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September 22, 2005.

JOHN NASH, ET AL., Defendants.

The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge


This pro se civil rights action was initiated by Francisco Gonzalez, an inmate presently confined at the Schuylkill Federal Correctional Institution, Minersville, Pennsylvania ("FCI-Schuylkill"). Service of the original complaint was previously ordered.

On August 26, 2004, Plaintiff filed a proposed amended complaint which named two individuals as Additional Defendants. See Doc. 22. By Order dated November 30, 2004, the amended complaint was deemed a supplemental complaint.

  Named as Defendants are FCI-Schuylkill and the following prison employees: Warden John Nash; Associate Warden Deneen Sweet; Recreation Supervisor Fred Thompson; Teacher Keith Maurer; Health Services Administrators Charleston Iwuagwu and Edgardo Ong; Physician Assistants ("PA") David Steffan and Kenton Hubble; Correctional Counselors Kranzel and Smith; and Doctor Russell C. Hendershot.

  Plaintiff states that on the afternoon of April 7, 2001, while jogging on the prison track, he "tripped in a small ditch/pit in the track." Doc. 1, Attachment #1, p. 1. As a result of this fall, Gonzalez purportedly injured his left knee and twisted his ankle. Upon being apprised of Plaintiff's injury, Officer Maurer contacted the prison's Medical Department and was told to "send me over." Id. After arriving at the Medical Department, Plaintiff was examined by PA Hubble who allegedly concluded that he had suffered a minor sprain. Before being sent back to his housing unit, Gonzalez was given an ice pack and the use of a wheelchair.

  By the next day, Plaintiff's condition had purportedly worsened so he returned to the medical department and filled out a request form asking to be seen by a doctor. Throughout the following month, Gonzalez contends that the injury to his left knee continued to deteriorate requiring him to make various return visits to the medical department. During those visits. Plaintiff was given pain medication. Finally, on May 2, 2001, Gonzalez had an appointment with Doctor Ross, who recommended the taking of an x-ray.

  Plaintiff contends that due to the Defendants' negligent diagnosis and inadequate treatment, he developed an infection which required him to undergo surgery. After a prolonged delay, Gonzalez underwent surgery on September 12, 2002. During this procedure, 25% of Plaintiff's leg muscle had to be removed due to the infection. His original complaint additionally contends that Plaintiff was not provided with needed rehabilitation following the operation. Gonzalez's final assertion is that Defendant Kranzel, who is described as being racially biased, retaliated against him by interfering with his attempts to obtain relief via the prison administrative remedy procedure. He concludes that due to Defendants' negligence he has suffered painful, permanent injury to his leg. His original complaint seeks compensatory damages.

  In his supplemental complaint (Doc. 22), Plaintiff names Health Care Administrator Ong and Medical Director Doctor Hendershot as Additional Defendants. Plaintiff states that on April 23, 2003, Doctor Michael Borofsky, a rheumatologist, diagnosed him as having monoarthritis, prescribed physical therapy and recommended that he undergo MRI testing. Gonzalez indicates that Defendants failed to comply with Doctor Borofsky's recommended course of treatment. He further indicates that he has not been provided with adequate medical care because he speaks only Spanish.

  Presently pending is the Defendants' motion requesting entry of summary judgment. See Doc. 35. The motion has been briefed and is ripe for disposition.


  Defendants argue that they are entitled to entry of summary judgement in their favor on the grounds that: (1) the claims for monetary damages against Defendants in their official capacities are barred by the Eleventh Amendment; (2) FCI-Schuylkill is not a properly named Defendant; (3) Gonzalez failed to exhaust his available administrative remedies with respect to his claims regarding an unsafe track at FCI-Schuylkill and being denied grievance forms by Defendant Kranzel; (4) all claims predating March 22, 2002 are time barred; (5) there are no assertions of personal involvement in constitutional misconduct raised against Defendants Nash, Sweet, Maurer, Iwuagwu, Hubble, Steffan, Smith Ong, or Hendershot and (6) Defendants are entitled to qualified immunity.

  Standard of Review

  Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, admissions on file, together with 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).

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who 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 of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. "[T]he standard [for granting summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a). . . ."
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, (1986).

  The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. The moving party can discharge that burden by "`showing' . . . that there is an absence of evidence to support the nonmoving party's case." Celotex, supra, 106 S.Ct. at 2553 and 2554. Once the moving party has satisfied its burden, the nonmoving party must present "affirmative evidence" to defeat the motion, consisting of verified or documented materials. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). Issues of fact are "genuine only if a reasonable jury, considering the evidence presented could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment. Id. In evaluating a motion for summary judgment, the entire record must be examined in the light most favorable to the nonmoving party.

  Eleventh Amendment

  The initial argument raised by Defendants is that the portion of Gonzalez's action which seeks monetary relief against them in their official capacities must be dismissed under the Eleventh Amendment. The Eleventh Amendment provides:
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.
"[C]laims for money damages against the prison officials in their official capacity are claims for retroactive relief and hence are barred by the Eleventh Amendment." Doe v. Wagginton, 21 F.3d 733 (6th Cir. 1994) (citing Edelman v. Jordan, 415 U.S. 651, 663 (1974). The Court of Appeals for the Third Circuit in Laskaris v. Thornburgh, 661 F.2d 23, 26 (3d Cir. 1981), similarly concluded that an "action in federal court for damages or back pay against a state official acting in his official capacity is barred because such retrospective relief necessarily depletes the state treasury." Pursuant to the above discussion, Plaintiff's claims to the extent that they seek monetary compensation from the Defendants in their official capacities are clearly barred by the Eleventh Amendment and will be dismissed.


  The United States and other governmental entities are not persons and therefore not proper defendants in a federal civil rights action. Accardi v. United States, 435 F. 2d 1239, 1241 (3d Cir. 1970); see also Hindes v. F.D.I.C., 137 F.3d 148, 159 (3d Cir. 1998).

  Similarly, a prison or correctional facility is not a person for purposes of a civil rights claim. See Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973); Philogene v. Adams County Prison, Civ. No. 97-0043, slip op. at p. 4 (M.D. Pa. Jan. 30, 1997) (Rambo, C.J.); Sponsler v. Berks County Prison, Civ. A. 95-1136, 1995 WL 92370, at *1 (E.D. Pa. Feb. 28, 1995). Pursuant to the above standards, FCI-Schuylkill is clearly not a person and may not be sued under Bivens. See Thompkins v. Doe, ...

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