The opinion of the court was delivered by: James F. McCLURE, Jr. United States District Judge
Michael Curtis Reynolds ("Plaintiff"), an inmate presently confined at the Allenwood United States Penitentiary, White Deer, Pennsylvania, initiated this pro se civil rights action pursuant to 42 U.S.C. § 1983 regarding his prior incarceration in the Lackawanna County Prison, Scranton, Pennsylvania.
Named as Defendants are Correctional Officers John Moskwa and Ben Girvasi of the Lackawanna County Prison and the Prison Board.*fn1 Plaintiff generally alleges that he was assaulted by Moskwa and Girvasi "over shower shoe issue." See Record document no. 1, ¶ 4. The Complaint does not indicate the date of the alleged assault. As a result of the attack, Reynolds purportedly suffered injuries, including a cut to the inside of his mouth. Reynolds also generally contends that he was denied medical treatment and given two (2) weeks of disciplinary segregation. The Complaint seeks compensatory and punitive damages.
Presently pending are the parties' cross motions for summary judgment. The motions are ripe for consideration.
Defendants assert that Plaintiff's claims center around a July 14, 2006 incident during which Reynolds sought entry to the prison's law library while wearing shower shoes. They contend that entry of summary judgment is appropriate because their actions were undertaken in accordance with "proper prison policy." Record document no. 122, p. 3. Defendants also assert that they are entitled to qualified immunity with respect to Plaintiff's claims.
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. SeeCelotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, the non-moving party 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); seealsoSaldana, 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 -- must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.'" Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
Defendants' Summary Judgment
As previously noted, Plaintiff alleges that Defendants Moskwa and Gervasi assaulted him. In order to constitute cruel and unusual punishment, a correctional officer's use of force must involve the "unnecessary and wanton infliction of pain." Whitley v. Albers, 475 U.S. 312, 319 (1986). "It is obduracy and wantonness, not inadvertence or error in good faith, that characterize[s] that conduct prohibited by the Cruel and Unusual Punishment Clause, whether the conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock." Id.
"Not every push or shove, even if it may later seem unnecessary in the peace of the judge's chambers, violates a prisoner's constitutional rights." Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033 (1973). In a later ruling, the United States Supreme Court recognized that the use of force may constitute cruel and unusual punishment even if the prisoner does not sustain "significant" injuries. Hudson v. McMillian, 503 U.S. 1, 9 (1992). The core judicial inquiry is "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically to cause harm." Fuentes v. Wagner, 206 F.3d 335, 345 (3d Cir.), cert. denied, 531 U.S. 821(2000); Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000)(even a de minimis use of force, if repugnant to the conscience of mankind, may be constitutionally ...