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Nunez v. United States

January 29, 2009


The opinion of the court was delivered by: Judge Vanaskie


On June 27, 2007, Gerson Nunez ("Plaintiff"), who currently resides in Anchorage, Alaska*fn1 initiated this action pursuant to the Federal Tort Claims Act ("FTCA")*fn2 and the Freedom of Information Act ("FOIA")*fn3 while incarcerated at the Canaan Federal Prison Camp, Waymart, Pennsylvania ("FPC-Canaan"). Named as Defendants are the United States of America, "General Counsel", and the Federal Bureau of Prisons ("BOP"). Dkt. Entry # 1, p. 2.

Plaintiff states that he was transferred from another federal correctional facility to FPC-Canaan on July 20, 2005. He indicates that among the personal property items which he brought from his former correctional institution was a Sony radio. Following a February 15, 2006 search of his inmate locker by FPC-Canaan officials, his Sony radio was confiscated and ultimately destroyed because the inmate's register number had been removed from the radio in violation of prison policy. In his initial FTCA claim, Plaintiff alleges that confiscation of his radio was improper since it had been cleared for admission into the prison with the register number sanded off.

Nunez's second FTCA claim regards an additional loss of property which occurred as a result of a March 15, 2006 shake down search at FPC-Canaan. Specifically, his Complaint contends that during this search, prison officials improperly confiscated his blue towel and ribbed T-shirt which had also been previously admitted into the prison.

In his third claim, Plaintiff seeks relief under the FOIA based upon the General Counsel's*fn4 purported failure to respond to two FOIA requests which he initiated in October of 2006.

Gerson exhausted the required administrative remedies on the FTCA claims before bringing suit. He asserted the FOIA claims without pursuing the administrative appeal process.

Presently pending is Defendants' motion to dismiss or for summary judgment. The motion (Dkt. Entry # 24) is ripe for consideration.


Defendants' pending dispositive motion is supported by evidentiary materials outside the pleadings. Nunez has responded to the motion by presenting additional documents. Federal Rule of Civil Procedure 12(d) provides in part as follows:

If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleading are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given reasonable opportunity to present all the material that is pertinent to the motion.

Fed. R. Civ. P. 12(d). The Court will not exclude the evidentiary materials accompanying the Defendants' motion and Plaintiff's response. Thus, the motion will be treated as one for summary judgment.

Summary judgment is proper if "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c); See also, Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 248. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992). Unsubstantiated arguments made in briefs are not considered evidence of asserted facts. Versarge v. Township of Clinton, 984 F.2d 1359, 1370 (3d Cir. 1993).

Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322-23. "'Such affirmative evidence -- regardless of whether it is direct or circumstantial -- ...

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