The opinion of the court was delivered by: Stengel, J.
Charles Anton is a former inmate of the Lancaster County Prison. Mr. Anton claims that, while undergoing a strip search as part of intake procedures at the Prison, Corrections Officer James Zimmerman punched him, threw him against a wall, and intentionally broke one of his toes. He claims another Corrections Officer, Sean Hetrick, beat him after intake procedures were completed. Mr. Anton filed this Section 1983 action again Warden Vincent Guarini, Major Edward Klinovski, and Officers Zimmerman and Hetrick. He then stipulated to the dismissal of all claims against Mr. Guarini and Mr. Klinovski. The remaining defendants have filed a motion for summary judgment. For the reasons set forth below, I will grant the motion in part and deny it in part.
On July 3, 2007, Mr. Anton was arrested at his home for identity theft. Def.'s SUF ¶ 5. After his arrest he appeared before a Magistrate in Ephrata, Pennsylvania, who set his bail at $40,000. Deposition of Charles Anton, Jan. 14, 2010, 62:1--3. From there, he was taken directly to Lancaster County Prison. Def.'s SUF ¶ 6; Anton Dep. 62:7--11. After he arrived at the Prison, he underwent a routine strip search, and it is during the strip search that Mr. Anton maintains Corrections Officer Zimmerman, who he first encountered at the prison, threw him against a wall and then intentionally broke his toe. The defendants were not deposed during discovery; therefore the only version of events available for the court's review is that provided by Mr. Anton, who testified to the following during his deposition: while he was in the process of removing his clothes for the search, he reached for and grabbed a pair of shoes on top of a property box in the cell where he and Officer Zimmerman were located. Anton Dep., 64:4--18. Zimmerman told him to put down the shoes, and Anton obeyed. Id. at 65:12--16. Sometime within the next minute, Anton again reached for the shoes, but did not grab them. Id. at 66:1--11. Zimmerman again told him to stop, and Mr. Anton responded by saying "what." Id. at 66:1--67:16. Zimmerman then turned Anton's body so that Anton went from facing Zimmerman to facing the wall of the cell. After turning Anton around, Zimmerman slammed Anton's face into the wall, causing it to bleed. Id. at 67:16--70:13--18. Anton then began yelling "what the fuck" and two or three other corrections officers came into the cell. Id. at 77:8--13; 81:4--7.
After the other officers arrived in the cell, they held Mr. Anton's arms behind his back so that he could not move them, and continued the strip search. Anton Dep. at 78:7--79:11. At one point while he was being held, Zimmerman "punched [him] in the face." Id. at 78:10--11. After they finished taking Anton's clothes off, they picked him up and slammed him onto a metal cot. Id. at 81:8--12. After he had been pushed onto the cot, and while other corrections officers were holding Anton down and pressed to the cot, Zimmerman grabbed Anton's right big toe and twisted it. Id. at 83:4--23; 84:2--12. The first time Zimmerman twisted Anton's toe, he broke it and Anton felt "excruciating pain." Id. at 85:14. Anton's body went limp from the pain, and Zimmerman then twisted the toe a second time, causing Anton to scream. Id. at 85:16--23. He was then left in the cell for a few minutes before being taken by other corrections officers to another section of the prison, the C-2 Annex. Id. at 87:8--13.
After Mr. Anton reached the C-2 Annex, he was handed over to Corrections Officer Hetrick, who walked in front of Anton, leading him to a shower room. Id. at 91:13--22. Anton put the box of belongings he was carrying onto the floor, and Hetrick then reached for Anton's head, hitting the back of it. Id. at 91:24--92:13.
According to the Prison's records, Mr. Anton never sought or received medical treatment for his face or his toe. Def.'s SUF ¶¶ 9, 10. Anton claims that, because nurses refused him when he made verbal requests for treatment, he did not bother to make written requests. Anton Dep. 88:4--21; 132:21--133:12. He claims his toe remained swollen throughout the time he was at the Prison and after he was released on August 27, 2007. After he was released from prison, Mr. Anton sought treatment for continuing pain in his toe, eventually having surgery on it on February 27, 2008. Id. at 136:8--17. Medical records he submitted indicate that he was diagnosed as having a fracture in his right big toe, and that during surgery, fracture fragments were removed. Anton Ex. C.
Mr. Anton's complaint initially consisted of three counts: Count I alleges "Deliberate Indifference to Plaintiff's Fourth Amendment Rights [42 U.S.C. § 1983] -Beating prisoner and inflicting wanton and unnecessary pain." Count II is essentially a Monell claim, alleging the existence of policies and procedures allowing prison guard abuse in violation of Section 1983; and Count III alleges intentional infliction of emotional distress. Mr. Anton has stipulated to the dismissal of Count II and to the dismissal of Warden Guarini and Major Klinovski as defendants. Therefore, all that remains of Mr. Anton's complaint are the excessive force and intentional infliction of emotional distress claims against Corrections Officers James Zimmerman and Sean Hetrick.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any 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" when a reasonable jury could return a verdict for the non-moving party based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" when it could affect the outcome of the case under the governing law. Id.
A party seeking summary judgment initially bears responsibility for informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's burden can be met simply by demonstrating "to the district court that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." FED. R.
CIV. P. 56(e). Summary judgment is therefore appropriate when the non-moving party fails to rebut by making a factual showing "based on the affidavits or by depositions and admissions on file" that is "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322; Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir.1992).
A. Excessive Force Claims The defendants seek dismissal of Mr. Anton's excessive force claim on two general grounds: first, they claim insufficient evidence exists to show either that excessive force was used on Mr. Anton or that he suffered anything more than de minimus ...