The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan
MEMORANDUM OPINION AND ORDER
Plaintiff, Anthony R. Winfield, commenced this action pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983 alleging that Defendants violated his rights as protected under the Eighth and Fourteenth Amendments of the United States Constitution while he was incarcerated at the State Correctional Institution at Greensburg ("SCI-Greensburg"). See ECF No. 3. Plaintiff names as Defendants: Superintendent Joseph F. Mazurkiewicz, Lieutenant Kolesar, and Corrections Officers Bunch, Phillips, and Reilly.*fn1 Defendants have filed a Motion for Summary Judgment (ECF No. 29), a Brief in Support thereof (ECF No. 31), and a Concise Statement of Material Facts ("CSMF") (ECF No. 30). Plaintiff filed a Response in Opposition to Defendants' Motion (ECF No. 36) and a Response to Defendants' CSMF (ECF No. 37).
In their entirety, the factual allegations of the Complaint are as follows:
While during a Institutional lockdown shake down. I was assault by these three guard, Bunch, Relic, and Phillip while I was shackle, handcuff, and on the ground they kick, punch, twisted arms, legs, wrist. Hit in face with fist knees and boots twice once out in front of other prisoner and after drug to another cell out of view. I sustain multiply bruise on face, wrist, kneck with abrasion in other cuts. While the Superintendent Mr. Mazurkiewicz and the Lt. Kolesar allow these three guards to assault part of my body in cuffs, shackles, and face mask. (ECF No. 3 at 2-3.)
1.Local Rule 56 Violation
As noted above, Defendants submitted a CSMF (ECF No. 30) in support of their Motion for Summary Judgment to which Plaintiff responded disputing in part (ECF No. 37). However, because Plaintiff failed to cite to any evidence of record in his Response to Defendants' CSMF in violation of Local Rule 56,*fn2 Defendants filed a Reply Brief asserting that all factual averments contained in their CSMF should be deemed admitted for purposes of summary judgment. (ECF No. 38 at ¶ 5.)
On August 21, 2012, the Court ordered Plaintiff to file a Response to Defendants' Motion for Summary Judgment and CSMF in compliance with Local Rule 56 and Federal Rule of Civil Procedure 56. (ECF No. 39.) Plaintiff was advised that if he failed to comply within the time allowed then all facts contained within Defendants' CSMF would be deemed undisputed for purposes of summary judgment. (ECF No. 39.) Plaintiff filed nothing in response.
The Third Circuit Court of Appeals has traditionally given pro se litigants "greater leeway where they have not followed the technical rules of pleading and procedure." Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). Due to the "understandable difference in legal sophistication," a pro se litigant must be held to a less exacting standard than trained counsel. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). In the context of summary judgment, the Court of Appeals has recognized that "an inmate who is proceeding pro se, is in a decidedly difficult position from which to generate 'record evidence' on his behalf." Smith v. Mensinger, 293 F.3d 641, 646 n.4 (3d Cir. 2002) (citing Brooks v. Kyler, 204 F.3d 102, 108 n.7 (3d Cir. 2000)). However, "while pro se complaints are entitled to liberal construction, the plaintiff must still set forth facts sufficient to survive summary judgment." Ezeiruaku v. United States, No. 00-2225, 2000 U.S. Dist. LEXIS 17046, 2000 WL 1751077, at *3 (E.D. Pa. Nov. 29, 2000) (citing Shabazz v. Odum, 591 F. Supp. 1513, 1515 (M.D. Pa. 1984)). Thus, notwithstanding giving a pro se litigant every opportunity to functionally respond in some meaningful way to a summary judgment motion and the Court's liberal construction of Plaintiff's submissions as a pro se litigant, the same standards for summary judgment still apply. Agogbua v. Abington Memorial Hospital, No. 03-6897, 2005 U.S. Dist. LEXIS 43818, 2005 WL 1353612, at *3 (E.D. Pa. May 31, 2005); see also Tunnell v. Wiley, 514 F.2d 971, 976 (3d Cir. 1975) ("Where th[e] opportunity to supplement the record is ignored, summary judgment for the movant who has carried his burden of proof is appropriate.") (citing, inter alia, First National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1968); Tripoli Co., Inc. v. Wella Corp., 425 F.2d 932, (3d Cir. 1970)).
In this case, Plaintiff did not attach any exhibits to his Complaint nor did he submit any record evidence on his behalf to support his claims. In fact, Plaintiff did not so much as submit an affidavit from himself or a fellow inmate attesting to the facts contained in his Complaint. The record consists solely of the exhibits filed by Defendants in support of their Motion for Summary Judgment. Although Plaintiff filed a Response in Opposition to Defendants' Motion and a Response to their CSMF, he filed no evidentiary material and did not cite to any evidence of record to support his assertions. Furthermore, despite being given a second opportunity, Plaintiff still did not do so.
Although Plaintiff's filings are entitled to liberal construction, he still must set forth facts sufficient to survive summary judgment. However, Plaintiff's allegations and denials, unsupported by facts of record, do not create an issue of material fact sufficient to defeat a properly supported motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citing First National Bank of Arizona, 391 U.S. at 290). Because the Court has already given Plaintiff "an opportunity to properly support or address the fact[s]" in Defendants' CSMF of which he disputes and he failed to respond accordingly, the Court will now consider Defendants' CSMF undisputed for purposes of the instant Motion. See Fed. R. Civ. P. 56(e)(1)&(2); see also Cuevas v. United States, No. 09-43J, 2010 U.S. Dist. LEXIS 42115, 2010 WL 1779690, at *1 (W.D. Pa. Apr. 29, 2010) ("Plaintiff's response to Defendant's Motion does not contain any basis for any . . . denial of a fact and also fails to reference the record for each such denial. Though this Court must give certain latitude to a pro se litigant, it is not for the Court to sort through the entire record to determine the basis of an alleged disputed fact. As Plaintiff has failed to comply with our local rules, Defendant's Statement of Facts as set forth in [its Concise Statement of Material Facts] are admitted as true and correct.").
The Facts as they are stated in Defendants' CSMF ...