The opinion of the court was delivered by: Chief Magistrate Judge Amy Reynolds Hay
REPORT AND RECOMMENDATION
It is respectfully recommended that the DOC Defendants' motion for summary judgment, Dkt. , be granted.
This case has been the subject of a prior Report and Recommendation, Dkt. , familiarity therewith is presumed.
Nathaniel Adderly ("Plaintiff") has brought a civil rights suit in federal court against multiple defendants who were all employed by the Pennsylvania Department of Corrections at SCI-Greene, where Plaintiff was housed in the Restricted Housing Unit ("RHU") at the time of the alleged incidents giving rise to the present suit.*fn1 Plaintiff alleges that various of the defendants engaged in discrete acts of abuse against him from January 2005 until April 14, 2005. Chief amongst his complaints are two discrete episodes of alleged use of excessive force in extracting Plaintiff from his cell. However, because, based on the video tape evidence of the two cell extractions occurring on February 5, 2005 and on April 7, 2005, no reasonable jury could find for Plaintiff on his excessive force claims, the Defendants are entitled to summary judgment as to those claims. In addition, his claims concerning January 2005 are time barred. In addition, the Defendants are entitled to summary judgment for his claims concerning the conditions of his two strip cell stays in February and April 2005 because those conditions did not violate either his First or Eighth Amendment rights, nor did they deprive him of liberty without procedural due process.
Relevant Factual and Procedural History
On March 9, 2007, Plaintiff executed a civil rights complaint against 8 of the Defendants that he has named in the case at hand. Plaintiff filed this civil rights complaint in the Eastern District of Pennsylvania.*fn2 Adderly v. Ferrier, No. 07-1169 (E.D. Pa.). On March 27, 2007, the Eastern District Court denied the motion to proceed IFP without prejudice to Plaintiff filing the case in the Western District because venue was improper in the Eastern District given that all of the events recounted in the complaint took place at SCI-Greene, which is located within the Western District. Id., (Dkt. 2).
On April 12, 2007, Plaintiff executed his IFP motion and complaint in the instant case. Dkt.  at 1; Dkt.  at 4. On March 7, 2008, Plaintiff filed a "motion requesting permission to relate back," Dkt. , which was treated by the Court as a motion for leave to file an amended complaint to include four new defendants, namely, C.O.s Wilcher and Blaker, as well as Lt. Yocum and Captain Bovo. The Court granted the motion and directed that Plaintiff file an amended complaint to include those four new defendants and allegations against them. Dkt. . Ultimately, the operative complaint in this case is comprised of the amended complaint, Dkt. , which incorporates the Plaintiff's pre-trial statement, Dkt. .
Defendants had previously filed a partial motion to dismiss the operative complaint, Dkt. , on the grounds that any claim occurring on or prior to April 11, 2005 was time barred. The undersigned filed a Report recommending that the Defendants' partial motion to dismiss be granted in part and denied in part. We recommended that the motion to dismiss be granted as to all claims arising prior to March 9, 2005 (the date Plaintiff initiated suit incorrectly in the Eastern District of Pennsylvania) as time barred but denied as to any claims arising on March 9, 2005 and thereafter. For the first time in his objections to the Report, Plaintiff argued that the statute of limitations should have been tolled while he exhausted his administrative remedies, which he contended did not conclude or were not finally exhausted until September 2005. Dkt. . The District Court Judge issued a memorandum order which found that based on the limited record, the question of the statute of limitations and equitable tolling could not be decided on the motion to dismiss but specifically permitted the Defendants to file a motion for summary judgment based upon the statute of limitations and providing the necessary factual record for deciding the question. Dkt. .
The Defendants have now filed a motion for summary judgment, Dkt. , that complies with the District Court's order and provides evidence, inter alia, of when the administrative remedies were exhausted. Defendants have also provided evidentiary exhibits, including two DVDs of the two cell extractions. In addition, the Defendants filed a brief in support of their summary judgment motion, Dkt. , as well as a concise statement of material facts, Dkt. . The Court ordered Plaintiff to file his response. Dkt. . Plaintiff filed his "brief" in opposition, Dkt. , a responsive concise statement, Dkt.  and a "response" to the Defendants' summary judgment motion, Dkt. .
Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden to show or point out why there is no genuine issue of material fact. Walters ex rel. Walters v. General Motors Corp., 209 F.Supp.2d 481, 484 (W.D. Pa. 2002). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial . . ." or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); United States v. City of Hoboken, 675 F.Supp. 189, 192 (D.N.J. 1987), aff'd, 980 F.3d 724 (3d Cir. 1992)(Table).
The manner of carrying the moving party's initial burden varies, depending on whether the moving party or the non-moving party bears the burden of proof at trial with respect to the legal issue. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11 th Cir. 1993)("The nature of this responsibility varies, however, depending on whether the legal issues, as to which the facts in question pertain, are ones on which the movant or the non-movant would bear the burden of proof at trial.").
Instantly, the exhaustion of administrative remedies, one of the affirmative defenses raised by the Moving Defendants, is an issue for which the Moving Defendants would bear the burden of proof. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). Hence,
[w]hen the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it "must support its motion with credible evidence . . . that would entitle it to a directed verdict if not controverted at trial." [ Celotex ] at 331 (Brennan, J., dissenting); see also Chanel, Inc ., 931 F.2d at 1477. In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the nonmoving party. See id. at 1477. If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the nonmoving party, in response, "come[s] forward with significant, probative evidence demonstrating the existence of a triable issue of fact." Id .; see also Fed.R.Civ.P. 56(e); Celotex , 477 U.S. at 331 (Brennan, J., dissenting).
U.S. v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11 th Cir. 1991) (en banc).
[w]hen the nonmoving party has the burden of proof at trial, the moving party is not required to "support its motion with affidavits or other similar material negating the opponent's claim," Celotex , 477 U.S. at 323, in order to discharge this "initial responsibility." Instead, the moving party simply may "'show[ ]'-that is, point[ ] out to the district court --- that there is an absence of evidence to support the nonmoving party's case." Id . at 324. Alternatively, the moving party may support its motion for summary judgment with affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial. Id. at 331 (Brennan, J., dissenting). If the moving party shows the absence of a triable issue of fact by either method, the burden on summary judgment shifts to the nonmoving party, who must show that a genuine issue remains for trial.
Fed.R.Civ.P. 56(e); Chanel, Inc. v. Italian Activewear, Inc. , 931 F.2d 1472, 1477 (11 th Cir. 1991). If the nonmoving party fails to "make a sufficient showing on an essential element of her case with respect to which she has the burden of proof," Celotex , 477 U.S. at 323, the moving party is entitled to summary judgment.
Id., at 1437-38 (footnotes omitted). In either case, regardless of who bears the burden of proof at trial, the moving party must show no genuine dispute over a material fact.
"The substantive law governing the dispute will determine which facts are material, and only disputes over those facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." DeHart v. Horn, 390 F.3d 262, 267 (3d Cir. 2004)(internal quotations omitted). The evidence on summary judgment presents a genuine issue of fact only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). "Where the record taken as a whole could not lead a reasonable trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The inquiry involves determining whether the evidence pointed to by the parties presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. See Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. ...