The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania
Chief Judge Kane Magistrate Judge Mannion
Before the Court is defendant's motion for summary judgment (Doc. No. 20), Magistrate Judge Malachy Mannion's Report and Recommendation ("R&R"), recommending that the motion be granted in part and denied in part (Doc. No. 31), and Defendant's objections to the R&R (Doc. No. 32). For the reasons that follow, the Court will adopt the R&R in part and grant the motion for summary judgment.
The background of this dispute is more fully set forth in Magistrate Judge Mannion's R&R; however, the Court will briefly discuss the relevant factual issues. Plaintiff Lenelle Gray is an inmate at the United States Penitentiary at Lewsiburg ("USP Lewisburg"), in Lewisburg, Pennsylvania. (Doc. No. 1 at 2.) Plaintiff alleges that he and his cell mate, Andrew Bennett, notified a correctional officer, on the morning of Friday, August 14, 2009, that they were not getting along and that they needed to be separated. (Id.) Plaintiff allegedly notified the correctional officer that his cell mate would attack Plaintiff if Plaintiff was not removed from the cell. After notifying a second correctional officer later in the day, the second correctional officer informed Plaintiff that the Lieutenant stated that the cell change could not go forward until Monday, when the Unit Team was present. (Id.) Plaintiff allegedly reiterated his concerns, stating that he feared for his life, as his cell mate Bennet repeatedly threatened to attack him.
(Id.) That evening, Bennet allegedly struck Plaintiff in the face with a razor, and continued to physically attack him until the correctional officers arrived and helped end the attack. (Id. at 2-3.)
On August 24, 2010, Plaintiff filed a complaint against the United States of America under the Federal Tort Claims Act (FTCA), claiming: (1) that the Bureau of Prison (BOP) officials were negligent in failing to separate or protect him from his cell mate; and (2) that correctional officer Blue was negligent in failing to collect Bennett's razor, which was used in the August 14, 2009 incident. (Id.) On January 26, 2011, Defendant filed a motion for summary judgment. (Doc. No. 20.) On August 17, 2011, Magistrate Judge Mannion issued his R&R, recommending that the motion for summary judgment be granted as to the first claim, but denied as to the second claim. (Doc. No. 31.) On August 31, 2011, Defendant filed an objection to Magistrate Judge Mannion's recommendation as to the second claim. (Doc. No. 32.)
The Magistrate Act, 28 U.S.C. § 636, and Fed. R. Civ. P. 72(b), provide that any party may file written objections to a magistrate's proposed findings and recommendations. In deciding whether to accept, reject or modify the R&R, the Court is to make a de novo determination of those portions of the R&R to which objection is made. 28 U.S.C. § 636(b)(1).
Federal Rule of Civil Procedure 56(a) provides that "[t]he Court shall grant summary judgment 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." Fed. R. Civ. P. 56(a). The substantive law identifies which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the nonmoving party. Id. at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the nonmoving party's claims, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex, 477 U.S. at 322-23. If the nonmoving party "fails to make a showing 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," summary judgment is appropriate. Celotex, 477 U.S. at 322-23.
The United States enjoys sovereign immunity from lawsuits seeking monetary damages, except where that immunity is waived. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); Loeffler v. Frank, 486 U.S. 549, 554 (1988); Fed. Hous. Admin. v. Burr, 309 U.S. 242, 244 (1940). The FTCA waives sovereign immunity for injuries "caused by the negligent or wrongful Act or omission of any employee of the Government, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). The waiver of sovereign immunity in the FTCA does not apply to claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an ...