Nifas v. Belles

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RASHEED NIFAS, :

Plaintiff, : 1:19-cv-0538

:

v. : Hon. John E. Jones III

:

LT BELLES, et al., :

Defendants. :

MEMORANDUM

November 19, 2020

I. BACKGROUND

Plaintiff Rasheed Nifas (“Nifas”), an inmate in the custody of the

Pennsylvania Department of Corrections (“DOC”) who is incarcerated at the State

Correctional Institution at Coal Township (“SCI-Coal-Township”), commenced

this action on March 6, 2019, pursuant to 42 U.S.C. §1983, in the Court of

Common Pleas of Northumberland County alleging violations of the First and

Fourteenth Amendments. Defendants removed the action to this Court on March

27, 2019. (Doc. 1). Named as Defendants are Corrections Officers Belles, Benza,

Mark, Murphy, Piepzowski, Carpentier, and Psychology Services Specialists

Martin and Kluck-Leonowicz.

Presently pending are cross-motions (Docs. 21, 24) for summary judgment

pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below,

Defendants motion will be granted and Plaintiff’s motion will be denied.

II. STANDARD OF REVIEW

Summary judgment “should be rendered if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter of

law.” FED. R. CIV. P. 56(c); Turner v. Schering-Plough Corp., 901 F.2d 335, 340

(3d Cir. 1990). “[T]his standard provides that the mere existence of some alleged

factual dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no genuine issue of

material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)

(emphasis in original); Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990).

A disputed fact is “material” if proof of its existence or nonexistence would affect

the outcome of the case under applicable substantive law. Id.; Gray v. York

Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is

“genuine” if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United

Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d

Cir. 1991).

The party moving for summary judgment bears the burden of showing the

absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477

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U.S. 317, 323 (1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d

Cir. 1996). Although the moving party must establish an absence of a genuine

issue of material fact, it need not “support its motion with affidavits or other

similar materials negating the opponent's claim.” Celotex, 477 U.S. 317, 323

(1986). It can meet its burden by “pointing out ... that there is an absence of

evidence to support the nonmoving party’s claims.” Id. at 325.

Once such a showing has been made, the non-moving party must go beyond

the pleadings with affidavits, depositions, answers to interrogatories or the like in

order to demonstrate specific material facts which give rise to a genuine issue.

FED. R. CIV. P. 56; Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 586 (1986) (stating that the non-moving party “must do more

than simply show that there is some metaphysical doubt as to the material facts”);

Wooler v. Citizens Bank, 274 F. App’x 177, 179 (3d Cir. 2008). The party

opposing the motion must produce evidence to show the existence of every

element essential to its case, which it bears the burden of proving at trial, because

“a complete failure of proof concerning an essential element of the nonmoving

party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at

323; see also Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992). “[T]he

non-moving party ‘may not rely merely on allegations or denials in its own

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pleadings; rather, its response must . . . set out specific facts showing a genuine

issue for trial.’” Picozzi v. Haulderman, 2011 WL 830331, *2 (M.D. Pa. 2011)

(quoting FED. R. CIV. P. 56(e)(2)). “Inferences should be drawn in the light most

favorable to the non-moving party, and where the non-moving party’s evidence

contradicts the movant’s, then the non-movant’s must be taken as true.” Big Apple

BMW, Inc. v. BMW of North America. Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

If the non-moving party “fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will

bear the burden at trial,” summary judgment is appropriate. Celotex, 477 U.S. at

322. The adverse party must raise “more than a mere scintilla of evidence in its

favor” and cannot survive by relying on unsupported assertions, conclusory

allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458,

460 (3d Cir. 1989). The mere existence of some evidence in support of the non-

movant will not be adequate to support a denial of a motion for summary

judgment; there must be enough evidence to enable a jury to reasonably find for

the non-movant on that issue. Anderson, 477 U.S. at 249–50.

III. STATEMENT OF MATERIAL FACTS

A. Privileged Correspondence

In September 2018, the DOC changed policy DC-ADM 803, which dictates

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the manner in which incoming privileged and non-privileged mail is managed at

the DOC’s correctional institutions statewide. (Doc. 25, ¶ 8). The policy tasked

corrections officers with maintaining a log of incoming privileged correspondence,

photocopying the privileged correspondence in the presence of the inmate, giving

the inmate the photocopy, and retaining the original in a sealed envelope and

depositing it inside a locked box. (Id. at 9). Defendants declare that they were

unable to access the locked box. Coal Township. (Id. at 10). They also declare

that they never read Nifas’ legal mail or witnessed anyone else reading his legal

mail. (Docs. 27-1 through 27-7, ¶¶ 8, 9).

In August 2019, Nifas refused to sign a form indicating whether he would

like his originals returned to sender or destroyed by the DOC. (Doc. 25, ¶¶ 12, 13).

Because of the pendency of the current action, his original documents were not

destroyed and remain sealed and in the possession of the DOC. (Id. at 13-15).

Nifas asserts in his counterstatement of material facts contained in his brief

in support of his motion for summary judgment, and in opposition to Defendants’

motion for summary judgment, that on September 13, 15, 25, 29, October 9, 11,

16, 17, 19, 24, 25, 31, November 1, and December 12, and 14, of 2018, Defendant

Belles reproduced legal documents, kept the originals to read outside his presence,

and refused to allow him to send legal documents to an address or return the legal

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documents to the sender. (Docs. 30, 31, pp. 4-7). Defendant Benza handled his

legal mail in this manner on September 15, 25, October 25, and December 15, of

2018. (Id. at 4, 6, 7). Defendant Mark engaged in this conduct on September 29,

2018. (Id. at 4). Defendant Piepzowski handled his mail in this manner on

September 13, October 24, 31, November 16, and December 12, 2018. (Id. at 4-7).

And Defendant Carpentier engaged in this conduct on October 16, 2018. (Id. at 5).

B. Medical Information

In accordance with standards set forth in DOC policy § 13.8.1, Access to

Mental Health Care Procedures Manual, Section 15 – Certified Peer Specialist

(CPS) Initiative, the DOC trains eligible inmates at each state correctional facility

to facilitate staff’s efforts to effectively support inmates with mental or emotional

concerns. (Doc. 25, ¶¶16, 17; Doc. 32, ¶¶ 16, 17; Doc. 27-8). Although they are

not licensed psychologists, they are required to sign a “CPS Confidentiality

Acknowledgement Form” agreeing that they will maintain the confidentiality of all

inmate medical and/or mental health information. (Id. at 18; Id. at 18; Id. at 6).

While housed in the restricted housing unit (“RHU”) Nifas contends that

Defendants Martin and Kluck-Leonowicz allowed CPS workers to be present

during personal discussions held at his cell door that concerned his mental health.

(Id. at 19; Id. at 19). He “avers that the content discussed included mental health

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medications, suicide attempts, and other personal information.” (Doc. 31, p. 18,

citing Doc. 1, ¶¶ 38-42, 47, Exhibits 6, 7). He does not indicate in any filing that

any of his medical information was disbursed to anyone other than the

psychologist and the CPS worker. (Id. at 20, 21; Doc. 32, 20, 21).

In his counterstatement of material facts, he states that Defendants Martin

and Kluck-Leonowicz infringed upon his confidential mental health treatment

information by refusing to communicate with him outside of an inmate worker[‘s]

presence….” (Doc. 32, ¶¶ pp. 7, 8).

IV. DISCUSSION

A. Privileged Correspondence

Prisoners “do not forfeit their First Amendment right to use of the mails,”

particularly with respect to privileged “legal mail” exchanged with counsel, and a

“pattern and practice of opening properly marked incoming [legal] mail outside an

inmate’s presence infringes communication protected by the right to free speech.”

Bieregu v. Reno, 59 F.3d 1445, 1452 (3d Cir. 1995), abrogated in part by Oliver v.

Fauver, 118 F.3d 175 (3d Cir. 1997); Taylor v. Oney, 196 F.App’x. 126, 128 (3d

Cir. 2006) (reaffirming holding in Bieregu that “prison officials impinge upon the

First Amendment rights of prisoners when they open prisoners’ legal mail outside

the presence of the addressee prisoner.”). A prisoner must allege that the

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interference with his legal mail was done according to a “pattern and practice.”

Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006) (“A state pattern and practice ...

of opening legal mail outside the presence of the addressee inmate ... impinges

upon the inmate’s right to freedom of speech.”). And a prisoner may allege that

actions were taken pursuant to a pattern or practice without the existence of a

“blanket policy.” See, e.g., Jones, 461 F.3d at 359 (distinguishing between a

“pattern and practice” and an “explicit policy”). Significantly, a prisoner need not

allege or prove any “actual injury” beyond the direct injury to their First

Amendment right to use the mails. Taylor, 196 F.App’x. at 128.

Nifas does not contend that Defendants opened his legal mail outside his

presence. Rather, he asserts that, after they opened his legal mail in his presence,

they “kept the original documents to read.” Defendants acknowledge that, on the

dates identified by Nifas, pursuant to a new DOC policy, they engaged in the

practice of maintaining a log of incoming privileged correspondence, opening and

photocopying privileged correspondence in the presence of the inmate, providing

the inmate with a photocopy of the correspondence, and placing the original

document in a sealed envelope and depositing it in a locked box. They declare that

they did not have access to the original documents after photocopying as they were

placed in a locked box which they were unable to access. They also declare that

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they did not read any of Nifas’ legal mail. Nor did they witness anyone else

reading his privileged mail.

Nifas solely relies on the statements made in his verified complaint and the

attached administrative grievance documents in which he repeatedly alleges that

Defendants kept the original documents to read. (Doc. 1-4).1 However, he fails to

come forward with any evidence that goes beyond the conclusory and unsupported

allegations and lend support to his claim that Defendants engaged in a pattern or

practice of actually reading his legal mail. See Williams v. Borough of W. Chester,

891 F.2d 458, 460 (3d Cir. 1989).

With regard to his contention that Defendants refused to allow him to send

legal documents to a particular address or return the legal documents to the sender,

it is undisputed that he refused to sign a form indicating whether he would like his

originals returned to sender or destroyed by the DOC. (Doc. 25, ¶¶ 12, 13). It is

also undisputed that the original documents were not destroyed and remain sealed

and in the possession of the DOC. (Id. at 13-15).

Summary Judgment must be granted against any party “who fails to make a

showing sufficient to establish the existence of an element essential to that party’s

1 We recognize that a verified complaint may be treated as an affidavit in support of or in

opposition to a motion for summary judgment if the allegations are specific and based on

personal knowledge. Wilson v. Maben, 676 F.Supp. 581, 583 (M.D.Pa.1987); see Reese v.

Sparks, 760 F.2d 64, 67 (3d Cir.1985).

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case, and on which that party will bear the burden of proof at trial.” Celotex, 477

U.S. at 322. Nifas bears the burden of proof at trial, and he has not presented any

evidence that Defendants Belles, Benza, Mark, Murphy, Piepzowski, or Carpentier

read his legal mail or refused to allow him to send legal documents to an address or

return the legal documents to the sender. He cannot rest on mere allegations.

Instead, he must present actual evidence that creates a genuine issue as to a

material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier

Express, Inc., 54 F.3d 1125, 1130–31 (3d Cir. 1995). Nifas fails to meet his

burden. Consequently, his motion for summary judgment will be denied and

Defendants’ motion will be granted.

To the extent he challenges the constitutionality of the revised mail policy,

he fails to allege or demonstrate that Defendants had any policy making authority.

Courts recognize that liability under §1983 may be imposed on an official with

final policymaking authority if that official establishes an unconstitutional policy

that, when implemented, injures a plaintiff. Sample v. Diecks, 885 F.2d 1099,

1118 (3d Cir. 1989). To establish a claim against a policymaker under §1983 a

plaintiff must allege and prove that the official established or enforced policies and

practices directly causing the constitutional violation. Id. at 1114. The record is

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devoid of evidence that any of the named Defendants had final policymaking

authority with regard to the DOC mail policy Nifas challenges.

B. Medical Information

Prisoners maintain a substantive due process right to privacy in their medical

information. See Doe v. Delie, 257 F.3d 309, 316 (3d Cir.2001) (“The right to

nondisclosure of one’s medical information emanates from a different source and

protects different interests than the right to be free from unreasonable searches and

seizures.”). Not all disclosures of medical information will in fact violate a

prisoner’s right to privacy in his medical information; it “may be curtailed by a

policy or regulation that is shown to be ‘reasonably related to legitimate

penological interests.’ ” Id. at 317 (quoting Turner v. Safley, 482 U.S. 78, 89

(1987)).

Courts construing prisoner’s medical privacy claims have framed the right

narrowly and have applied it to situations involving “unusual medical condition[s],

which, if disclosed unnecessarily, would likely expose the inmate to ridicule,

discrimination, or even potential violence and harm, particularly when word of the

condition is likely to spread through “humor or gossip[.]” Smith v. Hayman, No.

CIV.A. 09-2602 PGS, 2012 WL 1079634, at *18 (D.N.J. Mar. 30, 2012) (citing

Powell v. Shriver, 175 F.3d 107, 112 (2d Cir. 1999) (tying the availability of a §

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1983 claim for invasion of medical privacy to conditions such as HIV and Gender

Identity Disorder), aff’d, 489 F.App’x. 544 (3d Cir. 2012)). In Delie, for example,

an HIV-positive inmate claimed that his constitutional right to medical privacy was

violated by the following procedures: prison nurses announced his medications

loud enough that other prisoners could hear and infer his condition; prison staff

informed escorting officers of his medical condition; and during physician visits,

the clinic room door was kept open, allowing officers, inmates, and guards to see

and hear Doe and the treating physician. 257 F.3d at 311-12. More recently, in

Smith v. Hayman, 489 F.App’x. 544 (3d Cir. 2012), a prisoner asserted a claim for

deprivation of his constitutional right to medical privacy related to his attempt to

be diagnosed and treated for Gender Identity Disorder.

Nifas contends that Defendants Martin and Kluck-Leonowicz, violated his

right to privacy by discussing his personal mental health issues and concerns in the

presence of CPS workers. CPS workers are trained and certified inmate peer

specialists who facilitate prison staff’s efforts to effectively support inmates with

mental or emotional concerns. Although they are not licensed psychologists, they

are required to sign a form agreeing that they will maintain the confidentiality of

all inmate medical and/or mental health information. Nifas does not assert that the

CPS workers improperly disseminated or disclosed any of his medical or mental

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health information, either inadvertently or through gossip, such that he was

exposed to ridicule, discrimination, or other harm. The mere presence of the CPS

workers, who were indisputably bound by confidentiality, in the absence of

improper or inadvertent dissemination or disclosure of sensitive health

information, simply does not rise to the level of a constitutional violation.

Defendants are entitled to an entry of summary judgment on this claim.

V. CONCLUSION

Based on the foregoing, Plaintiff’s motion motion for summary judgment

will be denied; Defendants’ motion will be granted.

An appropriate Order will issue.

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