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Mel Johnson v. Joseph Rush

December 2, 2010

MEL JOHNSON,
PLAINTIFF,
v.
JOSEPH RUSH, P.A., ET AL., DEFENDANTS



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

Plaintiff Mel Johnson ("Johnson"), at the time an inmate confined at the State Correctional Institution at Mahanoy (SCI-Mahanoy), Pennsylvania, filed this civil rights action pursuant to 42 U.S.C. § 1983. Named as Defendants are the following individuals employed at SCI-Mahanoy during the relevant time period: Joseph Rush, Physician's Assistant; Marva J. Cerullo, Chief Health Care Administrator; and Sharon M. Burks, Chief Grievance Officer. Defendants Cerullo and Burks were previously dismissed from this action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The matter presently proceeds on an amended complaint against Rush (Doc. No. 51), the sole remaining Defendant. Pending before the Court is Defendant Rush's unopposed motion for summary judgment. (Doc. No. 67.) For the reasons set forth below, the motion will be granted.

I. Background

In the amended complaint Plaintiff alleges that Defendant Rush violated his Eighth Amendment right to be free from cruel and unusual punishment when he deliberately jammed his finger into Plaintiff's rectum during a rectal examination on April 25, 2010, causing him pain. Plaintiff had reported to sick call for follow-up hemorrhoidal care on that date. Plaintiff further contends that Rush's actions were in retaliation for a grievance Plaintiff filed against Rush with respect to the medical treatment he was receiving, and therefore Rush retaliated during the course of the exam with the intention to inflict pain. (Doc. No. 51, Am. Compl. at 1.) Plaintiff requests "any relief this court deems appropriate in favor of plaintiff." *fn1 (Id. at 2.)

Rush has filed a motion for summary judgment in this matter. (Doc. No. 67.) A supporting brief and statement of material facts have also been submitted. (Doc. Nos. 68, 70.) Plaintiff has failed to oppose the motion. Prior to the filing of the motion for summary judgment, the Court had issued a Memorandum and Order on February 5, 2010, granting in part and denying in part a motion Rush had filed to dismiss the amended complaint. The copy mailed to Plaintiff at SCI-Mahanoy was returned to the Court. The envelope was marked "Undeliverable-Addressee Unknown." (Doc. No. 63.) Plaintiff had been transferred to the Federal Detention Center in Philadelphia and, as such, a copy of the February 5, 2010 Memorandum and Order was thereafter remailed to Plaintiff at his new address. (Doc. No. 63.) On April 2, 2010, a scheduling order was issued and mailed to Plaintiff at the Philadelphia Detention Center. This order was returned to the Court as undeliverable. A search of the Inmate Locator records of the Department of Corrections revealed that Plaintiff had been released. Following a telephone inquiry made to the Federal Detention Center in Philadelphia, the Court was provided with Plaintiff's forwarding address. The scheduling order was then remailed to Plaintiff at his new address of 228 North 50th Street, Philadelphia, Pennsylvania, 19139. Since that time all documents filed by Defendant, as well as any Court mailings, have been sent to Plaintiff at this address. No documents have been returned as undeliverable and Plaintiff has never provided the Court with any updated address.

Following Plaintiff's failure to oppose the motion for summary judgment filed by Defendant on July 1, 2010, the Court issued an order directing him to do so within fourteen (14) days. He was warned that the failure to oppose the motion would result in the motion being deemed unopposed. (Doc. No. 73.) Plaintiff has failed to file any opposition or seek an enlargement of time within which to do so. In fact, the last time the Court received any contact from Plaintiff was on October 30, 2009, when he provided a change of address from SCIMahanoy to the Federal Detention Center in Philadelphia. As such, the Court will deem Defendant's motion to be unopposed, and address the motion on the merits.

II. Standard of Review

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 issued 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.

Plaintiff has failed to submit any opposition to Defendant's motion for summary judgment, and therefore, the motion is deemed unopposed. Moreover, because Plaintiff has failed to file a separate statement of material facts controverting the statement filed by Defendant Rush, all material facts set forth in Defendant's statement of material facts (Doc. No. 68) will be deemed admitted. See M.D. Pa. L.R. 56.1.*fn2 Even though Plaintiff has not opposed Rush's motion, the Court still must determine whether Rush is entitled to summary judgment as a matter of law. See Lorenzo v. Griffith, 12 F.3d 23, 38 (3d Cir. 1993); Anchorage Associates v. Virgin Islands Board of Tax Review, 922 F.2d 168, 174-75 (3d Cir. 1990).

III. Discussion

A. Undisputed Facts Plaintiff filed Grievance #117716 dated May 15, 2005, contending that on April 25, 2005, he was seen and examined by Defendant Rush for hemorrhoids. Plaintiff informed Rush that he still had hemorrhoid pain and thought he may need surgery on his hemorrhoids. Rush performed an examination to check for internal hemorrhoids and abnormalities. During the exam, Plaintiff states that Rush jammed his finger into ...


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