Before: SLOVITER, AMBRO and STAPLETON, Circuit Judges
(Opinion filed: April 6, 2009) *3 ___________
OPINION
___________
PER CURIAM
Dennis McKeithan, a prisoner at SCI Coal Township, appeals from orders of the [1] District Court granting certain defendants’ motion to dismiss and summary judgment to the remaining defendants. McKeithan filed the underlying § 1983 action asserting that prison officials and prison medical staff had violated his constitutional rights under the First, Eighth and Fourteenth Amendments.
McKeithan sued over twenty employees of the Department of Corrections (“DOC defendants”) and three medical personnel, not employed by DOC (“medical defendants”). The medical defendants, including two physicians assistants, Chris Meyer and L. Yarcgwer, as well as one physician, Dr. Herbik, moved to dismiss the complaint. The District Court granted the motion as to Meyer and Yarcgwer. Following discovery, the Magistrate Judge recommended granting summary judgment in favor of all remaining defendants and denying summary judgment to McKeithan. The District Court adopted these R&Rs, granted summary judgment to the defendants and denied McKeithan’s motion. McKeithan timely appealed. [2]
*4 A. Motion to Dismiss
McKeithan alleged that Meyers and Yarcgwer denied him previously-prescribed
treatment for his dry skin, gas and hemorrhoids without a doctor’s approval and in
violation of the Eighth Amendment. To state a claim under the Eighth Amendment,
McKeithan was required to allege that defendants were deliberately indifferent to his
serious medical condition. See Farmer v. Brennan,
We will affirm the District Court’s dismissal of McKeithan’s claims regarding treatment for gas, which we do not believe is a serious medical condition under the Eighth Amendment. On appeal, McKeithan suggests that he mischaracterized his condition as “gas,” when it was actually “gastritis,” or inflammation of the stomach. However, McKeithan offered a fuller description of his condition for the first time on appeal. Notably, in his response to the medical defendants’ motion to dismiss, McKeithan does *5 this reason, we will vacate the dismissal of McKeithan’s claims that Meyers and Yarcgwer unconstitutionally denied him medical treatment for eczema.
McKeithan also alleged that Meyers and Yarcgwer violated due process by charging him co-payments for medications for his dry skin and gas, despite prison regulations prohibiting personnel from charging co-payments for medicines to treat pre- existing or chronic conditions. To state a claim for due process, an inmate must allege “(1) that the state deprived him of a protected interest in life, liberty, or property and (2) the deprivation occurred without due process of law.” Burns v. Pa. Dep’t of Corr., 544 F.3d 279, 285 (3d Cir. 2008). A prisoner has a protected property interest in the funds in his prison account, as well as the right to security in that account. Id. at 291. Therefore, McKeithan has properly alleged the first prong of the due process test, and the only question is whether the deduction of co-payments occurred without adequate procedural safeguards. Because the District Court analyzed McKeithan’s claim under the Eighth Amendment instead of due process, we will vacate and remand for consideration of how much process is due prior to the deduction of co-payments in apparent violation of DOC not use the term “gastritis.” Instead, he repeatedly refers to his condition as “gas” and even mentions his use of the antacid known as “Tums.” Although McKeithan labels his condition as “gastritis” in his objections to the Magistrate Judge’s R&R recommending dismissal of this claim, he offers no description of the condition and no argument as to why dismissal on this particular claim was improper. Instead, his objections focus almost exclusively on his eczema and angina. (See Dkt. # 76, Pl’s Objections to Part of R&R.) *6 regulations.
B. Summary Judgment
McKeithan also appeals from the District Court’s decision to grant summary
judgment to all defendants and to deny summary judgment to McKeithan. He primarily
challenges his placement in the LTSU at SCI Fayette as a violation of due process. He
asserts that officials falsified evidence to justify his placement in the LTSU in retaliation
for his prior grievances. Routine transfers to administrative segregation do not impinge
on liberty interests protected by the Due Process Clause unless the conditions in
administrative segregation present an “atypical and significant hardship in relation to the
ordinary incidents of prison life.” Sandin v. Conner,
Due process does not require prior notice of a transfer where the post-transfer
periodic review of an inmate’s placement in segregation provides the inmate with a
meaningful opportunity to challenge the grounds of his continued segregation. Shoats v.
*7
Horn,
McKeithan also asserts that prison officials violated due process by allegedly
falsifying his disciplinary record. Due process requires only that a prisoner have an
opportunity to rebut the allegedly false accusations and evidence. Smith v. Mensinger,
*8 after his transfer, which offered him ample opportunity to raise his concerns regarding his disciplinary history, summary judgment was proper as to this claim.
McKeithan also asserts a retaliation claim in connection with his placement in the
LTSU. A prison official’s act of filing false misconduct reports in retaliation for First
Amendment protected activity may violate an inmate’s right of access to the courts. See
Allah v. Seiverling,
Defendants have proffered significant evidence that placing McKeithan in the
LTSU advances a legitimate penological interest, namely, containing McKeithan’s
persistent misconduct and criminal activity within the prison. (See DOC Deft.’s Mot.
Summ. J., Ex. 5 (psychological assessment), Ex. 6 (memo from Wynder and Lyons); Ex.
show that he is a member of a protected class, such as a racial or religious group. Bradley
v. United States,
8 (misconduct report describing McKeithan’s assault on a correctional officer)). Therefore, McKeithan’s retaliation claim fails.
McKeithan asserts that prison officials violated due process by transferring him
out of the LTSU and into the Special Management Unit, or SMU, instead of into the
general population, without notice or an opportunity to contest the reasons for the
transfer. (See Suppl. Compl., ¶ 15.) He also contends that defendants assigned him to the
SMU in retaliation for filing a complaint regarding his placement in the LTSU.
Defendants asserted in the District Court that McKeithan failed to exhaust this grievance,
#170024, by failing to appeal. A prisoner must complete the administrative review
process available at the prison level to satisfy the exhaustion requirement of the PLRA.
Williams v. Beard,
McKeithan next asserts that prison officials deprived him of his right to call *10 witnesses and present evidence at his disciplinary hearings, in violation of due process. McKeithan alleges that in one instance, defendant Van Fossen conducted a cell search and accused McKeithan of carrying a wood shank in one of his boots. McKeithan contends that Van Fossen tugged at the sole of his boots in order to plant a weapon there after the cell search, and that a videotape of the search itself would reveal no shank. McKeithan sent his attorney an identical boot, and his attorney created a videotape of himself opening the sole of the boot and digging a wooden shank from deep inside the heel, suggesting that the shank was part of the boot’s structure, not a weapon. (Pl.’s Opp’n to Deft’s Mot. Summ. J., Ex. 28.) McKeithan contends that defendant McKweon violated due process when she failed to view the videotape of the cell search or his attorney’s videotape in the course of adjudicating this misconduct charge. He also contends that McKweon denied him the opportunity to call witnesses in his defense.
A prisoner has a right to call witnesses and present evidence at disciplinary
hearings limited by the “broad discretion of prison officials to refuse witness requests that
conflict with the need to maintain order in the institution.” Woods v. Marks, 742 F.2d
770, 773 (3d Cir. 1984). Due process, however, may require prison officials to consider
existing documentary evidence relevant to a charge against a prisoner. Young v. Kann,
In the case at bar, prison officials explained that, although the cell search may have
been videotaped, the moment at which Van Fossen found the shank – after the search –
had not. Therefore, the tape of the cell search was immaterial. McKeithan’s attorney’s
videotape and photographs, in contrast to the letter in Young, are not primary evidence
regarding the charges against McKeithan. Rather, the videotape and photographs at most
constitute potentially exculpatory evidence, which prison officials have no constitutional
obligation to preserve or consider. See Griffin v. Spratt,
(due process does not require prison officials to preserve allegedly intoxicating beverages brewed by prisoner, even though beverage sample may have constituted exculpatory evidence valuable to the prisoner). McKweon also concluded that McKeithan’s proposed inmate witness was not needed to determine the facts, and McKeithan offers only bald assertions in response. (See DOC Deft.’s Mot. Summ. J., Ex. 15, at 3-4.) As a prisoner does not have an absolute right to call witnesses, and officials had no obligation to consider the videotape, this claim fails.
McKeithan next asserts that defendant Carol Scire restricted his ability to file
grievances, in violation of his constitutional rights. Scire allegedly labeled five of
McKeithan’s grievances “frivolous,” even though McKeithan allegedly won at least one
*12
of those grievances, which demonstrates that the grievance had merit. As a prisoner has
no free-standing constitutional right to an effective grievance process, McKeithan cannot
succeed on this claim under either the First or the Fourteenth Amendment. See Flick v.
Alba,
McKeithan also asserts several Eighth Amendment claims against DOC
defendants. He first contends that defendants denied him the proper means for caring for
his nitroglycerin tablets, and that defendant Tretinik falsely reported that McKeithan’s
echocardiogram was normal. As to the nitroglycerin tablets, defendants proffered
undisputed evidence that McKeithan was instructed about how to maintain his tablets in
the envelope provided. (DOC Deft.’s Mot. Summ. J., Ex. 21, at 1.) Thus, the record does
not support a conclusion that any DOC defendants possessed the requisite scienter to
harm McKeithan. McKeithan also failed to carry his burden that Tretinik’s statements –
whether true or false – had any adverse effect on him, as he subsequently underwent
another echocardiogram. (DOC Deft’s Mot. Summ. J. Ex. 22 at 1-2.) McKeithan also
failed to adduce any evidence that he has a serious pulmonary condition that Dr. Herbik
ignored. For these reasons, McKeithan’s claims against Tretinik and Herbik fail.
[9]
*13
McKeithan also asserts that the conditions of confinement in the LTSU violated
the Eighth Amendment. McKeithan asserts that “psychotic inmates [ ] throw body feces
in the showers, exercise cages, and air vents. Body feces, urine and other body fluids
would be thrown on you through the gates of the showers and exercise cages . . . .”
(Appellant’s Br., at 27.) He contends that defendants Zaken and Wilson moved him into
cells next to or in the same vent as some of “the worst psychotic inmates.” (Id.)
Although the District Court concluded that such allegations do not “even arguably rise[]
to the level necessary to state an Eighth Amendment claim[,]” we believe that such
conditions are sufficiently serious to state a claim. See, e.g., Vinning-El v. Long, 482
F.3d 923, 925 (7th Cir. 2007) (allegations of cell floor covered with water, a broken
toilet, feces and blood smeared on the wall, and no mattress to sleep on, stated Eighth
Amendment claim); McBride v. Deer,
We also believe that the record contains evidence from which a reasonable jury could have found that the conditions in the LTSU violated the Eighth Amendment. In response to defendants’ motion for summary judgment, McKeithan submitted an unsworn affidavit of a fellow inmate, who described troubling conditions in the LTSU, including, but not limited to, prisoners placing feces in the air vents, flooding “the tier” with feces, and banging on the doors and sinks for days on end. (Pl’s Opp’n to Deft’s Mot. Summ. *14 J., Ex. 10.) The affidavit also states that prisoners eat their own feces, spread feces all over themselves and then stand at the door. (Id.). We note that deliberate indifference
may be demonstrated through circumstantial evidence, and that McKeithan has alleged
facts from which a reasonable jury could have concluded that prison officials were aware
of these conditions and failed to rectify them. Vinning-El,
Notes
[1] At the time he filed suit, McKeithan was incarcerated at SCI Fayette.
[2] We have jurisdiction under 28 U.S.C. § 1291. We review orders granting a motion to
dismiss or summary judgment de novo. Phillips v. County of Allegheny,
[4] Our case law establishing that the policy of charging prisoners fees for medical
services does not violate the Eighth Amendment per se is inapposite because McKeithan
asserts that the co-payments violate due process, not the Eighth Amendment. See Tillman
v. Lebanon County Corr. Facility,
[5] McKeithan alleges but does not proffer evidence that these hearings were a sham.
[6] We reject McKeithan’s assertion that his placement in the LTSU violated the Equal Protection Clause. To assert a claim for a violation of equal protection, McKeithan must
[7] For the same reason, McKeithan’s motion for summary judgment on this claim was properly denied. McKeithan asserts that the District Court granted summary judgment on this claim “sua sponte,” but the record reflects that defendants requested summary judgment on this claim. (See DOC Deft’s Mot. Summ. J. at 16 n.10.)
[8] McKeithan has not argued that Scire’s conduct prevented him from exhausting his administrative remedies in compliance with the PLRA.
[9] For the reasons offered by the District Court, we agree that McKeithan’s claims
against Herbik in his capacity as a supervisor (e.g., for allegedly rubberstamping the work
of Meyers and Yarcwerger) must fail because § 1983 does not provide for supervisory
liability. Rode v. Dellarciprete,
[11] McKeithan asserts that summary judgment was improper because discovery was incomplete, but he fails to identify the facts that he seeks to prove through additional discovery, as required by Fed. R. Civ. P. 56(f).