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Cole v. Mistick

September 22, 2009

JAMES COLE, PLAINTIFF,
v.
WILLIAM MISTICK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

Memorandum Opinion on Summary Judgment

I. Introduction

This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Pro se prisoner, James Cole filed a civil rights action against seven Allegheny County Jail employees, and one Nurse at the Allegheny County Jail alleging, inter alia, that defendants conspired to use excessive force against him, engaged in a cover-up, and were "deliberately indifferent" to his medical needs. Doc. No. 1. After summary judgment motions were filed by the seven Allegheny County Jail employees (doc. no. 124), this Court affirmed the Report and Recommendation of United States Magistrate Judge Amy Reynolds Hay (doc. no. 150) and granted summary judgment in favor of Allegheny County Jail employees (doc. no. 161) . Thus, the only remaining defendant is a nurse at the Allegheny County Jail, as identified in the complaint as "Nurse Judy." Subsequent documents filed on behalf of "Nurse Judy" have identified her as Judy Garafolo, R.N. (hereinafter "Nurse Garafolo").

Pro se plaintiff appears to make a claim against Nurse Garafolo for deliberate indifference to his medical needs in violation of the Eighth Amendment to the United States Constitution (although the Court notes that he does not specifically mention the Eighth Amendment in his complaint). Further, plaintiff alleges that Nurse Garafolo was part of the conspiracy with the other named defendants to "minimize" his injuries and "maximize" his actions. Finally, he advances a state law claim of professional negligence against Nurse Garafolo.

Currently pending before this Court is the motion for summary judgment filed on behalf of Nurse Garafolo (doc. no. 171), and response in opposition thereto (doc. no. 176 - - document entitled "Plaintiff's Cause Why the Pending Motion for Summary Judgment Should Not Be Granted"; and doc. nos. 179-180 "Plaintiff's Response to Defendant's Motion for Summary Judgment and/or Motion to Strike").*fn1 As previously set forth in the prior Report and Recommendation (doc. no. 150), plaintiff fails to adduce any credible evidence to demonstrate that any of defendants engaged in a conspiracy, let alone Nurse Garafolo. Further, this Court finds that plaintiff has failed to adduce evidence from which a finder of fact could reasonably determine that the actions and alleged inactions of Nurse Garafolo amounted to deliberate indifference, as is required in order to maintain an action under the Eighth Amendment. The Court finds that when judging the facts in the light most favorable to plaintiff as the non-moving party, the facts fall short of the quantum of culpability required in order to maintain a civil rights action for violation of the Eighth Amendment.

Therefore, summary judgment will be GRANTED (doc. no. 171) in favor of Nurse Garafolo as to the Eighth Amendment and conspiracy claims. The Court will dismiss plaintiff's state law professional negligence claim without prejudice for said negligence claim to be filed in state court, and will DENY AS MOOT defendant's motion to strike the certificate of merit (doc. no. 170) .

II. Summary Judgment Standards

Summary judgment under Fed.R.Civ.P. 56(c) is appropriate "'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Woodside v. School Dist. of Philadelphia Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001), quoting Foehl v. United States, 238 F.3d 474, 477 (3d Cir. 2001) (citations omitted). In deciding a summary judgment motion, the court must "view the evidence . . . through the prism of the substantive evidentiary burden" to determine "whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of the evidence required by the governing law or that he did not." Anderson v. Consolidated Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).

When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing' -- that is, pointing out to the District Court -- that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party has carried this burden, the burden shifts to the non- moving party who cannot rest on the allegations of the pleadings and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993). Thus the non-moving party cannot rest on the pleadings, but instead must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), and cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex, 477 U.S. at 325 (1986)). The non-moving party must respond "by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial." Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F. 3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n. 1 (3d Cir. 1994).

"In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004.) See also Doe v. County of Centre, PA, 242 F.3d 437, 446 (3d Cir. 2001) (court must view facts in the light most favorable, draw all reasonable inferences, and resolve all doubts, in favor of the nonmoving party ).

III. Factual Background

Plaintiff alleges that on July 2, 2005, while a pre-trial detainee at the Allegheny County Jail, defendants Zoller and Worral attacked him without provocation and injured one of his knee caps. Plaintiff then alleges that on August 22, 2005, defendant Mistick, Corrado, Haley, Jones and Demore attacked plaintiff without provocation, which included the use of pepper spray on plaintiff.*fn2 Plaintiff alleges that after the incident Nurse Garafolo only dabbed his face with a paper towel and "told him he shouldn't be stupid by filing complaints against officers and screamed 'clear!'" Doc. No. 1 at 5.

According to the plaintiff, the following morning, plaintiff had to be taken to Mercy Hospital because of his medical condition and that "it was discovered that plaintiff vitals had dropped to a life-threatening low and his condition required him ...


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