The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge
Kevin Razzoli filed this pro se civil rights action during his prior confinement in the Lackawanna County Prison, Scranton, Pennsylvania.*fn1 Remaining Defendants are the Lackawanna County Prison and its Warden, Janine Donate. Presently pending is Remaining Defendants' motion for summary judgment. (Dkt. Entry # 100.)
By Memorandum and Order dated March 29, 2008, the Federal Defendants named in this matter were either granted dismissal or entry of summary judgment. (Dkt. Entry # 92.) On September 17, 2008, this Court issued a Memorandum and Order which entered summary judgment in favor of two Defendants, the Scranton Police Department and Scranton Police Officer Dennis Lukasewicz. (Dkt. Entry # 99.)
With respect to the Remaining Defendants, Plaintiff states that during his prior confinement at the Lackawanna County Prison he was housed in a cell which contained a "make shift" bunk bed which lacked a ladder. (Dkt. Entry # 1, p. 14, ¶ 5.) Razzoli indicates that he fell from the top bunk due to the absence of a safety ladder and broke his foot. After his fall, Plaintiff allegedly had to wait "several days" before seeing a doctor and having his foot placed in a cast. (Id.) Razzoli further contends that he was denied access to the prison law library and was not provided with any alternative means to conduct legal research. (Id., p. 6.) Warden Donate thereafter purportedly failed to respond to Plaintiff's grievance regarding those alleged constitutional deprivations.*fn2 Razzoli seeks declaratory, injunctive and monetary relief.
Remaining Defendants contend that they are entitled to entry of summary judgment on the grounds that: (1) the absence of a ladder in Plaintiff's cell at best asserts a claim of negligence which is not actionable under § 1983, and (2) Razzoli has not set forth a viable deliberate indifference claim because the undisputed record establishes that he was provided with timely and adequate medical care.*fn3 (Dkt. Entry # 101, pp. 4-6.)
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);Seealso, 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).
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); 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)). 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).
Remaining Defendants do not dispute Plaintiff's contention that he broke a bone in his foot on August 16, 2006 when he fell from the upper bunk in his cell. As previously noted, Plaintiff contends that his fall was ...