The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Plaintiff Theodore Brown ("Plaintiff" or "Brown"), an inmate currently confined at CCM New York in Brooklyn, New York*fn1, filed this action pro se asserting Bivens*fn2 claims under 28 U.S.C. § 1331 and the Federal Tort Claims Act ("FTCA"). In the Complaint, filed on December 12, 2008, Brown names as Defendants the United States of America, as well as the following employees of the United States Penitentiary- Canaan in Waymart, Pennsylvania ("USP Canaan"): Physician Assistant ("P.A.") Stephen Tucker; Daniel Holloway, M.D.; and Correctional Officer Albert Felker.*fn3 (Doc. 1.) Presently pending is a Motion to Dismiss and/or for Summary Judgment filed on behalf of Defendants. (Doc. 14.) The Motion has been fully briefed and is ripe for disposition. For the reasons set forth below, the Motion will be granted.
In his Complaint, Brown asserts a two-part claim under the FTCA. First, he alleges that, on October 12, 2007, while he was an inmate at USP Canaan, he sustained personal injuries when he was struck and run over by an E-Z Go cart operated by Defendant Felker. (Doc. 1 ¶¶ 5-6, 15-23.) Second, he alleges that the "severe injuries" he sustained to his "shoulder, neck, back, knee, legs, foot and other parts of his body have become lifetime injuries caused by the BOP deprivation of the mandatory community standard of care on October 18, 2007, and continuing through February, 2008 when the Plaintiff was transferred to Fort Dix Prison." (Id. ¶¶ 23-41.)
Brown also raises Bivens claims under the Eighth Amendment against Defendants Felker, Tucker, and Holloway. Brown alleges that Felker violated the Eighth Amendment prohibition against cruel and unusual punishment by crashing into him, thereby causing him to sustain injuries. (Id. ¶ 60.) He also alleges that Defendants Tucker and Holloway exhibited deliberate indifference to his serious medical needs in violation of the Eighth Amendment by failing to provide him with the mandatory standard of care and by "intentionally denying and delaying" his access to medical care from the time he allegedly sustained his injuries on October 18, 2007 through February 2008, when he was transferred to the Fort Dix Federal Correctional Institution ("FCI Fort Dix") in Fort Dix, New Jersey. (Id. ¶¶ 61, 62.) Service of the Complaint was directed by Order dated January 9, 2009. (Doc. 7.) Defendants filed the instant Motion (Doc. 14) on March 30, 2009, and after requesting an extension of time, which was granted, on April 28, 2009, they submitted a supporting brief (Doc. 21), statement of facts (Doc. 22), and supporting materials (Doc. 21-2, 21-3, and 21-4). On the same date, Defendants also filed a Motion to File Documents Under Seal (Doc. 23) in which they requested that Exhibits 1, 2, 3, and 7 in support of the instant Motion be placed under seal. After review of the Exhibits, which were submitted in camera, the Motion was granted by Order dated May 7, 2009, and Exhibits 1, 2, 3, and 7 remain under seal. (Doc. 25.) After requesting an extension of time, which was granted, on June 1, 2009, Brown filed his opposition brief. (Doc. 28.) Defendants requested and were granted an extension of time to file a reply brief, and on June 18, 2009, the reply brief was filed. (Doc. 31.) Therefore, the Motion is ripe for review.
Defendants seek dismissal of Brown's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In the alternative, Defendants seek summary judgment and have submitted evidentiary documents outside the pleadings in support of their motion. Federal Rule of Civil Procedure 12(d) provides:
(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings 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 a reasonable opportunity to present all the material that is pertinent to the motion.
Fed. R. Civ. P. 12(d). In light of the fact that Defendants submitted matters outside the pleadings with the instant Motion and styled it as seeking dismissal, or in the alternative, summary judgment, this Court's May 22, 2009 Order granting Brown an extension of time to file his opposition specifically directed him to file his opposition, including an opposition brief as required by Middle District of Pennsylvania Local Rule ("LR") 7.6, and a statement of material facts as required by LR 56.1. (See Doc. 27.) Although Brown filed a brief in opposition (Doc. 28) to the instant Motion on June 1, 2009, he did not file a statement of material facts as required by LR 56.1. Accordingly, the Court will not exclude the evidentiary materials accompanying Defendants' Motion because Brown was given a reasonable opportunity to present material relevant to the Motion and failed to do so, and the instant Motion will be treated solely as one seeking summary judgment.
Summary judgment is appropriate if the record establishes "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by pointing to an absence of evidence supporting an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325. Once the moving party meets its burden, the burden then shifts to the non-moving party to show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). An issue is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a factual dispute is "material" only if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
In opposing summary judgment, the non-moving party "may not rely merely on allegations or denials in its own pleadings; rather, its response must... set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). Arguments made in briefs "are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985). However, the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the non-moving party. P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir. 2006).
Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48.
1. Facts Relating to October 18, 2007 Incident
Because Brown failed to file a separate statement of material facts controverting the statement filed by Defendants as he specifically was directed to do by this Court's May 22, 2009 Order (Doc. 27), all material facts set forth in Defendants' Statement of Material Facts ("SMF") (Doc. 22) will be deemed admitted. See LR 56.1.*fn4
Defendants' Statement and supporting exhibits (Doc. 21-2) establish the following undisputed facts material to the instant Motion:
On October 18, 2007 at approximately 8:45 p.m., as Brown was leaving the pill line from the Green Corridor at USP Canaan to return to his housing unit, he walked into the side of a yellow E-Z Go cart operated by Defendant Felker. (Doc. 22, SMF, ¶¶ 3-4; Ex. 1, Felker Decl., ¶ 5 (under seal); Exs. 2-3, Surveillance Videos Outside/Inside Green Corridor (under seal); Doc. 21-2 at 4, Ex. 5, Geary Decl.; Doc. 21-2 at 6, Ex. 6, Geary Memorandum.)*fn5 Brown appeared to strike the cart's roll bar, which is a black metal bar that extends from above the left rear wheel up to the highest part of the cart. (Doc. 22 ¶ 4; Ex. 1 ¶ 9; Ex. 2; Doc. 21-2 at 90, Ex. 14-A, Photograph of E-Z Go Cart's left side.) The incident occurred when Felker was attempting to park the cart with the front of the cart facing forward for easier access. (Doc. 22 ¶ 5; Ex. 1 ¶ 6.) Before Felker began to move the cart, he looked behind him for any obstacles or persons. (Doc. 22 ¶ 6; Ex. 1 ¶ 7.) Seeing that it was clear behind him, he began to back up. (Id.) At that point, the cart's reverse alarm began to sound. (Id.)
Brown, who is seen on the video surveillance of the outside corridor at approximately the eleven (11) second mark in a gray sweatsuit, walked directly into the path of the cart. (Doc. 22 ¶ 7; Ex. 1 ¶ 8; Ex. 2.)Defendant Felker briefly stopped the cart to ensure that Brown was not injured. (Doc. 22 ¶ 8; Ex. 1 ¶ 9; Ex. 2.) Because Brown only lightly bumped the cart with his body, and because he did not express any distress, Felker proceeded to park the cart without much concern that Brown had been injured. (Doc. 22 ¶ 8; Ex. 1 ¶ 9.) The rear of the E-Z Go cart never came into contact with Brown. (Doc. 22 ¶ 9; Ex. 1 ¶¶ 9, 15.) Brown struck the left side of the cart with the left side of his body. (Id.) Felker did not "run over" Brown with the cart. (Doc. 22 ¶ 13; Ex. 1 ¶ 18; Ex. 2.) Brown remained on his feet throughout the incident, and walked back into the institution immediately following the incident. (Id.) Brown did not appear to be in any distress after striking the cart with his body. (Id.)
After the incident, Officer Janell Geary accompanied Brown back inside the Green Corridor and advised him to wait on a bench outside of the Lieutenant's office so that he could be seen by the on-duty P.A. after pill-line was over. (Doc. 21-2 at 6, Ex. 6.)
After Felker parked the cart, as seen on the video surveillance of the inside corridor at approximately the one (1) minute, three (3) second mark, he relieved Officer Geary from her post inside the Green Corridor. (Doc. 22 ¶ 11; Ex. 1 ¶ 17; Ex. 3.) Felker recalls that, after he entered the Green Corridor, he observed Brown sitting on a bench outside of the Health Services Department waiting to be evaluated by medical staff. (Doc. 22 ¶ 12; Ex. 1 19.)
Felker wrote a memorandum outlining the incident involving Brown and submitted it to the Lieutenant. (Doc. 22 ¶ 15; Ex. 1 ¶ 20; Doc. 21-2 at 3, Felker Memorandum.) Felker had no further involvement with Brown after the incident on October 18, 2007. (Doc. 22 ¶ 16; Ex. 1 ¶ 21.) The pictures of the cart, submitted as Exhibits 14-A through 14-E (Doc. 21-2 at 90-94), accurately depict the cart Felker was ...