The opinion of the court was delivered by: Magistrate Judge Lisa Pupo Lenihan
REPORT AND RECOMMENDATION
It is respectfully recommended that the Motion for Summary filed by Defendants Walton, Cmar, Hostoffer, Lowther, Rosado, Hutchinson, Balya, Ceraso, Light and the Westmoreland County Jail (doc. no. 136) be granted except as to Plaintiff's claim of excessive force against Defendants Hostoffer, Rosado and Hutchinson.
On February 2, 2008, Plaintiff, Eric M. Miskovitch, filed a Second Amended Complaint against 22 Defendants raising allegations concerning incidents that allegedly occurred during his various periods of incarceration at SCI Graterford, the Westmoreland County Prison, Allegheny County Jail, and Mayview State Hospital. Defendants included the following: John R. Walton, Warden; Steve Cmar, Deputy Of Security; Lt. Hostoffer; Lt. Lowther; C. O. Rosado; and C.O. Hutchinson, all of whom were employees of the Westmoreland County Jail (WCJ) during the relevant time period; Tom Balya, Chairman of the WCJ; Thomas C. Ceraso and Phil Light, Commissioners for the WCJ; and the WCJ (hereinafter collectively referred together as the WCJ Defendants); Warden Ramon Rustin, Lt. Luis Leon, Major Donis, Captain Reese, C.O. Worrall, C.O. Mazzocca, all of whom were employees of the Allegheny County Jail (ACJ) during the relevant time period; and the ACJ (hereinafter collectively referred together as the ACJ Defendants); Dr. Rodriguez, a physician who provided medical services to inmates at the ACJ during the relevant time period; Dr. Petras, a physician who provided medical services to persons confined at the Mayview State Hospital; Corrections Officer Keith, an employee of Mayview State Hospital (MSH); David Diguglielmo, Superintendent of SCI Graterford, and MSH (collectively referred to as the Commonwealth Defendants).
This Report and Recommendation concerns the Plaintiff's claims against the WCJ Defendants. In this regard, on January 4, 2010, the WCJ Defendants filed a Motion for Summary Judgment (doc. no. 136), a Brief in Support (doc. no. 137) and a Concise Statement of Material Facts (doc. no. 138). On February 23, 2010, Plaintiff filed a Response to the WCJ Defendants' Motion wherein he dismissed with prejudice his claims against Defendants Lt. Lowther, Commissioner Ceraso, Commissioner Light, Chairman Balya and the WCJ (doc. no. 163, p. 2). The discussion that follows concerns Plaintiff's claims against the remaining WCJ Defendants.
Pursuant to Fed. R. Civ. P 56(c), summary judgment shall be granted when there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law. To support denial of summary judgment, an issue of fact in dispute must be both genuine and material, i.e., one upon which a reasonable fact finder could base a verdict for the non-moving party and one which is essential to establishing the claim. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Id. The court's consideration of the facts must be in the light most favorable to the party opposing summary judgment and all reasonable inferences from the facts must be drawn in favor of that party as well. Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177, 180 (3d Cir. 1999), Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir.1987).
When the moving party has carried its burden under Rule 56(c), its opponent 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). In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P 56(e). Further, the nonmoving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Rather, 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). Moreover, the non-moving party cannot defeat a well supported motion for summary judgment by simply reasserting unsupported factual allegations contained in his pleadings. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). "[T]he 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 v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986).
Plaintiff, Eric Miskovitch is currently is an inmate at the Allegheny County Jail located in Pittsburgh, Pennsylvania. On January 12, 2005, Plaintiff was detained as an inmate at the WCJ awaiting trial. On the aforesaid date, it was alleged, based upon an anonymous tip, that Plaintiff was planning to escape from the WCJ. On the basis of the tip, at approximately 7:30 p.m. several officers removed Plaintiff from his cell and placed him in the attorney client visiting room in handcuffs and leg shackles. In the meantime, an investigation of the shower area in C-Unit revealed that someone had entered the ceiling area through the access panel and had moved through parts of the ceiling duct work. A missing hose clamp was sticking out of the access panel. In searching Plaintiff's cell, a blue inmate's uniform was discovered that was covered in a powdery substance that was later revealed to be residue of the sprayed on insulation used in the ceiling areas of the prison (doc. no. 136-4, p. 3). Also discovered were nine sheets, a sheet torn in half, a long thin piece of a sheet and two pillow cases. When asked why his uniform was dirty, Plaintiff replied, "You will figure it out." At that time, Lieutenant Lowther, Lieutenant Hostoffer and Maintenance Officer Mitchell arrived on the Unit and Steve Cmar, Deputy Warden of Security, John Walton, Warden and Westmoreland County Detective Richard Kranitz were called in. Plaintiff was then taken to the lieutenant's office where he was interviewed by Lt. Hostoffer.
When Detective Kranitz arrived he interviewed Plaintiff and asked him to strip. When Plaintiff complied, Kranitz observed several scratches and abrasions. Prison personnel took photographs of these injuries. Next, Kranitz requested Sergeant Joseph Beaken to videotape his interview with Plaintiff, which is included as a part of this record. During the interview, which started around 11:00 p.m. that evening, Plaintiff admitted that he tried to escape out of the ceiling area at approximately 6:00 that evening. Specifically, he had opened the ceiling access panel at 9:00 a.m. that morning and waited until after dinner to take his shot. At that time, he used three chairs to get up to the ceiling and searched for about an hour to find a way out. When he did not find one, he climbed back down. When questioned about the scrapes on his body, Plaintiff agreed with Kranitz' statement that they were the result of his climbing around in the crawl space area. When asked, Plaintiff admitted that he had been treated fairly. After the interview, Plaintiff was placed in solitary confinement under suicide watch. One day later, Plaintiff was transferred to the State Correctional Institution at Greensburg. On January 20, 2005, Plaintiff was charged with one count of attempted criminal escape (doc. no. 136-12, p. 6). Subsequently, Plaintiff pleaded guilty to this charge.
When he has admitted to SCI-Greensburg, a three inch bruise was noted on the temporal area of Plaintiff's head, which was examined and photographed by the medical department at the time (doc. nos. 163-32, 163-33, 163-34). At that time, he told SCI-Greensburg personnel that he was beaten by guards at the WCJ. He was interviewed about his allegations by Correctional Officer Robert Brussard on January 13, 2005 (doc. nos. 163-35, 163-36). CO Brussard ...