Opinion
Civil Action 3:22-cv-00102
05-10-2023
DAVON SMITH, Plaintiff, v. BARRY SMITH, Superintendent, D. CLOSE, Deputy Superintendent, B. SALAMON, Deputy Superintendent, J. BARROWS, Major, M. IVICICI and M. PYO, CCPMs, Defendants.
Judge Arthur J. Schwab
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS
ECF No. 33
LISA PUPO LENIHAN, UNITED STATES MAGISTRATE JUDGE
For the reasons stated herein, it is respectfully recommended that the Motion to Dismiss Plaintiff's Complaint, ECF No. 12, filed by Defendants at ECF No. 33 be GRANTED on the basis of Plaintiff's failure to plausibly allege violation of a Constitutionally protected right, a failure that could not be remedied by leave to amend. Pro se Plaintiff's complaints arise, at bottom, from his misunderstanding of the scope of his Constitutional protections as an inmate of a state correctional institution.
I. HISTORY AND STANDARD OF REVIEW
Plaintiff, previously an inmate of the Houtzdale State Correctional Institution (“SCI Houtzdale”), filed his Complaint in this civil rights action, pursuant to 42 U.S.C. § 1983, in August 2022. ECF No. 12. Plaintiff asserts that Defendants violated his Fifth, Eighth, and Fourteenth Amendment rights, as well as Pennsylvania Department of Corrections (“DOC”) policy by placing him in Administrative Custody (“AC”) during his referral to its Security Threat Group Management Unit (“STGMU”) program housing and transferring him to STGMU. Defendants' Motion to Dismiss was filed in November, 2022, has been briefed by the parties, and - following pro se Plaintiff's Brief in Opposition, filed late despite extension - is ripe for review. ECF Nos. 33, 34, 51.
Plaintiff has brought other actions alleging various other Constitutional violations, as reflected in the cases pending before this Court at Smith v. Streit, No 2:22-CV-1261, and Smith v. Ohrman, No. 2:22-CV-1005.
Defendants have fairly laid out the relevant general legal standards regarding review of pro se complaints on motions to dismiss, accompanied by citations to binding legal authority. They correctly note that opportunity for a curative amendment should be provided in civil rights actions where it would not be inequitable or futile. ECF No. 34. The Court further observes that it may consider matters of public record and other matters of which a court may take judicial notice, exhibits attached to the complaint, and indisputably authentic documents when adjudicating a motion to dismiss under Rule 12(b)(6). See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Golden v. Cook, 293 F.Supp.2d 546, 551 (W.D. Pa. 2003).
Plaintiff names as Defendants: Houtzdale facility Superintendent Smith, Deputy Superintendent Close who acted as Facility Manager, Deputy Superintendent Salamon, and additional Corrections Defendants Barrows, Ivicici and Pyo who together with Close and Salamon comprised the five-member Program Review Committee (“PRC”). Plaintff attests that after being transferred from Disciplinary Custody to Administrative Custody status in October 2020, he was advised that he was being investigated owing to security concerns with his placement in the general population. On later inquiry, Plaintiff was informed by Superintendent Smith that he was recommended for transfer to the STGMU. Despite DOC policy to the contrary, Plaintiff was not afforded an opportunity to participate/be heard in the determination on his transfer to STGMU. All Defendants were aware of this policy and its violation.
The STGMU is a restricted housing program designed to aid in prisoners' safe reintegration to the general population. Plaintiff does not dispute that he had multiple infractions, including for threatening corrections officers, during his period in restricted housing or that the PCR conducted routine reviews and hearings regarding his status during his confinement pending transfer to the STGMU program. ECF Nos. 4 and 12; ECF No. 34 at 2.
See ECF No. 34-2 (DC-ADM-802 at 17 (an inmate on referral to specialized program is to be notified by the PRC and provided a copy of DC-141 pt. 4 stating the justification for his referral, which the inmate may appeal to the Facilities Manager)).
In early April 2021 Defendant Smith informed Plaintiff of his recommendation for transfer and a week later Defendants Burrows and Pyo informed Plaintiff of his approval for transfer and his appeal rights. Plaintiff timely appealed his transfer. Further procedural irregularities included Defendants' refusal to provide Plaintiff a copy of the DC-141 form regarding transfer - which Plaintiff required to file an informed appeal - and their later avowal that there was no record of a timely appeal to the Facility Manager or PRC (i.e., his filing “disappeared”). The first of Plaintiff's three grievances filed thereafter, #925335, on a Facility Grievance form dated April 25 (and stamped April 27) was dismissed as frivolous on May 18 with notation that his STGMU placement had been evaluated by an outside panel, and there was no evidence of a timely-submitted appeal or a violation of policy or due process. ECF No. 4-9. Plaintiff contends that the transfer and confinement events detailed in his Complaint violated his Constitutional rights. See generally ECF Nos. 12 and 51.
Defendants' primary positions are that (1) Plaintiff's action is barred by failure to exhaust his administrative remedies, an assertion which the Court rejects, and (2) Plaintiff has failed to plausibly allege the requisite violation of a Constitutionally protected right, an assertion with which the Court concurs. More particularly, Plaintiff alleges no facts suggesting that a plausible claim for a Fifth or Eighth Amendment violation could be maintained. And neither the institution's alleged violation of its own regulation(s) nor the Administrative Custody or STGMU special housing to which Plaintiff was assigned for intervals while at SCI-Houtzdale, plausibly give rise to Plaintiff's claim of violation of a protected liberty interest under the Fourteenth Amendment. See generally ECF No. 34.
II. ANALYSIS
A. Defendants Are Persons Acting Under Color of State Law
As a threshold matter, under 42 U.S.C. § 1983, private citizens are afforded a means to redress violations of federal law committed by state actors. To establish a Section 1983 claim, a plaintiff must show a deprivation of a right secured by the Constitution and the laws of the United States by a person acting under color of state law. Defendants do not dispute that they were acting under color of law with regard to the matters alleged.
B. Plaintiff's Action is Not Barred by PLRA'S Exhaustion Requirement
As a further threshold matter, the Prisoner Reform Litigation Act of 1995 (“PLRA”) requires that no action be brought with respect to prison conditions under section 1983 by a prisoner confined in any correctional facility until the available administrative remedies are exhausted. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 532 (2002). Defendants assert that this action is barred by Plaintiff's failure to contest his restricted housing by following the applicable procedures of the Administrative Custody (“AC”) Policy, DC-ADM-802, rather than repeatedly filing grievances and other documents in accordance with the procedures of the Inmate Grievance System Policy, DC-ADM-804. ECF No. 34 at 2-4; 7-10.
A challenge under 804 is brought as an Institutional Grievance, appealed to the Facility Manager, and on final appeal to the Secretary's Office (“SOIGA”) while a challenge under 802 is initially before the PRC, appealed to the Facility Manager, and on final appeal to the Office of the Chief Hearing Examiner (“OCHE”). Defendants contend that Plaintiff failed to exhaust his grievance through the final appeal to the OCHE. ECF No. 34 at 2-3.
The Court observes, first, that many of Defendants' responses and communications with Plaintiff regarding the alleged Constitutional violations underlying this action - including several initial responses - addressed and denied Plaintiff's grievances and appeals on other grounds (rather than informing Plaintiff that his filings were misdirected/under an inapplicable policy). See ECF Nos. 4-1 to 4-9; ECF No. 34 at 1-2. Moreover, Plaintiff's complaints include an (albeit not particularly well- supported) allegation that one or more Defendants omitted or removed an essential filing from Plaintiff's record, which was timely made, in order to deny an otherwise valid denial of due process complaint (i.e., Plaintiff's attempts to comply with the process afforded were being obstructed).
Plaintiff's April 25 grievance #925335 was denied on May 18 as frivolous, noting no evidence of timely appeal; his May 6 grievance # 926491 (filed while the prior was pending) was denied on May 10 noting absence of evidence of timely appeal; and his May 12 grievance #927395 (filed when he was informed he would need to submit payment in relation to attachment for his May 6 grievance) was denied on May 13 as already addressed or duplicative. ECF No. 34 at 1-4; ECF Nos. 4-1 to 4-9. Plaintiff similarly asserts that Defendants failed to redirect him and that he filed grievances when he did not receive a timely 10-day response to the original appeal he filed to the Facility Manager on April 16. See generally ECF No. 12.
The PLRA mandates that inmates “properly” exhaust administrative remedies before filing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 93 (2006) (noting that proper exhaustion looks to “compliance with an agency's deadlines and other critical procedural rules”). Absent a situation where administrative remedies are not “available,” a court may not excuse an inmate's failure to exhaust. Ross v. Blake, 136 S.Ct. 1850, 1856 (2016). Here, however, Plaintiff's administrative procedure record fails to evidence that he was fully aware of and able to access an “available” administrative remedy. Indeed, he alleges that Defendants interfered with his access to that remedy. See Washington v. Wetzel, 2022 WL 1782509 (noting that “alleged interference with a grievance may abrogate the need to exhaust administrative remedies with respect to an underlying claim”) (W.D. Pa. June 1, 2022).
Cf. 42 Pa.C.S.A 6602(e)(2) (similarly); Watson v. Pennsylvania DOC, 990 A.2d 164, 167-68 (Pa. Comm. Ct. 2010); Cornish v. City of Philadelphia, 2015 WL 4931758, at *4-6 (E.D. Pa. Aug. 18, 2015).
C. Official Capacity Claims Against Defendants Are Barred
As a final threshold matter, the Eleventh Amendment to the United States Constitution precludes suits against a state and its agencies in Federal Court. Kentucky v. Graham, 473 U.S. 159, 165-67 (1985). Absent an exception (and none are applicable here), this far-reaching state sovereign immunity bars claims for damages against state officials such as Defendant Correction employees in their official capacity. Park v. Veasie, 720 F.Supp.2d 658, 664 (M.D. 2010). See also, e.g., Davis v. Clark, 2022 WL 4287668, at *3 (W.D. Pa. Aug. 10, 2022), report and recommendation adopted, 2022 WL 3654927 (W.D. Pa. Aug. 25, 2022).
D. Any Claim for Injunctive Relief Is Moot
Although Plaintiff seeks injunctive relief against the Defendants, such claims are moot because Plaintiff is no longer incarcerated at SCI-Houtzdale. It is well established that the adjudicatory power of a federal court depends upon “the continuing existence of a live and acute controversy.” Steffel v. Thompson, 415 U.S. 452, 459 (1974). “Past exposure to illegal conduct is insufficient to sustain a present case or controversy regarding injunctive relief if unaccompanied by continuing, present adverse effects.” Rosenberg v. Meese, 622 F.Supp. 1451, 1462 (S.D.N.Y. 1985). Thus, a prisoner's transfer or release from the facility complained of generally moots his claims for injunctive relief because he is no longer subject to the challenged conditions. Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003); Abdul-Akbar v. Watson, 4 F.3d 195, 206-07 (3d Cir. 1993). There is an exception to this doctrine when the challenged action was in its duration too short to be fully litigated prior to cessation/expiration, and a reasonable expectation that the plaintiff will be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 349 (1975). However, the Court finds no reasonable expectation (and declines to further speculate) that Plaintiff will once again be incarcerated in a special housing unit at SCI-Houtzdale. See Abdul-Akbar, 4 F.3d at 207.
Plaintiff was for a time an inmate at SCI-Fayette and is currently an inmate at SCI-Huntingdon.
Continuing then on the merits as a matter of law:
E. Plaintiff Fails to State a Claim Under the 5th Amendment
The due process clause under the Fifth Amendment only protects against federal governmental action and does not limit the actions of state officials. Caldwell v. Beard, 324 Fed.Appx. 186, 189 (3d Cir. 2009); Bergdoll v. City of York, 515 Fed.Appx. 165, 170 (3d Cir. 2013). Defendants are employed by the Commonwealth of Pennsylvania, and, consequently, they are state officials or actors and the Fifth Amendment's Due Process Clause is inapplicable to them. See, e.g., Houser v. Folino, 2015 WL 7289405, at *1 (W.D. Pa. Nov. 16, 2015); Spell v. Allegheny County Admin., 2015 WL 1321695, at *5 (W.D. Pa. Mar. 24, 2015). The filings suggest no plausible curative amendment and the claim is thus subject to dismissal.
F. Plaintiff Fails to State a Claim Under the 8th Amendment
Plaintiff asserts claims against the Defendants premised on the conditions of his confinement in restricted housing at SCI-Houtzdale. The Eighth Amendment imposes a duty on prison officials to provide “humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). In Wilson v. Seiter, 501 U.S. 294 (1991), the Supreme Court set forth the standard for alleged violations of the Eighth Amendment while addressing non-medical conditions of confinement. The Court held that the “deliberate indifference” standard applied in Estelle v. Gamble, 429 U.S. 97 (1976), applies generally to prisoner challenges to conditions of confinement. Wilson, 501 U.S. at 303.
To succeed on an Eighth Amendment conditions of confinement claim against a prison official, Plaintiff must show: “(1) he was incarcerated under conditions posing a substantial risk of serious harm, (2) the official was deliberately indifferent to that substantial risk to his health and safety, and (3) the official's deliberate indifference caused him harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). The first element sets out an objective inquiry: that the official “knowingly and unreasonably disregarded an objectively intolerable risk of harm.” Beers-Capitol v. Whetzel, 256 F.3d 120, 132 (3d Cir. 2001). The prisoner must demonstrate “deprivations denying ‘the minimal civilized measure of life's necessities.'” Wilson, 501 U.S. at 298 (quoting Rhodes, 452 U.S. at 347). Where conditions are not “cruel and unusual” but merely “restrictive and even harsh,” they do not violate the Eighth Amendment but rather “are part of the penalty that criminal offenders pay for their offenses against society.” Rhodes, 452 U.S. at 347.
The second element is a subjective standard: “the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety.” Id. at 125. Deliberate indifference is more than negligence and is in essence acting recklessly. The prisoner must demonstrate that prison officials acted with a sufficiently culpable mind. Wilson, 501 U.S. at 303. And the Supreme Court has admonished that “[n]ot every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny....” Whitney v. Albers, 475 U.S. 312, 319 (1986).
Plaintiff alleges only that his Eighth Amendment right was violated in the context of being housed for intervals in Administrative Custody and the STGMU “erroneously” and without the process owed. He provides no factual allegations sufficient to maintain an Eighth Amendment claim under the applicable standard - i.e., deprivation of the “minimal civilized measure of life's necessities” and a Defendant's disregard of a substantial risk to his health or safety - or to suggest that additional facts would plausibly establish one. See, e.g., Noble v. Wetzel, 2021 WL 6071490, at *3 (W.D. Pa. Dec. 23, 2021) (nearly twenty years of solitary confinement satisfied the objective Eighth Amendment standard). See also generally Washington v. Wetzel, 2022 WL 1782509, **7-9 (W.D. Pa. June 1, 2022). The claim is thus subject to dismissal.
Although Plaintiff alleges in his Complaint that he was locked in his cell 23 to 24 hours a day, the Exhibit J which he cites in support - his grievance record at ECF 4-9 - makes no reference whatsoever to any atypical conditions of confinement and challenges (quite specifically) only the inappropriateness and error of his assignment to restricted housing and the related process violations. Even if the Court regarded this recent blanket allegation sufficient to state a plausible 8th Amendment claim, which it does not, it would find it barred by Plaintiff's failure to administratively exhaust as required under the PLRA. See discussion supra at 6 and infra at 14.
G. Plaintiff Fails to State a Claim of 14th Amendment Due Process Violation
As a preliminary matter, the Court notes that personal liability may be found under § 1983 on the basis of a defendant's “personal involvement”, i.e., when a defendant plays an “affirmative part”, in the deprivation of a Constitutional right. Argueta v. U.S. Immigration and Customs Enforcement, 643 F.3d 60, 73 (3d Cir. 2011); Iqbal, 556 U.S. 677. Estate of Smith v. Marasco, 430 F.3d 140, 151 (3rd Cir. 2005); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). And supervisory liability may be found where a defendant in a position of authority personally participated or personally directed others in the violation of a plaintiff's right or knew of and acquiesced in a subordinate's unconstitutional conduct. Defendants' protestations to the contrary notwithstanding, Plaintiff adequately alleges personal participation on the part of each Defendant in his asserted underlying violations. See ECF No. 12; ECF Nos. 4-1 to 4-9.
Compare, e.g., ECF No. 12 at 10, ECF No. 2 and 4-4 (asserting Superintendent Smith's and PRC members' personal participation in alleged denial of Plaintiff's due process during his referral investigation and determinations regarding transfer to STGMU) with ECF No. 24 at 15 (asserting that Plaintiff directs no personal participation/knowledge allegations against Defendant Smith).
In analyzing any procedural due process claim under the 14th Amendment, however, “the first step is to determine whether the nature of the interest is one within the contemplation of the [Amendment's] liberty or property' language.” Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000) (citing Fuentes v. Shevin, 407 U.S. 67 (1972)). Should the Court determine that a protected property or liberty interest has been implicated, “the question then becomes what process is due to protect it.” Id. (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). But should the court determine that a protected liberty or property interest has not been implicated, then no further analysis is warranted. See, e.g., Evans v. Fanelli, Civ. No. 1:CV-12-2385, 2013 WL 3049112, *4 (M.D. Pa June 17, 2013).
The Due Process Clause of the 14th Amendment does not protect every change in the conditions of confinement having a substantial adverse impact on a prisoner. Meachum, 427 U.S. at 224; see also Mitchell v. Horn, 318 F.3d 523, 531 (3d Cir. 2003) (A plaintiff's “procedural due process rights are triggered by deprivation of a legally cognizable liberty interest.”). Interests recognized by the Supreme Court as falling within this category include the revocation of parole, Morrissey, 408 U.S. at 482, and the revocation of probation, Gagnon, 411 U.S. at 782.
To the extent Plaintiff intends to ground a 14th Amendment claim in mishandling of his administrative requests/grievances, it is well-settled that a prisoner has no due process rights that are implicated by the prison grievance system, as access to a prison grievance procedure is not a Constitutionally mandated right and confers no liberty interest. Allegations about mishandling the grievance system - e.g., an alleged failure to properly file/retain/provide a document or otherwise process an appeal - thus fail to state a cognizable Section 1983 claim. Williams v. Armstrong, 566 Fed.Appx. 106, 108-09 (3d Cir. 2014); Fears v. Beard, 532 Fed.Appx. 78, 81 (3d Cir. 2013); Williams v. Folino, 2015 WL 1212951 at *8 (W.D. Pa. 2015).
See also Jones v. N. Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 137-38 (1977) (Burger, J., concurring); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (noting that “the existence of a prison grievance procedure confers no liberty interest on a prisoner”); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994); Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988).
Similarly, to the extent Plaintiff raises a due process claim (or other Constitutional claim, e.g., conditions of confinement) on the basis of procedural irregularities such as an asserted violation of SCI-Houtzdale's or the DOC's policies and procedures: The Court notes that a violation of facility policies/procedures does not rise to a Constitutional violation pursuant to § 1983. See, e.g., Curry v. McCann, 2019 WL 77441, at *7 n.7 (E.D. Pa. Jan. 2, 2019). Nor do the Department of Corrections' policies or procedures create a right or have the force of law. See Atwell v. Lavan, 557 F.Supp.2d 532, 556 n.24 (M.D. Pa. Mar. 26, 2008) (citing cases). See also United States v. Fattah, 858 F.3d 801, 813-14 (3d Cir. 2017) (“violation of internal policy alone does not amount to a violation of constitutional due process” because government policies and guidelines “do not themselves create rights”).
Finally, with regard to Plaintiff's placement in AC and STGMU housing, the Court notes that a liberty interest may arise from (a) the Constitution itself or (b) an expectation or interest created by state laws or policies. Wilkinson, 545 U.S. at 221. The former has been characterized as an “independent due process liberty interest” and the latter as a “state-created liberty interest.” Renchenski v. Williams, 622 F.3d 315, 325 (3d Cir. 2010).
With respect to an inmate's independent due process liberty interest, the Supreme Court has held that as long as the conditions or degrees of confinement are within the sentence imposed and not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight. Montanye v. Haymes, 427 U.S. 236, 242 (1976). Here, Plaintiff has not adequately alleged as a matter of law, or plausibly suggested, that he was subjected to confinement that exceeded the sentence imposed upon him or that otherwise violated the Constitution (e.g., the Eighth Amendment), and therefore no independent due process liberty interest was impinged. See Hewitt v. Helms, 459 U.S. 460, 468 (1983) (“It is plain that the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence.”).
Plaintiff has also failed to allege or plausibly suggest that he was deprived of a state-created liberty interest. In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Supreme Court set out the standard for determining whether a prisoner has been deprived of a state-created liberty interest. These interests are “generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, . . . nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id.; see also Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000); Asquith v. Department of Corrections, 186 F.3d 407, 412 (3d Cir. 1999). In ascertaining whether something is an “atypical and significant” hardship, courts consider “what a sentenced inmate may reasonably expect to encounter as a result of his or her conviction in accordance with due process of law.” Asquith, 186 F.3d at 412.
For many prisoners, the “ordinary incidents of prison life” include disciplinary and other confinement in segregated housing (such as RHU) at some time, including for periods such as that experienced by Plaintiff. See Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997); WashingtonEl v. Beard, 2013 WL 1314528 at *7 (W.D. Pa. 2013) (due process clause does not create “an inherent liberty interest to remain free from administrative segregation).
In Sandin, the Supreme Court explained that prison disciplinary segregation generally “mirrored those conditions imposed upon inmates in administrative segregation and protective custody”; thus, neither the inmate's duration or degree of restriction give rise to a Constitutional violation. Id. at 486-87. Here, Plaintiff fails to allege or plausibly suggest circumstances sufficient to maintain his due process claim, i.e., of the implication of a state-created liberty interest by degree of departure from the accepted standards for confinement conditions or creation of an atypical and significant hardship.
Cf. ECF No. 34 at 12-13 (duly observing that extraordinarly prolonged administrative custodye.g., years as opposed to months - may implicate a liberty interest for which due process is satisfied by informal review procedures). As noted supra, Plaintiff does not allege or suggest that he was denied PCR reviews during his intervals of segregated housing nor does he allege extraordinarily atypical duration.
Indeed, the Third Circuit has repeatedly found that placement in a New Jersey correctional institution's STGMU does not implicate a liberty interest. See Harris v. Ricci, 595 Fed.Appx. 128, 131 (3d Cir. 2014); Fraise v. Terhune, 283 F.3d 506, 522-23 (3d Cir. 2002). And the Pennsylvania District Courts have similarly held as to Pennsylvania correction institution's STGMU confinement - housing also under the DOC's Level 5 housing policies and Administrative Custody. See e.g., Imes v. Wingard, 2017 WL 1400143, at *5 (W.D. Pa. Feb. 21, 2017), report and recommendation adopted, 2017 WL 1405794 (W.D. Pa. Apr. 18, 2017) (inmate's placement in Pennsylvania DOC's STGMU at SCI-Forest did not implicate liberty interest); Castro v. Superintendent Glunt, 2016 WL 6956828, at *4-6 (W.D. Pa. Oct. 19, 2016), report and recommendation adopted, 2016 WL 6988854 (W.D. Pa. Nov. 28, 2016) (same as to inmate's placement in STGMU at SCI-Greene); see also Bracey v. Secretary Pennsylvania Department of Corrections, 686 Fed.Appx. 130, 135 (3d Cir. 2017) (“placement in the [Special Management Unit] did not constitute a dramatic departure from the accepted standards for conditions of confinement such that due process was implicated”); Torres v. Fauver, 292 F.3d 141, 151 (3d Cir. 2002) (noting that prisoners have no protected liberty interest in being free of confinement in STGMU).
To the extent Plaintiff is also asserting a substantive due process claim based on his segregated confinement, and it does not challenge the same conduct as his Eighth Amendment conditions of confinement claim, and is thus not otherwise barred by the more specific provision rule, see Albright v. Oliver, 510 U.S. 266, 273 (1994); Betts v. New Castle Young Development Center, 621 F.3d 249, 260 (3d Cir. 2010), Plaintiff neither alleges nor suggests government conduct that “shocks the conscience.” See Fagan v. City of Vineland, 22 F.3d 1296, 1303 (3d Cir. 1994) (“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'”).
III. CONCLUSION
For the reasons set forth above, the circumstances alleged in the Complaint do not rise, as a matter of law, to a plausible violation of Plaintiff's Constitutional or other legally-actionable rights by any Defendant. The Court further concludes, based on its thorough review of the factual allegations and Plaintiff's Complaint exhibits, and its legal analysis above, that any attempt to amend would be futile as a matter of law. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). Thus it is respectfully recommended that the Defendants' Motion to Dismiss, ECF No. 33, be GRANTED.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.