The opinion of the court was delivered by: Amy Reynolds Hay Chief United States Magistrate Judge
Re: Dkt. Nos.  & 
Chief Magistrate Judge Amy Reynolds Hay
Troy Cooper ("Plaintiff") is currently serving several sentences*fn1 in the Department of Corrections ("DOC"). At the time of the events giving rise to this case, Plaintiff was incarcerated in SCI Greene. This case has been the subject of prior proceedings, see, e.g., Dkt. *fn2 and, as a result, there are only four remaining claims: (1) an Eighth Amendment deliberate indifference claim against Defendant Nurse Cindy Aultman based on an alleged delay in treating Plaintiff's asthma which was alleged to have occurred on March 22, 2006; (2) a First Amendment retaliation claim against Nurse Cindy Aultman based on the same alleged delay; (3) an Eighth Amendment deliberate indifference claim against Defendants Michelle Howard-Diggs, Chris Meyer, Roxanne Burgwinkel, and Joe Brown based on alleged delay in treating Plaintiff's asthma which was alleged to have occurred on July 3, 2007 and (4) a First Amendment retaliation claim against these same four defendants based upon the same alleged delay in treatment on July 3, 2007. Defendants Chris Meyer*fn3 ("Meyer") and Michelle Howard-Diggs ("Diggs") are both Physician Assistants, employed by a private health care contractor and are both represented by private counsel (collectively, "the Contractor Defendants"). Roxanne Burgwinkel ("Burgwinkel") is a nurse, as are Cindy Aultman and Joe Brown, all three of whom are represented by the Pennsylvania Attorney General's Office, (collectively, "the DOC Defendants").
As pertinent here, Plaintiff's pro se complaint essentially alleges two separate incidents that give rise to this case. First, Plaintiff alleges that on March 3, 2006, he repeatedly requested medical attention for an asthma attack, but was not seen and treated by the nurse for roughly two hours. When Plaintiff questioned why it took so long to respond to his requests for medical attention, Nurse Aultman allegedly responded with "you have to stop with those grievances." Dkt.  at 4, ¶ 14.*fn4 Plaintiff concluded from this remark that the two-hour delay was done in retaliation for grievance No. 143089, which he filed previously, wherein he complained about SCI-Greene's medical department. Plaintiff then filed a new grievance, i.e., No. 147836, concerning this alleged two-hour delay in treatment.
Second, Plaintiff alleges that on July 3, 2007, he was scheduled to seen by medical personnel, but when he asked a guard about going for his appointment, the guard allegedly responded that Defendant P.A. Diggs did not want to see Plaintiff. Dkt.  at 5, ¶21. Later on that same day, Plaintiff again experienced an asthma attack. He used his inhaler but received no relief from it. He then made several requests for medical attention but was not attended to for roughly four hours. Plaintiff again concluded the delay stemmed from a previous grievance filed on June 19, 2007, i.e., Grievance No. 191514, wherein he complained about the medical department. Dkt.  at 5-6, ¶24; id. at 6, ¶27; id., at 7, ¶37.
Plaintiff contends that the foregoing states a claim for violations of his Eighth Amendment right to be free of medical deliberate indifference and his First Amendment right to be free of retaliation.
All parties have consented to have the Magistrate Judge exercise plenary jurisdiction and enter final judgment. Dkt. Nos.  (Plaintiff's consent);  (Burgwinkel's consent);  (Contractor Defendants' consent);  (Aultman and Brown's consent).
Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.Proc. 56(c). 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 of identifying evidence that demonstrates the absence of a genuine issue of material fact.
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). In reviewing the summary judgment evidence, the Court has no duty to search the record for triable issues; rather, it need rely only on those portions of the evidentiary record to which the nonmoving party directs its attention. See Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992).
"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). An issue of material fact is genuinely disputed 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, 475 U.S. at 587. As a corollary of this principle from Matsushita, while it is generally true that on summary judgment motions, a court should not resolve credibility issues, nevertheless, where the evidence adduced by a party is so incredible that reasonable minds could not believe it, the court is not barred from entering summary judgment based on such a record. Kreimar v. Bureau of Police for Town of Morristown, 958 F.2d 1242, 1250 (3d Cir. 1992) ("[w]hile summary judgment may be based upon affidavits, conflicts of credibility should not be resolved on a hearing on the motion for summary judgment unless the opponent's evidence is 'too incredible to be believed by reasonable minds.'")(emphasis added)(quoting Losch v. Borough of Parkesburg, 736 F.2d 903, 909 (3d Cir. 1984)). The inquiry involves determining whether the evidence (other than that which is too incredible to be believed by reasonable minds) 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. Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991) (quotingAnderson v Liberty Lobby, 477 U.S. at 251-52). If a court, having reviewed the evidence with this standard in mind, concludes that "the evidence is merely colorable . . . or is not significantly probative," then summary judgment may be granted. Anderson, 477 U.S. at 249-50. Moreover, it is not enough for the non-movant to show that there is some dispute as to facts, rather, "only disputes over facts that might affect the outcome of the suit will prevent summary judgment." Anderson, 477 U.S. at 248. Accord Rexnord Holdings v. Bidermann, 21 F.3d 522, 525 (2d Cir. 1994) ("[T]he mere existence of some factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]"); Dykes v. DePuy, Inc., 140 F.3d 31, 36 (1st Cir. 1998) ("summary judgment is not precluded by just any factual quibble").
In short, the summary judgment motion is an evidence testing device to see if there is sufficient evidence to support a party's position with respect to an issue for which that party bears the burden of proof at trial so as to justify holding a trial. Summary judgment "is the . . . moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events." Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001).
We first take up Plaintiff's Eighth Amendment claim of deliberate indifference based on the alleged delay in treatment for his asthma that occurred on March 3, 2006.
The Supreme Court has explained that analysis of a violation of the Eighth Amendment involves a two pronged inquiry: (1) an objective inquiry into the qualitative nature of the harm suffered by the victim of the alleged punishment and (2) a "subjective inquiry" into the mind of the person inflicting the harm. See Wilson v. Seiter, 501 U.S. 294 (1991). The Supreme Court has held that "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain . . . proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104 (1976)(internal quotations omitted). The Court explained the subjective prong of an Eighth Amendment "deliberate indifference" claim is met when a prison "official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and he must also draw the inference." Farmer v. Brennan, 511 ...