The opinion of the court was delivered by: Judge Kosik
Jackie Thinna, an inmate confined at the State Correctional Institution at Waymart (SCI-Waymart), Pennsylvania, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 3, 2006. Named as defendants are Department of Corrections (DOC) employees Jeffery A. Beard, Secretary and Alan B. Fogel, Medical Director. Also named are SCI-Waymart employees Dr. Malik, Dr. Roach, Dr. Purcell and Janan Loomis and Jennifer Villano.*fn1 Plaintiff also names "Mr. Tom" as a defendant. In the complaint, Plaintiff sets forth claims of inadequate medical care in violation of the Eighth Amendment. Service of the complaint was directed on July 11, 2006 (Doc. 8).*fn2 On January 18, 2007, the court granted a motion filed by Plaintiff to substitute Dr. Bekele for defendant Dr. Malik. (Doc. 22.) Malik was thereafter terminated from this action, and service of the complaint directed on Bekele. The purpose of this Memorandum is to address various motions presently pending on the docket in this action.
In the complaint Plaintiff contends that defendants were deliberately indifferent to his medical needs in May and June of 2004, apparently following a surgical procedure. He specifically claims that Defendants failed to put a drainage tube in his surgical wound or prescribe any type of aftercare for him following surgery. He states that Beard is liable; because he is responsible for all persons employed by the DOC and, as such, responsible for the injuries he received by Defendants Roach and Bekele. He contends that Fogel, as Medical Director of the DOC, is responsible for all actions of the medical personnel and, therefore, also responsible for the actions of Roach and Bekele. He alleges that Dr. Roach violated his rights with regard to his surgery and aftercare when he did not put a drainage tube in his wound following surgery or prescribe any type of aftercare for him. Plaintiff claims Bekele was deliberately indifferent when he removed his staples and his left nipple without first consulting the original attending surgeon, Dr. Roach. According to Plaintiff, Defendants Loomis, Villano and Dr. Tom are responsible for "indifferent treatment in the aftercare concerning surgery." (Doc. 1, Compl. at unnumbered p. 2a.)*fn3 Plaintiff requests declaratory, compensatory and punitive relief.
Presently pending are motions to dismiss filed by Defendants Beard and Fogel (Doc. 14), Defendant Purcell (Doc. 28), Defendant Roach (Doc. 33) and Defendant Bekele (Doc. 40); a motion for summary judgment filed by Defendants Loomis and Villano (Doc. 19); and Plaintiff's third motion for the appointment of counsel (Doc. 37).
A. Motion to Dismiss filed by Beard and Fogel
Defendants Beard and Fogel filed a motion to dismiss the complaint on September 18, 2006. A brief in support was filed on September 27, 2006. Because Plaintiff failed to oppose the motion or seek an enlargement of time within which to do so, an Order was issued by the court on January 18, 2007 (Doc. 22) directing Plaintiff to file his opposition to the motion within fifteen (15) days, and warning him that the failure to do so would result in the motion being granted without a merits analysis. See Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991). Because Plaintiff has failed to comply with the court's Order, Defendants' motion to dismiss will be granted.
B. Motion for Summary Judgment by Loomis and Villano
On November 29, 2006, Defendants Loomis and Villano filed a motion for summary judgment along with a supporting brief and statement of material facts. (Docs. 19-21.) The basis of the motion is Plaintiff's failure to exhaust his administrative remedies as required by 42 U.S.C. § 1997(e). Because Plaintiff failed to respond to the motion, in the same Order referenced above issued on January 18, 2007, Plaintiff was directed to respond to the outstanding motion within fifteen (15) days. (Doc. 22.) He was warned that the failure to do so would result in the motion for summary judgment being deemed unopposed and addressed on the merits.*fn4 He has failed to oppose the motion.
A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. Fed. R. Civ. P. 56 (c). An issue of fact is "'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)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
The burden of proving that there is no genuine issue of material fact is initially upon the movant. Forms, Inc. v. American Standard, Inc., 546 F. Supp. 3145, 320 (E.D. Pa. 1982). Upon such a showing, the burden shifts to the nonmoving party. Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by "depositions, answers to interrogatories and admissions on file" designate "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).
In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In doing so, the court must accept the non-movant's allegations as true and resolve any conflicts in his favor. Id. (citations omitted). Plaintiff has failed to oppose Defendants' pending motion for summary judgment. As such, the motion is deemed unopposed. Moreover, since Plaintiff has failed to file a separate statement of material facts controverting the statement filed by ...