ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court are (1) Plaintiff Anthony James Moore’s Motion for Summary Judgment filed on December 19, 2006; and (2) Defendant Timothy Schuetzle’s Motion for Summary Judgment filed on April 19, 2007. A response to the Plaintiffs motion was filed by Schuetzle on April 13, 2007, and a response to the Defendant’s motion was filed by Moore on April 24, 2007. For the reasons set forth below, the Defendant’s motion for summary judgment is granted and the Plaintiffs motion for summary judgment is denied.
I. BACKGROUND
The plaintiff, Anthony James Moore, is an inmate at the North Dakota State Penitentiary (NDSP) in Bismarck, North Dakota. On October 2, 2006, Moore filed a pro se complaint alleging that the Warden of the North Dakota State Penitentiary, Timothy Schuetzle, and the Fargo Police Department had violated his civil rights pursuant to 42 U.S.C. § 1983. See Docket No. 2. On October 10, 2006, Moore filed an amended complaint and sought to include a claim against an agent of the North Dakota Bureau of Criminal Investigation (BCI). See Docket No. 3. On November 13, 2006, Moore sought to again amend the complaint to add another claim against Schuet-zle for opening Moore’s legal mail and to bring a new claim against the United States Postal Service. See Docket No. 16. The Court severed the two claims against the BCI agent and the Fargo Police Department, denied the motion to amend the complaint to join the United States Postal Service as a defendant, and granted the motion to bring a fourth claim against Schuetzle. See Docket No. 26. On December 19, 2006, Moore filed a second amended complaint along with a motion for summary judgment. See Docket Nos. 33 and 34. On April 19, 2006, the Defendant filed a motion for summary judgment and on April 20, 2007 filed an amended motion for summary judgment. See Docket Nos. 65 and 70.
A. AN OVERVIEW OF GRIEVANCE PROCEDURE
The Department of Corrections has issued an Inmate Handbook to each inmate at the North Dakota State Penitentiary. See Docket No. 61-1, ¶ 5. The Inmate Handbook provides the procedures that an inmate must follow to file a grievance. See Docket No. 61-22. The procedures require an inmate to initially attempt to resolve the grievance informally by talking to the individual or individuals who are the subject of the grievance or control the remedy for the grievance. If the attempt to informally resolve the problem is not successful, the inmate can file a “Step One Grievance” within fifteen (15) days of the alleged incident. The grievance form is submitted to the inmate’s case manager who investigates the grievance and responds to the inmate. If the inmate is not satisfied with the response from the case manager, the inmate can appeal to the warden in a “Step Two Grievance.” If the inmate is not satisfied with the warden’s response, the inmate may appeal to the Director of the Department of Corrections and Rehabilitation.
The grievance procedure also provides that a grievance may be submitted directly to the director of the Department of Corrections and Rehabilitation if the grievance is of a particularly sensitive nature or may
B. MOORE’S CLAIMS
Moore has alleged four claims: (1) that his confinement in administrative segregation violates his Eighth Amendment rights; (2) that prison officials have used excessive force in violation of his Eighth Amendment rights; (3) that prison officials have retaliated against him for participating in the prisoner grievance system; and (4) that prison officials have opened his legal mail outside of his presence. Each claim will be addressed in turn.
1) ADMINISTRATIVE SEGREGATION
Moore was placed at the North Dakota State Penitentiary on January 29, 2002, as a result of a state conviction of gross sexual imposition, with force. See Docket No. 61. Since his arrival at the NDSP, Moore has been a difficult prisoner and has been placed in administrative segregation on nine separate occasions because of his inability to control his behavior. Id. ¶ 4. On September 22, 2006, Moore was placed in administrative segregation and has remained there since September 2006, because of his apparent inability to satisfy the behavior requirements for his return to the general population.
In his affidavit, Moore provides that he “is currently in tremendous Pain and suffering in my knees, pain in back and In entire physical body.” See Docket No. 64 (errors in original). Moore contends that he has “Degenerated and deteriorated physically due to Being in administrative segregation inactive 23 Hours out of a 24 hour period day.” Id. (errors in original).
On October 9, 2006, Moore was disciplined for writing a sexually harassing letter to a female correction officer. See Docket No. 61-16. Moore appealed the disciplinary action to the warden by filing a “Step Two Grievance.” In his grievance, Moore made no mention of the underlying offense or sanction, but instead complained of his placement in administrative segregation. Moore wrote that his placement in administrative segregation “causes physical pain, suffering and degeneration and deterioration being inactive 23 hours out of a 24 hour period day.” Id. In addition, Moore stated “[t]hese are atypical and significant hardship in relation to the ordinary incidents of the prisoner’s life.” Id.
On October 26, 2006, Moore sent a letter to Leann Bertseh, the Director of the Department of Corrections and Rehabilitation, requesting that he be released from administrative segregation. See Docket No. 61-3. In his letter, Moore stated that “[w]hile in Administrative Segregation Department prisoners obviously degenerate and deteriorate physically and mentally and suffer in tremendous daily pain from being inactive 23 hours out of a 24 hour period day.” Id.
On October 30, 2006, Director Bertseh responded and stated that Moore would be reviewed for release from administrative segregation in accordance with prison policies.
Id.
at 4. After receiving the denial, Moore chose to bypass the grievance procedure and again sent a grievance directly to Director Bertseh claiming that, because it was a sensitive nature, he could not go through the regular procedures.
Id.
at 5. In this grievance, Moore again stated that prisoners, “while in administrative segregation degenerate and deteriorate physically, mentally, emotionally and suffer in pain being inactive 23 hours out of a 24
Inmates placed in administrative segregation receive one hour per day of outdoor recreation for five days per week. See Docket No. 68, ¶ 4. In addition, Moore can leave his cell to take three 15-minute showers per week, to meet with the law librarian on the administrative segregation unit, to go to the infirmary for medical treatment, to make telephone calls, and to have his hair cut. Id. at ¶ 9. Many inmates housed in administrative segregation spend a number of hours per day exercising, including yoga, jumping jacks, sit-ups, weight lifting (using books as weights), and running in place. Id. at ¶ 8.
2) EXCESSIVE FORCE
Moore contends that the correctional officers at the NDSP have used excessive force when applying and removing handcuffs. Moore states that when the “employees escort the plaintiff anywhere they purposely place and remove the handcuffs as an attempt to break the plaintiffs wrist that v causes serious injury and sever pain and suffering, ... that the plaintiffs wrist have been seriously injured and are in severe pain.” See Docket No. 35 (errors in original). Moore further provides:
the plaintiff has complained to the north dakota state penitentiary administrative segregation employees and officials of the administrative segregation employees attempting to break his wrist upon the placement and removal of handcuffs on or off the plaintiff that have they have done absolutely nothing about the complaints from the plaintiff or of the complaint and documentation of pain and suffering.
Id. (errors in original).
On March 13, 2006, Moore filed a grievance claiming that two correctional officers used excessive force in removing his handcuffs through the slot in his administrative segregation cell door. 1 See Docket No. 61-4. In the response to Moore’s “Step One Grievance,” Moore was informed that the officers had placed the cuffs on with the key holes facing up the arm, which is standard procedure for transports. Id. Because the key holes faced up the arm, the officers had to twist the cuffs to reach the key hole. Id. Moore failed to report this injury to the officer working that day or to the medical staff who were on the unit and saw him that day. Id.
On March 20, 2006, Moore filed another grievance in which he claimed the staff used excessive force.
See
Docket No. 61-5. Moore contends that correctional officer Jason Banks “caused excruciating pain as he removed handcuffs through the cell slot door. He continued to grab my wrist after my cuffs were removed and would not allow or let my right hand go until he was finished inflicting terrible pain.”
Id.
Moore contends that Banks attempted to break his wrist by twisting it.
Id.
Moore then filed an inmate request to see a doctor and claimed that it felt like his right hand was broken.
See
Docket No. 61-6. Moore was allowed to see a doctor and the doctor examined and took an x-ray of Moore’s right hand. The doctor concluded
3) RETALIATION
a. TAGHON INCIDENT REPORTS
On October 11, 2005, Beth Taghon, a nurse at the North Dakota State Penitentiary, filed an incident report against Moore for insolence to a staff member. See Docket No. 61-8. The incident report claimed that Moore had filed a complaint with the North Dakota Board of Nursing and described Taghon as “a wicked low down conniving spiteful wench.” Id. In his complaint, Moore has alleged that Taghon refused to provide medical care to prisoners who need the care. See Docket No. 61-7.
Moore does not claim that Taghon has refused to provide him with medical care. Instead, Moore claims that Taghon refuses to give prisoners who seek help any assistance and does so with a “hateful and demeaning tone and action.” Id. Moore also claims that Taghon is a “compulsive, impulsive, habitual pathological liar.” Id. Finally, Moore claims that Taghon gave an inmate the wrong medication and thought it was funny, has failed to provide an inmate with prescribed medication, and that Taghon will tell an inmate that she will put his name on doctor call, but does not do it. Id.
The disciplinary committee found Moore guilty of insolence to a staff member for filing insolent statements about Taghon. See Docket No. 61-8. Moore appealed to Warden Schuetzle, claiming that it was issued in retaliation for exercising his rights to file a “Step One Grievance” against Taghon. Warden Schuetzle denied the appeal on the grounds that Moore’s allegations were fabricated. Moore then appealed the “Step Two Grievance” to Director Bertsch. In denying the appeal, Bertsch stated that “[Moore] sent a complaint to the Board of Nursing in which you made false, misrepresentative, and defamatory statements about a Penitentiary nurse.” Id. Bertsch also denied that the “proceedings were retaliatory” and stated that “[i]t is not retaliatory to discipline an inmate for an actual violation of Penitentiary rules.” Id.
On January 9, 2006, Moore sent another complaint to the Board of Nursing concerning Taghon. See Docket No. 61-9. In his complaint, Moore alleged that Ta-ghon does not wash her hands after using the bathroom, and graphically complained of Taghon’s sanitary habits. Moore also alleged that Taghon made crude sexual comments and that she has performed various sexual acts with prisoners and colleagues. 2 Id. Moore does not claim that he has personal knowledge of these actions.
On January 26, 2006, Warden Schuetzle issued an incident report against Moore based on the content of Moore’s complaint to the Board of Nursing about Taghon. See Docket No. 61-10. In the incident report, Schuetzle states that Moore has no corroborating evidence for any of his allegations, and that Moore filed the complaint in retaliation for Taghon filing an earlier incident report against Moore on October 9, 2005. See Docket No. 61-10. Moore refused to discuss the report with the investigating captain and refused to appear at the disciplinary hearing. The disciplinary committee found Moore guilty of sexual harassment toward Taghon.
Moore appealed the finding, and his appeal was reviewed by the acting deputy warden of operations because Warden
b. KLIMPEL INCIDENT REPORT
On November 21, 2005, Moore filed a grievance against officer Darcy Klimpel claiming that Klimpel antagonized and provoked Moore by following him into the men’s bathroom “every time that he sees me.” See Docket No. 61-11, p. 4. Moore claimed that Klimpel just “stares” at him. Id. In the grievance form, Moore states “[rjemedy requesting is no assault charges, at the Burleigh County District Court for any actions from me are clearly out of self defense, and not those of the agressor (sic).” Id.
Klimpel contends that “Moore is not accurately describing the incident.” See Docket No. 61-11, p. 4. In his response to the “Step One Grievance,” Klimpel explained that the single incident occurred approximately three weeks prior to the complaint and that he had been doing rounds and had walked into the women’s bathroom. 3 After Klimpel walked into the women’s bathroom, Klimpel stated that Moore suddenly looked out of the stall “in a quick manner.” Id. Klimpel stated that he found this unusual and stated that “Moore then began to stare at me trying to use psychological intimidation.” Id. Klimpel stated that he twice asked if he could help Moore with anything.
On November 22, 2005, Moore appealed the grievance to Warden Schuetzle and again requested the remedy that no charges be brought against him for a future assault on Klimpel. Schuetzle responded by stating that Klimpel was performing his security duties by checking the rest rooms and by reminding Moore that he is “on a behavior contract, recently out of AS, and require (sic) careful supervision.” Id.
On November 23, 2005, Klimpel filed an incident report charging Moore with “threat to a staff member” for the statements Moore made in his grievance about a future assault. See Docket No. 61-12. Moore refused to attend the adjustment committee hearing. Id. at 4. Moore was found guilty of the charge and appealed the decision to Warden Schuetzle claiming that Klimpel’s filing of the incident report was done in retaliation for Moore’s filing of a grievance against Klimpel, which was a protected constitutional right. Id. at 3. Moore also stated that the incident report must be dismissed and Klimpel reprimanded. Schuetzle responded that the report was not in retaliation, “but [was] for the language and threats [Moore] made in the grievance.” Id. Schuetzle also stated:
You retain the right to file grievances, but these must be addressed in a respectful, honest manner, without name calling or threats. The grievance process is not intended to be used by inmates as a way to take “free shots” at staff under the guise of your 1st Amendment right of free speech.
Id.
On December 2, 2005, Moore appealed Warden Schuetzle’s decision to Director Bertsch. Bertsch denied Moore’s appeal and stated “[t]he fact that you call a threat a grievance does not mean that you did not make the threat. When considering the number of class A incident reports in your institutional record, your statement is appropriately considered a threat.” Id. at 1.
c. SAYLER INCIDENT REPORT
On January 9, 2006, officer James Say-ler filed a minor rule infraction report against Moore for failing to obey orders. See Docket No. 61-14, p. 8. The report indicates that Moore attempted to remove tape and toilet paper from the trash in the infirmary and bring them to his cell. Dr. Hagan and officer Sayler repeatedly instructed Moore that he could not have the tape but Moore continued to walk out of the doctor’s office. Moore ultimately complied with Sayler’s order after attempting to “stare” Sayler down and calling him a “weak minded individual.” Id.
On January 16, 2006, Moore filed a “Step One Grievance” against officer James Sayler. Id. at 7. In his grievance form, Moore stated:
Sayler asked me can he please perform fellatio on me and said to me, do not tell anyone that I asked you this, keep it between us, then he continued to ask me do I have more than 6 inches of cock, then Mr. Saylor (sic) rubbed on my penis and said to me oooh, I know you do, dam you, dam you, you negro buck.
Id. On January 17, 2006, Case Manager Steven Foster responded to Moore that he would not allow him to file frivolous grievances against staff. Foster also told Moore that if he did not provide some specifics about the incident and the evidence of its occurrence, that Foster would file an incident report against Moore.
Moore did not respond to Foster’s request for information about the incident. On January 24, 2006, Foster went to see Moore and asked where the alleged incident took place. See Docket No. 61-14, p. 3. Moore claimed the incident occurred at the infirmary while Moore was visiting the doctor. Moore contends that Foster never spoke to him on January 24, 2006. See Docket No. 35. Foster questioned the staff who were present as well as two inmates whose cells were within hearing distance to where the alleged incident took place. All parties questioned said that they neither heard nor saw any inappropriate behavior by Sayler towards Moore. During the course of his investigation, Foster learned that Moore had become upset with Dr. Hagan and Sayler earlier in the week and that Moore had “tried to intimidate officer Sayler before finally complying with the order” to discard tape that Moore was not allowed to have. Id. Foster found that the “grievance [was] clearly in retaliation for receiving a report from COII Sayler and is designed to intimidate, embarras (sic) and harass the officer.” Id.
On January 28, 2006, Foster filed an incident report charging Moore with (1) making a threat to a staff member; (2) sexual harassment; and (3) false testimony presented to staff. Moore refused to attend the adjustment committee hearing and was found guilty of all three charges. Warden Schuetzle and Director Bertsch denied Moore’s appeals. Warden Schuet-zle found that Moore’s grievance was not filed in good faith and that it was done to humiliate the staff. In the denial of Moore’s appeal, Warden Schuetzle said “I also believe you derive perverse pleasure
d. VOEGELE INCIDENT REPORT
Moore contends that the fourth instance of retaliation was by Warden Schuetzle for Moore’s filing of a grievance against Schuetzle directly with Director Bertsch. See Docket No. 34, p. 4. On August 22, 2006, Moore bypassed the grievance procedure and submitted a grievance directly to Director Bertsch. See Docket No. 33-19. In his summary of the grievance, Moore wrote:
Against Timothy Schuetzle for instructing and directing all subordinates not to respond to any grievances that I submit. This grievance is of a very sensitive nature and I fear possible adverse effects for it is known at the institution.
Id. On September 19, 2006, Director Bertsch returned the grievance form to Moore and stated that it was not necessary to file the grievance directly to Bertsch and bypass the established grievance procedure. See Docket No. 33-20. Moore contends that Warden Schuetzle retaliated against him for filing this grievance with Bertsch and by subsequently placing Moore in administrative segregation on September 26, 2006. See Docket No. 34, p. 4.
On September 21, 2006, Moore wrote a lengthy letter to a female correctional officer, Marie Voegele, in which he asked her to arrange to meet him privately, where no one would detect them. See Docket No. 61-15. Moore described the purpose of the meeting as follows: “It is to hug you, to put my arms around you hold you closely a mature sophisticated full grown woman. I think that you can handle this gentle affectionate embrace and ripe expressing of a strong desire for something.” Id. Moore also said that “there is no other woman that I desire and want to hug except you.” Id. Moore told Voegele not to show the letter to anyone else because he would probably get in trouble and that she might also. Id.
On September 22, 2006, Voegele filed an incident report against Moore for handing her the letter soliciting a private meeting. See Docket No. 61-16, p. 10. In the report Voegele states that she tried to refuse the note and Moore insisted that she take the note and said that “it’s not bad” and that she was “not to tell anyone.” Id. Moore admitted that he gave the note to Voegele and did not consider the letter to be significant because he thought “she was mature enough that I could write to her about anything.” Id. at 13.
On September 25, 2006, the adjustment committee found Moore guilty of sexual harassment and disorderly conduct. Id. at 12. On September 26, 2006, Warden Schuetzle approved the adjustment committee’s decision and placed Moore in administrative segregation. Moore then filed an appeal of the adjustment committee’s finding to the warden. Id. at 9. On September 27, 2006, Warden Schuetzle denied Moore’s appeal and noted that it was Moore’s fourth incident report for sexual harassment “only this time you weren’t making inappropriate sexual comments to or about staff, you were trying to solicit sexual contact with female staff.” Id. Warden Schuetzle further noted that “[gjiven your crime [GSI with force], I view this as even (sic) more serious offense ... I believe that this behavior is a serious threat to facility security and to staff safety.” Id.
Moore appealed Warden Schuetzle’s decision to Director Bertsch. After consultation with the department’s legal counsel, Bertsch returned the incident report to the adjustment committee for a rehearing to
Moore again appealed the committee’s decision and Warden Schuetzle and Director Bertsch upheld the decision. In his appeal, Moore states: “the decision by Warden Timothy Schuetzle to place me into administrative segregation is done out of sheer retaliation against me for filing and submitting a grievance to the director of corrections and rehabilitation Leann K. Bertsch against Warden Timothy Schuet-zle.” Id. at 2. Essentially, Moore contends that his placement in administrative segregation on September 26, 2006, was made by Warden Schuetzle in retaliation for an earlier grievance against the warden that Moore filed directly with Director Bertsch on August 22, 2006. To support his contention, Moore goes on to state: “[t]here is absolutely no evidence of any sexual harassment or let along any disorderly conduct as charged in the unnecessary class A incident report.” Id.
4) BACKGROUND CONCERNING MOORE’S LEGAL MAIL
Moore also alleges that officials at the NDSP opened his legal mail on five separate occasions. Moore contends that penitentiary officials opened his mail outside of his presence on August 10, 2005, and October 30, 2006. See Docket No. 34, p. 5. Moore also contends that penitentiary officials opened his mail outside of his presence on three occasions by “tearing into the legal mail envelopes to see what the contents says (sic) then claiming falsely that the legal envelopes arrived torn.” Id. Moore contends that these instances occurred on March 10, 2006, March 13, 2006, and April 21, 2006.
a. OPENED MAIL
On August 22, 2005, Moore filed a “Step One Grievance” claiming that his legal mail had been opened outside his presence. See Docket No. 61-18, p. 4. In his grievance, Moore asserts that “[o]n August 10 2005, my incoming privileged mail was opened outside my presence.” The record reveals that the letter was from the judge’s chambers for the Cass County District Court in North Dakota. Id. at 5. Moore’s requested remedy for this instance was that he be given “Flagyl 500 millograms (sic) for 7 days 3 times a day, or one thousand dollars to be added to my spending account today.” Id. The Administrative Services Manager, Denise Senger, responded to the grievance and provided: “After investigating this, it was found that you did receive the letter opened. I sincerely apologize for this. We receive a large amount of mail and are very careful this does not happen.” Id. On September 1, 2005, Moore filed a “Step Two Grievance” that was denied by Warden Schuet-zle. Id. at 3. On September 16, 2005, Moore filed an appeal to Director Bertsch. Director Bertsch responded that she was unable to comment on Moore’s allegations because there is litigation pending on the matter. Id. at l. 4
At the North Dakota State Penitentiary, the mail is sorted by destination, for example, the Business Office, Warden’s Office, Deputy Warden, File Room, Personnel Office, etc. See Docket No. 61, ¶ 27. The staff mail is then distributed to the appropriate place and inmate mail remains in the mail room to be sorted and either opened and checked for contraband or recorded and delivered to the inmate. Warden Schuetzle contends that Moore’s October 30, 2006, letter was accidentally delivered to the Business Office and was opened by the Business Office without looking at the addressee.
b. TORN MAIL
Moore contends that he received mail on three occasions that had “a whole (sic) torn ib (sic) the legal envelope large enough to see what the inside cintents (sic) say.” See Docket No. 34, p. 6. On April 3, 2006, Moore filed a “Step One Grievance” in which he contends that his mail was opened outside of his presence on two occasions: March 10, 2006, and March 13, 2006. See Docket No. 61-20, p. 4. Administrative Services Manager, Denise Senger, responded providing: “[y]our legal mail was not opened and the officer verified that it wasn’t.” Id. Moore’s subsequent appeals were denied. In the denial of the appeal by Director Bertsch, Bertsch notes that the envelope had been received damaged and that it was marked as having been damaged.
On April 24, 2006, Moored file a “Step One Grievance” again contending that “[Ilegal and privilege (sic) correspondence opened outside of my presence on April 21, 2006.” See Docket No. 61-21. In response to this grievance, Senger stated: “[t]he legal letter was not opened outside your presence. It was received with the corner torn. The mail clerks ran a copy of your legal letter when they received it to verify that it was not opened outside your presence.” Id. On April 26, 2006, Moored filed a “Step Two Grievance” concerning the torn envelope. Id. at 3. That same day, acting warden Patrick Branson denied the appeal and provided the response as follows:
Every staff member involved with this letter/envelope agrees the corner was torn and a very small section of the contents exposed. This occurred in delivery to our facility by the mail carrier. The mail clerk immediately photo copied the torn envelope when it was received. There was nothing we could do and nothing our staff did to tear the envelope.
Id. Moore appealed this grievance to Director Bertsch and his appeal was denied for the same reasons provided in response to his original grievances. Id. at 1.
II. STANDARD OF REVIEW
It is well-established that summary judgment is appropriate when the evi
The basic inquiry for purposes of summary judgment is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.
Quick v. Donaldson Co., Inc.,
III. LEGAL DISCUSSION
A. REQUESTED RELIEF
As a remedy for the alleged constitutional violations, Moore’s only request is that he be transferred to a federal prison under the jurisdiction of the Federal Bureau of Prisons.
5
See
Docket No. 63, p. 6. Moore cites to the Eighth Circuit decision in
Haley v. Dormire,
In
Haley,
a
pro se
inmate initiated a civil rights actions alleging,
inter alia,
that prison officials had conspired to keep the inmate confined to the prison’s special management facility.
See
The administration of prisons, including particularly state prisons, is generally not within the province of the court, but, in rare and extreme cases, federal courts have ordered a transfer of state prison inmates. Such was the case in
Walker v. Lockhart,
The Fifth Circuit has also recognized that a transfer of custody can be ordered to ensure an inmate’s safety. In
Streeter v. Hopper,
The fact that this Court may arguably have the power in rare and extreme cases to order state officials to transfer a prisoner does not mean that it has the power and authority to force federal prison officials to
accept
Moore as a prisoner for service of the remainder of his state sentence. This issue was addressed directly in the case of
Fisher v. Goord,
[W]hen a state has primary custodial jurisdiction over an inmate, a federal court cannot order the delivery of the defendant for service of a sentence in a federal institution. Such an order would be tantamount to a transfer of custody beyond the jurisdiction of the federal court.
The Court finds, as a matter of law, that it does not have the authority to grant Moore the only relief that he requests in this action — to be transferred to a federal prison facility operated by the Bureau of Prisons. Moore has failed to produce any evidence that would even remotely suggest that there is any risk of physical danger or threat to his safety that would warrant a transfer of custody as was done in Walker and Streeter. However, because Moore is a pro se litigant, the Court is willing to afford him more latitude and will analyze his claims for possible equitable relief.
B. ADMINISTRATIVE SEGREGATION
The Prisoner Litigation Reform Act, 42 U.S.C. § 1997e(a), provides that “[n]o action shall be brought with respect to prison conditions under Section 1983 ... until such administrative remedies as are available are exhausted.” This applies to all inmates in “any jail, prison, or other correctional facility.” 42 U.S.C. § 1997e(a). The Supreme Court has interpreted this section to apply to “all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.”
Porter v. Nussle,
Warden Schuetzle contends that Moore has failed to exhaust his administrative remedies with regard to his claim that the conditions of confinement while in administrative segregation violate his constitutional rights. It is clear from the record that Moore has failed to exhaust the available administrative remedies regarding the conditions of his confinement. Therefore, Moore is precluded from raising those issues in this civil rights action. Moore chose to file his grievance directly with Director Bertsch and he voluntarily chose to bypass the established grievance procedures. The Court finds that Moore’s grievance is not of a sensitive nature despite his statement to the contrary. However, as discussed below, even if Moore had exhausted the available administrative remedies with regard to the conditions of his confinement (administrative segregation), the Court finds that the conditions do not violate Moore’s constitutional rights.
The Eighth Amendment prohibits the cruel and unusual punishment of inmates by prison officials.
Tlamka v. Serrell,
The Eighth Circuit in
Wishon v. Gammon,
The record clearly establishes that Moore has been offered one hour of outdoor recreation per day, five days per week. Moore is also offered three 15-minute showers per week. He can also leave the cell to meet with the law librarian on the administrative segregation unit, he can go to the infirmary for medical treatment, he can make telephone calls, and/or he can leave to have his hair cut. Further, Moore has the ability to perform exercises while in his administrative segregation cell as is done by other inmates.
The Court finds, as a matter of law, that the five hours of outdoor exercise time per week available to Moore does not constitute deliberate indifference to his exercise needs in violation of the Eighth Amendment. Although Moore has claimed that he has suffered detrimental effects from the limited amount of outdoor exercise, even if he were able to prove that a lack of exercise was harmful to him, the Court finds that Moore’s failure to take advantage of the other opportunities to exercise in and out of his cell precludes him from shifting liability for his actions to the defendant.
Moore contends that penitentiary staff used excessive force when transporting him to and from his cell. Specifically, Moore contends:
the north dakota state penitentiary em-plotess in administrative segregation cause excruciating pain upon the plaintiff by the intentional attempts to break the plaintiffs wrist upon the removal and placement of handcuffs on or off the plaintiff that causes excruciating pain and sufering
See Docket No. 34, p. 8 (errors in original).
The Eighth Amendment protects inmates from unnecessary and wanton infliction of pain by correctional officers.
Treats v. Morgan,
The Supreme Court has held that a court should consider both the “objective” and “subjective” components of an alleged violation when examining an Eighth Amendment claim.
Hudson v. McMillian,
Moore claims that correctional officers used excessive force in removing his handcuffs on two separate occasions. Moore has failed to provide any objective evidence of any injury stemming from these two instances and he relies solely on very general and conclusory allegations. On March 13, 2006, Moore filed the first grievance alleging excessive force, but did not inform anyone of his alleged injuries. In the response denying the grievance, Moore’s case manager pointed out that Moore had not even sought medical attention for the pain that he claimed he suffered. Having been forewarned, the next time Moore filed a grievance of excessive force (on March 20, 2006), he requested to be seen by a physician. The physician’s report indicates that x-rays were taken of Moore’s hand which revealed neither broken bones nor any soft tissue injury. See Docket No. 61-6.
Moore contends that the physician’s report “is misleading because it does and cannot measure and detect pain. It only shows that nothing is broken during March of 2006. Well over a year ago. There is and has been no recent medical evaluation of the Plaintiffs (sic) wrists for the year of 2007.” See Docket No. 76, p. 6. Moore further contends that “[t]he x-rays of the plainitffs (sic) hand were taken well before the civil rights action was commenced on March 23, 2006, ... Thus those x-rays are misleading and erroneous and count and amount to as absolutely nothing.” See Docket No. 63, p. 2.
Moore has failed to offer any competent medical evidence or lay evidence sufficient to create a genuine issue of material fact on this issue. It is well-settled that con-
The Supreme Court has held that “[r]e-spondeat superior or vicarious liability will not attach under § 1983.”
City of Canton v. Harris,
D. RETALIATION
Moore alleges that prison officials impermissibly retaliated against him for exercising his legal rights by issuing incident reports with resulting sanctions. It is clear that prison officials cannot impose a disciplinary sanction against a prisoner in retaliation for the prisoner’s exercise of his constitutional rights.
Sprouse v. Babcock,
1) TAGHON INCIDENT REPORT
Moore contends that he was retaliated against by Warden Schuetzle for filing a complaint against Nurse Taghon with the North Dakota Board of Nursing on January 9, 2006.
See
Docket No. 34, p. 3. In his complaint, Moore made crude sexual comments and accusations about Taghon.
See
Docket No. 61-9. Warden Schuetzle issued an incident report against Moore based on the content of Moore’s complaint. Moore refused to discuss the matter with his case manager and failed to attend the disciplinary hearing. The disciplinary committee found Moore guilty of sexual harassment, and all of his appeals were denied. Moore contends that the adjustment committee’s decision that Moore was guilty of sexual harassment “is totally un
After a thorough review of the record, it is clear that Moore has violated prison rules and regulations by making unsubstantiated allegations about Taghon. Moore produced no evidence during the course of the investigation into the incident report but now attempts to assert that his refusal to attend the disciplinary hearing resulted in an unsubstantiated decision. Moore admits that he wrote and sent the complaint against nurse Taghon to the North Dakota Board of Nursing, and the letter speaks for itself. Because Moore’s claim of retaliatory discipline is based on an actual violation of prison rules and regulations, the claim fails. The Court finds that Moore’s claim of retaliatory discipline as to the Taghon incident report fails as a matter of law because the disciplinary actions taken against Moore were imposed for a violation of prison rules or regulations.
2) KLIMPEL INCIDENT REPORT
Moore also contends that he was retaliated against by Officer Darcy Klimpel by the filing of an incident report in response to a grievance that Moore filed against Klimpel. On November, 21, 2005, Moore filed a grievance against Klimpel requesting that no assault charges be brought against him for any future assault against Klimpel because they would be “clearly out of self defense, and not those of the agres-sor (sic).” See Docket No. 61-11, p. 4. On November 23, 2006, Klimpel filed an incident report against Moore charging him with “threat to a staff member.” See Docket No. 61-12. Moore again refused to attend the adjustment committee hearing and was found guilty of the charge. Warden Schuetzle and Director Bertsch denied Moore’s subsequent appeals. Moore admits that he wrote the grievance against Klimpel, but contends that it is not threatening in nature.
The record overwhelmingly reveals that Moore has violated prison rules and regulations. Moore was given a disciplinary hearing for his conduct violation but again refused to attend or provide any evidence. Because Moore’s claim of retaliatory discipline is based on an actual violation of prison rules and regulations, the claim fails. The Court finds that Moore’s claim of retaliatory discipline as to the Klimpel incident report fails as a matter of law because the disciplinary actions taken against Moore were imposed for a violation of prison rules or regulations.
3) SAYLER INCIDENT REPORT
Moore contends that case manager Steven Foster retaliated against Moore by the filing of an incident report. See Docket No. 34, p. 2. Moore contends that the reason for the retaliation was that Moore had submitted a grievance against Officer James Sayler. On January 28, 2007, Foster filed an incident report charging Moore with three Class A violations, threat to a staff member, sexual harassment, and false testimony presented to staff. See Docket No. 61-14, p. 3.
It is undisputed that Moore made sexually explicit statements claiming that Say-ler had made sexual advances towards Moore that were outlined in the grievance submitted by Moore.
See
Docket No. 61-14, p. 7. The allegations were thoroughly investigated. It was determined that the statements were fabricated by Moore in an attempt to harass Sayler because of a minor rule infraction report that Sayler had filed against Moore on January 9, 2006. Moore has failed to provide any evidence to substantiate his claim and had difficulty providing details of where the event occurred or who was around at the time. It is clear that Moore’s claim of retaliatory discipline is based on an actual violation of
4) VOEGELE INCIDENT REPORT
Moore’s final claim of retaliation is against Warden Schuetzle. Moore contends that Schuetzle retaliated against Moore by placing him in administrative segregation on September 26, 2006, because Moore filed a grievance against Schuetzle directly with Director Bertsch on August 22, 2006. However, Moore failed to point out to the Court that on September 21, 2006, Moore wrote a letter to a female correctional officer (Marie Voe-gele) in which Moore attempted to solicit sexual contact with Voegele. See Docket No. 61-15. On September 22, 2006, Voe-gele filed an incident report against Moore for handing her the letter and charged Moore with disorderly conduct and sexual harassment. On September 25, 2006, the adjustment committee found Moore guilty of sexual harassment and disorderly conduct. The record clearly establishes that Moore’s misconduct is the reason Warden Schuetzle placed Moore in administrative segregation on September 26, 2006.
The record overwhelmingly reveals that Moore violated prison rules and regulations. Because Moore’s claims of retaliatory discipline are based on actual violations of prison rules and regulations, the claims fail. The Court finds that Moore’s claim of retaliatory discipline as to the Voegele incident report fails as a matter of law because the disciplinary actions taken against Moore were imposed for violations of prison rules or regulations.
After an exhaustive review of the entire record and current case law, the Court concludes that Moore’s claims of retaliation are based on legitimate disciplinary actions taken against Moore for actual violations of prison rules and regulations. In essence, Moore seems to confuse retaliation with legitimate disciplinary consequences for his misdeeds. Moore has failed to state a claim for retaliation and there is no constitutional violation alleged. The Court finds that Moore’s claims of retaliation fail as a matter of law.
E. LEGAL MAIL
It is well-established that inmates have a right to receive mail.
Thornburgh v. Abbott,
In a majority of the Eighth Circuit cases involving inmate complaints concerning “legal mail” that was opened outside their presence, the mail at issue was correspondence from an attorney or a “jailhouse lawyer.”
See Bear v. Kautzky,
The Eighth Circuit has not explicitly addressed the issue of whether correspondence from other arguably legal sources, i.e. courts, judges, advocacy organizations, or law enforcement officials, is to be considered “legal mail” for the purposes of constitutional protection. However, the Eighth Circuit in
Harrod v. Halford,
1) OPENED MAIL
The record reveals that two pieces of Moore’s mail were opened by prison officials. The first piece of mail was a letter from the Cass County District Court Judge’s chambers and was opened on or about August 10, 2005.
See
Docket No. 61-18, p. 4. The second piece of mail was a letter from the United States Department
It is important to note that simply because the NDSP’s policy characterizes a type of correspondence as “privileged mail,” this designation is not dispositive of whether the correspondence is “legal mail” which is constitutionally protected. In other words, a prison’s policy may be more generous to inmates than what the United States Supreme Court has defined as the minimal protections afforded to inmate’s mail.
Weiler v. Purkett,
The Court finds that the two pieces of correspondence opened by prison officials in August 2005 and October 2006 are not constitutionally protected mail under the definitions set forth by the United States Supreme Court and the Eighth Circuit Court of Appeals. While correspondence from the Cass County District Court Judge’s chambers and the United States Department of Justice may be defined as privileged correspondence under the NDSP policies, the Constitution does not afford protection for such items of mail received by an inmate. Therefore, Moore cannot sustain a 42 U.S.C. § 1983 action based on the opening of such items of mail outside his presence. The Court finds that Moore’s complaints regarding the opening of his mail on August 10, 2005 and October 30, 2006, are devoid of merit and fail as a matter of law.
Even if the Court were to determine that the letters constituted legal mail, Moore’s claim would still fail. The Eighth Circuit has held that an “isolated incident, without any evidence of improper motive or resulting interference with [the inmate’s] right to counsel or to access to the courts, does not give rise to a constitutional violation.”
Gardner v. Howard,
2) TORN MAIL
Moore also contends that three pieces of mail were opened by prison employees, but then goes on to state that the mail was opened by “tearing into the legal mail envelopes” and that the “legal mail envelopes arrived torn.” See Docket No. 34, p. 6. The first piece of torn mail was dated March 10, 2006, and was from the Ramsey County District Court for the District of St. Paul, Minnesota. The second piece of torn mail was dated March 13, 2006, and was from the United States Court of Appeals for the District of Columbia. The third piece of torn mail was dated April 26, 2006, and was from the chambers of Judge Margaret M. Marrinan, United States District Court for the District of Minnesota.
Moore relies on'the unsupported assertions that these three pieces of torn mail were opened by prison officials. The rec
To defeat summary judgment, a party must substantiate allegations with sufficient probative evidence that would allow finding in the party’s favor based on more than just speculation.
Moody v. St. Charles County,
As discussed above, letters sent by the clerk of the district court, a district judge, and a magistrate judge and not marked confidential are not legal mail as defined by the United States Supreme Court or the Eighth Circuit Court of Appeals. Accordingly, the Court finds that even if Moore’s mail had been opened by prison officials on March 10, 2006, March 13, 2006, and April 26, 2006, as Moore alleges, his rights were not violated because the mail was not constitutionally protected.
In summary, the Court expressly finds that Moore’s claim that NDSP officials have violated his constitutional rights by opening his “legal mail” fail as a matter of law. In reaching this conclusion, the Court does not condone the actions of the NDSP with respect to the mail that was inadvertently opened in August 2005 and October 2006. It is clear from the record that the NDSP violated its own internal procedures for handling what it considers to be the “privileged mail” of inmates. It is not difficult to see why Moore would become upset and frustrated with prison officials who open “privileged mail” outside of his presence.
IV. CONCLUSION
The Court has carefully and thoroughly reviewed the entire record. There has been no competent, reliable evidence presented to support the claims of constitutional violations. There are no genuine issues of material fact for trial and, as such, the Defendants are entitled to summary judgment as a matter of law. The Defendant’s amended Motion for Summary Judgment (Docket No. 70) is GRANTED. The Plaintiffs Motion for Summary Judgment (Docket No. 34) is DENIED. The Clerk of Court shall enter judgment accordingly.
IT IS SO ORDERED.
Notes
. Handcuffs for inmates in administrative segregation are usually removed when returning to their cells in a “cage” on the tier. However, handcuffs are removed through the door slot when inmates are first brought to administrative segregation and when they are being disruptive. See Docket No. 61.
. Moore alleges in his complaint that "Ta-ghon has performed fellatio on numerous male prisoners and stating to male prisoners would you like a wet screw. My cherry needs to be popped. Super put it in the hooper.” See Docket No. 61-9.
. Women are no longer confined at the North Dakota State Penitentiary but the bathroom is still known as the "women’s” bathroom.
. At the time Moore appealed the denial of the "Step Two Grievance” to Director Bertsch, Moore had begun litigation against officials for the Department of Corrections and Rehabilitation, including a claim concerning improper opening of his legal mail.
. In his original complaint, Moore’s requested relief was "a court order that the plaintiff be transferred into federal custody immediately to do the remainder of his prison sentence and never to return to the North Dakota State Penitentiary ever again.” See Docket No. 2-2, p. 13. Before the Court could complete the screening, Moore again amended his complaint, but sought the same relief. See Docket No. 9, p. 15. In addressing Moore’s first motion to amend his complaint, Magistrate Judge Charles S. Miller Jr. noted that the Court does not have the power to grant the relief that Moore has requested. See Docket No. 7, p. 14. Judge Miller ordered that Moore be given an opportunity to supplement his amended complaint by requesting additional relief and warned Moore that his claims may be subject to dismissal as frivolous if he failed lo do so. Id. at 19.
Moore appealed Judge Miller’s order to Chief Judge Hovland, and the appeal was denied. See Docket No. 26, p. 3. Following the denial of his appeal, Moore filed a "Document of Clarification” stating that he did not intend to change his request for relief and made clear that the only relief he was seeking in his amended complaint was that he be transferred from state custody to federal custody. See Docket No. 13-2.
. In reversing the decision of the district court, the Eighth Circuit held:
[The inmate's] life is put in danger by his incarceration in the Arkansas general prison population and that [the inmate] has established the right to serve the remainder of his sentence in an institution outside of Arkansas where he will have the same privileges and obligations as other prisoners, but without facing the undue risks and fear for his safety. Accordingly, we reverse the judgment of the district court denying [the inmate's] section 1983 claim. We remand this case to the district court for entry of an order in conformity of this opinion directing [the warden] to arrange without undue delay for the transfer of [the inmate] to a place of incarceration outside of Arkansas, either in a federal or other state's correctional institution.
. In other Eighth Circuit cases discussing an inmate’s "legal mail,” the correspondence involved is assumed to be "legal” mail. The cases do not identify the correspondence as being from a lawyer or from another source.
Powells v. Minnehaha County Sheriff Department,
. Other circuits have taken differing views of what constitutes constitutionally protected "legal mail.”
See Sallier v. Brooks,