The opinion of the court was delivered by: Judge McClure
On May 16, 2008, plaintiff William Marcinkevich, pro se, instituted this civil action pursuant to 42 U.S.C. § 1983. (Rec. Doc. No. 1).*fn1 The named defendants are Lackawanna County Prison ("LCP") Correctional Officers Ganz*fn2 , Thomas Lagoozi, Donnie Lavin, and Jack Gilroy; Grievance Coordinator and Correctional Officer Maloney; Captain Katz; Deputy Warden Al Joyce, Warden Janine Donate; and a Second Shift Commander John Doe. (Id.). The plaintiff's claims arise from his time while incarcerated at the LCP. Marcinkevich alleges that the defendants violated his rights by allowing a security breach to take place on November 22, 2007, in which plaintiff claims that he was assaulted; subsequently covered up the incident; discriminated against the plaintiff; and retaliated against him for filing the instant lawsuit. (Id. at 3-4). Marcinkevich appears to allege violations of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (Id.).
The plaintiff seeks as relief monetary and punitive damages totaling $3.5 million, as well as injunctive relief. (Id. at 5). Marcinkevich asks that those involved in the incident "not be allowed to work around inmates," that Correctional Officer Ganz be fired, that signed apologies by the defendants be given to the plaintiff, that plaintiff be provided attorney's fees, that the "right[ing] of all wrongs done to [plaintiff]" be made, and that the plaintiff be provided compensation for the mental and emotional damages he allegedly suffered. (Id.).
The matter initially was referred to United States Magistrate Judge Malachy E. Mannion.
The plaintiff filed a motion to appoint counsel on May 16 and July 10, 2008. (Rec. Doc. Nos. 4, 14). On July 16, 2008, Magistrate Judge Mannion denied these motions. (Rec. Doc. No. 16). Plaintiff also filed a motion to appoint counsel on August 25, 2008. (Rec. Doc. No. 30). This motion was similarly denied by the magistrate judge on August 28, 2008. (Rec. Doc. No. 31). The magistrate judge denied a fourth motion to appoint counsel on April 12, 2010. (Rec. Doc. Nos. 53, 60).
After filing a motion seeking leave to file an answer to the plaintiff's amended complaint nunc pro tunc, which was granted by Magistrate Judge Mannion (Rec. Doc. Nos. 17, 18), the defendants filed an answer to the plaintiff's amended complaint on July 17, 2008. (Rec. Doc. No. 19).
After a protracted period of discovery, in which motions to compel (Rec. Doc. Nos. 45, 47, 53, 63, 64, 65 ) were filed by the plaintiff and motions for extensions of time (Rec. Doc. Nos. 36, 51, 57, 59, 71 ) were sought by both parties, a non-jury trial was scheduled for October 26, 2010, before the undersigned judge in Scranton, Pennsylvania. (Rec. Doc. No. 75).
On September 8, 2010, the defendants filed a motion seeking to continue trial in light of a previously scheduled trial commitment. (Rec. Doc. No. 76). The court granted this motion and rescheduled the non-jury trial for November 4, 2010, to take place in Scranton, Pennsylvania. (Rec. Doc. No. 77).
Thereafter, on October 4, 2010, defendants filed a motion for an extension of time in which to file dispositive motions. (Rec. Doc. No. 78). In this motion, defendants indicated that they had recently received the LCP's investigative file concerning the November 22, 2007 incident involving the plaintiff. (Id. at 2). As such, the defendants sought permission to file a motion for summary judgment within ten days, or as otherwise directed by the court. (Id.). On October 7, 2010, this court granted the defendants' motion. (Rec. Doc. No. 80).
On October 21, 2010, the defendants filed their motion for summary judgment, a statement of material facts, and their brief in support. (Rec. Doc. Nos. 82, 84, and 85).*fn3 Defendants contend that the plaintiff fails to state a claim upon which relief can be granted under § 1983, fails to state a claim under the Due Process Clause or the Eighth Amendment, and has failed to fully exhaust those administrative remedies available to him, pursuant to the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997(e). (Rec. Doc. No. 82 at 1-2). The plaintiff's brief in opposition was due no later than November 8, 2010. The plaintiff has yet to file any brief in opposition or a responsive statement of material facts.
While motions for summary judgment are subject to the Federal Rules of Civil Procedure, such motions are also subject to a District Court's local rules. As such, motions in this District Court must also comply with the United States District Court for the Middle District of Pennsylvania Rules of Court ("Local Rules"). Local ...