The opinion of the court was delivered by: O'neill, J.
Plaintiff, a state prisoner incarcerated at SCI-Fayette, filed a four count amended complaint*fn1 against twenty defendants alleging civil rights violations.*fn2 Ten of those defendants--DiGuglielmo, Pallott, Banta, Canino, Moyer, Knauer, Campbell, Lozar, Andrews and Stanishefski--now move for summary judgment in their favor. Additionally, all defendants move for partial summary judgment as to Counts III and IV of the amended complaint. Plaintiff concedes that summary judgment is appropriate as to all moving defendants but Lozar and Banta. He further concedes that summary judgment is appropriate as to Count III and a portion of Count IV. Presently before me are defendants' motion for summary judgment and plaintiff's response. For the following reasons, I will grant in part and deny in part defendants' motion for summary judgment.
Plaintiff was incarcerated at SCI-Graterford between July 2005 and March 2007. While there, he allegedly suffered multiple violations of his civil rights. The following is a summary of plaintiff's allegations.
The first violations occurred in April and July 2006. At some unspecified time in April 2006, defendants unjustifiably removed legal books and materials from plaintiff's cell. They were returned fourteen days later. Then, on July 3, 2006, defendants seized and destroyed two of plaintiff's books.
The severity of defendants' actions escalated after the July 3, 2006 incident. On November 28, 2006, while plaintiff was handcuffed, defendants Achey and McCusker physically assaulted him. The altercation was observed by defendants Gonzalez, Marshall and Thomas. None of the three intervened. The assault was in retaliation for filing grievances and lawsuits against SCI-Graterford employees and other state officials. After the fight, defendants Achey and Thomas fabricated misconduct reports against plaintiff in further retaliation. Both fabricated misconduct reports were filed on November 28, 2006. The first, authored by Achey, falsely claimed that plaintiff assaulted a corrections officer and refused to provide a urinalysis sample. The second, authored by Thomas, falsely reported that plaintiff had plastic kitchen gloves--an item prohibited by prison regulations--in his cell.
On December 15, 2006 while plaintiff was being escorted from a medical facility to his cell, he was assaulted a second time. Plaintiff, again handcuffed, was assaulted by defendants Gavlik, Thomas and Macgregor. During the assault, Macgregor shocked plaintiff repeatedly with a stun gun. Defendant Lozar observed the assault but did not intervene. Defendant Banta was informed by other inmates of the impending assault before it happened but also did not intervene. For five days after the incident, plaintiff was held in an unsanitary cell without clothes, shoes, a mattress, heat or a working toilet. He also received no food or water during that time period. Banta and Lozar were aware of the deplorable condition of his cell, but failed to remedy the situation.
On January 10, 2007, plaintiff was assaulted a third time. There, defendants Kraiter and Trower assaulted plaintiff while he was handcuffed. For seven days thereafter, plaintiff was denied food, water, the right to shower, access to exercise facilities and access to the law library.
On February 22, 2007, plaintiff filed this action. After filing this lawsuit, he also filed several grievances against SCI-Graterford officials and other state employees. On March 14, 2007, plaintiff was assured that he would remain at SCI-Graterford for six to twelve months. On March 23, 2007, however, he was transferred to SCI-Huntingdon.
Rule 56(c) of the Federal Rules of Civil Procedure provides that 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 judgment as a matter of law." An issue of material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment will be granted "against a party who 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 of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment has the burden of demonstrating that there are no genuine issues of material fact. Id. at 322-23. If the moving party sustains the burden, the nonmoving party must set forth facts demonstrating the existence of a genuine issue for trial. See Anderson, 477 U.S. at 255.
When a properly supported motion for summary judgment is made, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The adverse party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). However, the "existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts and issues of credibility against" the moving party. Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (citations and quotation marks omitted).
I. Uncontested Portions of ...