The opinion of the court was delivered by: Magistrate Judge Blewitt
On September 27, 2007, Plaintiff, Sylvan Hemingway, formerly an inmate at the State Correctional Institution at Rockview ("SCI-Rockview"), Bellefonte, Pennsylvania, filed, pro se, the instant civil rights action pursuant to 42 U.S.C. § 1983.*fn1 Plaintiff also filed an application for leave to proceed in forma pauperis. (Doc. 2).*fn2 Plaintiff's claim was set forth, in part, on a form § 1983 complaint which this Court routinely provides to pro se litigants. Plaintiff also included with his Complaint four handwritten pages as continuation sheets for his statement of claims. We have previously numbered these four continuation pages as pages 2-A through 2-D for identification purposes. Plaintiff also attached a handwritten continuation page to his request for relief which we have previously labeled as page 4. See Doc. 1.
In his form Complaint, the Plaintiff indicated that he filed a grievance regarding his claims contained in his complaint but that he did not exhaust the grievance procedure available at SCI-Rockview. (Doc. 1, p. 1, ¶ II. A.-C.). Plaintiff stated that he did not complete the grievance process since "Plaintiff [was] threatened with retaliation if he followed through [with his grievance]." (Id.).*fn3
We reviewed the Plaintiff's pleading pursuant to the Prison Litigation Reform Act of 1995*fn4 (the "PLRA"), and on November 8, 2007, we issued a Report and Recommendation ("R&R") wherein we found that it failed to state an Eighth Amendment deliberate indifference claim for failure to protect against all party defendants under § 1983. We found only an Eighth Amendment claim stated for failure to provide proper medical care as to Defendant Ellers. (Doc. 8). On December 3, 2007, the District Court entered an Order and adopted our R&R, and held that the Plaintiff was not able to maintain this action as against all of the named Defendants, except for Defendant Ellers and his inadequate medical care claim. (Doc. 10).
Sole remaining Defendant Rich Ellers was the Health Care Administrator ("HCA") at SCIRockview, and Plaintiff alleged that after the October 15, 2005 assault on him by another inmate, Ellers failed to order the proper medical care for him.
Defendant Ellers was served with Plaintiff's Complaint, and he filed his Answer with Affirmative Defenses on February 11, 2008. (Doc. 20).*fn5
Following discovery, Defendant Ellers filed a Summary Judgment Motion on May 12, 2008. (Doc. 30). Defendant filed his Brief in support of his Summary Judgment Motion, as well as his Statement of Facts ("SMF") with attached Exhibits, on May 27, 2008. (Docs. 32 and 33). Plaintiff was granted extensions of time to file his opposition Brief to Defendant's Summary Judgment Motion. (Docs 43 and 48). Specifically, by Order of June 20, 2008 (Doc. 43), the Court afforded Plaintiff additional time, until July 3, 2008, to file his Brief in opposition to Defendant Ellers' Summary Judgment Motion. However, Plaintiff failed to file his opposition Brief.
On July 7, 2008, the Court again gave Plaintiff additional time (until July 21, 2008) to file his opposition Brief to Defendant Ellers' Summary Judgment Motion. (Doc. 48). The Court stated that if Plaintiff failed to timely file his opposition brief, this Court would deem Defendant's Summary Judgment Motion as unopposed under Local Rule 7.6, M.D. Pa.
Plaintiff again failed to timely file his opposition brief to Defendant's Summary Judgment Motion as directed by the Court's July 7, 2008, Order. Plaintiff did not file his opposition Brief to Defendant's Summary Judgment Motion, and the final extension of time to do so has lapsed. Thus, the Court will deem Plaintiff as not opposing Defendant's Summary Judgment Motion pursuant to Local Rule 7.6, M.D. Pa.
As mentioned, Plaintiff has neither filed his opposition Brief nor requested another extension of time in which to do so. The Court also notes that it has received various filings from the Plaintiff since the Defendant's Summary Judgment Brief was filed on May 12, 2008, such as Plaintiff's filings Docs. 34-37. Thus, Plaintiff clearly had the ability to file his opposition Brief to Defendant's Summary Judgment Motion. In fact, as recently as July 30, 2008, Plaintiff filed exhibits with no brief. (Doc. 52).
Federal Rule of Civil Procedure 41(b) allows for the dismissal of an action for "failure of the plaintiff to prosecute or comply with these rules or order of court, . . ." (emphasis added). In the instant case, Plaintiff has failed to both prosecute his action and to comply with Orders of the Court by his failure to file his opposition brief to Defendant's Summary Judgment Motion as directed. Plaintiff is deemed as abandoning his action. See McCray v. Dauphin Co. Prison, 2007 WL 431886 (M.D. Pa); Nelson v. Berbanier, 2006 WL 2853968 (M.D. Pa.).
However, the Court will not grant Defendant's Summary Judgment Motion solely on the basis of Plaintiff's failure to timely file opposition brief to Defendant's Summary Judgment Motion, for Plaintiff's failure to oppose Defendant's stated Motion, and for his failure to comply with Orders of the Court. As discussed below, the Court also finds merit to Defendant's Summary Judgment Motion insofar as he argues that Plaintiff did not exhaust his DOC Administrative Remedies with respect to his present Eighth Amendment claim.
On July 30, 2008, Plaintiff filed Exhibits pertaining to his medical records for treatment he received outside of the prison after the October 15, 2005 assault incident at SCI-Rockview. The first medical report was from Mount Nittany Medical Center, State College, Pennsylvania, dated October 15, 2005, and related to Plaintiff's treatment after he was taken from SCI-Rockview to the Medical Center. Plaintiff was then flown by helicopter to Altoona Regional Hospital, and his second medical report is from this Hospital dated October 15, 2005. Plaintiff's Ex. A is a consultation medical report from Altoona Hospital dated October 16, 2005. (Doc. 52). Plaintiff's Exhibits relate to his medical care he received at private hospitals after the October 15, 2005 incident at SCI-Rockview, but they do not relate to the challenged medical care Defendant Ellers was responsible for providing Plaintiff with after his return to the prison. Plaintiff also included with his Exhibits, a copy of one page of Defendant Ellers' Declaration (page 4) which was submitted by Defendant as Ex. 3 attached to his SMF. (Doc. 33).
Despite filing Exhibits, Plaintiff did not file his opposition Brief to Defendant Ellers' Summary Judgment Motion even though he was given more than ample time within which to do so. Defendant Ellers' Summary Judgment Motion is now ripe for disposition.*fn6
II. Allegations of Complaint
Plaintiff alleges that on October 15, 2005, at 10:00 a.m., he was returning from chapel at SCI-Rockview, and he was viciously assaulted by another inmate, namely Defendant "inmate Doe AKA Ja-Ja."*fn7 (Doc. 1, pp. 2-A-2-B). Plaintiff states that the assault occurred in an area of the prison that was supposed to be under the observation and control of a correctional officer ("CO"), namely Defendant CO Doe. Plaintiff avers that during the assault, there was no response from the CO on duty. (Id., p. 2-B). Plaintiff indicated that the assault occurred on the prison's walkways. Plaintiff avers that the inmate (Ja-Ja) used a lock attached to a belt as a weapon to beat him and that inmate Ja-Ja also used his boots to kick Plaintiff in the head and face. Plaintiff states that he was beaten "for a considerable length of time." (Id.). After the assault, Plaintiff was resuscitated by the shift commander and he was then "life flighted" to Altoona Hospital. Plaintiff states that he was intubated and placed on a ventilator. Plaintiff states that he was in a coma and that on October 20, 2005, he regained consciousness in the hospital. About two days later, Plaintiff states that he was returned to SCI-Rockview.*fn8 Plaintiff states that he was placed in the prison infirmary, which he avers was known as a "hard cell," with only a flat steel bed, a toilet and sink combination, and a desk. Plaintiff avers that there was little or no heat in the infirmary. Plaintiff admits that he saw a prison doctor once a day and states that he only saw nurses infrequently.
One week after being in the infirmary, Plaintiff states that he was moved to an "observation cell" in the back of the infirmary. Plaintiff avers that he was "more or less forgotten about for some ten (10) days, until his constant complaint of head pain got him moved back to the original 'hard cell'." (Id.). Plaintiff alleges that he remained in the observation cell for the duration of his stay in the infirmary.
Plaintiff essentially averred that he was not given adequate protection from the assault, that he was deprived proper medical care after the assault on him, and that his personal property was improperly packed after the assault, which resulted in a large portion of it missing. (Id., pp. 2-B to 2-D). The Complaint alleged serious harm to Plaintiff as a result of the October 15, 2005 incident as well as constant migraines, numbness in both sides of his face, spasms and burning pain from the lack of proper medical care after the assault. Plaintiff also averred that he has lost most of his sense of smell and taste, and that he has constant tinnitus. Plaintiff further averred he suffered memory loss after the attack, as well as vertigo. (Id., pp. 2-C through 2-D).
As relief, Plaintiff requested $1 million in compensatory damages due to the lack of protection from the assault. Plaintiff also requested compensatory damages "in a like amount" for pain and suffering following the assault. Plaintiff requested $300 for his lost property and $10,000 for punitive damages for "the threats regarding filing of action for the loss and/or the attack itself." (Id., p. 3,¶ V. 1.-3.).*fn9
Plaintiff named several Defendants in this case, i.e. eleven (11) Defendants. Specifically, the named Defendants were: Franklin Tennis, Superintendent, SCI-Rockview; Joel Dickson, Deputy Superintendent, SCI-Rockview; Captain Eaton, Head of Security, SCI-Rockview; Lt. Vance, Security; Officer Doe, Officer assigned to monitor area where assault occurred; Richard Ellers, Health Care Administrator; John Symons, M.D., Head Physician; Dr. Italia, Head Dentist; "Nursing Staff, et. al.;" Lt. Neoff, Property Officer; and Inmate Doe, a/k/a Ja-Ja, "perpetrator." (Doc. 1, pp. 1-2). All Defendants, except for Inmate Doe, were employed by the Pennsylvania Department of Corrections ("PA DOC").
As discussed, in our November 8, 2007 R&R, we found insufficient personal involvement alleged as to supervisory Defendants Tennis, Dickson, Eaton and Vance regarding Plaintiff's Eighth Amendment claims. The District Court agreed. (Docs. 8 and 10).
Thus, Plaintiff alleged that on October 15, 2005, he was assaulted by inmate "Ja-Ja," that Defendants did not take steps to ensure security in the prison area where the attack occurred, and that Defendant CO Doe failed to monitor the area in question. (Doc. 1, Supple. p. 2-A). As to the four (4) SCI-Rockview supervisory Defendants, namely, Tennis, Dickson, Eaton and Vance, Plaintiff did not state any of their personal involvement with respect to his Eighth Amendment claims. Nor did Plaintiff state the personal involvement of any specific prison nursing staff individual with respect to his Eighth Amendment denial of proper medical care claim. Finally, as to Defendant Lt. Neoff, Plaintiff seemed to claim that Neoff failed to properly supervise the CO's who packed his personal property after the assault, and that Neoff improperly allowed his cellmate to do it unsupervised, which caused a large portion of his property to be stolen by other inmates. (Doc. 1, p. 2-A).
We found that, while Plaintiff may have stated an Eighth Amendment claim against Defendant Doe for not taking sufficient steps to prevent the attack on him, and for failing to monitor the area during the attack, he did not state any claim against the remaining Defendants for failing to protect him.*fn10 Further, Plaintiff admitted that Medical Defendants, Ellers, Symons and Italia, provided him with medical care, but he claimed that it was not sufficient. Serious and permanent injuries were alleged by Plaintiff as a result of the assault and the lack of proper medical care.
As relief, Plaintiff sought compensatory damages for the lack of supervision on the walkways and for the physical injuries and pain that he suffered from the attack on him by Inmate Doe, as well as damages for his lost personal property. (Id., p. 3, ¶ V.). Plaintiff sought punitive damages for the alleged "threats regarding filing of action for the loss [of personal property] and/or attack itself." (Id.).
III. Section 1983 Standard
In a § 1983 civil rights action, the Plaintiff must prove the following two essential elements:
(1) that the conduct complained of was committed by a person acting under ...