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finding that plaintiff was disabled under the ADA but dismissing the claim because plaintiff could not identify any possible physical injury for compensatory damages
Summary of this case from Powell v. FisherOpinion
Civil Action No. 99-CV-2817.
March 30, 2004
MEMORANDUM AND ORDER
Presently before this Court is Defendants' Motion for Summary Judgment (Doc. 55). For the reasons set forth below, upon consideration of Defendants' Motion, Plaintiff's Response (Docs. 65 66), and Defendants' Reply (Doc. 67), this Court will grant in part and deny in part Defendants' Motion for Summary Judgment.
BACKGROUND
From the evidence of record, taken in a light most favorable to the Plaintiff, the pertinent facts are as follows. Plaintiff Gennaro Rauso, an inmate previously housed at the State Correctional Institution at Graterford ("Graterford"), brought this civil rights action against several Department of Corrections officers, including officials at Graterford, as well as two members of the Board of Probation and Parole. Plaintiff alleges that Defendants violated his First and Fourteenth Amendment rights when he was issued a misconduct, sanctioned on that misconduct, denied yard exercise, denied participation in a drug treatment program, and denied parole. Plaintiff also raises claims under the Americans with Disabilities Act (ADA) and state law.
Plaintiff Rauso was paroled from SCI-Graterford as of April 7, 2003, by the Board of Probation and Parole.
A. Retaliation
Plaintiff is a certified paralegal and is known to assist himself and others in the filing of grievances and lawsuits. On or about June 10, 1997, at approximately 7:50 a.m., Plaintiff interviewed Defendant Sutton, a correctional officer at SCI-Graterford, regarding a misconduct that Defendant Sutton issued to another inmate, Robert Meyers ("Inmate Meyers"), on or about June 9, 1997. Plaintiff alleges that he informed Sutton that he was planning on providing assistance to Inmate Myers in connection with his misconduct. Sutton responded by saying, "stay out of it or else." Amended Compl. at 7.
At approximately 8:05 a.m. on June 10, 1997, Sutton refused to let Plaintiff out of his cell, even though he had a valid pass to use the law library as of 8:00 a.m. that morning. On that same day, Plaintiff filed a grievance, GRA-1524-97, against Sutton, claiming that Sutton refused to let him out of his cell even though he had a valid pass in retaliation for his involvement with the misconduct report filed against Inmate Myers. On or about June 11, 1997, Sutton issued Misconduct 851628 against Plaintiff, alleging that Rauso struck Sutton with his forearm, knocking him up against the tier railing outside of Rauso's cell. Plaintiff alleges that Sutton's statement in Misconduct 851628 makes reference to Plaintiff's "dislike" of institutional pass and yard procedures. Amended Compl. at 8. Plaintiff states that this incident never took place.
Defendants assert that Plaintiff could not have filed the above-mentioned grievance on June 10, 1997, the day before Sutton's Misconduct was filed against the Plaintiff. Plaintiff's grievance, however, dated June 10, 1997, is attached as an exhibit to both Plaintiff and Defendants' briefs, and Defendants offer no evidence to contradict the date stated on the face of the document. Thus, this Court will presume that the dates written on the proffered documents are correct.
Following the issuance of the Misconduct against Plaintiff, Plaintiff claims that he requested the production of the videotape of E-Block made on June 11, 1997, between 8:00 and 8:30 a.m., believing that the tape would show that he did not push Sutton against the tier railing as alleged in the Misconduct. A copy of the tape was never produced to the Plaintiff, and it was not produced at the hearing or otherwise. On June 13, 1997, Plaintiff was found guilty of Misconduct 851628 by Defendant Jones, the hearing examiner.
Defendants have offered no explanation for why the Plaintiff was denied access to this tape for his defense of Misconduct 851628. Nor have Defendants offered an explanation why no one has viewed the tape containing evidence that would either condemn or exonerate the Plaintiff.
After Plaintiff was found guilty of the Misconduct, Plaintiff filed a Hearing Misconduct Appeal stating that Jones deprived him of a full and fair hearing when he failed to view the videotape. In addition, Plaintiff sent letters to Defendants, Vaughn and Lorenzo, the superintendent and deputy superintendent of SCI-Graterford, and the Director of the Pennsylvania Department of Corrections ("PA D.O.C."), stating that he did not receive a fair hearing. On June 17, 1997, Defendants Mary Ann Williams, Cappo and Bennett, serving as members of the Program Review Board, sustained the action of Defendant Jones on Misconduct 851628.
On July 3, 1997, Defendant May Ann Williams, SCI-Graterford grievance coordinator, returned Plaintiff's grievance to him because he had not complied with grievance protocol, specifically, it is impermissible to grieve a misconduct. Defs' Brief at 3. On July 8, 1997, Defendant Vaughn issued a memorandum stating that Defendant Jones's action finding Rauso guilty of Misconduct 851628 would be upheld. On August 7, 1997, Defendant Guzzi, assistant chief counsel for the PA D.O.C., issued a letter stating that the PA D.O.C. would uphold the rulings of Defendant Vaughn and the Program Review Board, which, in turn, upheld the ruling of Defendant Jones. As a result of being found guilty of the Misconduct, Plaintiff received a punishment of ninety (90) days in disciplinary confinement. Plaintiff served 112 days in disciplinary confinement.
This Court notes that it is clear from the facts that the Williams decision was blatantly erroneous because the Plaintiff was not grieving a misconduct. Plaintiff's grievance, attached as Defense exhibit 1, states that he was grieving the fact that he was confined to his cell by Defendant Sutton, even though he had a valid pass to visit the library.
B. Denial of Outdoor Exercise While in Disciplinary Confinement
Plaintiff alleges that during the entire duration of his time in disciplinary confinement, he was not given the opportunity to gain outdoor exercise. Plaintiff claims that Defendants Vaughn and Jackson (another deputy superintendent at SCI-Graterford) conceived of and instituted a de facto policy and practice of requiring inmates in disciplinary confinement to stand naked in front of their cell doors, in the presence of other inmates, to await the arrival of correctional officers who would conduct a body cavity search. "This requirement was known as the `pre-naked' policy." Amended Compl. at 14. This policy was allegedly a prerequisite for a prisoner being let out of his disciplinary confinement cell for the allotted one-hour of exercise per day. Because Plaintiff did not participate in the pre-naked policy procedure, he was denied outdoor exercise during the entire duration of his 112 day disciplinary confinement.
C. Bias by Hearing Officer Mary Canino
In addition to the facts set forth above, Plaintiff states that he has received additional misconducts while at Graterford, and Defendant Canino served as hearing officer for the vast majority of the misconducts filed against Plaintiff. Canino was aware of the grievances and lawsuits filed by Plaintiff against her and was aware that Plaintiff provided assistance to other inmates in grievances and court actions.
Despite the fact that Canino knew that she was the subject of grievances and court actions filed against her by Plaintiff, she refused to recuse herself from acting as a hearing officer in misconducts filed against Plaintiff. Plaintiff alleges that Canino was biased against him and deprived him of fair hearings on the misconducts brought against Plaintiff before her as hearing officer. Canino made her bias known to Plaintiff by stating to him, during the course of a misconduct hearing, that if she saw Plaintiff in a misconduct hearing again, she would find him guilty. Plaintiff claims that Canino kept her word, and when he appeared before her in all subsequent misconduct hearings, she found him guilty.
D. Exclusion from Drug Treatment Program
On October 15, 1997, Plaintiff asked his unit manager on E-Block at that time, Defendant Bessie Williams, to contact and confirm with individuals at the New Growth Drug and Alcohol Treatment Program ("New Growth") that Plaintiff would be participating in the program scheduled to begin around January 1998. Plaintiff alleges that Bessie Williams not only failed to confirm his participation in the program, she took steps to remove his from the list of participants. Plaintiff claims that Bessie Williams told him that she had him removed for the list because his minimum release date was not until September 1998. Amended Compl. at 18.
Defendant Bessie Williams knew that Plaintiff's participation in a drug treatment program was a requirement of Plaintiff's prescriptive plan, and that he would not be able to participate or complete the program before his institutional parole staffing, which was set to occur in April 1998. At this parole staffing, the prison employees voted against recommending Plaintiff for parole based in part on the fact that Plaintiff did not participate in or complete a drug treatment program.
On or about April 1, 1998, Plaintiff applied for parole pursuant to 61 P.S. § 331.22. In August of 1998, Plaintiff's parole application was considered by Defendants Castor, a member of the Pennsylvania Commission on Parole and Probation ("P.C.P.P.") and Desher, a hearing examiner for the P.C.P.P. On September 22, 1998, the P.C.P.P. denied Plaintiff's application for parole.
Plaintiff was paroled from Graterford on April 7, 2003. Now before this Court is Defendants' motion for summary judgment, in which the Defendants contend that this Court should grant summary judgment as a matter of law on Counts I, II, IV, V, VI, VII, X and XI.
LEGAL STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is "genuine" 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, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.
A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis of its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. at 2553-54. After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). That is, summary judgment is appropriate if the nonmoving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552-53. "[I]f the opponent [of summary judgment] has exceeded the `mere scintilla' [of evidence] threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent." Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14.
DISCUSSION
A. Claims Against State Officials in their Official Capacities
Defendants assert that Plaintiff's claims for retaliation, constitutional violations and violations of the Americans with Disabilities Act ("ADA") are barred by the Eleventh Amendment's doctrine of sovereign immunity. Defendants state that sovereign immunity bars claims for money damages against state officials acting in their official capacities. Thus, Defendants aver that Plaintiff's claims for money damages should be dismissed as to Counts I, II, IV, V, VI and VII (retaliation and constitutional violations) and XI (ADA). Plaintiff answers that the Eleventh Amendment does not bar recovery for injunctive relief. Plaintiff states that his claims seek to restrain state officials from (1) retaliating against the Plaintiff for exercising his First Amendment rights; (2) violating the Plaintiff's procedural due process rights; and (3) violating the Plaintiff's substantive due process rights. Pl's Brief at 28.
Absent consent by the state, the Eleventh Amendment bars lawsuits for money damages against a state in federal court. Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). Pennsylvania has expressly withheld such consent. 42 Pa. Cons. Stat. Ann. § 8521(b). However, the Eleventh Amendment does not preclude suit against officials in their individual capacities. Laskaris v. Thornburgh, 661 F.2d 23, 25-26 (3d Cir. 1981). The Supreme Court has held that Congress did not validly abrogate a state's Eleventh Amendment immunity in the Civil Rights Act, 42 U.S.C. § 1983, nor the ADA, 42 U.S.C. § 12001 et seq. Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (holding that Section 1983 claim does not waive Eleventh Amendment immunity merely because an action could be brought against state officers rather than the state itself); Garrett, 531 U.S. at 374 n. 9 (holding that the ADA did not validly abrogate the state's sovereign immunity from suit by private individuals).
The Eleventh Amendment does not bar suits against state officials for injunctive or declaratory relief. Garrett, 531 U.S. 356; Ex Parte Young, 209 U.S. 123, 159-160 (1908). Relief under Ex Parte Young is limited to prospective relief that does not impact the state's treasury, Edelman, 415 U.S. 651 (1974), and which is granted in order to halt an ongoing, continuous violation of federal law. Green v. Mansour, 474 U.S. 64, 68-73, 106 S.Ct. 423, 88 L.Ed.2d 271 (1985).
Plaintiff filed his complaint before he was paroled from Graterford on April 7, 2003. Therefore Plaintiff's claims are moot because no injunctive relief is available to him. Summary Judgment is granted for all Defendants to the extent they are sued in their official capacities as to Counts I, II, IV, V, VI and VII (retaliation and constitutional violations) and XI (ADA), regarding both money damages and injunctive relief.
B. Section 1983 Claims Against State Officials in Individual Capacities
1. Count I
In Count I, Plaintiff alleges that Defendant Sutton issued a misconduct against him in retaliation for Plaintiff filing a grievance against Defendant Sutton the previous day and because Plaintiff announced that he would be assisting another inmate in his defense of a misconduct filed by Defendant Sutton. Defendant answers that Plaintiff's actions were not constitutionally protected activities, and thus the retaliation claim must fail. Further, even if the activities were protected, the Defendant would have taken the same action even in the absence of the protected activity.
To make out a prima facie case for retaliation against prison officials, an inmate must prove that (1) he engaged in constitutionally protected conduct; (2) he suffered "adverse action" at the hands of prison officials; and (3) his constitutionally protected conduct was a substantial or motivating factor in the decision to discipline him. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Then the burden shifts to the defendant to prove by a preponderance of the evidence that he would have taken the same disciplinary action even in the absence of the protected activity. Id.
There is no question that Plaintiff was engaged in a protected activity when he filed a grievance against Defendant Sutton.Allah v. Al-Hafeez, 208 F. Supp.2d 520, 535 (E.D. Pa. 2002);Rivera v. Chesney, 1998 U.S. Dist. LEXIS 14619, *1 (E.D. Pa. Sept. 15, 1998). Therefore, it is immaterial whether of not he actually represented Inmate Myers in his defense of a misconduct issued by Defendant Sutton. Furthermore, Plaintiff has established that he suffered some "adverse action" at the hands of the Defendant. After he filed his grievance against Sutton, he was issued a Misconduct the following day. See Allah, 208 F. Supp.2d at 535 (holding that issuing a misconduct, regardless of the outcome, is sufficient to deter a person of ordinary fitness from exercising his constitutional rights). Lastly, it is abundantly clear that the Plaintiff has established the third element of the prima facie case by showing a causal link between the protected activity and the adverse action. "A suggestive temporal proximity between protected activity and an alleged retaliatory act may be sufficient to meet the causal link requirement of the prima facie case." Id. In this case, the misconduct was filed one day after Plaintiff filed his grievance. This temporal proximity is more than enough to satisfy this element. Thus, this Court finds that the Plaintiff has established the threshold elements of a retaliation claim against Defendant Sutton.
Now, the burden shifts to the Defendant to prove by a preponderance of the evidence that he would have taken the same disciplinary action even in the absence of the protected activity. This is an issue that must be determined by the factfinder. Based on the facts presented in this case, there is a dispute as to whether Defendant Sutton would have issued the misconduct even in the absence of the protected activity engaged in by the Plaintiff. There is, in fact, a dispute as to whether the underlying action charged in the Misconduct actually occurred. This issued should be presented to a jury. Therefore, the Defendants' motion for summary judgment on Count I — retaliation against Defendant Sutton in his individual capacity — is denied.
2. Count II
In Count II, Plaintiff alleges that Defendants Sutton and Bessie Williams, a unit manager at SCI-Graterford, refused to produce the surveillance videotape of the misconduct incident in retaliation against him for filing grievances against them. Defendants claim that Plaintiff's claims of retaliation must be dismissed because, (1) Plaintiff was not engaged in First Amendment protected activity and (2) even if Defendants had a `pertinent' retaliatory motive, they could avoid liability by showing that they would not have procured the tape, for nondiscriminatory reasons.
Plaintiff concedes that Defendant Mary Canino was mistakenly included in this claim for retaliation and that the claim should be dismissed as to Ms. Canino only. Defendant Canino had no personal knowledge of Plaintiff's requests for production of the June 11, 1997, E-Block surveillance tape.
To make out a prima facie case for retaliation against prison officials, an inmate must prove that (1) he engaged in constitutionally protected conduct; (2) he suffered "adverse action" at the hands of prison officials; and (3) his constitutionally protected conduct was a substantial or motivating factor in the decision to discipline him. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Then the burden shifts to the defendant to prove by a preponderance of the evidence that he would have taken the same disciplinary action even in the absence of the protected activity. Id.
As stated previously, Plaintiff engaged in a protected activity when he filed a grievance against Defendant Sutton on June 10, 1997. Defendants incorrectly identify Plaintiff's protected activity as the attempted procurement of the E-Block surveillance tape. Plaintiff suffered an adverse action at the hands of the Defendants when they refused to even attempt to procure the surveillance tape to aid in the Plaintiff's defense. Finally, the close temporal proximity between the protected activity and the adverse action suggests that the protected conduct was a substantial or motivating factor in their refusal to produce the videotape. Therefore, Plaintiff can establish a prima facie case retaliation against Defendants Sutton and Bessie Williams.
It has also been stated that Plaintiff filed grievances against Defendant Bessie Williams, which could have been a part of her retaliatory motive. Williams Dep. at 17; Rauso Dep. at 38-39.
Defendants allege that even if they had the retaliatory motive, they would not have procured the surveillance tape, for non-discriminatory reasons. Both Defendants testified that they were not aware of how to procure a surveillance tape, that they have never procured a surveillance tape, and that security maintains control over the surveillance tapes.
Given their lack of knowledge regarding procurement procedures as they pertain to surveillance tapes, neither Sutton nor Bessie Williams would have been able to procure the surveillance tape; they would not have been able to procure the tape regardless of the alleged retaliatory motive.Defs' Brief at 14. This Court finds that the question of whether the Defendants would have acted in the same manner absent the protected activity should be left to the factfinder to determine. It is unclear from this explanation whether the Defendants acted out of true ignorance or retaliation. It seems reasonable that the Defendants would have been able to ask someone about surveillance tape procedures, and the ignorance alleged by the Defendants seems to be selfinflicted. However, the jury should be the final arbitor of this issue. Therefore, Defendants' motion for summary judgment as to Count II against Sutton and Bessie Williams in their individual capacities is denied. Defendants' motion for summary judgment as to Count II against Defendant Mary Canino is granted.
Plaintiff mistakenly included Defendant Canino in this claim for retaliation.
3. Count IV
In Count IV, Plaintiff alleges that Defendant Mary Canino retaliated against him by finding him guilty of misconducts when he was, in fact, innocent. Using the same retaliation analysis stated previously, Plaintiff is able to establish all three necessary elements for a prima facie case of retaliation.
Plaintiff satisfies the first prong of the analysis because he was engaged in protected conduct. Plaintiff filed a lawsuit against Defendant Canino in 1996. Second, Defendant Canino took adverse action against the Plaintiff by finding him guilty of three misconducts after he filed his lawsuit. Plaintiff alleges that Canino predetermined his guilt before his hearings, in essence denying him the right to prepare and present a defense to those misconduct charges. Lastly, Plaintiff offers evidence that the filing of his lawsuit against Canino was a substantial motivating factor in her finding him guilty of three subsequent misconducts. Canino was aware that Plaintiff filed a lawsuit against her, and Plaintiff asked the Defendant several times to recuse herself from presiding over his misconduct hearings. Defendant refused. Therefore, Plaintiff has shown a prima facie case of retaliation against Defendant Canino.
Perhaps the most compelling reason that this claim should go forward to trial is that none of the allegations made by the Plaintiff above are challenged by the Defendant in her motion for summary judgment. In fact, the only argument posed by the Defendant is that Plaintiff's retaliation claims against Canino should be dismissed for failure to allege personal involvement in the ignored request to procure the surveillance tape of E-Block. Therefore, in light of the fact that Defendant has not disputed any of the alleged claims made by Plaintiff as relates to Count IV, Defendants' motion for summary judgment on Count IV — retaliation against Defendant Canino in her individual capacity — is denied.
C. Procedural and Substantive Due Process Claims
1. Counts V and VII — Procedural Due Process Claims
The Due Process Clause of the Fourteenth Amendment to the United States Constitution establishes a right to freedom from arbitrary actions. As the Supreme Court recognized in Sandin v. Conner, "[p]risoners . . . retain . . . protection from arbitrary state action even within the expected conditions of confinement." 515 U.S. 472, 487 n. 11, 115 S.Ct. 2293, 2302 n. 11 (1995). In the prison context, however, the Supreme Court has stated that "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Id. at 2301.
Under the Fourteenth Amendment, protected liberty interests may arise from the Constitution itself or may be created by state law. Johnston v. Vaughn, 2000 U.S. Dist. LEXIS 16447, *6 (E.D. Pa. Nov. 13, 2000). "An inmate has no liberty interest under the Due Process Clause to be classified in the general prison population." Id. However, a state-created liberty interest may exist if the correctional institution's action imposes an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484. "[A]n `atypical and significant hardship' under Sandin requires the examination of two factors: (1) the amount of time the prisoner was placed in disciplinary segregation; and (2) whether the conditions of his confinement in disciplinary segregation were significantly more restrictive than those imposed on other inmates in solitary confinement." Johnston, 2000 U.S. Dist. LEXIS 16447 at *7 (quoting Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000)).
In this case, the Plaintiff was sentenced to 119 days in disciplinary confinement. Even though this sentence was punitive in nature, it does not present a dramatic departure from the basic conditions of Plaintiff's sentence. Sandin, 515 U.S. at 485. In addition, after reviewing the differences enumerated by Plaintiff comparing disciplinary confinement to the general prison population, this Court finds that comparison to be irrelevant. As stated previously, as inmate has no liberty interest under the Due Process Clause to be classified in the general prison population.
Under Sandin, at the time of punishment, all that is required is that disciplinary segregation mirror those conditions imposed upon inmates in administrative segregation and protective custody. Id. at 586. According to the PA D.O.C. policies, the conditions imposed on inmates in disciplinary confinement, administrative custody and protective custody are virtually identical. Furthermore, Plaintiff has produced no evidence that the conditions placed on him were more onerous that those imposed on other inmates in disciplinary confinement. Johnston, 2000 U.S. Dist. LEXIS 16447 at *10.
Therefore, this Court finds that this case does not present the type of atypical and significant hardship in which a protected liberty interest exists. Because no protected liberty interest has been found, the issue of whether Plaintiff was given sufficient procedural safeguards need not be reached. Defendants' Motion for Summary Judgment on Counts V and VII is granted.
2. Count VI — Substantive Due Process Claim
"[T]o establish a substantive due process violation, the plaintiff must show that the conduct in question "shocks the conscience." Carter v. Kane, 938 F. Supp. 282, 285 (E.D. Pa. 1996). Defendants argue that substantive due process does not apply in the absence of a liberty interest, and does not apply unless the liberty interest is noted in the U.S. Constitution, and not just state law. Defs' Brief at 19. However, "the fact that a particular government decision does not implicate a constitutionally protected interest, such as a liberty or property interest, does not mean that there are no restrictions on the manner in which the government may make that decision. A governmental decision may still not be made in an `arbitrary or constitutionally impermissible' fashion." Jubilee v. Horn, 975 F. Supp. 761, 765 (E.D. Pa. 1997) (quoting Carter, 938 F. Supp. at 282.
In the alternative, Defendants argue that the state action taken in this case does not "shock the conscience." Plaintiff alleges that he was denied the right to a fair hearing on several occasions when Defendant Canino presided over his misconduct hearings. Prior to each of these hearings, Plaintiff made verbal and written requests to Defendant Canino requesting that she recuse herself because Plaintiff doubted Canino's ability to remain impartial in light of Plaintiff's pending litigation against her. Canino allegedly told Plaintiff that she would find him guilty in any subsequent misconduct hearing she presided over because of the pending litigation against her. Plaintiff was in fact found guilty in all following misconduct hearings before Defendant Canino. Defendant Canino claims that she would never predetermine an inmate's guilt.
As stated previously, Plaintiff has claimed Defendant violated his substantive due process right to an impartial hearing examiner. "Defendant can not prevail on his motion for summary judgment if there is a genuine issue of material fact as to whether defendant's conduct was impartial." Carter v. Kane, 1993 U.S. Dist. LEXIS 8828, *22 (E.D. Pa. June 30, 1993). It is clear to this Court that there is a genuine issue of material fact regarding whether Defendant Canino was an impartial hearing examiner. The answer to this question should be left to the factfinder. Therefore, Defendants' Motion for Summary Judgment on Count VI is denied.
D. Qualified Immunity
A state official is entitled to qualified immunity in his individual capacity under § 1983 if a reasonable official would have believed that his actions were proper under existing law.Anderson v. Creighton, 483 U.S. 635, 640, 97 L.Ed.2d 523, 107 S.Ct. 3034 (1987). Qualified immunity should be denied only if, in light of pre-existing law, the unlawfulness of an action should have been apparent. Mitchell v. Forsyth, 472 U.S. 511, 526, 86 L.Ed.2d 411, 105 S.Ct. 2806 (1985). Thus, the qualified immunity defense provides "ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 89 L.Ed.2d 271, 106 S.Ct. 1092 (1986). This Court must determine whether Defendants' conduct was "objectively reasonable" given the "clearly established" state of the law.Carter, 1993 U.S. Dist. LEXIS at *11-12.
Defendants argue that, objectively, any reasonable official in the Defendants' positions, at the time that they acted, could have believed that the actions taken were, in fact, lawful, and not proscribed by the Constitution in light of the existing law and the information possessed at the time that they acted. See McLaughlin v. Watson, 271 F.3d 566, 571 (3d Cir. 2001). Plaintiff responds by alleging that the Defendants have violated several of his clearly established and protected civil rights: namely, (1) First Amendment free speech rights; (2) procedural due process rights; and (3) substantive due process rights.
In Saucier v. Katz, 533 U.S. 194, 150 L.Ed.2d 272, 121 So. Ct. 2151 (2001), the Supreme Court enumerated the two-part inquiry a court must make in order to determine whether a state official is entitled to qualified immunity. First, do the facts alleged show the officer's conduct violated a constitutional right? Second, if a violation could be made out on a favorable view of the parties' submissions, the next step is to ask whether the right was a clearly established right. Id. at 201.
With respect to this claim, the right implicated under the first prong of the abovementioned test is the First Amendment right of prisoners to file grievances and petition the court. Therefore, Plaintiff has established the first prong of the test. See Atkinson v. Taylor, 316 F.3d 257, 269 (3d Cir. 2003) (stating that the right of prisoners to petition the court is a recognized constitutional right). As to the second prong of this inquiry, it is clearly established that a prisoner has a right to petition the court and file grievances against corrections officers so that a reasonable prison official would know that he violated this right if he retaliates against a prisoner for filing a lawsuit or a grievance. Id. Thus, the second prong of this analysis is satisfied and Defendants Sutton, Bessie Williams and Canino are not entitled for qualified immunity as to the retaliation claims in Counts I, II and IV.
Further, Defendant Canino is not entitled to qualified immunity for violating Plaintiff's substantive due process rights as alleged in Count VI. There is a "fundamental due process right to trial by an impartial arbiter." Carter, 1993 U.S. Dist. LEXIS 8828 at *17. In addition, "it is abundantly clear under Wolff — decided in 1974 — that the due process clause guaranteed inmates facing disciplinary proceedings an impartial examiner." Id. at *19 (citing Wolff v. McDonnell, 418 U.S. 539, 570-71 (1974).
E. Inmate's Right to Exercise Under State Law — Count X
In Count X, Plaintiff brings a claim for violation of his state law right to "a minimum of at least one hour of daily exercise five times a week." 61 P.S. § 101 (applying to prisoners in segregation). Plaintiff is seeking money damages to redress the alleged physical injury suffered because of the lack of exercise. Since Plaintiff has been paroled, he is no longer subject to the alleged adverse condition of which he complained and thus no injunctive relief is available to him.
The state law at issue here is a clear mandate that prisoners "shall" be permitted exercise. 61 P.S. § 101. However, the law contains no express enforcement provision permitting private suits for money damages, nor has it been applied that way.DeHart v. Horn, 694 A.2d 16, 18 (Pa.Commw. 1997) (finding inmates' challenge rendered moot and no other remedy allowable under law after exercise yard that had been closed for construction was re-opened); see also Inmates of B-Block v. Jeffes, 470 A.2d 176 ( Pa. Commw. 1983), aff'd 475 A.2d 743, 504 Pa. 509 (Pa. 1984) (stating that mandamus granted to compel compliance with state law); Inmates of B-Block v. Marks, 434 A.2d 211 (Pa.Commw. 1981) (holding that inmates entitled to writ of mandamus).
Plaintiff's claim was initially filed while still in custody at SCI-Graterford, when injunctive relief was available to him. Since he has been paroled, his claim is moot. Furthermore, Plaintiff has failed to allege any compensable physical injuries as a result of his denial of exercise while in confinement. Therefore, the Court will grant Summary Judgment as a matter of law as to Count X for all Defendants named in the complaint.
F. Discrimination in Violation of the Americans with Disabilities Act (ADA) — Count XI
Plaintiff alleges that he was discriminated against in violation of 42 U.S.C. § 12132 by Defendants Alan Castor, a member of the Pennsylvania Commission on Parole and Probation ("P.C.P.P."), and Barbara Desher, a hearing examiner for the P.C.P.P., because of his disability of prior drug addiction. "No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity." 42 U.S.C. § 12132. These prohibitions apply to the state prisons.Pennsylvania Dep't of Corrections v. Yersky, 524 U.S. 206, 209 (1997). Plaintiff claims that he is a recovering drug addict with a record of drug addiction, thus making him a "qualified individual with a disability" under the ADA. Plaintiff states that Defendants discriminated against him based on his disability by making an adverse determination against him in a parole proceeding because of his lack of participation in a drug program.
The ADA defines the term "disability" as: (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual, (2) a record of such impairment, or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(2). If is not disputed that the plaintiff is a recovering drug addict, therefore, this Court will find that the Plaintiff is "disabled" as defined under the statute.
Even though Plaintiff can establish that he is disabled, this claim must be dismissed. The Plaintiff has alleged no physical injury from his denial of parole. According to the Prisoner Litigation Reform Act (" PLRA"), any claims for compensatory damages for a violation of the Plaintiff's rights under the ADA are barred because he does not identify any possible physical injury. PLRA § 1997e(e). Consequently, the Plaintiff would only be entitled to injunctive or declaratory relief on this ADA claim. However, since the Plaintiff has been paroled, injunctive relief is no longer available. Therefore, Plaintiff's ADA claim is moot. Defendants' motion for summary judgment as to Count XI is granted.
CONCLUSION
For the foregoing reasons, Defendants' Motion for Summary Judgment is granted in part and denied in part. An appropriate order follows.
ORDER
AND NOW, this ____ day of March, 2004, upon consideration of Defendants' Motion for Summary Judgment (Doc. 55), Plaintiff's Response (Docs. 65 66) and Defendants' Reply (Doc. 67), IT IS HEREBY ORDERED AND DECREED that Defendants' Motion is GRANTED IN PART AND DENIED IN PART. IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment as to:
1. Counts I, II, IV, V, VI, VII and IX against all Defendants in their official capacities is GRANTED.
2. Counts I, II and IV against all Defendants in their individual capacities is DENIED.
3. Counts V and VII against all Defendants is GRANTED.
Summary Judgment against Defendant Canino in Count II is granted. Plaintiff mistakenly included Defendant Canino in this claim for retaliation.
4. Count VI against Defendant Canino is DENIED.
5. Counts X and XI against all Defendants is GRANTED.