The opinion of the court was delivered by: Buckwalter, S.J.
Currently pending before the Court are the following: (1) Plaintiff Muwsa Green's Motion for Summary Judgment, and (2) Defendant Anthony Shorts's*fn1 Motion for Summary Judgment. For the following reasons, Defendant Shorts's Motion is granted. Plaintiff's Motion is denied with prejudice with respect to Defendant Shorts, denied without prejudice with respect to the remaining named Defendants, and Plaintiff is given thirty days from the date of the accompanying Order to properly serve the remaining named Defendants.
I. FACTUAL AND PROCEDURAL HISTORY
On September 18, 2008, Plaintiff alleges that he was an inmate in the Restricted Housing Unit of the Philadelphia Prison System. (Compl. ¶ 18.) On that date, Plaintiff was let out of his cell for recreation time, which he spent watching television. (Id. ¶¶ 18-19.) During that time, Plaintiff alleges that a correctional officer, Defendant Baltimore, opened the cell of another inmate and stood by while the inmate attacked Plaintiff and stabbed him in the face with a sharp object. (Id. ¶ 20.)*fn2 According to Plaintiff, approximately fifteen seconds passed before Defendants Baltimore, Davis, and Tucker-all of whom are correctional officers-intervened. (Id.)
On April 15, 2010, Plaintiff filed his pro se Complaint in this Court, alleging the following: (I) the deliberate indifference of Defendants Ms. Daniels, Kerry Boston, and Shirley Madden-who apparently are medical personnel-to Plaintiff's serious medical needs violated his Eighth Amendment right to be free from cruel and unusual punishment; (II) Defendants Baltimore, Davis, and Tucker's deliberate indifference to the beating and stabbing of Plaintiff violated his Eighth Amendment right to be free from cruel and unusual punishment; and (III) Defendant Peterson-also a correctional officer-acted with deliberate indifference to Plaintiff's serious medical needs in violation of his Eighth Amendment right to be free from cruel and unusual punishment. (Compl. ¶¶ 29-31.) Defendant Shorts is not named in the Complaint's "Legal Claims" section. The only allegation concerning Defendant Shorts is that he entered Plaintiff's cell along with Defendant Tucker and destroyed a grievance that Plaintiff planned to file in connection with the incident. (Id. ¶ 24.)
The Complaint named the following eleven Defendants: Philadelphia County Prison Mental Health Medical Unit, Lt. Buffer, Correctional Officer J. Baltimore, Correctional Officer Davis, Correctional Officer Anthony Short, Correctional Officer Tucker, Ms. Daniels (CNA), Kerry Boston (MSW, LSW), Shirley Madden (MSW, LSW), Correctional Officer Peterson, and Correctional Officer Brown. On April 15, 2010, the Clerk of Court mailed a Notice of Lawsuit and Request for Waiver of Summons and Waiver of Service of Summons to each Defendant. On May 10, 2010, Defendant Shorts answered the Complaint. The Clerk of Court then notified Plaintiff on May 18, 2010 that none of the individual Defendants, except Defendant Shorts, waived service. That same day, the United States Marshals Service attempted to issue the summons to the Defendants who had not waived service.
On July 28, 2010, after the filing of a petition by Plaintiff, the Court ordered the remaining Defendants to show cause as to why default judgment should not be entered for failure to answer the Complaint. On August 25, 2010, an assistant city solicitor-acting as counsel for Defendant Shorts-responded to the Court's order and explained why he could accept service solely on Defendant Shorts's behalf:
The Mental Health Services Unit is an independent legal entity from the County Prison and the City of Philadelphia. Therefore, they have their own representation. As to the prison and its alleged corrections officials, if Plaintiff were more specific in identifying the defendants, counsel would be able to accept service and file a responsive pleading on their behalf. As it is now, Plaintiff generically names individuals who cannot be identified. Based upon the list of City Prison personnel, there is no Lt. Buffer employed in any of the City prisons. Additionally, there is no one with the last name Baltimore working in any City prison. Conversely, there are 26 corrections officers with the last name Brown, 13 with the last name Davis, 6 with the last name Tucker, and 2 with the last name Peterson. Based upon Plaintiff's inability to properly identify and confirm prison personnel, Counsel is unable to accept service or file a responsive pleading on behalf of all defendants except Defendant Anthony Shorts. Counsel was able to accept service and file a responsive pleading on Defendant Shorts['s] behalf simply because Plaintiff identified him by first and last name and he is the only prison employee with that name. (Def.'s Resp. Show Cause 2.) After reviewing the record, the Court is unable to find any evidence that proper service was effected on any Defendant other than Defendant Shorts.
Plaintiff filed his Motion for Summary Judgment on December 16, 2011. Defendant Shorts filed his own Motion for Summary Judgment on January 6, 2012 and a Response in Opposition to Plaintiff's Motion on January 10, 2012.*fn3
Summary judgment is proper "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). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be "genuine," a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.
On summary judgment, it is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. Cnty. of Allegheny, Pa., 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party, and "all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.
Although the moving party bears the initial burden of showing an absence of a genuine issue of material fact, it need not "support its motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can meet its burden by "pointing out . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Once the movant has carried its initial burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec., 475 U.S. at 586. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249. Summary judgment may be granted when "the evidence is merely colorable . . . or is not significantly probative." Id. at 249-50 (citations omitted).
Notably, "[t]he rule is no different where there are cross-motions for summary judgment." Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008). As stated by the Third Circuit, "[c]ross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination ...