The opinion of the court was delivered by: M.J. Susan Paradise Baxter*fn1
I. Relevant Procedural History
On November 28, 2006, Plaintiff, an inmate formerly incarcerated at the Crawford County Correctional Facility, initiated this pro se action, raising various civil rights claims arising out of his incarceration at the Crawford County Correctional Facility during 2004 and 2005.
A) The Original Pro Se Complaint
In his Original Complaint, Plaintiff alleges that he advised prison staff that his personal safety was being threatened by fellow inmates, but Defendants did nothing to protect him. On November 19, 2004, Plaintiff was attacked by inmate Lonnie Williams and on November 24, 2004, Plaintiff was again physically attacked, this time by inmate Justin Q. Smith. Plaintiff alleges that both attacks resulted in serious physical injuries and that prison officials delayed in providing him with proper medical attention. ECF No. 3.*fn2
Named as Defendants to the Original Complaint were: the Crawford County Correctional Facility; Jail Nurse "Rick"; Jail Doctor Richard Moran; Warden Tim Lewis; Lt. Minor; Lt. Denman; Lt. Wyant; Correctional Officer Patterson, Correctional Officer Mrs. Fox; Correctional Officer Shrekengost; Correctional Officer Grundy; Correctional Officer Snow; Correctional Officer Mrs. Brown; Correctional Officer Shinko; Counselor Trisha Wolf; Counselor Ronda Kingston; Sgt. Meal; Sgt. Kosher; and Lt. McCune. Id.
On June 18, 2007, Plaintiff filed a Supplement to the Original Complaint expanding upon his claims and adding Jane Doe, a Correctional Officer who allegedly delayed his medical treatment following the first attack, as a Defendant. ECF No. 36.
Meanwhile, in December of 2006, Plaintiff filed a separate civil action in this Court at C.A. No. 06-304E alleging a false imprisonment claim against Crawford County Correctional Facility, Lewis, Kosher, Meal, Wyant, Denman and Minor (all Defendants named in the original complaint in this action). By Order dated June 27, 2007, this Court granted Plaintiff's motion to consolidate C.A. 06-304E with the instant matter and directed Plaintiff to file an amended complaint in this case to fully allege all his claims.
B) The First Amended Complaint
In his First Amended Complaint filed on September 7, 2007, Plaintiff expanded upon his earlier claims regarding the two separate assaults by fellow inmates and the subsequent delay in medical care. First Amended Complaint, ECF No. 52. Plaintiff also added the additional claim of false imprisonment stemming from a miscalculation of his sentence (consolidated from C.A. No. 06-304). Id. at ¶¶ 36-44.
Plaintiff summarized his allegations into the following counts: Count I - False or Wrongful Imprisonment; Count Two - Assault and Battery; Counts Three, Four and Five -Negligence; Count Six - Gross Negligence; Count Seven - Negligent Infliction of Mental Distress; and Count Eight - Intentional Infliction of Mental Distress. Id.
Named as Defendants to the First Amended Complaint were: the Crawford County Correctional Facility, Warden Tim Lewis, John and Jane Doe of the protective housing unit, Deputy Warden Sausberry [sic], Minor, Denman, Wyant, McCune, Coleman, Stewart, Meal, Kosher, Wolf, Kingston, Fox, Schrekengost, Grundy, Snow, Patterson, Barns, Brown, Shinko, Stevens, Rick, and Moran. Id. at ¶ 8.*fn3
C) The Second Amended Complaint*fn4
Plaintiff obtained counsel around February of 2009. ECF No. 86. New counsel requested an extension of time in which to conduct discovery which was granted. On May 11, 2009, Plaintiff, through his newly obtained counsel, filed a Second Amended Complaint. ECF No. 92. Named as Defendants to the Second Amended Complaint are all Defendants from the First Amended Complaint, plus Nurse Cynthia Saulsbury, and fellow inmates Lonnie Williams and Justin Q. Smith.
The Second Amended Complaint alleges that Plaintiff's constitutional rights under the Eighth and Fourteenth Amendments were violated and also alleges "specific state claims based on the torts of False Imprisonment, Assault and Battery, Negligence, Gross Negligence, Negligent Infliction of Mental Distress and Intentional Infliction of Mental Distress, all of which were done with deliberate indifference and retaliation*fn5 ." The Second Amended Complaint lists the following counts:
Count I - False or Wrongful Imprisonment;
Count II - Assault and Battery;
Count III - Negligence (failure to protect);
Count IV - Negligence (failure to provide medical care);
Count V - Negligence (failure to hire/train/supervise employees relating to both failure to protect and failure to provide medical care);
Count VI - Gross Negligence;
Count VII - Negligent Infliction of Mental Distress;
Count VIII - Intentional Infliction of Mental Distress; and
Count IX - Attorney Fees, Costs and Expenses.
ECF No. 92. Although the counts of Plaintiff's counseled complaint are titled as state law tort claims only, Plaintiff makes federal civil rights allegations and arguments in his filings as well. The content of the claims will be analyzed as pled, not as titled.*fn6 The allegations and organization of the Second Amended Complaint do not indicate which claims are levied against which individual Defendants.
On June 2, 2009, Attorney Jeffrey Millin filed an Answer to the Second Amended Complaint on behalf of: Patterson, Fox, Shrekengost, Grundy, Snow, Brown, Shinko, Wolf, Kingston, Meal, Kosher, McCune, Crawford County Correctional Facility, "Rick", Moran, Lewis, Minor, Denman and Wyant. ECF No. 94.
On August 6, 2009, during a status conference, Jane Doe was identified as Kerri Thayer Boozer, John Doe was identified as Phil Smith, and Plaintiff voluntarily withdrew his claims against fellow inmates Lonnie Williams and Justin Smith. ECF No. 106.
On September 11, 2009, Defendants Deputy Warden Saulsbury, Nurse Cynthia Saulsbury, Kerri Thayer Boozer (formerly identified as Jane Doe), Stewart, Coleman, Barnes, and Phil Smith (formerly identified as John Doe) filed a motion to dismiss based upon the statute of limitations. ECF No. 109. By Report and Recommendation dated November 4, 2009, this Court recommended that the motion to dismiss be granted and that these named Defendants be dismissed from this action. ECF No. 126. Objections were filed and Judge McLaughlin heard oral argument on the matter before adopting the Report and Recommendation as the Opinion of the Court on December 29, 2009. ECF No. 151.
The Defendants who remain as parties to this litigation are Crawford County Correctional Facility, Jail Nurse Rick, Doctor Moran, Warden Lewis, Lt. Minor, Lt. Denman, Lt. Wyatt, Officer Patterson, Officer Fox, Officer Shrekengost, Officer Grundy, Officer Snow, Officer Brown, Officer Shinko, Counselor Wolf, Counselor Kingston, Sgt. Meal, Sgt. Kosher, Lt. McCune, and Stevens. Defendant Nurse Rick is represented by Fran Klemensic, Esq., while all other Defendants are represented by Jeffrey Millin, Esq.
Defendants moved for summary judgment against several of the counts of the Second Amended Complaint. ECF Nos. 144, 146. Concise Statements of Material Facts did not accompany the motions as required by Local Rule 56(B)(1), but each was filed one month later. ECF Nos. 157, 158.
In early February, 2010, the parties filed their respective consents to have an United States Magistrate Judge conduct proceedings in this case, including entry of a final judgment. ECF Nos. 161, 162, and 163.
Plaintiff filed an opposition brief to the motions for summary judgment in March 2010. ECF No. 178. About a month later, Plaintiff filed "First Motion for Leave to File Motion's Exhibits 1 and 2 as New Evidence received this date for Inclusion in Plaintiff's Appendix and all other Plaintiff- filed documents responsive to Defendants' motion for summary judgment." ECF No. 193. Because the purported "new evidence" directly impacted the statute of limitations defense raised by Defendants, this Court reopened the long-closed discovery phase of this litigation on the limited issue of timeliness with respect to the filing of the Original Complaint. Defendants were allowed to supplement their pending motions for summary judgment and Plaintiff was allowed to supplement his opposition brief. ECF Nos. 205-209.
The issues are ripe for disposition by this Court.
A) Motion to Dismiss Pursuant to 12(b)(6)
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint must be dismissed pursuant to Rule 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570 (rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009) (specifically applying Twombly analysis beyond the context of the Sherman Act).
A Court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) quoting Iqbal, ___ U.S. at ___, 129 S.Ct. at 1949 ("The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."). A plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 556, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). Although the United States Supreme Court does "not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face." Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is "required to make a 'showing' rather than a blanket assertion of an entitlement to relief." Smith v. Sullivan, 2008 WL 482469, at *1 (D. Del.) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). "This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at 556 n.3.
Recently, the Third Circuit expounded on the Twombly/Iqbal/Phillips line of cases:
To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible. This then 'allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct.'
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The district court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a district court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.' In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts. As the Supreme Court instructed in Iqbal, '[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.' This 'plausibility' requirement will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11(3d Cir. 2009) (emphasis added) (internal citations omitted).
B) Motion for Summary Judgment Pursuant to Rule 56
Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment shall be granted if the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Rule 56(e)(2) further provides that when a motion for summary judgment is made and supported, "an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party." A district court may grant summary judgment for the defendant when the plaintiff has failed to present any genuine issues of material fact. Fed.R.Civ.P. 56(c).
The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007); UPMC Health System v. Metropolitan Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989). The non-moving party "must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue." Garcia v. Kimmell, 2010 WL 2089639, at * 1 (3d Cir. 2010) quoting Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005). Further, the non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322; see also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
The court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). See also El v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007). 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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A material fact is a fact whose resolution will affect the outcome of the case under applicable law. Id. at 248. Summary judgment is only precluded if the dispute about a material fact is "genuine," i.e., if the evidence is such that a reasonable jury ...