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Paul Anthony Cohen v. George Wagner

May 1, 2012


The opinion of the court was delivered by: Buckwalter, S.J.


Currently pending before the Court is the Motion for Summary Judgment filed by Defendants George Wagner and Correction Officer Dew. For the following reasons, the Motion is granted.


On September 21, 2010, Plaintiff Paul Anthony Cohen was a prisoner in the Berks County Jail System when another inmate, identified as Nelson, threw hot water in his face. (Am. Compl. 1; Defs.' Mot. Summ. J., Ex. A, Cohen-4.) Plaintiff alleges that he had previously warned the prison's warden, Defendant George Wagner, and a correctional officer, Defendant Dew, about the danger posed by Inmate Nelson, but that both men failed to protect him. (Am. Compl. 1-2.)

Plaintiff filed his original Complaint in this Court on January 5, 2011. On April 5, 2011, this Court granted in part and denied in part a Motion to Dismiss filed by Defendants, while granting Plaintiff leave to amend. The resulting Amended Complaint, filed on June 2, 2011, essentially alleges that Defendants violated the Eighth Amendment to the United States Constitution by failing to protect Plaintiff from the harm posed by Inmate Nelson. Plaintiff seeks compensatory and punitive damages, as well as unspecified injunctive relief. Defendants filed the present Motion for Summary Judgment on March 9, 2012. Plaintiff filed a Response in Opposition on March 19, 2012, Defendants filed a Reply Brief on March 30, 2012, and Plaintiff filed a Sur Reply on April 25, 2012.


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).


Defendants move for summary judgment on two grounds: (1) Plaintiff failed to exhaust his administrative remedies; (2) Plaintiff cannot present sufficient evidence to support his failure to protect claim. The Court considers each argument in turn.

A. Exhaustion of Administrative Remedies

Pursuant to the Prison Reform Litigation Act, "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "Failure to exhaust administrative remedies is an affirmative defense that must be pled and proven by the defendant." Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002).

Here, Defendants argue that despite his familiarity with the inmate complaint process, Plaintiff failed to file a grievance with respect to the current failure to protect claim. (Defs.' Mem. Supp. Mot. Summ. J. ("Defs.' Mem.") 9-10.) In support of this argument, they have introduced an affidavit from Kimberly M. Bergan, Deputy Warden of Treatment Services at Berks County Jail System, who avers that she reviewed Plaintiff's file and found "no grievances or inmate communication forms asserting anything about the actions or inactions of either Officer Dew or Warden Wagner related to an alleged assault of Mr. Cohen." (Defs.' ...

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