The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Plaintiff Linda Beth Picozzi ("Plaintiff" or "Picozzi"), an inmate incarcerated at the Muncy State Correctional Institution ("SCI-Muncy") in Muncy, Pennsylvania, initiated this pro se civil rights action by filing a Complaint pursuant to the provisions of 42 U.S.C. § 1983.
Presently before the Court is an unopposed Motion for Summary Judgment filed on behalf of the remaining Defendants to this action. (Doc. 53.) For the reasons set forth herein, the Motion will be granted.
In her Complaint, filed on May 13, 2008, Picozzi raises claims of excessive force and deliberate indifference to a serious medical need arising from an incident at SCI Muncy on May 12, 2006 during which she was extracted from her cell to be taken to the Mental Health Unit ("MHU"). The Complaint names the following Defendants, who were employed at SCI Muncy at the relevant time: Corrections Psychological Services Specialist Gregory C. Thompson; Lieutenant Teresa Sohnleitner; Sergeant Lonzo E. Burnside; Corrections Officer Gary P. Adams; Sergeant Cheryl A. Flick; Corrections Officer Tammie J. Howell; Corrections Officer Karen E. Mowery; Corrections Officer Karen Kemp; and Corrections Officer Scott M. Haldeman ("Corrections Defendants").
Dr. Andrew Fabian and Dr. Keith Tolan also were named as Defendants, but the Eighth Amendment claims against them alleging inadequate medical care for injuries resulting from the May 12, 2006 incident have been dismissed. As to Dr. Fabian, on July 29, 2008, a Motion to Dismiss the Complaint was filed on his behalf. (Doc. 19.) By Memorandum and Order dated February 5, 2009, Dr. Fabian's Motion was granted. (Doc. 30.) Although the Motion was granted without prejudice to Picozzi's ability to file amendment to her Complaint to attempt to state a claim against Fabian within thirty (30) days, the docket reflects that Picozzi never filed an amendment to her claim against Fabian.
As to Dr. Tolan, a waiver of service was not returned as to Defendant Dr. Tolanfollowing service of the Complaint on all Defendants on May 16, 2008. Although Picozzi was given the opportunity pursuant to this Court's February 5, 2009 Order to provide the correct address for Dr. Tolan (see Doc. 29), and she provided an address at Danville State Hospital, upon reissuance of the summons, the request for waiver of service that had been issued was returned unexecuted indicating that Tolan no longer was present at that address. (See Doc. 33.) Picozzi was given additional time to provide a current address for Tolan, but never did so. Accordingly, by Order dated October 16, 2009, her claims against Tolan were dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m). (See Doc. 46.)
Corrections Defendants filed an Answer to the Complaint on July 18, 2008. (Doc. 12.) By Order dated October 16, 2009, the Court directed the completion of discovery within sixty (60) days and the filing of dispositive motions within forty-five (45) days from the close of discovery. (Doc. 45.) Following a request for an extension of time to file a dispositive motion, which was granted, on March 1, 2010, the instant Motion for Summary Judgment was filed on behalf of Corrections Defendants. (Doc. 53.) On March 8, 2010, Defendants filed a Statement of Material Undisputed Facts (Doc. 55), supporting Declarations (Docs. 55-2 through 55-10), and a supporting brief (Doc. 56). Picozzi failed to file any opposition to the instantMotion, and therefore, by Order dated April 9, 2010, she was directed to file her opposition, including an opposing brief as required by Middle District of Pennsylvania Local Rule ("LR") 7.6, and a statement of material facts as required by LR 56.1, to the Motion on or before April 23, 2010. (Doc. 58.) Picozzi was warned that her failure either to file her opposition or a proper motion for an extension of time within the required time would result in Defendants' Motion being deemed unopposed. (See id.) The deadline for Picozzi to file her opposition has long expired, and she has failed to oppose the instant Motion.
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).*fn1 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).
Picozzi failed to submit any opposition to Defendants' Motion for
SummaryJudgment, and therefore, the Motion is deemed unopposed. Moreover,
because Picozzi has failed to file a separate statement of material
facts controverting the statement filed by Defendants, all material
facts set forth in Defendants' Statement of Undisputed Material Facts
(Doc. 55) will be deemed admitted. See M.D. Pa. LR 56.1.*fn2
Even though Picozzi has not opposed the Motion, the Court
still must determine whether Defendants are entitled to summary
judgment as a matter of law. See ...