The opinion of the court was delivered by: William W. Caldwell United States District Judge
On May 28, 2009, plaintiff, Richard W. Illes, filed a civil rights action pursuant to 42 U.S.C. § 1983 against defendants, Kevin DeParlos and Steven Blank. Defendants filed a motion for summary judgment on October 15, 2010. Magistrate Judge Smyser issued a Report and Recommendation on December 8, 2010, recommending defendants' motion for summary judgment be granted in-part and denied in-part. We granted defendants' motion for summary judgment on March 9, 2011 for failure to exhaust administrative remedies. Plaintiff appealed our decision on April 1, 2011. The Third Circuit vacated our order, finding that there was a genuine issue of material fact as to whether plaintiff's failure to exhaust administrative remedies was excused because they were unavailable to him. (doc. 97, at 6). The Court remanded the case so that we may consider defendants' motion for summary judgment on the remaining issues.
This case involves plaintiff's temporary confinement in the Lycoming County Prison, where he was housed during his PCRA proceedings. These proceedings required plaintiff to stay in the county prison for six days from October 23, 2008 to October 29, 2008, for five days from December 11, 2008 and December 15, 2008, and for twenty-eight days from March 19, 2009 to April 17, 2009. He was confined on these occasions to the Special Management Unit ("SMU") of the prison, even though he was a general population prisoner in the State Correctional Institution at Albion, where he was regularly housed. Defendants assert that plaintiff was housed in the SMU as the result of a suicide attempt at the prison in 2004, which they believe was a possible escape attempt. Plaintiff claims that his confinement in the SMU was a violation of his First, Sixth, Eighth, and Fourteenth Amendment rights. A detailed account of the conditions in the SMU are set forth in the Report and Recommendation, which we need not repeat here.
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, we may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In reviewing the evidence, we must construe facts and inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538, 553 (1986). Summary judgment must be entered for the moving party "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Id. at 586-87 (citations omitted).
The moving party bears the initial responsibility of stating the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S. Ct. at 2553, 91 L.Ed.2d at 274. It can discharge that burden by "showing . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. at 2554, 91 L.Ed.2d at 275.
An issue is "genuine" "only if a reasonable jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211-12 (1986)). A fact is "material" when it would affect the outcome of the trial under governing law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510, 91 L.Ed.2d at 211.
When a moving party has carried its burden, the burden shifts to the nonmoving party to demonstrate that an issue of material fact exists. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356, 89 L.Ed.2d at 552 (citations omitted). The nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment," and cannot "simply reassert factually unsupported allegations contained in [the] pleadings." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citation omitted). "If the [nonmoving party's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511, 91 L.Ed.2d at 212 (citations omitted). Factual averments in briefs do not satisfy the nonmoving party's burden. Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992).
B. Request for Injunctive Relief
Magistrate Judge Smyser found plaintiff's request for injunctive relief moot and recommended it be denied. Plaintiff argues that his request is not moot because he still has an appeal pending at the Superior Court and intends to file a Habeas Corpus petition in the District Court in Williamsport, which would likely require plaintiff to be housed at Lycoming County Prison, where he believes he would likely be placed in the SMU. Defendants assert that plaintiff exhausted his appeals to the Pennsylvania Appellate Courts, his PCRA petition was denied, and as a result, there is no possibility that he will be housed at the Lycoming County Prison again. Magistrate Judge Smyser found that plaintiff did not have a certain or likely return to confinement at the Lycoming County Prison and ...