The opinion of the court was delivered by: Judge Muir
(Complaint Filed 02/08/04)
Plaintiff, an inmate presently confined in the State Correctional Institution, Albion, Pennsylvania, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. He complains of incidents which occurred during his arrest on June 20, 2003.
On June 20, 2005, plaintiff filed Font v. Luzerne County, Civil No. 4:05-CV-1226. A filing of an amended complaint by plaintiff on August 29, 2005 in Font, Civil No. 4:05-CV-1226, and a motion to dismiss same, prompted an Order dated July 19, 2006, consolidating Font v. Luzerne County, Civil No. 4:05-CV-1226 into Font v. Pennsylvania State Police et al, Civil No. 4:05-CV-0277, pursuant to Federal Rule of Civil Procedure 42(a); granting the motion to dismiss filed by the Commonwealth of Pennsylvania and defendant Wetzel; dismissing the amended complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), as to defendants, Luzerne County and Gene Fishy; and granting plaintiff thirty (30) days from the date of the order to properly provide the names of the John Doe defendants referred to in the amended complaint. (Doc. No. 44).
By Order dated December 7, 2007, plaintiff's amended complaint was dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), as to defendant Nurse Sherry, and Correctional Officers, defendants John Doe Nos. 1-4, Physician Assistant, John Doe No. 5, and Doctor, John Doe No. 6, were dismissed from the action as a result of plaintiff's failure to identify the John Doe defendants. The only remaining defendant is Trooper Corey D. Wetzel.
Presently before the Court is defendant Wetzel's motion for summary judgment. (Doc. No. 63). The motion is fully briefed and is ripe for disposition. For the reasons set forth below, defendant's motion will be granted. Also pending before the Court is plaintiff's motion for reconsideration of this Court's December 7, 2007 Order, dismissing defendant Nurse Sherry from the complaint. (Doc. No. 71). That motion will be denied.
Federal Rule of Civil Procedure 56(c) requires the court to render summary judgment " . . . forthwith 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." Fed.R.Civ.P. 56(c). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether there is a genuine issue of material fact, the court must view the facts and all reasonable inferences in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail Corporation, 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. When the party seeking summary judgment satisfies its burden under Rule 56(c) of identifying evidence which demonstrates the absence of a genuine issue of material fact, the nonmoving party is required by Rule 56(e) to go beyond the pleadings with affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Celotex Corporation v. Catrett, 477 U.S. 317, 324 (1986). The party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule 56(e) shifts the burden of production to the nonmoving party, that party must produce evidence to show the existence of every element essential to its case which it bears the burden of proving at trial, for "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
The following material facts have been derived from the pleadings, declarations and exhibits submitted.
On June 20, 2003, Font was arrested by an unidentified Pennsylvania State Police Trooper, who was "not in uniform and failed to identify himself as a police officer." (Doc. No. 1, complaint). Plaintiff claims that this officer "entered [his] house asked [him] who [he] was and put his hand on [plaintiff] in an aggressive and threatening manner." Id. Because plaintiff did not know he was a police officer and was "in fear for [his] safety [he] began to fight with him" and a "brief struggle ensued during which a second man put his hands on [plaintiff] and a third came in the back door." Id. Plaintiff claims that "when [he] saw the other two had uniforms on and that they were the police, [he] immediately stopped fighting and did not resist arrest." Id. The police allegedly "drug [plaintiff] outside and threw [him] ...