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June 14, 1996

BERNARD BANKS, et al., Plaintiffs

The opinion of the court was delivered by: MCCLURE


 The plaintiffs--Bernard Banks, Louis Bracy, and Jamal Morrison--filed this civil rights action under 42 U.S.C. § 1983 on August 14, 1995 when all of them were inmates at the Lackawanna County Prison (the "Prison"), Scranton, Pennsylvania. The court has jurisdiction over this suit under 28 U.S.C. §§ 1331 and 1343. The alleged events giving rise to this complaint occurred in June and July 1995. Each plaintiff litigates this suit pro se and, on August 25, 1995, was granted in forma pauperis status. At present Morrison is no longer a prisoner and resides in Scranton; Banks is confined at the United States Penitentiary in Lewisburg, Pennsylvania; and Bracy is incarcerated at the State Correctional Institution in Camp Hill, Pennsylvania.

 The defendants, who answered the complaint months ago, are the Lackawanna County Commissioners--Ray Alberigi, John Senio, and Joseph Corcoran--and prison correctional officer George McHale. *fn1" Declaratory, monetary, and injunctive relief are requested. (The injunctive relief claims will be dismissed as moot because the plaintiffs are out of the Prison. Preiser v. Newkirk, 422 U.S. 395, 401, 45 L. Ed. 2d 272, 95 S. Ct. 2330 (1975); Weaver v. Wilcox, 650 F.2d 22, 26-27 (3d Cir. 1981)). The plaintiffs allege that their rights under the United States Constitution and under state law were violated.

 Today the court considers the motion filed by Banks for partial summary judgment on his substantive due process claim against defendant McHale, discussed below. (Morrison and Bracy did not sign this motion; thus, they are not movants. Fed. R. Civ. P. 11.) It is noted that although the record indicates that the plaintiffs may have considered withdrawing this suit and may have informed Prison officials that they were willing to withdraw it, no document to that effect was filed by any plaintiff with this court. Therefore, they all remain plaintiffs.

 Other than the instant motion for partial summary judgment, no dispositive motion has been filed. In the interest of efficient and timely resolution of all the issues in this suit, the court will set a deadline for filing any dispositive motions on the claims by plaintiffs Bracy and Morrison. If neither one of these two plaintiffs nor defendant McHale files such a motion within sixty (60) days from the date of this order, the matter may be set for pretrial conference and trial.

 In a verified complaint the plaintiffs allege the following: In June and July 1995 Banks and Bracy were pretrial detainees, and Morrison was a convicted inmate. In June 1995, during a search by McHale of Bracy's and Morrison's cells, McHale

took a walkie talkie and begin [sic] touching Bracy's private parts (penis), and continued to do this. . . At the same shake down in June 1995 as above, defendant McCale begin [sic] feeling Morrison's behind. . . On July 12, 1995, while getting ready for outside yard defendant McCale approached plaintiff Banks and grabbed his private parts (penis) and squeezed it, playing.

 Record doc. 1, p. 2. Banks repeats his sexual assault claim in an affidavit, and also states that he felt "fear" and "anger" because of McHale's alleged act. Record doc. 18, Exhibit 1. In his answer McHale denies these allegations. Record doc. 14. A report dated August 22, 1995, signed by Warden Thomas P. Gilhooley and by William Thompson (whose position is unclear), of an internal investigation by the Prison in regard to these allegations was filed with the defendant's opposing brief. Statements by McHale are summarized in the report. For example, the report reads in part: "Essentially he [McHale] stated that the majority of the allegations were false. He denies any such contact with Bracy." Record doc. 23, Exhibit A, unnumbered p. 2. *fn2"


 The basic summary judgment principles are well-known. In First Nat'l Bank of Pa. v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277 (3d Cir. 1987) the United States Court of Appeals for the Third Circuit summed them up as follows:

A trial court may enter summary judgment only 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' Fed. R. Civ. P. 56(c). 'Summary judgment will not lie if . . . the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505, [248] (1986).
The burden to demonstrate the absence of material fact issues is initially on the moving party regardless of which party would have the burden of persuasion at trial. The moving party may meet its burden by showing that 'there is an absence of evidence to support the nonmoving party's case.' Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548, [325] (1986).

 824 F.2d at 280. Importantly, "at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 250. Thus, on a motion for ...

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