The opinion of the court was delivered by: Hay, Magistrate Judge
MEMORANDUM OPINION AND ORDER*fn1
William A. Hill ("Plaintiff") was a state prisoner who was convicted of, inter alia, Indecent Assault 18 Pa.C.S.A. 3126, and Corruption of Minors, 18 Pa.C.S.A. 6301. While incarcerated, he brought a civil rights suit pursuant to, inter alia, 42 U.S.C. § 1983, alleging that the defendants violated his federal constitutional rights. This case has been the subject of prior proceedings including a Report and Recommendation. Familiarity with those proceedings is presumed. As a consequence of those proceedings, only two of Plaintiff's claims remain: (1) a First Amendment retaliation claim against Defendants Ed Kechisen ("Kechisen"), Mary Jo Barber ("Barber") and John Sawtelle ("Sawtelle"), and (2) an Eighth Amendment claim of deliberate indifference against Defendants Chris Garman ("Garman") and Tim Rice ("Rice") based upon Plaintiff being attacked by another inmate.
Presently before the Court is the Defendants' motion for summary judgment. Dkt. . For the reasons that follow, summary judgment is properly granted in favor of the Defendants and against Plaintiff.
Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Although Plaintiff had originally been charged with, inter alia, Statutory Rape, he entered a negotiated plea agreement wherein he ultimately plead guilty to only Indecent Assault without the consent of another, Corruption of Minors, Simple Assault, and Statutory Sexual Assault. The Statutory Rape charge was nolle prossed.). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial" or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), quoting Fed.R.Civ.P. 56(e). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Thus, it must be determined "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-52. In analyzing the record, the court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. McCarthy v. Recordex Serv.,Inc., 80 F.3d 842, 847 (3d Cir. 1996).
Plaintiff's first claim is that Defendants Garman and Rice violated his Eighth Amendment right to be free of cruel and unusual punishment when these defendants failed to enforce a Department of Corrections ("DOC") policy that required inmates who were listening to their radios or televisions to do so with earphones. See Dkt.  at 17; Dkt.  at 2 to 3. Defendant Garman was Plaintiff's Unit Manager and Defendant Rice was Plaintiff's counselor. Dkt.  at 14, ¶ 30. Plaintiff contends that because these defendants failed to enforce the policy, Plaintiff's cellmate attacked him due to Plaintiff's complaints regarding the lack of enforcing the policy.
In fact, the evidence shows that Plaintiff was attacked by his cellmate on December 20, 2004. Dkt. [101-2] at Exhibit 4, page 7 of the transcript, line 6; Dkt.  at 8. In addition to attacking Plaintiff, Plaintiff's cellmate destroyed Plaintiff's television.
To "prevail on a failure to protect claim, an inmate must make two showings[,]" one, an objective showing, the second, a subjective showing. Pearson v. Vaughn, 102 F.Supp.2d 282, 290 (E.D. Pa. 2000). First, an inmate must show that "he is incarcerated under conditions posing a substantial risk of serious harm." Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second, an inmate must show that the official "knows and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837. Moreover, the subjective showing or the "knowledge element of deliberate indifference is subjective, not objective knowledge, meaning that the official must actually be aware of the existence of the excessive risk; it is not sufficient that the official should have been aware." Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001). "To sustain his constitutional claim, [the inmate] must demonstrate something approaching a total unconcern for his welfare in the face of serious risks, or a conscious, culpable refusal to prevent harm[.]" King v. Fairman, 997 F.2d 259, 261 (7th Cir. 1993). As a corollary of the deliberate indifference standard, the Court in Farmer emphasized that negligence is insufficient to impose liability: "[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment." Farmer, 511 U.S. at 838.*fn2 See also Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir. 1998) ("[D]eliberate indifference must be viewed from [defendants'] perspective at the time in question, not with hindsight's perfect vision."). The plaintiff bears the burden of proof as to both the subjective and objective prongs for, as the Court of Appeals has explained, in order to "survive a summary judgment on an Eighth Amendment claim asserted under 42 U.S.C. § 1983, a plaintiff is required to produce sufficient evidence of (1) a substantial risk of serious harm; (2) the defendants' deliberate indifference to that risk; and (3) causation." Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997).
In support of their motion for summary judgment, the Defendants pointed out that there is no evidence of the subjective prong. Dkt.  at 10 to 12.*fn3 Defendants point to evidence that although the Plaintiff informed Defendants Garman and Rice that their underlings were not enforcing the policy requiring the wearing of earphones, such was not sufficient to establish that they were aware of a risk to Plaintiff's safety; Plaintiff never stated to them that the cellmate and he were arguing about the headphone use, or that Plaintiff feared the cellmate. They also point out that Plaintiff does not allege that the inmate who eventually attacked him was so dangerous that Defendants Garman and Rice must have known of the threat that the cellmate posed to Plaintiff. In light of the foregoing, Defendants have carried their initial summary judgment burden so as to shift the burden to Plaintiff to come forth with evidence of the subjective prong.
In response to the Defendants' summary judgment motion, Plaintiff argued that the failure of Defendants Garman and Rice to enforce the policy on use of ear phones was the cause of his assault because he had "continuously informed the unit officer and defendants of the plaintiff's cellmate['s] failure to obey prison policy . . . . Nobody would listen until the assault occurred. . . ." Dkt.  at 14. However, Plaintiff points to no evidence that he informed Defendants Garman or Kechisen prior to the December 20, 2004 attack. Rather, all of the evidence to which Plaintiff points shows that Plaintiff complained to these two Defendants only after the attack. See, e.g., Dkt.  at 12, ¶ 25 (a) citing to Exhibit I (found at Dkt. [108-2] at 13, which is an Inmate's Request to Staff addressed to Rice/Garman and dated, April 12, 2006, which is more than one year and three months after the attack). Plaintiff does point to Exhibit F(2), which is found at Dkt. [108-2] at 10, which is a grievance dated February 17, 2005, some two months after the attack, wherein Plaintiff states that he told Garman that he had continuously informed prison guards of the policy regarding wearing of earphones and that they failed to enforce it and in response, Mr. Garman is alleged to have said "I guess we're responsible for the attack and the destruction of the TV." From the context, it is clear that even here, Plaintiff's evidence is that he only spoke with Garman after the attack. Plaintiff next points to Exhibit H, which is found at Dkt. [108-2] at 12, which is an Inmate's Request to Staff directed at Mr. Garman, which is dated May 9, 2005 (nearly six months after Plaintiff was attacked), which complains of Plaintiff's then current cellmate who, like his previous cellmate, fails to use headphones. Hence, there is no evidence that Defendants Garman and Rice had any warning or prior knowledge that Plaintiff's cellmate posed a threat of an attack. Moreover, as the Defendants point out, even Plaintiff acknowledged that he had no idea that his cellmate would attack him. Dkt.  at 5, ¶ 29; Dkt.  at 13 to 14, ¶ 29. James v. Milwaukee County, 956 F.2d 696, 700 (7th Cir. 1992)("A prisoner normally proves actual knowledge of impending harm by showing that he alerted prison officials to an identifiable threat to his safety" or by showing "the existence of so substantial a risk of harm that 'the defendants' knowledge of risk can be inferred[.]' ") (citations omitted).
Hence, on this record there is no evidence that Defendants Garman and Rice had any knowledge of a risk that Plaintiff would be attacked by his cellmate. Hence, there is no evidence of the subjective prong of the Eighth Amendment.
In an attempt to circumvent this factual record, Plaintiff argues that because the policy required inmates to wear headphones and because the defendants failed to enforce this policy, they are nonetheless responsible. This begs the question of whether they knew prior to the attack that this policy was not being enforced and Plaintiff adduces no evidence that prior to him being attacked they knew that the policy was not being enforced.*fn4
However, even if Plaintiff were to adduce evidence that Defendants Garman and Rice possessed knowledge that the policy requiring the wearing of earphones was not being enforced even prior to his attack, such would not be sufficient to create a genuine issue of fact with respect to the subjective prong. Even if a prison official knew that the earphones policy was not being enforced, that would not have been sufficient to put them on notice that this placed inmates at risk of suffering an attack. No reasonable jury could find for Plaintiff based on this theory in light of the evidence adduced. In other words, ...