The opinion of the court was delivered by: Magistrate Judge Blewitt
REPORT AND RECOMMENDATION
On August 15, 2011, Plaintiff Tyrone Wallace, an inmate at the United States Penitentiary at Lewisburg ("USP-Lewisburg"), Lewisburg, Pennsylvania, filed, pro se, another Bivens*fn1 civil action, pursuant to 28 U.S.C. Â§1331.*fn2 (Doc. 1). Plaintiff also filed two in forma pauperis motions. (Docs. 2 & 7).
Plaintiff's form Complaint consists of four pages with five handwritten pages of the Statement of Claim attached. In total, Plaintiff's Complaint consists of nine pages. Plaintiff names three (3) Defendants: Lieutenant Miller, S. Cross, Correctional Officer ("CO") and prison vehicle driver, and John Doe, escort team CO. All Defendants were employed at USPLewisburg during the relevant times of this case.
On August 30, 2011, we issued an Order and granted Plaintiff 's in forma pauperis Motions, and directed the Clerk of Court to issue process to the U.S. Marshal to serve Plaintiff 's Complaint on Defendants. (Doc. 10). Specifically, we directed service of Plaintiff's Complaint on the three Defendants, namely, Lt. Miller, S. Cross, and John Doe, team escorting CO. Plaintiff stated that Defendants were all employed at USP-Lewisburg. Initially, only the United States Attorney's Office, Middle District of Pennsylvania, was served with Plaintiff's 11-1503 Complaint.
On September 1, 2011, a return of service was filed by the United States Marshal Service ("USMS") indicating that Defendants Lt. Miller and CO Cross were served and, that it was not able to serve Defendant CO John Doe since it was not able to identify this unnamed Defendant. The USMS also indicated that there was "multiple staff who perform escort operations at USP Lewisburg" and that "Plaintiff needs to provide first/last names for USMS to serve Complaint." Consequently, on September 6, 2011, we issued the following Order in Plaintiff's 11-1503 case:
1. The United States Marshals Service has advised the Court that service in the above-captioned matter has not been effected as to the following defendant: Defendant John Doe (see Doc. 11).
2. If Plaintiff wishes his suit to proceed against this Defendant, he shall provide the Court, within fifteen (15) days of the date of this Order, with more specific information as to this individual so that service can be effected upon him.
3. Failure to so notify the Court will be construed as a decision by Plaintiff not to pursue the action as to this Defendant.
4. The Clerk of Court shall provide Plaintiff with a copy of Doc. 11. (Doc. 12, 11-1503).
In response to the Doc. 12 Order we issued in Plaintiff's 11-1503 case, Plaintiff filed a Motion for Reconsideration and a support Affidavit with exhibits on October 25, 2011. In his Motion, Plaintiff incorrectly stated that the Court directed him to identify all three of his Defendants. However, the Order only directed Plaintiff to identify Defendant John Doe. Plaintiff also stated that he needed more time to identify the three Defendants and that on September 20, 2011, he filed an administrative remedy with the prison requesting that he be provided with the names of the three escorting officers who took him from USP-Lewisburg to an outside hospital on May 4, 2011. Plaintiff averred that as a result of his administrative remedy, he was retaliated against and sexually harassed by prison staff, including the prison psychologist Ms. Mink and Defendant Lt. Miller. Plaintiff averred that Ms. Mink sexually harassed him by placing a mat over his cell door window. Plaintiff stated that on September 24, 2011 and October 5, 2011, he filed an administrative remedy against Ms. Mink and other administrative staff members due to the alleged sexual harassment.*fn3 Plaintiff also stated that his Unit Counselor (Shuck) responded to his administrative remedy requesting the names of the three officers who escorted him to the hospital and told Plaintiff to obtain the information by submitting a FOIA request to the BOP Office of General Counsel in Washington, DC. As relief in his Doc. 15 Motion, Plaintiff requested that the Court reconsider its Doc. 12 Order and "direct the Clerk of Court to get the (3) three officers names that took him to outside hospital." (Doc. 15, p. 4, 11-1503).
As stated, Plaintiff was only directed to provide the Court with more information as to the identity of the Defendant John Doe. Plaintiff named his two other Defendants and the Court was awaiting the USMS to personally serve them. There was no indication from the USMS that it would not be able to serve Defendants Lt. Miller and S. Cross at USP-Lewisburg in Plaintiff 's 11-1503 case. Thus, only Defendant John Doe needed to be identified for service.
Thus, in our October 28, 2011 Order, we stated cited to the Third Circuit case of Singletary v. PA DOC, 266 F.3d 186, 201, n. 5 (3d Cir. 2001), in which the Court stated, "[i]t is certainly not uncommon for victims of civil rights violations (e.g., an assault by police officers or prison guards) to be unaware of the identity of the person or persons who violated those rights. This information is in the possession of the Defendants, and many Plaintiffs cannot obtain this information until they have had a chance to undergo extensive discovery following institution of a civil action."
In the October 28, 2011 Order issued in Plaintiff's 11-1503 case, we reconsidered our Doc. 12 Order, and held it in abeyance. We indicated that "[a]s a litigant proceeding in forma pauperis, Plaintiff is not responsible for the service of process; rather 28 U.S.C. Â§1915(d) directs that '[t]he officers of the court shall issue and serve all process.'" Hankins v. Pennsylvania, 2010 WL 3522094, *3 (W.D. Pa. 9-7-10) (citations omitted). Further, we stated that once reasonable steps were taken by Plaintiff to identify the Defendants named in his 11-1503 Complaint, the Court must issue process to the USMS who is required to effectuate service upon Defendants. See Crock v. Asture, 332 Fed.Appx. 777, 778 (3d Cir. 2009)(citations omitted). Thus, in the 11-1503 case, we allowed Plaintiff to conduct discovery on the two named Defendants to determine the identity of the John Doe Defendant who was a Team Officer at USP-Lewisburg and who assisted in escorting Plaintiff to an outside hospital on May 4, 2011, and who allegedly put the handcuffs on Plaintiff deliberately tight to cause Plaintiff pain. However, in the 11-1503 case, we did not direct the Clerk of Court to get the (3) three officers' names who took Plaintiff to outside hospital, as Plaintiff requested, especially since Plaintiff indicated that he knew the names of two of the officers, i.e. Defendants Miller and Cross.
After being granted an extension of time, on December 7, 2011, Defendants jointly filed a Motion for Summary Judgment, or, in the alternative, Motion to Dismiss. (Doc. 27). Also, on December 7, 2011, Defendants filed their Statement of Material Facts ("SMF") with exhibits and their support brief. (Docs. 28 & 29). Defendants further submitted unpublished opinions in support of their motion. (Doc. 30). On January 17, 2012, after an extension of time, Plaintiff filed his opposition brief and exhibits. (Doc. 38 & 39). Plaintiff failed to file his response to Defendants' SMF as required by Local Rule 56.1, M.D. Pa.*fn4 Defendants filed their reply brief on January 27, 2012. (Doc. 40).
Defendants' Motion (Doc. 27) is now ripe for disposition. In Plaintiff 's 11-1503 case, Defendants argue, in part, that Plaintiff Wallace failed to properly exhaust his BOP administrative remedies regarding his claims. Since both parties filed exhibits and since we consider them herein, we examine Defendants' Motion with respect to the exhaustion issue as one for Summary Judgment under Fed.R.Civ.P. 56. To the extent Defendants argue that Plaintiff's constitutional claims against them in their official capacities should be dismissed, we consider Defendants' Motion as one to Dismiss under Fed.R.Civ.P. 12.
II. Allegations of Complaint.
Plaintiff alleges that on May 4, 2011, he was escorted to Geisinger Hospital by the three Defendant USP-Lewisburg staff members (escort officers) and, that these escort officers conspired and retaliated against him to deprive him of medical care. Plaintiff also avers that Defendant CO Cross negligently drove too fast for the wet conditions endangering his safety.
In particular, Plaintiff Wallace alleges that he was denied his Eighth Amendment right to proper medical care for his broken middle finger of his right hand when Defendants took him from USP-Lewisburg to an outside hospital on May 4, 2011, for surgery on his broken finger and, that Defendants retaliated against him for taking time to read the hospital forms before he signed them. Plaintiff averred that Defendant Cross demanded that he sign the hospital forms or his operation for his finger would be cancelled. Plaintiff alleged that he signed the one form for the surgery, but that Defendant Cross deliberately hindered his ability to sign the other two required forms to show the hospital nurse he was in control over Plaintiff. Plaintiff also alleged that Defendant Cross told the nurse to lie and say Plaintiff threatened her. Plaintiff averred that Defendant Miller then directed the nurse at the outside hospital to cancel his finger surgery and, that Defendant Miller returned him to USP-Lewisburg without necessary treatment for his finger. Plaintiff averred that Defendant Miller knew that his broken finger was not treated when Miller ordered him to be returned to the prison. Plaintiff further averred that the unnamed Defendant John Doe escort Team Officer used excessive force on him when Defendant Miller ordered the Doe Defendant to take off the hospital gown and put Plaintiff's clothes back on him. Specifically, Plaintiff alleged that the Doe Defendant made his handcuffs extremely tight to purposely cause him pain. Plaintiff stated that he was in a lot of pain during the 45-minute van ride from the hospital back to the prison due to the tight handcuffs. Plaintiff also averred that after he was taken back to the prison, Defendant Miller filed a false incident report charging him with refusing medical treatment for his finger at the hospital despite the fact that Miller knew he was about to sign the second hospital form authorizing treatment on his finger. (Doc. 1).
As relief, Plaintiff sought monetary damages, both compensatory and punitive, as well as injunctive and declaratory relief. (Id., p. 9). Plaintiff stated that he sued Defendants in their individual and official capacities.*fn5 (Id.).
This Court has jurisdiction over Plaintiff's Bivens civil rights action pursuant to 28 U.S.C. Â§ 1331. See Oriakhi v. Wood, supra.; Latansio v. Sabol, 2010 WL 4340394 (M.D. Pa. 10-26-10).*fn6
III. Summary Judgment Standard.
A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). An issue of fact is "'genuine' only if a reasonable jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A fact is "material" if proof of its existence or non-existence could affect the outcome of the action pursuant to the governing law. Anderson, 477 U.S. at 248. "Facts that could alter the outcome are material facts." Charlton v. Aramus Bd. of Educ., 25 F. 3d 194, 197 (3d Cir.), cert. denied, 513 U.S. 1022 (1994).
The burden of proving that there is no genuine issue of material fact is initially upon the movant. Forms, Inc. v. American Standard, Inc., 546 F. Supp. 314, 320 (E.D. Pa. 1982), aff'd mem. 725 F.2d 667 (3d Cir. 1983). Upon such a showing, the burden shifts to the nonmoving party. Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by "depositions, answers to interrogatories and admissions on file" designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In doing so, the court must accept the non-movant's allegations as true and resolve any conflicts in his favor. Id., quoting Gans v. Mundy, 762 F.2d 338, 340 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976) cert. denied, 429 U.S. 1038 (1977).
Under Rule 56 summary judgment must be entered where a 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." Celetox Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Moreover, the Third Circuit has indicated that "although the party opposing summary judgment is entitled to 'the benefit of all factual inferences in the court's consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact,' and 'cannot rest solely on assertions made in the pleadings, legal memorandum or oral argument.'" Goode v. Nash, 2007 WL 2068365 (3d Cir. 2007)(Non-Precedential)(citation omitted).
Thus, "summary judgment is proper, when, viewing the evidence in the light most favorable to the non-movant, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Anderson v. General Motors, 2009 WL 237247, *2 (3d Cir.)(citation omitted); Page v. Trustees of Univ. of Pennsylvania, 222 Fed. Appx. 144 at 145 (3d Cir. 2007) (the court must "view the facts in the light most favorable to the party opposing ...