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Harcum v. Leblanc

October 21, 2010

DARREN HARCUM
v.
MARCEL LEBLANC



The opinion of the court was delivered by: Elizabeth T. Hey United States Magistrate JUDGE*fn1

MEMORANDUM AND ORDER

In this action brought pursuant to 42 U.S.C. § 1983, pro se Plaintiff Darren Harcum ("Plaintiff") seeks damages against Defendant Marcel LeBlanc ("Defendant") for injuries allegedly sustained in the State Correctional Institution in Graterford, Pennsylvania ("Graterford"), where Plaintiff resided as an inmate and Defendant worked as a corrections officer. Presently before the court is Defendant's motion for summary judgment ("Doc. 60"), to which pro se Plaintiff has not filed a response. For the following reasons, I will grant the motion and enter judgment for Defendant.

I. FACTS AND PROCEDURAL HISTORY

The facts are taken from the Amended Complaint ("Doc. 18") and Plaintiff's deposition testimony (attached to Doc. 60 at Exh. "A."). On November 16, 2008, Plaintiff was an inmate at Graterford and Defendant was a prison guard on his unit. See Doc. 18 at ¶ 1; Pl.'s Dep. at 13-14, 16. Between 10:15 and 10:30 p.m., Plaintiff asked Defendant to bring him a plunger because he was having problems with his toilet overflowing, and Defendant replied "all right." Pl.'s Dep. at 16-17. Defendant did not return until after 11:00 p.m., and he did not bring Plaintiff a plunger as requested. Id. at 17. Instead, Defendant told Plaintiff that because Plaintiff had been making noise, he would not get Plaintiff the plunger. Id. at 17-18. When Defendant walked away from Plaintiff's cell, Plaintiff pushed the "slide" on his cell door open, reached his arms through the opening and used a bed sheet and a roll of toiler paper to gain control of a chair located three or four feet outside his cell. Id. at 18-19.*fn2 Defendant returned to Plaintiff's cell to retrieve the chair and "said something to the effect, so this is how it is going to play out." Id. at 20-21. Defendant put on a pair of gloves and attempted to grab the chair from Plaintiff, who was holding the chair with both hands. Id. at 20-23. After failing to pull the chair away, Defendant grabbed Plaintiff's left arm and used his prison-issued keys to stab Plaintiff in the left forearm "four or five times." Id. at 23-24.*fn3

Plaintiff attempted to grab the keys with his right hand, releasing the chair. Id. at 24. Defendant released and then kicked Plaintiff's left arm as it remained sticking out of the slide, and then moved away from Plaintiff's cell. Id. at 25, 27. The chair remained outside Plaintiff's cell door. Id. at 25.

Plaintiff described Defendant's kick as "a straightforward kick," like one would punt a football, and not like a karate kick or a backwards kick. Pl.'s Dep. at 26. He testified that the kick landed on the underside of his left arm, and that it hit "square on." Id. at 31, 32. His injuries consisted of "a couple of bruises" and "a few cuts and abrasions," but he was uncertain whether the kick caused any injury to his arm or whether it left a mark, explaining that he could not tell whether the bruises were caused by being stabbed with the keys or getting kicked. Id. at 31-33. He stated that "obviously getting stabbed with the keys was more painful than the kick." Id. at 32.

Plaintiff went to the medical office during the next guard shift, where the prison nurse swabbed his forearm with ointment. Pl.'s Dep. at 36-37. Plaintiff refused "pain pills" because he already took pain medication for migraine headaches, and he refused a bandage for the abrasions on his forearm because the wounds were "mostly superficial." Id. at 36, 38. He received no medical treatment for the underside of his arm. Id. at 37.

Plaintiff commenced this lawsuit against Defendant alleging violations of the Eighth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983. On November 30, 2009, Plaintiff filed a Motion for Leave to File an Amended Complaint, which Judge Yohn granted on December 2, 2009. See Docs. 16, 17. On December 28, 2009, Plaintiff filed an amended complaint alleging Eighth Amendment violations for excessive force as to Defendant's use of keys and his alleged kick, as well as for delay of medical treatment. See Doc. 18. On May 6, 2010, upon consideration of Defendant's motion to dismiss (Doc. 19), I dismissed Plaintiff's claims of excessive force related to the use of keys and delay of medical care. See Doc. 35.

On September 24, 2010, Defendant filed the present motion for summary judgment seeking judgment in his favor as a matter of law on the sole remaining claim, namely excessive force as to Defendant's kick. Plaintiff did not file a response.

II. STANDARD OF REVIEW

Summary judgment may be granted only "if 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 that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" 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, 248 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.

The moving party has the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party has met its initial burden, the adverse party must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). "Speculation, conclusory allegations, and mere denials are insufficient to raise genuine issues of material fact." Boykins v. Lucent Techs., Inc., 78 F.Supp.2d 402, 408 (E.D. Pa. 2000). The evidence presented must be viewed in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983).

III. DISCUSSION

Plaintiff alleges that Defendant kicked his forearm as it stuck out of the slide in his cell door, and that the kick amounted to a violation of his Eighth Amendment rights. Defendant argues that no genuine issue of material fact exists with regard to Plaintiff's claim, ...


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