The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter
MEMORANDUM OPINION AND ORDER*fn1
Magistrate Judge Susan Paradise Baxter
A.Relevant Procedural History
Plaintiff, a state inmate acting pro se, originally filed this civil rights action on July 7, 2009. A convoluted procedural history ensued, most of which need not be related here. Plaintiff continued to represent himself in this case until August 12, 2011, when Attorneys John Mizner and Joseph Kanfer entered their appearance on behalf of Plaintiff in this and other federal cases. Following the appointment of counsel, the Third Amended Complaint was filed on October 19, 2011. ECF No. 78.
In the Third Amended Complaint, Plaintiff named the following Defendants: Correctional Officer Sergeant Bush; Correctional Officer Scoles; Correctional Officer Lieutenant Vojacek; Dorina Varner, Chief Grievance Officer; and Brian Coleman, Superintendent of SCI-Fayette.*fn2 Defendants are sued in their individual capacities.
Plaintiff alleges that around December of 2008, while he was incarcerated at SCI-Fayette, he was called out for an authorized temporary absence (ATA) in order to testify in Philadelphia. Plaintiff packed three boxes of personal property and Defendant Bush took possession of those boxes. ECF No. 76, ¶ 7-8. Because Plaintiff was only permitted to take one box of property with him to the Philadelphia jail, Defendant Correctional Officer Bush put two boxes of Plaintiff's property in storage. Id. at ¶ 13. Upon Plaintiff's return to SCI-Fayette in January of 2009, he sought to retrieve the two boxes from storage. Id. at ¶ 26. These two boxes containing legal materials were never returned to Plaintiff and their loss forms the basis of this lawsuit.
In the Third Amended Complaint, Plaintiff advanced the following causes of action: Count I -- Access to Courts; Count II -- First Amendment Retaliation; Count III -- Equal Protection; Count IV -- Due process; Count V -- § 1983 Conspiracy; Count VI -- Replevin; Count VII -- Bailment; Count VIII -- Conversion; and Count IX -- Intentional Interference with Prospective Contractual Relations. In response to the Third Amended Complaint, Defendants filed a motion to dismiss which resulted in the dismissal of the majority of the claims against the majority of the named Defendants. ECF No. 77. The only claim remaining is an access to courts claim against Defendant Bush based upon the award of summary judgment against Spencer in the case of Spencer v. Maxwell.*fn3
Trial was scheduled for early September, when Defendant Bush filed a motion for summary judgment. ECF No. 96. Plaintiff filed a brief in opposition. ECF No. 100. The parties also filed a reply brief and a sur-reply brief addressing the issues raised in the motion for summary judgment. ECF Nos. 103, 105. Upon the substitution of defense counsel, Defendant Bush sought leave to file a supplement to the pending motion for summary judgment, which leave was granted, and Plaintiff filed a supplementary opposition brief. ECF Nos. 107-118.
The issues are fully briefed and are ripe for disposition by this Court.
B.Standard of Review -- Motion for summary judgment
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted 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." The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007); UPMC Health System v. Metropolitan Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004).
Under Rule 56, a party opposing a motion for summary judgment must cite to specific materials in the record that demonstrate the existence of a disputed issue of material fact. See Fed.R.Civ.P. 56(c)(1)(A). A material fact is a fact that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be genuine, "all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." Id. at 249. "If the non-moving party bears the burden of persuasion at trial, 'the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry that burden.'" Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) quoting Wetzel v. Tucker, 139 F.3d 380, 383 n.2 (3d Cir. 1998).
The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322. See also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the non-movant must present affirmative evidence - more than a scintilla but less than a preponderance - which supports each element of his claim to defeat a properly presented motion for summary judgment). The non-moving party "must present more than just bare assertions, conclusory allegations or ...