The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
This pro se civil rights action was filed by Plaintiff Edwin Nunez ("Plaintiff" or "Nunez"), an inmate presently confined at the Federal Correctional Institution -Schuylkill ("FCI Schuylkill") in Minersville, Pennsylvania. In his Complaint, filed on October 27, 2008, Plaintiff alleges Bivens*fn1 claims under 28 U.S.C. § 1331 and the Federal Tort Claims Act ("FTCA"). (Doc. 1.) In addition to the United States of America, Plaintiff names the following employees of FCI Schuylkill as Defendants:
T.R. Sniezek, Warden; Kimberly Ask-Carlson, Associate Warden; Jacqueline Justice, Health Services Administrator; Russell Hendershot, Medical Doctor; David Steffan, Physician Assistant ("P.A."); and L.T. Rarick, Emergency Medical Technician. Presently pending is a Motion to Dismiss and/or for Summary Judgment filed on behalf of Defendants. (Doc. 17.) 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, Nunez alleges that, on the afternoon of July 4, 2007, he injured his leg on the softball field at FCI Schuylkill. (Doc. 1 at 3.) He asserts three (3) causes of action under Bivens against Defendants Sniezek, Justice, and Steffan alleging that they were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment by failing to provide adequate medical treatment after his injury. (See Doc. 1 at 15-18.) Specifically, he alleges that Defendants initially failed to correctly diagnose his injury. He then alleges that Defendants failed to obtain a dentist to remove his loose teeth so that general anesthesia could be administered for surgery to repair his Achilles tendon, and that, as a result, he was given a spinal epidural for the surgery that resulted in an injury to his back. Nunez claims that, after his surgery, Defendants provided inadequate medical care for his leg and back.
Nunez also asserts a claim under the FTCA that the Health Services Staff at FCI Schuylkill were negligent in failing to properly diagnose and treat his Achilles tendon injury and in failing to ensure the removal of his loose teeth prior to surgery to repair his injury, which resulted in the necessity of using a spinal epidural for the surgery and an injury to his back. (See id. at 20-25.)
Service of the Complaint was directed by Order dated December 23, 2008. (Doc. 10.) On March 23, 2009, Defendants filed the instant Motion. (Doc. 17.) After requesting an extension of time, which was granted, on April 23, 2009, Defendants filed a supporting brief (Doc. 22), Statement of Facts (Doc. 23), and supporting materials (Docs. 22-4, 22-5, 22-6, 22-7, 22-8, 22-9). On May 18, 2009, after the deadline for submission of his opposition to Defendants' Motion had passed, Nunez filed a letter with the Court renewing the request for appointment of counsel (Doc. 3) that he had made at the outset of the case. (Doc. 25.) By Order dated May 22, 2009, Plaintiff's Motion to appoint counsel was denied, the Court sua sponte granted an extension of time for Nunez to file his opposition, and he was directed to file his opposition to Defendants' Motion within twenty (20) days. (Doc. 27.)
On June 9, 2009, Nunez filed a Motion seeking an additional thirty (30) day extension of the deadline for filing his opposition. (Doc. 28.) By Order dated June 11, 2009, Nunez's Motion was granted, and he was directed to file his opposition on or before July 10, 2009. (Doc. 29.) On July 10, Nunez filed a Motion renewing his request for the appointment of counsel. (Doc. 31.) He also filed correspondence with the Court labeled as "Ex Parte Communication" in which he requested an additional extension of time to file his opposition to Defendants' Motion. (Doc. 32.) Nunez subsequently made a formal request for a thirty (30) day extension of time in a Motion filed on July 20, 2009. (Doc. 34.) By Order dated July 22, 2009, Nunez's renewed Motion for appointment of counsel was denied on the basis that he had failed to set forth sufficient special circumstances or factors which would warrant reconsideration of the factors set forth in Tabron v. Grace, 6 F.3d 147, 156-57 (3d Cir. 1993). (Doc. 36.) In addition, Nunez's request for an additional extension of time was granted, and he was afforded a final extension of twenty (20) days to file his opposition to Defendants' Motion. (Id.)
On August 17, 2009, Nunez filed a document entitled "Motion in Opposition" (Doc. 37) in which he requested that the Court deny Defendants' Motion, a Statement of Facts (Doc. 38) responding to Defendants' Statement, and a document entitled "Brief in Support of Defendants Motion to Dismiss or in the Alternative Summary Judgment" (Doc. 39). While the heading of the latter document was written in English, the rest of the document was written in Spanish. Because Nunez had demonstrated an ability to file a document in English through his prior pleadings, by Order dated November 12, 2009, he was directed to re-file an English version of the document. (Doc. 41.) On November 30, 2009, Nunez complied with the Court's Order by filing an English version of the document filed at Document number 39. (Doc. 42.) Accordingly, the instant Motion is ripe for review.
Defendants seek dismissal of Plaintiff'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, June 11, and July 22, 2009 Orders granting Nunez extensions 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 Docs. 27, 29, 36.) Indeed, in opposing the Motion, Nunez submitted a brief*fn2 (Doc. 42) and Statement of Facts responding to Defendants' Statement (Doc. 38). Accordingly, 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.
Defendants have filed a fifty-eight (58) page, 359 paragraph Statement of Material Facts ("SMF") in support of the instant Motion. (Doc. 23, Dfts. SMF.) Plaintiff filed a Statement (Doc. 38) responding to each of the numbered paragraphs set forth in Defendants' Statement. Plaintiff agrees to numerous facts without qualification, and therefore, those facts are adopted by the Court as true and incorporated herein by reference. (See Docs. 23, 38 ¶¶ 1-9, 14, 16-19, 22-23, 25-32, 34, 37, 40, 42, 45, 47-48, 50-52, 56, 58, 63-76, 79-80, 83, 85-87, 89-90, 103-105, 107, 110-111, 113, 115-117, 119-120, 122-123, 126-139, 142-144, 146-148, 150-153, 155-160, 162, 164-168, 172-175, 181-191, 193-196, 198-205, 216-218, 220, 222-224, 227-228, 230-231, 234-236, 238, 241-242, 244, 246, 248-254, 256-259, 263-265, 267-270, 273-274, 278-279, 283-288, 292-295, 297-298, 300-301, 304-307, 310-319, 323-324, 326, 328, 331-332, 337, 339-341, 342*fn3 , 343-344, 345, 349, 352.)
The remaining facts are disputed by Plaintiff either in whole or in part. Plaintiff's responses disputing facts regarding his exhaustion of administrative remedies as to his Bivens and FTCA claims (Docs. 23, 38 ¶¶ 1-62) will be addressed in a separate section below.
With regard to the remainder of the facts that are disputed either in whole or in part by Plaintiff, with the exception of Paragraphs 106 and 336, which will be addressed below, Plaintiff fails to cite to the parts of the record that support his statements, and therefore he has not complied with LR 56.1.*fn4 In many instances, Plaintiff cites to the allegations in his Complaint to support his responses disputing Defendants' facts. (See Doc. 38 ¶¶ 77, 81-82, 88, 91-92, 98, 108-109, 121, 125, 141, 149, 153, 163, 169, 177-180, 197, 206-207, 211-213, 221, 225-226, 229, 232-233, 239, 245, 262, 266, 275, 277, 280, 282, 289-291, 296, 302-303, 320-322, 325, 329-330, 338.) Because a party responding to a motion for summary judgment may not rest on the allegations of his complaint, but rather must point to specific facts showing there is a genuine issue for trial, see Jones, supra, 214 F.3d at 407, in the instances where Plaintiff has failed to cite to evidence in support of his denials of fact, but instead has cited to the Complaint or offered argument, he has failed to controvert Defendants' facts, and the Court will deem these facts admitted, adopt them for purposes of disposing of the instant Motion, and incorporates them herein. (See Doc. 23 ¶¶ 77, 81-82, 88, 91-92, 98, 108-109, 121, 125, 141, 149, 153, 163, 169, 177-180, 197, 206-207, 211-213, 221, 225-226, 229, 232-233, 239, 245, 262, 266, 275, 277, 280, 282, 289-291, 296, 302-303, 320-322, 325, 329-330, 338.)
In the remaining instances where Plaintiff disputes Defendants' facts either in whole or in part, he either submits new facts without citation to the record, offers explanation or argument, or states that he cannot confirm or deny Defendants' statements. In these instances, the evidence Defendants cite in support of their facts properly supports them. Because these facts have not been properly controverted by Plaintiff, we will adopt them as our own for purposes of disposing of the instant Motion, and incorporate them herein. See U.S. ex rel. Paranich v. Sorgnard, 396 F.3d 326, 330 n.5 (3d Cir. 2005) (the Third Circuit Court of Appeals observed that the District ...