The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
This pro se civil rights action was initiated by Plaintiff Alan Holmes ("Plaintiff" or "Holmes"), an inmate currently confined at the United States Penitentiary - Canaan ("USP Canaan") in Waymart, Pennsylvania, by filing a Complaint under the provisions of 42 U.S.C. § 1983. (Doc. 1.) At the time of filing on August 13, 2007, Plaintiff was an inmate at the Lackawanna County Prison in Scranton, Pennsylvania.
Presently before the Court is a Motion for Summary Judgment filed on behalf of Defendants on April 30, 2010. (Doc. 54.) For the reasons set forth herein, the Motion will be granted.
In his Complaint Plaintiff names as Defendants Captain Chiarelli, and Correctional Officers Paul DeSando and Mr. Zelinski, all of whom were employed by the Lackawanna County Prison during the relevant time period. (See Doc. 1 at 1, 2.) Plaintiff alleges that Defendants DeSando, Zelinski, and Chiarelli subjected him to excessive force. He provides the details of an incident that allegedly occurred on March 6, 2007 that began when he was given a food tray with onions on it. Holmes claims that, when he complained to Defendant Zelinski because he is allergic to onions, Zelinski told him to eat around them. (Id. at 2 § IV ¶ 1.) When he asked to see a "white shirt," Zelinski refused and told him to go to his cell. (Id.) He alleges that Defendant DeSando then approached and grabbed him by his shirt, punched him in his cell, and slammed the door in his face. (Id.)
Plaintiff alleges that DeSando continued to harass him, and that on May 22, 2007, DeSando told him to move out of his cell to another cell for no reason. (Id. ¶ 2.) When Plaintiff asked why, DeSando told him to move "because I told you to move." (Id.) When Plaintiff asked for a "white shirt," DeSando allegedly grabbed his arm and twisted it behind his back, slammed him against the wall with his knee, and handcuffed him tightly, and then took him with other officers and assaulted him by kicking and punching him with handcuffs and shackles on in Delta T-Block. (Id.)
Plaintiff next alleges that, on June 26, 2007, he participated in a "food strike" in his Unit because of a lack of food, and that the "Riot C.O.'s" came in his cell wearing riot gear and assaulted him while he was shackled and handcuffed. (Id. 3.) He also claims that Defendant Chiarelli came up to him and kicked him between his legs, causing unbearable pain. (Id.)
Holmes also alleges that, on July 20, 2007, he overheard Defendant Zelinski talking about him to another inmate, and when Holmes asked Zelinski why he was talking about him, Zelinski stated, "Holmes I can talk about you to anybody," and advised him to "Shut up before I open that cell and teach you a lesson." (Id.) Holmes claims that Zelinski then entered his cell and choked him until he couldn't breathe. (Id.)
In a separate page attached to his form Complaint, Holmes makes a statement dated August 7, 2007, which he submits under penalty of perjury. (Id. at 4-5.) In his statement, he makes the following additional*fn1 general allegations: (1) he has been placed in the Restricted Housing Unit ("RHU") "for no reason at all, just because they are having a bad day"; (2) the conditions of confinement generally in the Lackawanna County Prison violate his Eighth Amendment right to be free from cruel and unusual punishment; (3) "I am being starved in this county facility. The food is unappetizing and unwholesome, poorly prepared and often infested with insects."; (4) his outgoing mail does not leave the facility, and sometimes, he does not receive his mail either; and (5) he has been denied access to the telephone in order to call his attorney and family members. (Id.)
Service of the Complaint was directed by Order dated August 27, 2007. (Doc. 6.) On October 10, 2007, the process receipt and return as to each Defendant was docketed showing that service on Defendants had been accomplished on September 28, 2007, and thus an Answer to the Complaint was due on October 18, 2007. (See Doc. 7.) On November 26, 2007, Plaintiff filed a "Declaration for Entry of Default." (Doc. 10.) Therefore, by Order dated December 3, 2007, we directed Defendants to show cause within twenty (20) days why Plaintiff's request for default should not be granted. (See Doc. 11.) Defendants failed to respond to the December 3, 2007 Order. On February 27, 2008, Plaintiff filed a second request for default. (Doc. 19.) By Order dated May 7, 2008, we granted Plaintiff's request, and default was entered against all Defendants. (Doc. 22.)
On May 23, 2008, Plaintiff filed a Motion for Default Judgment. (Doc. 25.) By Order dated February 5, 2009, we directed Defendants within twenty (20) days to show cause why a default judgment should not be entered in Plaintiff's favor. (Doc. 29.) Thereafter, on February 24, 2009, counsel entered an appearance on Defendants' behalf (Doc. 32)*fn2 , and a Response was filed, which we construed as a Motion to Set Aside Default pursuant to Fed. R. Civ. P. 55(c). (Doc. 33.) By Order dated March 4, 2009, we granted the Motion to Set Aside Default, denied Plaintiff's Motion for Default Judgment, and directed them within fifteen (15) days to respond to Plaintiff's Complaint. (Doc. 34.)
On March 17, 2009, Defendants filed an Answer to the Complaint. (Doc. 35.) By Order dated April 14, 2009, we established case management deadlines for this case, including deadlines for the completion of discovery, the submission of discovery-related motions, and the filing of dispositive motions. (Doc. 36.) These deadlines subsequently were extended several times, and the final deadline established for the submission of dispositive motions was April 30, 2010. (See Doc. 51.) On that date, the instant Motion for Summary Judgment (Doc. 54) was filed on Defendants' behalf, along with a Statement of Material Facts (Doc. 55), a supporting brief (Doc. 56), and supporting exhibits (Docs. 55-2 through 55-9).
On May 14, 2010, the day his opposition to the Motion Summary Judgment was due to be filed, Plaintiff mailed correspondence to the Court requesting a copy of his docket sheet and the exhibits (Doc. 13) to his Complaint. The correspondence was docketed in this action on May 17, 2010. (See Doc. 57.) In his letter, Plaintiff stated that he required a copy of the exhibits in order to represent himself. (See id.) At the time he filed the exhibits to his Complaint on December 21, 2007, Plaintiff indicated in his cover letter that he had been unable to make a copy of them because he was being denied access to the law library where the copy machine was located. (See Doc. 13 at 1.)
The Clerk of Court immediately sent a copy of Plaintiff's docket sheet to him. (See Doc. 57, Remark.) However, the Clerk was not able to send Plaintiff a copy of his exhibits from the CM/ECF System because several of the exhibits did not scan well and were unreadable.
The original exhibits then were retrieved from the case file. Because most of the exhibits are on carbon paper, the writing on the documents is difficult to read in its original form. However, the Clerk of Court re-scanned the exhibits that were not readable on the CM/ECF System (see Docs. 13-2, 13-3, Exs. B, G, N, Q) and, pursuant to our June 1, 2010 Order, mailed a copy of all of the exhibits to Plaintiff (Docs. 13, 13-2, 13-3). (Doc. 58.)
In our June 1 Order, we also construed Plaintiff's letter as a request for an extension of time to file his opposition to Defendants' Motion for Summary Judgment, the request was granted, and he was directed to file his opposition, including an opposing brief and statement of material facts as required by Middle District of Pennsylvania Local Rule ("LR") 56.1, on or before June 15, 2010. (Id.) On June 16, 2010, Plaintiff filed a brief in opposition to the instant Motion for Summary Judgment. (Doc. 59.) Holmes did not file a separate statement of material facts as he was directed to do in our June 1 Order.
Summary judgment is appropriate if the record establishes "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by pointing to an absence of evidence supporting an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325. Once the moving party meets its burden, the burden then shifts to the non-moving party to show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). An issue is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a factual dispute is "material" only if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
In opposing summary judgment, the non-moving party "may not rely merely on allegations or denials in its own pleadings; rather, its response must . . . set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). Arguments made in briefs "are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985). However, the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the non-moving party. P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir. 2006).
Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still, "the 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, 477 U.S. at 247-48.
Because Holmes failed to file a separate statement of material facts controverting the statement filed by Defendants, as he specifically was directed to do in this Court's June 1, 2010 Order (Doc. 58), all material facts set forth in Defendants' Statement of Material Facts ("SMF") (Doc. 55) will be deemed admitted. See LR 56.1.*fn3 Defendants' Statement and supporting exhibits (Docs. 55-2 through 55-9, Doc. 56-3)*fn4 establish the following undisputed facts material to the instant Motion:
1. Facts Relating to Disciplinary Proceedings
It is undisputed that Holmes' clinical file, maintained in the ordinary course of business by the Lackawanna County Prison, contains a number of misconduct reports and incident reports which document the instances during which Holmes came into physical contact with correctional officers while incarcerated at the Lackawanna County Prison. (Doc. 55, SMF, ¶ 2; Doc. 55-3, Dfts. Ex. B, Excerpts from Pltf.'s Clinical File.)
The record establishes that, on or about December 27, 2006, approximately three (3) months before Holmes' initial allegation of mistreatment, he was issued a misconduct report by virtue of his refusal to obey a direct order to gather his belongings because he was being transferred to another cell. (Doc. 55 ¶ 3; Doc. 55-3 at 2, Ex. B-1, 12/27/06 Misconduct Report.) It is undisputed that, as a result of that refusal to obey a direct order, Holmes was found guilty of the violation of rules and regulations, and was issued a sentence of fourteen (14) days in disciplinary custody. (Doc. 55 ¶ 3; Doc. 55-3 at 3, Ex. B-2, 1/1/07 Disciplinary Hearing Board ("DHB") Report.)
Holmes' clinical record reflects that, on March 6, 2007, he was cited for the following violations: Class I (14) Interfering with a Staff Member; Class I (24) Abusive Language to Staff; Class I (25) Creating a Disturbance; and Class II (9) Insulting Language. (Doc. 55 ¶ 4; Doc. 55-3 at 4, Ex. B-3, 3/6/07 Misconduct Report.) The incident report documents the circumstances surrounding Holmes' allegation in the instant Complaint that he was mistreated when he complained about onions in his food. (Doc. 55 ¶ 4 (citing Complaint, Doc. 1 at 2 IV 1).) The report, dated March 6, 2007, documents Holmes' refusal to lock up in his cell which, along with his abusive language and failure to comply with orders, resulted in the issuance of a misconduct report to him for violation of the aforementioned prison regulations. (Id.)
It is undisputed that a disciplinary hearing was conducted on March 8, 2007. (Id.) The DHB Report reflects that Holmes was found guilty of the charges of Interfering with a Staff Member and Disobeying a Direct Order. (Id.; Doc. 55-3 at 5, Ex. B-4, 3/8/07 DHB Report.)
Holmes' clinical file establishes that, on May 22, 2007, he was ordered against a wall by Defendant Correctional Officer Paul DeSando for purposes of being handcuffed. (Doc. 55 ¶ 5; Doc. 55-3 at 6, Ex. B-5, 5/22/07 Incident Report.) Holmes began to resist by pulling his arms away from Defendant DeSando, and, in twisting his arms and kicking his legs, Holmes struck DeSando in the groin area. (Id.) After he was successfully handcuffed, Holmes began to pull away from the officers who were escorting him, and the officers had to call for additional support in order to carry Holmes into the cell to which he was being transferred. (Id.) During this incident, Holmes also threatened Defendant DeSando. (Id.) As a result of this incident, Holmes was cited with the following violations: Class I (3) Assault; Class I (13) Threats; Class I (24) Abusive Language; Class II (1) Creating a Disturbance; Class II (17) Insolence; and Class II (21) Disobeying an Order. (Doc. 55 ¶ 5; Doc. 55-3 at 7, Ex. B-6, 5/22/07 Misconduct Report.)
As a result of his conduct on May 22, 2007, a disciplinary hearing was conducted on May 24, 2007, at which time Holmes was found guilty of all charges set forth in the Misconduct Report except Insolence. (Doc. 55 ¶ 6; Doc. 55-3 at 8, Ex. B-7, 5/24/07 DHB Report.) He was sentenced to seventy (70) days in the RHU. (Id.)
Holmes' clinical file establishes a record of verbal harassment against Defendant DeSando. (Doc. 55 ¶ 7.) An incident report was completed on June 25, 2007, in which it was documented that Holmes had asked one of the correctional officers on T-Block, where he was housed at the time, about where DeSando works and where he has been. (Id.; Doc. 55-3 at 9, Ex. B-8, 6/25/07 Incident Report.) On June 25, 2007, Correctional Officer Jackson heard Holmes indicate to Defendant DeSando that "he is ready for round two"; Jackson also heard Holmes indicate that "I know you live in Dunmore and I'll f***ing kill you and your family." (Doc. 55 ¶ 7; Doc. 55-3 at 10, Ex. B-9, 6/25/07 Incident Report by Jackson.) As a result of the threats that Holmes made against DeSando, a misconduct report was issued in which Holmes was charged with violations of Regulations 13(a) and (b), which prohibit an inmate from making threats against a correctional officer. (Doc. 55 ¶ 7; Doc. 55-3 at 11, Ex. B-10, 6/25/07 Misconduct Report.)
It is undisputed that, on the following day, June 26, 2007, Holmes was involved in an incident in which he participated in the flooding of his cell. (Doc. 55 ¶ 8; Doc. 55-3 at 12, Ex. B-11, 6/26/07 Misconduct Report.) The Misconduct Report issued on that date establishes that Holmes and his cellmate incited other inmates to follow their actions. (Id.) As a result, several cells in the Delta Unit became flooded, and this flooding extended to other cell blocks in the prison. (Id.) Holmes was charged with the following violations: Class I (12) Riot; Class I (13a) Threats; Class I (14) Interfering with a Staff Member; Class I (25) Creating a Disturbance; Class I (33) Attempt; Class I (3) Assault; Class I (15) Misuse/Destruction of County Property; Class II (11) Sanitary Violations; and Class II (21) Disobeying a Direct Order. (Id.)
On the following day, June 27, 2007, Correctional Officer DeRiggi completed a report in which he documented Holmes' attempted assault of correctional staff, which occurred after he was directed to stop kicking his cell door because it was causing a disturbance by setting off the door alarm. (Doc. 55 ¶ 9; Doc. 55-3 at 13, Ex. B-12, 6/27/07 Incident Report.) Correctional Officer Blume also documented Holmes' conduct during this incident. (Doc. 55 ¶ 9; Doc. 55-3 at 14, Ex. B-13, 6/27/07 Incident Report by Blume.) In his Report, Blume indicated that, when he approached Holmes' cell, the windows of the cell were covered with wet toilet paper. (Doc. 55-3 at 14.) Holmes refused several orders to remove the toilet paper from the windows in order to allow staff members to handcuff him through the wicket of the cell door. (Id.) Upon entry into Holmes' cell, Holmes and his cell mate attempted to use a mattress to block the doorway. (Id.) Blume further documents ...