IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Nathan Riley, Lamont C. Bullock, : Carlton Lane, Derrick Muchinson, Gary : Pavlic, David Lusik, Joe Holguin, : Howard Martin, : Petitioners : : v. : No. 102 M.D. 2007 : Submitted: February 20, 2009 Jeffrey A. Beard, Secretary, John : Palakovich, Superintendent, James : Fouse, Safety Manager, : Respondents : BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: May 1, 2009 Nathan Riley, Lamont C. Bullock, Carlton Lane, Derrick Muchinson, Gary Pavlik, David Lusik, Joe Holguin and Howard Martin, inmates at the State Correctional Institution at Smithfield (SCI-Smithfield), filed a joint petition for review on February 27, 2007 in the nature of a complaint in the Court's original jurisdiction against Jeffrey A. Beard, Secretary of Corrections, and John Palakovich and James Fouse, Superintendent and Safety Manager, respectively, of SCI-Smithfield (Respondents). Petitioners alleged a violation of their Eighth Amendment rights due to constant illumination in their cells. After dismissals and a withdrawal of inmates as parties, the remaining petitioners are Riley, Bullock and Muchinson (Petitioners). Petitioners have filed their motion for summary relief and Respondents have filed a cross-application for summary relief.

I Petitioners alleged that since being placed in the Restricted Housing Unit (RHU) they have been forced to live in illumination 24 hours a day as a result of which they have blurred vision, sleeping disorders, headaches and mental problems due to lack of sleep; that there is no penological justification for the policy; that Respondents have enforced strict rules that subject any inmate who covers the light in his cell to a misconduct violation; and that constant illumination is not used in the general population cells. They asserted that grievances have been filed and exhausted but that Respondents have refused to address the problem. They request a declaratory judgment that Respondents' actions constitute cruel and unusual punishment in violation of the Eighth Amendment and an order to compel Respondents to discontinue constant illumination except when it is necessary. In their answer to the petition for review, Respondents admitted that Petitioners' cells are illuminated 24 hours a day, that strict rules are enforced subjecting any inmate who covers his light to a misconduct violation, that 24-hour illumination is not used in the general population cells and that Riley has exhausted the grievance procedure for his complaint. Respondents denied the remaining substantive allegations of the petition. They alleged in new matter, inter alia, that inmates are placed in the RHU when they are assigned to administrative or disciplinary custody status, that the lighting is security night lighting consisting of a 7-watt or a 9-watt bulb covered by an opaque white plastic cover, that inmates can turn off all lighting in their cells except for the security night lighting and that a completely dark cell would pose a heightened security risk to corrections officers who might need to enter the cell and could be pounced on by the inmate. Also, RHU inmates are considered to be at increased risk for suicide and making 2

weapons, and the visibility provided by the lighting decreases such problems and eliminates the need at night for officers to disturb inmates' sleep by shining flashlights into cells. Further, inmates can cover their eyes with a blanket. Petitioners responded to the new matter by simply denying allegations or by pleading lack of knowledge or information and the need for discovery as to certain of the allegations, including the wattage of the bulbs. They alleged that inmates could not pounce on officers because inmates are at all times restrained in handcuffs while in the RHU, that officers shine flashlights into cells at night despite the security night lights and that inmates are not allowed to cover their eyes with blankets because it would obstruct the officers' view of the inmates. II Petitioners base their motion for summary relief on the fact that Respondents do not dispute that a light is kept on in the RHU cells 24 hours a day. They cite Farmer v. Brennan, 511 U.S. 825 (1994), which held that conditions of confinement violate the Eighth Amendment when prisoners are denied the minimal civilized measures of life's necessities and prison officials demonstrate a deliberate indifference to inmate health or safety. They also cite Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996), amended, 135 F.3d 1318 (9th Cir. 1998), reversing summary judgment in favor of prison officials and remanding for trial a claim with respect to constant illumination of inmate cells. The court quoted the statement in LeMaire v. Maass, 745 F. Supp. 623, 636 (D. Or. 1990), vacated on other grounds, 12 F.3d 1444 (9th Cir. 1993), as follows: "There is no legitimate penological justification for requiring [inmates] to suffer physical and psychological harm by living in constant illumination. This practice is unconstitutional." 3

Respondents reply that Keenan is not applicable because the lighting there consisted of large fluorescent lights directly in front of and behind Keenan's cell that made it impossible to tell night from day and that the court's finding was only that this condition was sufficient to withstand the corrections officers' motion for summary judgment. Respondents note that in Brown v. Martinez, 2007 WL 2225842, Civ. No. 3:CV-03-2392 (M.D. Pa. July 31, 2007), where the security night light was 15 watts, the court explained that continuous exposure to low wattage nighttime security lighting may be permitted based upon legitimate penological interests, such as security concerns. Similarly, in King v. Frank, 371 F. Supp. 2d 977 (W.D. Wis. 2005), where a 9-watt fluorescent light was at issue, the court noted that inmates were permitted to cover their eyes with a towel, washcloth or t-shirt and granted summary judgment on the ground that the Eighth Amendment was not violated. It stated that summary judgment also would have been appropriate because the inmate had not shown that any prison official was deliberately indifferent to the risk of serious harm from the lighting nor that the adverse effects of constant illumination outweighed the state's need to see inside the cells at all times or that it could meet that need in a less intrusive manner. Respondents argue that under Pa. R.C.P. No. 1029(a) Petitioners were required to admit or to deny each averment of fact in the new matter and that after denial of an allegation they had to affirmatively aver what did occur, but their denials did not do so in response to the allegation of paragraph 21 of the new matter that "the security night lighting is a seven or nine wattage bulb." Instead, Petitioners replied only that "Petitioners have no way of knowing the answer. Discovery had yet to be completed." Respondents assert that this reply is deemed an admission under Pa. R.C.P. No. 1029(b), and no Eighth Amendment violation 4

occurred because the bulbs have a lower wattage than those in Brown and Wills v. Terhune, 404 F. Supp. 2d 1226 (E.D. Cal. 2005) (holding that inmate seeking preliminary injunction was not likely to succeed on merits of claim that exposure to a 24-hour, 13-watt security bulb constituted cruel and unusual punishment in the absence of evidence of grave sleeping problems such as those alleged in Keenan or other harms). Last, they argue that Petitioners have offered only their self diagnoses instead of producing expert evidence of medical harm from the lighting. In their cross-application for summary relief, Respondents assert that there are no material facts in dispute as to the penological justifications for the constant illumination here. They stress the ruling in Beard v. Banks, 548 U.S. 521 (2006) (which reaffirmed Turner v. Safley, 482 U.S. 78 (1987)), that restrictive prison regulations are permitted if they are reasonably related to legitimate penological interests and not an exaggerated response, and that the United States Supreme Court set forth four factors to be considered in making the determination. They include whether a valid rational connection exists between the prison regulation and the legitimate governmental interest asserted; whether there are alternative means for an inmate to exercise the constitutional right available to him; what impact accommodating the asserted right will have on corrections officers, other inmates and the allocation of prison resources; and whether there are ready alternatives for furthering the governmental interest. Respondents point out that Riley merely denied paragraph 25 of the new matter, which alleged that a dark cell poses a heightened security risk to corrections officers of being suddenly pounced on if they need to enter a cell, and paragraph 27, which alleged that the inmates in the RHU are at greater risk for attempting suicide and of making weapons. Citing Swift v. Milner, 538 A.2d 28 5

(Pa. Super. 1988), Respondents argue that mere denial is deemed an admission. In reply to paragraphs 28 and 29, which alleged that security night lights eliminate the need for officers to disturb inmates' sleep by shining flashlights into cells and enable officers to unobtrusively observe the locations of inmates within their cells, Riley stated: "Petitioners have no way of knowing the answer. Discovery has yet to be completed." According to Respondents, this reply is deemed an admission as well. They further contend that the four Turner factors have been satisfied. III The Court's determination of the competing motions for summary relief begins with the standards that govern such motions. Under Pa. R.A.P. 1532(b) pertaining to summary relief, this Court may at any time after the filing of an original jurisdiction matter enter judgment if the right of the applicant to judgment is clear. The Note to Rule 1532(b) indicates that summary relief is similar to the relief envisioned by the Pennsylvania Rules of Civil Procedure governing summary judgment, which are Pa. R.C.P. Nos. 1035.1-1035.5. Under Pa. R.C.P. No. 1035.2, a party may move for summary judgment as follows: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. 6

Where the parties have not completed discovery, the moving party has the burden of proving that there exists no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery or an expert report. Pa. R.C.P. No. 1035.3 explicitly provides, however, that the adverse party may not rest upon the mere allegations or denials of the pleadings but must identify one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion. The Supreme Court has pointed out that when an inmate claims that a prison regulation impinges upon the inmate's federal or state constitutional rights, the policy is valid if it is reasonably related to legitimate penological interests. Payne v. Commonwealth Department of Corrections, 582 Pa. 375, 871 A.2d 795 (2005). The burden is not on the Commonwealth to prove the validity of prison regulations but on the prisoner to disprove it. Id. In Payne the Department of Corrections justified a policy prohibiting inmates from sending or receiving correspondence containing obscene materials, as defined in 18 Pa. C.S. 5903, on the basis that such restrictions advanced legitimate penological interests including preventing predatory behavior, consensual and non-consensual homosexual liaisons and the spread of sexually transmitted diseases and protecting the safety and authority of prison staff. The Supreme Court observed: "We emphasize that the question is not whether the curtailment of distribution of obscene materials will remedy the aforementioned institutional concerns, but whether the Department reasonably believed that it would do so." Payne, 582 Pa. at 400, 871 A.2d at 810. The Court agrees with Respondents that Petitioners have effectively admitted the allegations of paragraph 21 of new matter that the security lights are 7-watt or 9-watt bulbs protected by opaque white covers and are similar to those 7

used in "night lights" and window sill lights in homes by stating that they have "no way of knowing the answer" and that discovery is not completed. As Respondents note, permission under Pa. R.C.P. No. 1029(c) for an answering party to respond that after reasonable investigation he or she is without knowledge or information sufficient to form a belief as to the truth of the averment cannot apply here, where Petitioners merely had to look up to determine whether the light had such a cover and was as dim as a night light. Confirming the wattage alleged by Respondents certainly is within any "reasonable investigation" by Petitioners. Accordingly, there is no factual dispute that this case involves only very dim security lighting. To establish an Eighth Amendment violation an inmate first must show the objective component of conditions so serious as to deprive prisoners of the minimal measure of life's necessities, and second he or she must establish the subjective standard that prison officials acted with deliberate indifference to the inmate's conditions of confinement. Harper v. Showers, 174 F.3d 716 (5th Cir. 1999). Unlike the circumstances in Keenan, the relevant allegations and deemed admissions here establish only illumination by a 7-watt or 9-watt bulb. As Respondents point out, the mere presence of 24-hour security lighting does not constitute a per se Eighth Amendment violation. In Brown the court, after referring to Keenan, stated that "continuous exposure to low wattage night time security lighting may be permissible based on legitimate penological interests, such as prison security concerns." Brown, 2007 WL 2225842, at *8. The District Court cited King, holding that constant exposure to 9-watt fluorescent light that allowed prison officials to observe inmates at night did not violate Eighth Amendment standards, among other cases including Wills finding no serious threat to health from low-wattage security lighting. Petitioners have pointed to no case where 8

serious health and safety concerns were found on the basis of low-level security lighting. Also, they have produced no expert medical evidence to support claims of sleep disturbance and related problems. See Brown; Wills; King. As to whether it is reasonable for Respondents to believe that maintaining the low-level security lighting will serve penological interests, the Court concludes that Petitioners have not adequately denied the allegations of Respondents in "Petitioners Answer to New Matters" filed by Bullock and Martin on behalf of Petitioners. Merely replying "Denied" as Petitioners did in response to paragraphs 25 and 27 constitutes an admission. Swift (a mere denial effectively manifests admission to the facts averred). A reply that Petitioners have no way of knowing and that discovery is not complete with respect to paragraphs 28 and 29 is insufficient when two years after the new matter was filed Petitioners have taken no discovery and offered no evidence or prospect that they can obtain evidence to refute Respondents' penological justification for the constant illumination. In addition to these deemed admissions, the case law fully supports the view that it is reasonable for Respondents to believe that the constant low-level security lighting serves penological interests. The District Court in Brown cited Chavarria v. Stacks, 102 F. App'x 433, 436 (5th Cir. 2004), stating that the "policy of constant illumination [was] reasonably related to the legitimate penological interest of guard security." It cited also King, which described in detail the in-cell lighting that an inmate could control and the 9-watt fluorescent "nightlight" that the inmate could not shut off. The court accepted as reasonable the asserted penological justifications that shining a bright light into a cell at unpredictable intervals would be more annoying to inmates and disruptive to their sleep than continuous low-level illumination, that use of nightlights instead of light sources 9

within staff control decreases the potential for conflict between inmates and staff and that the constant illumination made it more difficult for inmates to hide contraband. These asserted justifications are very similar to those advanced by Respondents here, and as a matter of law the Court cannot conclude that it is unreasonable for them to believe that their policy serves legitimate penological interests. Under the above analysis, Petitioners have not met their burden to establish that there is no genuine question of material fact as to the existence of a serious, health-threatening condition of confinement and the existence of deliberate indifference of prison officials to such condition, and their motion for summary relief is denied. Respondents have met their burden to show that there is no genuine question of material fact as to the lack of a substantial threat to health from a 9-watt security light or as to the reasonableness of their belief that the light serves legitimate penological interests, and their motion for summary relief is therefore granted. DORIS A. SMITH-RIBNER, Judge 10