The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly
Chad B. Dickson, ("Dickson" or "Plaintiff"), an inmate at the State Correctional Institution at Retreat ("SCI-Retreat), has brought this civil rights action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his rights under the Eighth and Fourteenth Amendments to the Constitution while he was incarcerated at the State Correctional Institution at Greensburg ("SCI-Greensburg"). Specifically, Plaintiff alleges that on August 2, 2006, he was assaulted by inmate Casey Pelton ("Pelton") in the Restrictive Housing Unit ("RHU") exercise yard at SCIGreensburg and that Defendants Sergeant Nelson ("Nelson") and Officer Peterson ("Peterson") (collectively, "Defendants"),*fn1 not only failed to protect him but that they conspired with Pelton to have Plaintiff assaulted. [ECF No. 27, pp. 2-3].
Presently before the Court are Defendants' Motion for Summary Judgment [ECF No. 53], and Plaintiff's Renewed Motion for Summary Judgment [ECF No. 74]. For the reasons that follow, Defendants' motion will be granted and Plaintiff's motion will be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
According to the record, Plaintiff was in the RHU exercise yard on August 2, 2006, with six other inmates, including Pelton. [ECF 55-2, pp. 11-12]. The yard is two flights of steps down from the RHU and contains six or seven exercise cages that the inmates are locked into either individually or in tandem. [ECF No. 55-2, pp. 5-6]. Two corrections officers are normally in the RHU yard: one sits at the top of the steps and the other monitors the cages down below. [ECF No. 55-2, p. 6]. On August 2, 2006, it appears that Nelson was at the top of the steps and Peterson was down by the cages. [ECF No. 55-2, p. 13]. Plaintiff asserts that at some point, Nelson ordered Peterson to open the cages simultaneously and send the inmates up so that they could be returned to their cells. [ECF. No. 27, p. 2; ECF No. 71, p. 2].Plaintiff, Pelton, and the other inmates were then ordered out of their cage and handcuffed by Peterson. [ECF No. 71, p. 2]. It is undisputed that while they were standing on the walk in front of the cages with only Peterson present, Pelton slipped out of his handcuffs and assaulted Plaintiff, kicking him and striking him about his face and head with his fists and the handcuffs, until Nelson and Peterson, among others, intervened. [ECF No. 27, p. 2; ECF No. 71, p. 2].
Plaintiff submitted a Section 1983 complaint on August 7, 2008 [ECF
No. 3], which he amended on January 30, 2009 [ECF No. 13], alleging
that his rights were violated by Defendants because they failed to
protect him from the assault. In particular, Plaintiff alleged that
Defendants' failure to protect him stemmed from their failure to
follow Department of Corrections' policies and procedures for
escorting prisoners. Defendants filed a Motion to Dismiss the Amended
Complaint on June 6, 2009, arguing, inter alia, that by failing to
plead any facts from which a fact-finder could infer that Defendants
were aware of any danger to Plaintiff or that any of the Defendants
subjectively made a decision to disregard a known risk of harm to
him, Plaintiff had merely set forth a claim of negligence in the
supervision of inmates and not a constitutional violation. *fn2
[ECF Nos. 21, 22]. Plaintiff subsequently requested and was
granted leave to amend his complaint a second time. [ECF Nos. 25, 26].
Plaintiff filed a Second Amended Complaint ("the Complaint") on April
16, 2010, alleging for the first time that the assault was
pre-arranged by Defendants and inmate Pelton. [ECF No. 27, p. 3].
Defendants filed a Motion to Dismiss Second Amended Complaint on April
19, 2010, which was denied as to Plaintiff's Eighth and Fourteenth
Amendment claims against Nelson and Peterson and granted in all other
respects. [ECF Nos. 28, 29, 34]. Following the close of discovery, the
instant motions for summary judgment were filed and are now ripe for
Summary judgment is warranted where 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 moving party has the initial burden of demonstrating that a fact cannot be genuinely disputed by citing to record evidence, "including depositions, documents, electronically stored information, affidavits or declarations, stipulations ... admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant can also support the assertion that a fact cannot be genuinely disputed by showing that "an adverse party cannot produce admissible evidence to support the [alleged dispute of] fact." Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2). See Burgos-Cintron v. Nyekan, 2011 WL 4361601 at *5 (D.N.J. Sept. 19, 2011).
Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. at 323; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994), aff'd, 67 F.3d 291 (3d Cir. 1995). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen v. Liberty Lobby, 477 U.S. 242, 248 (1986). See U.S. v. Corry Comm'ns, 2011 WL 4572012 at *2 (W.D. Pa. Sept. 30, 2011) (when a motion for summary judgment is made and supported, "an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial). Moreover, the mere existence of some evidence favoring the non-moving party will not defeat the motion. There must be enough evidence with respect to a particular issue to enable a reasonable jury to find in favor of the non-moving party. Anderson v. Liberty Lobby, 477 U.S. at 248. See McGreevy v. Stroup, 413 F.3d 359, 363-64 (3d Cir. 2005). In evaluating the evidence at the summary judgment stage, the court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Matreale v. N.J. Dep't of Military & Veterans Affairs, 487 F.3d 150, 152 (3d Cir. 2007).
The only claims remaining before the Court are Plaintiff's Eighth and Fourteenth Amendment claims against Nelson and Peterson for allegedly conspiring to have Plaintiff assaulted.*fn3 Defendants do not dispute that the assault occurred. Nor do they dispute that they would be liable to Plaintiff for violating his Constitutional rights had they conspired to have him assaulted. Rather, Defendants contend that they are entitled to summary judgment because Plaintiff is unable to produce any admissible evidence from which a fact-finder could conclude that Defendants, in fact, engaged in a conspiracy. Plaintiff counters, arguing that he is entitled to summary judgment because Defendants have failed to demonstrate that they did not conspire to have him assaulted, and has submitted a series of exhibits that purportedly show the existence of a conspiracy. See [ECF Nos. 74-1 to 74-25].
"In order to prevail on a conspiracy claim under § 1983, a plaintiff must prove that persons acting under color of state law conspired to deprive him of a federally protected right . . . ." Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir.1999), superseded by statute on other grounds as stated in P.P. ex rel. Michael P. v. West Chester Area Sch. Dist., 585 F.3d 727, 730 (3d Cir. 2009). Establishing the existence of a conspiracy requires concerted action and the existence of an agreement. Watson v. Sec'y Pa. Dept. of Corr., 2011 WL 2678920 at *5-6 (3d Cir. July 08, 2011), citing Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 533 (10th Cir.1998). Because "'the linchpin for conspiracy is agreement' . . . concerted action, without more, cannot suffice to state a conspiracy claim." Id., quoting Bailey v. Bd. of Cnty. Comm'rs, 956 F.2d 1112, ...