Abraham v. Comm'r Carl Danberg

• Decision Date: 19 September 2011
• Docket Number: Civ. No. 08–311–SLR.
• Parties: Kenneth R. ABRAHAM, Plaintiff, v. Commissioner Carl DANBERG, et al., Defendants.
• Court: U.S. District Court — District of Delaware

832 F.Supp.2d 368

Kenneth R. ABRAHAM, Plaintiff,

v.Commissioner Carl DANBERG, et al., Defendants.

Civ. No. 08–311–SLR.

United States District Court,

D. Delaware.

Sept. 19, 2011.

Kenneth R. Abraham, James T. Vaughn Correctional Center, Smyrna, DE, pro se.

Catherine C. Damavandi, Deputy Attorney General, Delaware Department of Justice, Wilmington, DE, for Defendants.

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.

I. INTRODUCTION

Plaintiff Kenneth R. Abraham (“plaintiff”) is an inmate incarcerated at the James T. Vaughn Correctional Center, Smyrna, Delaware, who proceeds pro se and has been granted leave to proceed in forma pauperis. He filed this lawsuit pursuant to 42 U.S.C. § 1983 on May 23, 2008 and has since amended the complaint. (D.I. 2, 6, 97, 117, 220) Presently before the court is a motion for summary judgment filed by defendants Commissioner Carl Danberg (“Danberg”), Warden Perry Phelps (“Phelps”), Michael Bryan (“Bryan”), Patrick Smith (“Smith”), and Larry Savage (“Savage”) (collectively “defendants”), plaintiffs opposition, and defendants' reply.¹ (D.I. 211, 253, 258) Plaintiff recently filed a motion to stay the proceedings and request for counsel, opposed by defendants.² (D.I. 252) The court has jurisdiction pursuant to 28 U.S.C. § 1331. For the following reasons, the court will deny as moot plaintiff's motion to stay and request for counsel and will grant defendants' motion for summary judgment.

II. PROCEDURAL AND FACTUAL BACKGROUND

Defendants filed their motion for summary judgment on February 28, 2011. (D.I. 211) Following numerous motions filed by plaintiff to extend the time to respond to the motion for summary judgment, the court entered a final deadline of August 26, 2011 for plaintiff to respond. (D.I. 248) Plaintiff timely filed his response.³ (D.I. 253)

Plaintiff alleges violations of his rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments of the United States Constitution and raises supplemental State claims of false imprisonment and libel.⁴ In September 2007, plaintiff was sentenced to serve a five year sentence at Level 5, suspended upon completion of the Greentree Program.⁵ Following an alleged attack by two prison guards, plaintiff filed a lawsuit in this court in September 2007, Abraham v. Costello, Civ. No. 07–593–SLR (D.Del.). (D.I. 2, ¶¶ 1–7) The only defendant common to Civ. No. 07–593–SLR and the instant case is the DOC.

The complaint in Abraham v. Costello was entered on the court docket on September 26, 2007. (Civ. No. 07–593, D.I. 1) Plaintiff was taken to outside medical for a procedure between October 15, 2007 and October 18, 2007 and, when he returned to his cell, he found missing the complaint that he had filed in Civ. No. 07–593–SLR. Plaintiff wrote to the court and others about the missing pleading.⁶ (D.I. 253, pl.'s aff. ¶¶ 24, 25; Civ. No. 07–593–SLR, D.I. 8)

Bryan called plaintiff to his office between October 5, 2007 and November 7, 2007, and told plaintiff to leave letters for mailing open with the “pay to” slip sticking out of the envelope. All “pay to's” require the signature of an officer before being processed by the mail room. According to plaintiff, the “pay to” slips required for Abraham v. Costello, Civ. No. 07–593–SLR, passed through Bryan's office between September 28, 2011 and November 12, 2007. Plaintiff disregarded Bryan's instructionsand sealed his envelopes. ⁷ (D.I. 253, pl.'s aff. ¶¶ 25, 29)

Plaintiff wrote to the FBI on November 7, 2007 in an attempt to have guards, who allegedly assaulted him, arrested for their crimes. From November 7, 2007 through November 10, 2007, plaintiff also wrote to the News Journal, the United States Department of Justice, several attorneys, the Attorney General of the State of Delaware, the Delaware State Police, and others regarding problems at the VCC. The letters specifically mentioned plaintiff's previously filed lawsuit, Civ. No. 07–593–SLR.⁸ On or about November 7, 2007, plaintiff saw the empty envelope of the letter he had written to the News Journal in the trash can in the correctional officers' (“C/O”) office.⁹ (D.I. 2, ¶¶ 9–16, exs. B, E, G, H; D.I. 253, pl.'s aff. ¶¶ 26, 27, 31, 34, 38)

On November 12, 2007, Bryan entered plaintiffs cell to conduct a shakedown. Bryan discovered medication outside its proper container as well as medication administered by a nurse that plaintiff had not taken. Plaintiff received several disciplinary infractions from Bryan who made Smith aware of the infractions. That night, plaintiff was called into the C/O's office for a hearing with Bryan and Smith as a result of the items discovered during the shakedown. Words were exchanged and Bryan and Smith led plaintiff from the office. Plaintiff was cuffed from behind. Plaintiff alleges that Smith took a pen from plaintiff's pocket and then accused plaintiff of trying to stab him with the pen. Both Bryan and Smith prepared disciplinary reports. Bryan's report does not mention the attempted stabbing incident, but Smith's does. According to plaintiff, he did not cuss or swear, assault or attempt to assault, or become disorderly in any way. Also according to plaintiff, it was at this time that he realized Bryan had seen his letter to the FBI complaining about correctional officers. Upon receipt of the disciplinary reports for assault, plaintiff was taken to pre-hearing detention in isolation where he remained for fifteen days. At the same time he was immediately removed from the Greentree Program. (D.I. 2, ¶ 17, 19, 21–24, 28–31, exs. I, J, K; D.I. 213, exs. A, B, G; D.I. 253, pl.'s aff. ¶¶ 7, 11, 17, 23) Plaintiff had participated in the Greentree Program for about six weeks, from September 28, 2007 to November 12, 2007, and had been told by the head facilitator that he would complete the program within one year, by December 2008. In addition, plaintiff had been asked to teach an upcoming anger management class. (D.I. 253, pl.'s aff. ¶¶ 22, 23)

Plaintiff alleges that his sentence is available for viewing by anyone who checks the DOC computer system, including Bryan and Smith. He alleges that all guards who work in the Victor Building, where plaintiff was housed, knew that most inmates in the Greentree Program are released early upon completion of the program.¹⁰ Bryan worked in the Victor Building “nearly every day” from October 1, 2011 to November 12, 2007. According to plaintiff, his status sheet clearly indicates that he received a sentence of “five years suspended upon completion of Greentree Program.” (D.I. 2; D.I. 253, pl.'s aff. ¶¶ 19, 25)

According to defendants, during the relevant time period Bryan, Smith, and Savage did not know why plaintiff was incarcerated. Nor did they know the length of plaintiffs sentence or the details of his sentencing history. According to Bryan, he did not view or access plaintiff's sentence information either before, or after, issuing him disciplinary violations. Similarly, according to Smith, he has never viewed or accessed plaintiff's sentence information. Finally, according to Savage, he did not view or access plaintiff's sentence information during the relevant time period. (D.I. 213, exs. D, G)

As a result of the November 12, 2007 incidents, plaintiff was charged with possession of dangerous and non-dangerous contraband, abuse of privileges, lying, disorderly or threatening behavior, disrespect, failing to obey an order, unauthorized communication, assault, and creating a health, safety or fire hazard. A disciplinary hearing, held on November 27, 2007, was conducted by Savage who, according to plaintiff, stated that he was required to go by the write-ups. Plaintiff was found guilty of all charges and sanctioned to fifteen days in isolation which he had already served. Plaintiff appealed and the guilty finding stood with the exception of the charge of creating a health, safety or fire hazard which was reversed.¹¹ (D.I. 213, exs. A, B, G)

On the same date as the disciplinary hearing, plaintiff submitted a grievance complaining that, on November 12, 2007, “officers made up felicitous disciplinary reports” about him. Plaintiff requested a copy of a statement he had prepared on November 12, 2007 and a copy of the related disciplinary report. The grievance was given a “non grievable” status and returned because records indicated copies had been given to plaintiff. On November 28, 2007, plaintiff wrote to Danberg regarding the events of November 12, 2007 and the heating before Savage. (D.I. 2, ¶¶ 46, 55, exs. I, J, K, N, O; D.I. 97, 117; D.I. 213, exs. A, B; D.I. 129; D.I. 253, pl.'s aff. ¶¶ 8, 36)

Lise Merson (“Merson”) reviewed plaintiff's grievance records and states that his grievances were not accepted because they contained vulgar or abusive language and a disrespectful tone towards staff, they were not resubmitted without abusive language and, therefore, plaintiffs grievances were not processed.¹² According to plaintiff, the grievances did not contain vulgar or abusive language and were not returned for said reasons. (D.I. 213, ex. C; D.I. 253, pl.'s aff. ¶ 15)

Upon release from isolation, plaintiff was transferred to the SHU where he remained for over three years.¹³ According to Savage, plaintiffs removal from the Greentree Program occurred following the assault on staff. Plaintiff's classification, including removal from the Greentree Program, was determined by the classification committee. When an inmate's classification is changed, he has the right to appeal the reclassification. Savage, who presided over plaintiff's November 2007 disciplinary hearing, had no control over plaintiffs classification in 2007. However, in 2008 Savage became a member of the Multi–Disciplinary Team and assisted in the classification process. (D.I. 213, ex. G; D.I. 253, pl.'s aff. ¶ 23)

III. STANDARD OF REVIEW

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a...