sent to Central Office for approval. Imes was transferred to SCI-Chester on April 21, 2015, to begin Phase 1.

On April 29, 2015, Imes was moved to general population and given his temporary Z code status for six (6) months. He had one misconduct in July for a tattoo and served 45 days DC in the RHU.

E. Standard of Review for Motion for Summary Judgment

Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007); UPMC Health System v. Metropolitan Live Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004).

The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989) (the non-movant must present affirmative evidence - more than a scintilla but less than a preponderance - which supports each element of his claim to defeat a properly presented motion for summary judgment). The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e. depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322. See also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). The non-moving party "must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue." Garcia v. Kimmell, 381 F. App'x 211, 213 (3d cir. 2010) (quoting Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)).

When considering a motion for summary judgment, the Court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Batsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). See also El v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007).

D. Discussion and Analysis

First, the Court will discuss Imes's Fourteenth Amendment due process claim and the DOC's response. With respect to this claim, the Court recommends that defendants are entitled to summary judgment as Imes has failed to establish that his confinement in STGMU imposed an atypical and significant hardship on him in relation to the ordinary incidents of prison life and, therefore, he did not have a liberty interest in avoiding being placed in the STGMU program. Next, the Court will turn to Plaintiff's Eighth Amendment claim and the DOC's response. The Court recommends that defendants are entitled to summary judgment on this claim as well.

1. The Due Process Clause of the Fourteenth Amendment

The Due Process Clause of the Fourteenth Amendment of the United States Constitution provides in pertinent part: "No State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Imes argues that his due process rights were violated because he did not receive a hearing before transfer or an opportunity to examine the evidence or information considered by staff who recommended his placement in the STGMU.

In order to invoke the protection of the Due Process Clause, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. Wilkinson v. Austin, 545 U.S. 209, 221 (2005); Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000). Only if a plaintiff establishes that the nature of the interest is one within the contemplation of the liberty or property language of the Fourteenth Amendment, is the second step, i.e., determining what process is due, necessary. Id. A liberty interest may arise from the Constitution itself or from an expectation or interest created by state laws or policies. Wilkinson, 545 U.S. at 221.

Here, Imes contends that he has a state-created liberty interest under the Fourteenth Amendment. The United States Court of Appeals for the Third Circuit recently reiterated that, in a conditions of confinement case, to "rise to the level of a liberty interest, the right alleged must confer 'freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Williams v. Secy Pennsylvania Dept of Corrections, No. 14-1469, -- F.3d --, 2017 WL 526483, at *6 (3rd Cir. Feb. 9, 2017) (quoting Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (quoting Sandin v, Conner, 515 U.S. 472, 484 (1995)(emphasis added)).

The determination of what is "atypical and significant" is based on the range of conditions an inmate "may reasonably expect to encounter as a result of his or her conviction." Asquith v. Dep't of Corr., 186 F.3d 407, 412 (3d Cir. 1999). In Sandin v. Conner, the United States Supreme Court held that an inmate's assignment to disciplinary segregation for thirty days did not impose an "atypical and significant deprivation" that implicated an inmate's liberty interest. 515 U.S. at 486. In reaching this conclusion, the Supreme 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 Supreme Court was confronted with a much different situation in Wilkerson, where it held that placement in Ohio's maximum-security prison, the Ohio State Penitentiary ("OSP"), implicated an inmate's liberty interest because such an assignment "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 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 OSP is indefinite and, after an initial 30-day review, is reviewed just annually. Second is that placement 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 OSP. . . .

The United States Court of Appeals for the Third Circuit has repeatedly found that placement in the New Jersey STGMU, a much stricter program than the STGMU program at SCI-Forest, does not implicate a liberty interest. See Harris v. Ricci, 595 F. App'x 128, 131 (3d Cir. 2014); Fraise v. Terhune, 283 F.3d 506, 522-23 (3d Cir. 2002). The New Jersey Department of Corrections policy was promulgated in 1998 and is designed to isolate and rehabilitate gang members. Id. at 509. Under this policy, prison officials can designate Security Threat Groups ("STG") and transfer the "core" members of these groups to the STGMU. The STG policy lists criteria for prison officials to consider in determining whether a particular inmate should be classified as an STG member. These include: (1) an inmate's acknowledgement of membership; (2) the presence of an STG tattoo; (3) the possession of STG paraphernalia; (4) information from an outside agency; (5) information from an Internal Affairs report or investigation; (6) correspondence from other inmates or outside contacts; (7) STG photographs, and (8) any other factors that suggest that the inmate is involved in STG activities or is a STG member. Any inmate who satisfies two of these criteria may be designated as an STG member. An inmate remains in maximum custody in the New Jersey STGMU

until the inmate successfully completes a three-phase behavior modification and education program. This program is designed to give the inmate the insight and tools necessary to interact appropriately, without the perceived need of membership in a Security Threat Group. The inmate is taught anger management, conflict resolution, and social interactive skills that feature alternatives to violence. The Committee monitors the inmate's progress and determines whether the inmate should advance to the next phase and eventually return to the general prison population. In order to complete the program and return to the general prison population, an inmate must sign a form renouncing affiliation with all STGs.

In the instant case, Imes does not allege any greater restrictions in the STGMU at SCI-Forest than were placed on the inmates housed in the New Jersey STGMU in Fraise. He was not subjected to confinement that exceeded his sentence and, as discussed below, his confinement in STGMU did not otherwise violate the Constitution. The Court finds that Imes has failed to establish that his confinement in STGMU imposed an atypical and significant hardship on him relative to the ordinary incidents of prison life and, therefore, he did not have a liberty interest protected by the Due Process Clause. Imes also has not demonstrated that he was deprived of any expectation or interest created by state laws or policies. Therefore, the Court recommends that summary judgment be granted to Defendants on Plaintiff's due process claim.

2. Conditions of Confinement Claim Under the Eighth Amendment

Under the Eighth Amendment, prisoners are protected from cruel and unusual punishment. Farmer v. Brennan, 511 U.S. 825 (1994). Cruel and unusual punishment will only be found "where viewing the totality of the conditions in the prison, the inmate's conditions of confinement, alone or in combination, deprive him of the minimal civilized measure of life's necessities." Tillery v. Owens, 907 F.2d 418, 426-27 (3d Cir. 1990). In the non-medical context, the Eighth Amendment imposes a duty upon prison officials to provide humane conditions of confinement; 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." Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). To establish an Eighth Amendment claim based on prison conditions, the plaintiff must show "he has suffered an objectively, sufficiently serious injury, and that prison officials inflicted the injury with deliberate indifference." Farmer, 511 U.S. at 834. An objectively, sufficiently injury is one that denies the inmate "the minimal civilized measure of life's necessities," such as food, water, shelter. Rhoades v. Chapman, 452 U.S. 337, 347 (1981).

To the extent that Imes alleges a violation of his Eighth Amendment rights, he has not demonstrated (1) that his placement in the STGMU resulted in the denial of any basic human need or (2) that he was incarcerated under conditions posing a substantial risk of harm, or (3) that prison officials demonstrated a deliberate indifference to his health or safety. The summary judgment record is void of any showing of deliberate indifference on the part of any defendant. Rather, the summary judgment demonstrates that Imes's designation to the STGMU was the result of his acknowledgement of prior gang affiliation and his being deemed a high ranking member in the Bloods organization and a suspected "shot called." His placement in STGMU appears to have been dictated by security concerns of higher level management at Central Office. Accordingly, the Court recommends that summary judgment be granted to Defendants on Plaintiff's conditions of confinement claim.

III. CONCLUSION

For all of the foregoing reasons, it is recommended that Defendants' Motion for Summary Judgment be granted.

In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72(D)(2) of the Local Rules for Magistrates Judges, the parties are permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, may file objections to this Report and Recommendation by March 10, 2017, and Defendants, because they are electronically registered parties, may file objections by March 7, 2017. The parties are cautioned that failure to file Objections within this timeframe "will waive the right to appeal." Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Dated: February 21, 2017

s/ Cynthia Reed Eddy

Cynthia Reed Eddy

United States Magistrate Judge cc: TOSHMINGO H. IMES

JV-1137

SCI Chester

500 E. 4th Street

Chester, PA 19013

(via U.S. First Class Mail)

Mary Lynch Friedline

Office of Attorney General

(via ECF electronic notification)