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William Marcinkevich v. C.O. Gantz

April 11, 2011

WILLIAM MARCINKEVICH,
PLAINTIFF,
v.
C.O. GANTZ, C.O. THOMAS LAGOOZI, C.O. DONNIE LAVIN, C.O. JACK GILROY,
C.O. MALONEY, CPT. KATZ, D.W. AL JOYCE, WARDEN JANINE DONATE, AND
JOHN DOE, 2ND SHIFT COMMANDER ON 11/22/07, DEFENDANTS.



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

MEMORANDUM

I. INTRODUCTION

On May 16, 2008, plaintiff William Marcinkevich, pro se, instituted this civil action under 42 U.S.C. § 1983. (Rec. Doc. No. 1).*fn1 Named as defendants were Lackawanna County Prison ("LCP") Correctional Officers Ganz, 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. More specifically, Marcinkevich alleges 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; covering up the incident; discriminating against the plaintiff; and retaliating against the plaintiff 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).

II. PROCEDURAL HISTORY

The matter initially was referred to United States Magistrate Judge Malachy E. Mannion.

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 finally scheduled for October 26, 2010, before the Honorable James F. McClure, Jr.*fn2 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). Judge McClure granted the 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, the court granted the defendants' motion. (Rec. Doc. No. 80).

On October 21, 2010, the defendants filed their motion for summary judgment, the requisite statement of material facts, and their brief in support. (Rec. Doc. Nos. 82, 84, and 85).*fn3 With their motion, defendants contended that the plaintiff failed to state a claim upon which relief could be granted under § 1983, failed to state a claim under the Due Process Clause or the Eighth Amendment, and had failed to fully exhaust those administrative remedies available to him, pursuant to the Prison Litigation Reform Act. (Rec. Doc. No. 82 at 1-2). On November 23, 2010, Judge McCLure denied the defendants' motion for summary judgment, without prejudice, in light of the defendants' failure to provide citations to the record in their statement of material facts, as required by Middle District Local Rule 56.1 (Rec. Doc. No. 86 at 6). Judge McClure allowed the defendants fourteen days in which to file a motion for summary judgment with a statement of material facts containing proper documentation and references to the record. (Id. at 7).

Upon a status report order issued by the undersigned on January 5, 2011 (Rec. Doc. No. 87), the defendants filed a Renewed Motion for Summary Judgment (Doc. No. 88), a brief in support (Doc. No. 89), and a statement of material facts (Doc. No. 90) on January 26, 2011. The plaintiff, however, failed to file a brief in opposition to the motion for summary judgment or a responsive statement of material facts. On February 28, 2011, this court issued an order to show cause why the court should not treat defendants' motion as being unopposed. (Rec. Doc. No. 92 at 1).*fn4 This court warned plaintiff that if he failed to comply with the order, the court may rule on the motion as currently filed. To date, no responsive documents have been received by the court.

In light of the following we will grant the defendants' Renewed Motion for Summary Judgment (Rec. Doc. No. 88) and close the case file.

III. STATEMENT OF FACTS*fn5

Construing the facts in a light most favorable to the plaintiff, here the non-moving party, the ...


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