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Jason Tate v. C.O. Kubaney

September 26, 2011

JASON TATE, PLAINTIFF,
v.
C.O. KUBANEY, ET AL, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter

MEMORANDUM OPINION

On Plaintiff's Partial Motion for Summary Judgment Against Defendant Kubaney

Magistrate Judge Susan Paradise Baxter*fn1

A.Relevant Procedural History

Plaintiff Jason Tate, acting pro se, initiated this civil rights action on July 24, 2009. Plaintiff alleges that during a period of incarceration at SCI-Albion, Defendants violated his constitutional rights in various ways. Plaintiff originally named Correctional Officer Sgt. Kubaney, Correctional Officer Boyd, Superintendent Brooks, and the "Department of Corrections Albion" as Defendants to this action.

Later, Plaintiff retained counsel, who filed an Amended Complaint on Plaintiff‟s behalf on October 25, 2010, clarifying his claims for relief and eliminating the Department of Corrections as a defendant. Plaintiff alleges that he was assaulted by Defendant Kubaney and that the other Commonwealth Defendants bear some responsibility for that assault and the subsequent retaliation he suffered.*fn2 Plaintiff advances three claims under § 1983: an excessive force claim under the Eighth Amendment against Kubaney, Brooks, and Boyd; a violation of liberty interest in personal security under the Fourteenth Amendment against Kubaney and Brooks and Boyd; and an unlawful retaliation against Brooks. Further, Plaintiff advances a claim of assault, battery, and willful misconduct sounding in state tort law against Defendant Kubaney.

Defendant Kubaney is represented by private counsel, while the remaining Defendants are represented by the Attorney General of the Commonwealth.

Presently pending before this Court is Defendant Brooks‟ motion to dismiss [ECF No. 36] and Plaintiff‟s motion for partial summary judgment against Defendant Kubaney [ECF No. 44]. This Memorandum Opinion limits itself to Plaintiff‟s partial motion for summary judgment against Defendant Kubaney. Defendant Kubaney has failed to file a brief in opposition to the pending motion for summary judgment against him, despite being notified of the opportunity to do so. ECF No. 48. Additionally, Kubaney has failed to file an Answer to the Amended Complaint, but Plaintiff has not moved for the entry of default.

B.Standard of Review on Motion for Summary Judgment

Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." When applying this standard, the court must examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party‟s claims. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007); UPMC Health System v. Metropolitan Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the non-movant must present affirmative evidence - more than a scintilla but less than a preponderance - which supports each element of his claim to defeat a properly presented motion for summary judgment). The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322. See also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). The non-moving party "must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue." Garcia v. Kimmell, 381 Fed.Appx 211, 213 (3d Cir. 2010) quoting Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005).

Further, under the Local Rules of this Court, within 30 days of the filing of a motion for summary judgment, the opposing party must file: 1) a Responsive Concise Statement; 2) a Memorandum in Opposition; and 3) an Appendix. W.D. Pa.L.R. 56. A litigant‟s failure to file the required opposition and responsive concise statement works to his detriment. "[A]lleged material facts set forth in the moving party‟s Concise Statement of Material Facts [.] which are claimed to be undisputed, will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied ." Id. at (e). See also Carnegie Mellon University v. Marvell Technology Group, Ltd., 2011 WL 1044652, at *3 (W.D. Pa. Mar.18, 2011); 84 Lumber Co., L.P. v. Bryan Const.Co., 2011 WL 666209, at *5 (W.D. Pa. Feb. 14, 2011). Because Defendant Kubaney has failed to file an opposition brief or a responsive concise statement, the material facts set forth in Plaintiff‟s statement are deemed admitted.

C.Plaintiff's Motion for Summary Judgment against Defendant Kubaney

Plaintiff seeks summary judgment in his favor through the use of offensive collateral estoppel*fn3 . Plaintiff argues that because Defendant Kubaney has been convicted of criminal assault for the incident in question, this Court need not engage in further analysis as to the constitutional claims here. In other words, Plaintiff argues, that because a jury found beyond a reasonable doubt that Kubaney (either intentionally, knowingly, or recklessly) subjected Plaintiff to bodily ...


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