The opinion of the court was delivered by: Judge McClure
Plaintiff Linwood Wilkerson ("Plaintiff" or "Wilkerson"), an inmate presently confined at the Allenwood Low Security Correctional Institution ("FCI Allenwood Low") in White Deer, Pennsylvania, commenced the above action pro se by filing a Complaint raising claims under the Federal Tort Claims Act ("FTCA"). In his Complaint, filed on December 7, 2007, Wilkerson alleges that on September 19, 2006, he "slipped and fell on a puddle of a water-like substance that covered a portion of the cafeteria floor in the chow-line access area" at FCI Allenwood. (Rec. Doc. No. 1, First Count, ¶ 3.)
Presently before the Court is a motion for summary judgment filed on behalf of Defendant the United States of America. (Rec. Doc. No. 30.) For the reasons set forth below, the motion will be granted.
Service of Wilkerson's Complaint was directed by Order dated January 23, 2008. (Rec. Doc. No. 9.) On April 3, 2008, Defendant filed an Answer to the Complaint raising affirmative defenses. (Rec. Doc. No. 16.) In a scheduling Order dated November 12, 2008, the parties were directed to complete discovery within sixty (60) days, and the deadline for the submission of dispositive motions was set for forty-five (45) days after the close of discovery. (Rec. Doc. No. 24.)
On January 20, 2009, Wilkerson filed a motion in which he requested that this Court direct that he be provided with an independent medical examination, including a Magnetic Resonance Imaging ("MRI") test, at Defendant's expense. (Rec. Doc. No. 25.) He also filed a motion to appoint counsel. (Rec. Doc. No. 26.) Defendant filed opposition to Wilkerson's motions on February 4, 2009. (Rec. Doc. Nos. 28-29.) By Order dated April 20, 2009, Wilkerson's motions were denied. (Rec. Doc. No. 33.)
On March 13, 2009, Defendant filed the instant motion for summary judgment. (Rec. Doc. No. 30.) Defendant thereafter filed a supporting brief (Rec. Doc. No. 31), statement of facts (Rec. Doc. No. 32), and a supporting exhibit (Rec. Doc. No. 31-2). At the time of the Court's April 20, 2009 Order disposing of his motions for independent medical examination and to appoint counsel, Wilkerson had not yet filed any opposition to the instant motion. Therefore, in the April 20 Order, he was directed to file his opposition, including an opposing brief and statement of material facts as required by M.D. Pa. L R 56.1, within fifteen (15) days. (See Rec. Doc. No. 33.) On May 4, 2009, Wilkerson timely filed his opposition, including an opposing brief (Rec. Doc. No. 34), statement of facts in response to Defendant's statement, along with supporting exhibits (Rec. Doc. No. 36), and an objection (Rec. Doc. No. 35) to the instant motion on the basis that it was untimely filed. On May 15, 2009, Defendant filed a reply brief. (Rec. Doc. No. 37.) Accordingly, the instant motion is fully briefed and ripe for disposition.
Wilkerson does not dispute Defendant's three (3) paragraph statement of material facts ("SMF"), which state as follows:
Wilkerson states in his response to Defendant's first set of interrogatories (Rec. Doc. No. 31-2) that the basis for his belief that a prison staff member had actual knowledge that there was a water-like substance on the floor at the time of his fall is that an unsafe condition existed on a daily basis since a water-like substance regularly accumulated on the chow hall floor. (Rec. Doc. No. 32, Dft.'s SMF, ¶ 1; Rec. Doc. No. 36, Pltf.'s SMF, ¶ 4.) Wilkerson further states that this accumulation of a water-like substance was occasioned on a daily basis by the proximity of the chow hall food line in relation to the tray distribution area. (Rec. Doc. No. 32 ¶ 2; Rec. Doc. No. 36 ¶ 5.) In addition, Wilkerson states that wet and dripping trays were regularly transported from the dishwashing area to the tray distribution location and the floor became wet and slippery as this occurred. (Rec. Doc. No. 32 ¶ 3; Rec. Doc. No. 36 ¶ 6.)
In his response to Defendant's statement of facts, Wilkerson submits the memorandum of Cook Supervisor J. Hodish, a Federal Bureau of Prisons ("BOP") employee to support his statements that, on September 19, 2006, Hodish heard someone yell from the dorm side of the dining room, he turned to see inmate Wilkerson pulling himself off the dining room floor, and as he walked over toward him, he noticed that someone had spilled water on the floor. (Rec. Doc. No. 36, Pltf.'s SMF, ¶ 1; Rec. Doc. No. 36 at 6, Hodish Memo.)
Wilkerson also submits the affidavit of fellow inmate Juan Fermin, in which Fermin states that he witnessed Wilkerson fall on the dining room floor on September 19, 2006, and also witnessed BOP personnel hurry to his side to provide him with assistance. (Rec. Doc. No. 36, Pltf.'s SMF, ¶ 2; Rec. Doc. No. 37 at 7-8, Fermin Aff.)
Finally, Wilkerson submits his own affidavit to support his statements that, as an incarcerated prisoner, his freedom of choice and movement is extremely limited, he must eat in the prison cafeteria, meals are eaten in a rush, and there is insufficient time to inspect for hazardous conditions. (Doc. 36, Pltf.'s SMF., ¶ 7; Doc. 36 at 9 ¶ 3, Wilkerson Aff.) Wilkerson also cites to his affidavit to support his statement that, prior to his slip and fall, he observed a Corrections Officer stationed in the area of the incident who should have observed the accumulated water on the floor and taken appropriate steps to warn him of this potential hazard. (Doc. 36, Pltf.'s SMF, ¶ 8; Doc. 36 at 10 ¶ 5.) Finally, Wilkerson cites his affidavit to support his statements that, on at least one occasion prior to his fall, he witnessed a fellow inmate slip and fall in the cafeteria while entering the chow line at FCI Allenwood, ...