The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Plaintiff Derrick McKinney ("Plaintiff"), a Pennsylvania state inmate presently incarcerated at the State Correctional Institution at Graterford, initiated this action pursuant to 42 U.S.C. § 1983 alleging that on February 21, 2003, while being escorted from the State Correctional Institution at Camp Hill ("SCI-Camp Hill") Special Management Unit ("SMU") mini law library to his SMU cell, he was physically assaulted by Defendants Nixdorf, Snook and Warner in retaliation for the filing of the civil action of Mckinney v. Guthrie, No. 1:01-cv-2088. (Doc. 1, at 2-3; Doc. 50, at 20-35.) (Doc. 1.) Presently pending is Defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Doc. 47.) Defendants noted in their brief in support of the summary judgment motion (Doc. 49, at 3, n.3) that a suggestion of death (Doc. 46) was filed with respect to Defendant Nixdorf on November 13, 2007, and served upon Plaintiff at his present address. (Doc. 46.) Pursuant to Fed. R. Civ P. 25(a), Plaintiff was to have moved for substitution not later than 90 days after the death is suggested on the record. "Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party." Fed. R. Civ. P. 25(a). The ninety day period has elapsed and Plaintiff has not moved for substitution. Accordingly, the action will be dismissed as to Defendant Nixdorf. The motion for summary judgment, as it pertains to Defendants Steigerwalt, Snook and Warner will be granted in part and denied in part.
Also pending is Plaintiff's motion to compel discovery (Doc. 54), which will be granted inasmuch as the remaining Defendants will be directed to respond to Plaintiff's discovery requests.
I. Motion for Summary Judgment
On November 2, 2001, Plaintiff initiated civil action Mckinney v. Guthrie, No. 1:01-cv-2088 ("McKinney I"). On November 29, 2001, prior to service of the complaint on the named Defendants, a memorandum and order was entered dismissing the complaint without prejudice pursuant to 28 U.S.C. § 1915.
(McKinney I, Doc. 9.) McKinney filed a motion for reconsideration, which was denied on January 15, 2002. (Id. at Docs. 11, 15.) Thereafter, he filed an appeal in the United States Court of Appeals for the Third Circuit. (Id. at Doc. 9.) On June 26, 2003, the appellate court vacated the judgment and remanded the matter to this court for further proceedings. (Id. at Doc. 39.) On July 28, 2003, the United States Marshal's Service was directed to serve the complaint on the named Defendants. (Id. at Doc. 41.) An entry of appearance was filed on behalf of defendant Guthrie, inter alia, on August 11, 2003. (Id. at Doc. 42.) Review of the record reveals that counsel for Defendant Guthrie executed the waiver of service of summons on August 11, 2003. (Id. at Doc. 45.) A motion to dismiss was filed on September 29, 2003. (Id. at Doc. 52.) The motion was considered as one for summary judgment and was denied. (Id. at Doc. 74.) The parties then engaged in discovery and additional motion practice. All Defendants, with the exception of Defendant Guthrie, were dismissed from the action on March 20, 2007. (Id. at Doc. 139.) The matter proceeded to trial and, on April 3, 2007, the jury rendered a verdict in favor of Guthrie and against McKinney. (Id. at Doc. 149.) The case is presently on appeal.
At all times relevant to the incident complained of in the matter sub judice, Plaintiff was housed in the SMU at the SCI-Camp Hill. On February 21, 2003, Nixdorf and Defendants Snook and Warner were responsible for the routine escort of Plaintiff from the SMU mini law library to his cell. (Doc. 53-2, Declaration of John R. Snook, ¶ 4.) Defendant Steigerwalt, the Unit Manager, was not present and took no part in the escort which, according to Snook, lasted only a few minutes. (Id. at ¶ 5.) Further, "[w]ithout looking at the log, Unit Manager Steigerwalt would not have known about the aforementioned routine escort." (Id. at ¶ 14.)
Defendants Snook and Warner assert that there was no mention of the civil action of Mckinney v. Guthrie, No. 1:01-cv-2088 during the escort. (Id. at ¶ 7.) Defendant Snook is "not familiar with an Officer Guthrie." (Id. at ¶ 6.) These Defendants further assert that they "did not assault inmate McKinney or otherwise have any unusual or inappropriate physical contact with inmate McKinney" and that no physical injury was suffered during the escort. (Id. at ¶¶ 8-11.)
Plaintiff submits the affidavit of inmate Leon Harris, who was also incarcerated in the SMU at the relevant time. (Doc. 53-2, at 8-9.) He indicates that his cell was located directly across from the SMU library and that he witnessed Nixdorf and Defendants Snook and Warner leaving the library with Plaintiff. He states as follows:
After the officers check [sic] inmate McKinney [sic] legal work they escorted him upstairs because his cell is (D2-16) . . . on the same block D-Pod in the SMU unite [sic]. I heard c/o Nixdorf ask Inmate McKinney do you (Mr. McKinney), still have that case on Guthrie. I did not hear inmate McKinney reply but the next thing I heard was they (c/o's) was rolling on Dizzy Mack that is Inmate McKinney's alias, and then I heard a loud thumping noises, then me and all the other inmates on D-Pod started kicking our doors, and telling the officers to get off of him (Inmate McKinney). (Id. at 9.) Plaintiff states that he was "strucked [sic] in the back of the head and repeatedly being hit with closed fists in the head area and also in my arm and back and neck area." (Doc. 59 at 2.) As a result of the assault he "suffers to date from severe headaches; a damaged elbow; a bruised rib; severe back pain; lumps in my head; and I stayed in pain for over two months and to this very day is still in pain from such injuries." (Id.)
According to the medical records, Plaintiff sought medical treatment on February 25, 2003. He made no mention of a physical assault. Rather, he complained of a lump on his left forearm and a hoarse voice. (Doc. 50, at 47.) He was prescribed Advil and was advised to rest his voice and gargle with salt water as needed. (Id. at 48.) It appears that he was transferred to the State Correctional Institution at Greene the following month. (Id. at 52.) There are no medical records submitted from that facility.
There are no entries in Plaintiff's Cumulative Adjustment Record that indicate that he was physically assaulted. (Doc. 50, at 46.)
Under Federal Rule of Civil Procedure 56(c), summary judgment may be entered 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment has the burden of proving that there is no genuine issue of material fact. Id. Additionally, on summary judgment, the inferences to be drawn from the underlying facts must be viewed in a light most favorable to the non-moving party. El v. S.E. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To preclude summary judgment, there must be a "genuine" issue of a material fact, "that ...