The opinion of the court was delivered by: Judge Sylvia H. Rambo
The instant matter arises from the alleged negligence of attendants at the infirmary of a federal penitentiary in Pennsylvania. Plaintiff claims that, after he sustained stab wounds from fellow inmates, the attendants did not adequately respond to his medical needs. He alleges that the United States is liable for the negligence of the attendants under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346. For the reasons that follow, the court will enter summary judgment for Defendants.
Plaintiff Anthony Brown was incarcerated at Allenwood United States Penitentiary ("USP-Allenwood") on June 14, 2004, when he was stabbed several times. The attack by three of his fellow inmates occurred between 9:00 and 9:30 p.m. He sustained puncture wounds on his back, right lower flank, right lower abdomen, and both arms. After having been stabbed, Plaintiff ran to an office in his housing unit, where he found two prison officers. Plaintiff told the officers what had occurred. They told him to stay in the office and they left, presumably to look for Plaintiff's attackers. Within five minutes, another guard entered the office. He took Plaintiff next door to a holding cell, then asked him what happened. Upon learning that Plaintiff had been stabbed, the officer walked Plaintiff to the prison infirmary.
When Plaintiff arrived at the infirmary, he was examined by Emergency Medical Technician ("EMT") Duttry. EMT Duttry observed that Plaintiff was conscious, alert, and oriented during the examination. His vital signs were normal. EMT Duttry initially concluded, after a physical exam, that Plaintiff's wounds were superficial. Before he left the infirmary, Plaintiff used the restroom. In doing so, he discovered blood in his urine. He informed the EMT and the prison officers of the blood. They escorted Plaintiff back to the special housing unit at USP-Allenwood.
The record is unclear as to the exact timeline of the events that followed. It seems that soon after Plaintiff was remanded to the special housing unit, he once again discovered blood in his urine. Concerned, Plaintiff began banging on the walls or bars of his cell, yelling that he needed a physician's assistant. No one responded to him, and no one walked by the cell on normal rounds. After an hour of banging and yelling, EMT Duttry arrived, accompanied by prison guards. Upon hearing that Plaintiff still had blood in his urine, they took him back to the infirmary. There, EMT Duttry reexamined Plaintiff. He performed the same physical exam that he had done earlier. He concluded that one of the stab wounds might have been deeper than he originally believed. A short time later, an ambulance arrived to transport Plaintiff to an outside hospital in Williamsport, Pennsylvania.
The doctors at the hospital performed the same physical exam that EMT Duttry had performed. After radiological scans confirmed damage to Plaintiff's right kidney, he was put under the care of a urologist. The urologist decided that the best course of action was to defer blood transfusions and surgery because Plaintiff's kidney was still functioning. Plaintiff was put on bed rest and closely observed for any change in his status. Plaintiff's kidney healed on its own with bed rest. He was released on June 22, 2004.
Plaintiff had follow-up visits on August 16, 2004, and November 4, 2004, and December 7, 2004. The CT scans taken of his kidney upon his last visit showed no functional abnormality. His kidney has healed completely, leaving only a small scar as evidence of his injury. He does not suffer any continued pain from the incident.
On July 29, 2004, Plaintiff filed his complaint under Bivens*fn1 and the FTCA. Upon Defendants' motion to dismiss, or in the alternative, for summary judgment, the court dismissed Plaintiff's Bivens claim. His claims under the FTCA survived and are the basis for the present motion for summary judgment by Defendants. Defendants filed a brief in support of their motion on October 16, 2006. Plaintiff's response to Defendant's motion was due on November 3, 2006. See Fed. R. Civ. P. 6(a); Local R. 7.6. Plaintiff failed to submit a responsive brief. The court ordered Plaintiff, on November 14, 2006, to show cause no later than November 27, 2006, why Defendant's brief should not be deemed unopposed. (Doc. 91.) Plaintiff has not responded to the order or to Defendant's motion. Thus, the court deems Defendant's motion unopposed and the matter is ripe for disposition.
II. Legal Standard -- Summary Judgment
Summary judgment is proper when "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c); accord Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232.
Typically, the adverse party will oppose a motion for summary judgment. In that event, once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "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." Celotex, 477 U.S. at 322. "Such affirmative evidence -- regardless of whether it is direct ...