The opinion of the court was delivered by: LUONGO
Plaintiff, David Carter, instituted this complaint
under the Civil Rights Act, 42 U.S.C. §§ 1983 and 1985, and the Eighth and Fourteenth Amendments to the Constitution of the United States. Jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1343. Defendants are the Superintendent of the State Correctional Institution at Graterford, a Major and a Sergeant of the Guards, and a guard. Carter alleged that these defendants acted individually and in concert to deprive him of his constitutional rights by subjecting him to "cruel and unusual punishment" in contravention of his rights to the equal protection of the laws and due process of law.
The complaint alleges that Carter is an inmate at Graterford; that on the morning of August 6, 1975, defendant Swank, a correction officer (guard) at Graterford accosted Carter in the dining hall, told him he was skating on thin ice and threatened to get him; thereafter he searched Carter's cell; when the search revealed nothing, Swank told the other guards to get Carter; following that incident, Swank harassed him every day. On August 14, 1975, Carter executed the affidavit to the complaint which was filed August 19, 1975.
Carter charges that Swank's conduct constituted a threat upon his life. He asserts his belief that his cell was searched more than the cells of other inmates. He charges further that defendants, Superintendent Cuyler, Major Mauger and Sergeant Cole have participated in a scheme to deprive him of his constitutional rights in that they had knowledge of Swank's abusive conduct and failed to take any action to prevent or curtail it.
Plaintiff seeks an award of damages from the named defendants, claiming that as a result of their conduct he has suffered aggravation of a pre-existing ulcer; that he requires daily medication for his nerves; and that he has lost his appetite and is unable to sleep.
Defendants have moved for summary judgment. The motion is supported by affidavits in accordance with Rule 56, F.R.C.P. Subsection (e) of that Rule provides:
"(e) . . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule must set forth specific facts showing that there is a genuine issue for trial."
As will hereafter appear, Carter has failed to carry the burden of Rule 56(e) and his failure is fatal to the maintenance of this action.
I am mindful of the special indulgence required in considering pro se complaints. Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). Nevertheless, it is clear that in spite of this special indulgence, summary judgment will be granted where warranted. See Tunnell v. Wiley, 514 F.2d 971 (3d Cir. 1975).
Examination of the material submitted discloses that the institution's regulations authorize the correctional officers to deal with minor infractions on an informal basis. The verbal reprimand and the search of Carter's cell by Swank was pursuant to that authority and was prompted by minor infractions of dining hall rules. Carter's was not the only cell searched. On that same morning, August 6, 1975, other cells were searched and other inmates were reprimanded. One week after this incident Carter was interviewed by his counsellor who suggested that he resolve the problem by seeing one of the Majors of the Guard. Carter did thereafter, on August 18, 1975, have an interview with a Major Schildt, as a result of which Carter consented to move to another cell block and to accept a different duty assignment which removed him from contact with Swank. This disposition of the matter was with the knowledge and approval of the Superintendent.
The institution's medical records (submitted with the affidavits) disclose that Carter received medical attention on two occasions between August 6 and August 18. He was given antibiotics and antidepressant medication only. The records also disclose treatment for a pre-existing ulcer and administration of medication for a nervous condition and inability to sleep on dates prior to August 6, 1975.
Carter's countervailing affidavits establish only that the verbal reprimand was overheard by other inmates. Carter's own affidavit simply repeats what is set forth in his complaint, with the addition of a statement to the effect that "this conspiracy is based partly on racial animus" with no factual elaboration whatsoever.
I am satisfied that defendants have carried their burden of establishing the absence of any material issue of fact for trial. Adickes v. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Plaintiff has failed to controvert the facts set forth in defendants' motion and supporting papers. The conclusory statement charging a racially motivated conspiracy is not enough. Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972). Plaintiff's attempt to defeat the motion for summary judgment may not rest upon the hope, as expressed in his brief (p. 5), that further discovery may develop the essential facts ...