The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge
MEMORANDUM AND ORDER Background
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
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
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
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
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
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.
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, ...