The opinion of the court was delivered by: NEALON
WILLIAM J. NEALON, Chief Judge.
Before the court is a Report of Magistrate Joseph F. Cimini dated July 9, 1987. In the Report, the Magistrate recommends that the court grant in part and deny in part the defendants' March 18, 1987 Motion for Summary Judgment. Magistrate Cimini's recommendation will be adopted in part and rejected in part.
The procedural history of this § 1983 action and the allegations of the plaintiff are set forth fully in Magistrate Cimini's Report. See document 53 of the record at pp. 1-3, 5-8. Briefly, plaintiff alleges that state corrections officers assaulted him on three different occasions and fabricated misconduct reports against him. Plaintiff seeks injunctive relief in addition to monetary damages.
On March 18, 1987, the defendants moved for summary judgment. See documents 43 and 48 of the record. In his Report, Magistrate Cimini found genuine issues of material fact as to each of plaintiff's three assault claims and the two related claims for fabricated misconduct reports. See document 53 of the record at pp. 11-14. Thus, Magistrate Cimini granted in part and denied in part the defendants' Motion for Summary Judgment. See id. at pp. 14-16.
The defendants filed objections to the Magistrate's Report on July 22, 1987. See documents 54 and 55 of the record. Basically, the defendants contend that plaintiff's affidavit in opposition to defendants' Motion for Summary Judgment failed to demonstrate any genuine issue of material fact. For the following reasons, the recommendation of Magistrate Cimini will be adopted in a modified form.
When examining a motion for summary judgment, the court must view all facts in the light most favorable to the party opposing the motion. Betz Laboratories, Inc. v. Hines, 647 F.2d 402 (3d Cir. 1981). If there exists a genuine issue as to any material fact, summary judgment must be denied. Fed.R.Civ.P. 56(c). On the other hand, a party opposing a motion for summary judgment cannot rest on the allegations in his complaint. Instead, that party must present evidentiary affidavits or risk having the undisputed statements contained in the movant's affidavits taken as true. See Fed.R.Civ.P. 56(e); see also Sierra v. Lehigh County Pennsylvania, 617 F. Supp. 427 (E.D. Pa. 1985).
In response to defendants' Motion for Summary Judgment, the plaintiff filed a document labeled "Motion Opposing Defendants Motion for Summary Judgement" [sic]. The relevant portion of that document states as follows:
2. On December 7, 1984, Plaintiff prepared an Civil Rights Complaint under 42 U.S.C., section 1983 for violation of his federal Constitutional Rights by def's prison officials who acted under color of law and jurisdictions were invoked under 28 U.S.C. Section 1343 & 1651 and 2201-2202; as a result of an incident which occurred on December 19, 1983 & June 1, 1984 & June 6, 1984. On those days, Plaintiff suffered abusive, beaten until he was unconscious. On June 1, 1984 he was beaten until he was unconscious. On June 1, 1984, beaten thraten and sexually assaulted.
3. All Defendants played an role in the covering up of the act of brutality by these staff members, the wanton acts unnecessary harassment, blatant discriminatory practices, abuse of institutional misconduct system, the Malicious Conspiracy in Keeping Plaintiff confined to the R.H.U.
4. All of Defendants Denials to Plaintiff Claims are subjected to scrutiny in that Plaintiff has carefully read all of the answers and declarations of the defendants and is positively sure that under cross examination before a Jury the credibility of the defendants can prove to be discreditable, inasmuch Plaintiff has investigative documents and has eye witness to be called upon at trial that may very well cause discredit of all if not most of defendants denials and declarations. Thereof a jury trial is necessary and highly imperative. Wherefore: for the reasons set forth above, defendants are not entitled to summary judgment. Plaintiff asserts and reasserts all of his remaining claims raised in Civil Action # 84-1657 and pray that this Motion to writ opposing Defendants Motion for Summary Judgment. Plaintiff further request that a trial date be set, and that it be a trial by Jury.
See document 52 of the record. The defendants argue that this document is insufficient to create triable issues of fact. The court agrees.
As stated previously, the party opposing a motion for summary judgment may not rest upon mere conclusory allegations or denials. Cerva v. Fulmer, 596 F. Supp. 86 (E.D. Pa. 1984); see also Tomarkin v. Ward, 534 ...