The opinion of the court was delivered by: (Judge Caputo)
On January 6, 2010, Jeffrey Clark, an inmate in the custody of the Bureau of Prisons (BOP, formerly housed at USP-Lewisburg, in Lewisburg, Pennsylvania,*fn1 filed this civil rights action claiming violations of his Eighth Amendment rights when he was removed from his cell after assaulting his cellmate and then transferred to a basement holding area. (Doc. 1, Compl.) On March 10, 2011, the Court granted in part, and denied in part, the Defendants' Motion to Dismiss and Motion for Summary Judgment. See Doc. 48. As a result of our Order, the sole remaining claim is Mr. Clark's Eighth Amendment excessive use of force claim against Officer Kulago and Lt. Fleming stemming from a June 25, 2009, incident. (Id.)
Presently before the Court is Defendants' Second Motion for Summary Judgment. (Doc. 66, Mot. Summ. J.) Defendants filed a timely statement of material facts, exhibits and supporting brief. See Docs. 67-69. Mr. Clark has failed to oppose the motion or seek an enlargement of time to do so. For the reasons that follow, the Defendants' unopposed motion will be granted.
Pursuant to Fed. R. Civ. P. 56, summary judgment should 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." Fed. R. Civ. P. 56(a). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to nonmoving party. Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).
At summary judgment, the inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law. Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. at 2511-12. In pertinent part, parties moving for, or opposing, summary judgment must support their position by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A). The moving party has the burden of showing the absence of a genuine issue of material fact, but the nonmoving party must present affirmative evidence from which a jury might return a verdict in the nonmoving party's favor. Liberty Lobby, 477 U.S. at 256-57, 106 S.Ct. at 2514. "The non-moving party cannot rest on mere pleadings or allegations," El v. Southeastern Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007), but "must set forth specific facts showing that there is a genuine issue for trial." Saldana v. Kmart Corp. , 260 F.3d 228, 231 - 232 (3d Cir. 2001). "[S]ummary judgment is essentially 'put up or shut up' time for the non-moving party: the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group, Ltd. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). Evidence that would be inadmissible at trial may not be considered at summary judgment. See Bristol v. Settle, 457 F. App'x 202, 204 (3d Cir. 2012). Allegations made without evidentiary support may be disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000). "Conclusory, self-serving affidavits are insufficient to withstand a motion for summary judgment." Blair v. Scott Specialty Gases, 283 F.3d 595, 608 (3d Cir. 2002). Hearsay testimony contained in affidavits or statements that would be inadmissible at trial may not be included in an affidavit to oppose summary judgment. Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Comp., 998 F.2d 1224, 1234 n. 9 (3d Cir. 1993). The non-moving party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).
Under the "sham affidavit" doctrine, a district court may disregard an affidavit that contradicts earlier deposition testimony if there is no adequate explanation for the conflict. See EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 268 (3d Cir. 2010); see also Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703, 705 (3d Cir. 1988)(district court properly disregarded conflicting evidence where no explanation was offered for contradictions with prior sworn testimony and where "the affiant was carefully questioned on the issue had access to the relevant information at that time, and provided no satisfactory explanation for the later contradiction.") Moreover, a "genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff's testimony is correct." Vantage Mktg., Inc. v. De Amertek Corp., Inc., 31 F. App'x 109, 115 (4th Cir. 2002).
II. Statement of Material Facts
The summary judgment record is as follows.*fn2 On June 25, 2009, Officers Carpenter and Kulago escorted Mr. Clark to a new cell, cell 324, in USP-Lewisburg's G-block housing unit, a segregated housing unit. (Doc. 67, Defs.' Statement of Material Facts, (DSMF) ¶¶ 1 and 4.) Inmate Joe Toney was already housed in this cell which is located on the third floor of G-block. (Id. ¶ 2.)
Mr. Clark was in hand restraints with his hands secured behind his back during his escort to cell 324. (Id. ¶ 4.) Inmate Toney, per normal practice, also placed in hand restraints prior to Mr. Clark entering the cell. (Id. ¶ 5.) Officer Carpenter opened cell 324, Mr. Clark entered, and the cell door was secured. (Id. ¶¶ 7.) When both inmates were secured in cell 324, Officer Carpenter ordered Mr. Clark to come to the cell door, and place his hands out the wicket*fn3 so his hand restraints could be removed. (Id. ¶¶ 8-9.)
Once Mr. Clark's hand restraints were removed, Officer Carpenter ordered inmate Toney to come to the cell door to have his handcuffs removed. (Id. ¶ 12.) When inmate Toney offered his hands to be uncuffed, Mr. Clark began punching him, produced a weapon and began stabbing him in the back. (Id.) Officer Carpenter immediately called for assistance and ordered the inmates to stop. (Id. ¶ 13.) While staff was responding, Mr. Clark ignored Officer Carpenter's order to stop assaulting inmate Toney and continued to stab his cellmate. (Id. ¶¶ 14-15.) When Lt. Galletta responded to the scene he witnessed Mr. Clark attacking and stabbing inmate Toney. (Id. ¶ 16.) He also witnessed some of Mr. Clark's punches miss his cellmate and hit the bedframe in his cell. (Id. ¶ 17.) Officer Carpenter again ordered Mr. Clark to stop and submit to hand restraints. (Id. ¶ 18.) In response, Mr. Clark walked to the toilet and flushed his weapon before returning to the wicket to be placed in hand restraints. (Id. ¶¶ 18-19.) During his deposition in this matter, Mr. Clark testified that he attacked inmate Toney by punching him with both his right and left hands, and by stabbing him more than 14 times. (Id. ¶¶ 21-22.)
Both inmates were removed from the third floor cell. (Id. ¶ 25.) Mr. Clark was escorted to a G-block holding cell in the basement by Lt. Galletta, Lt. Fleming and Officer Kulago. (Id. ¶ 25.) Lt. Galletta was present during the entire period Lt. Fleming and Officer Kulago escorted Mr. Clark to the holding cell. (Id. ¶ 26.) Lt. Galletta did not observe either Lt. Fleming or Officer Kulago threaten or physically abuse Mr. Clark. (Id.) There are no mounted cameras in the G-block stairwell; therefore there is no videotape of Mr. Clark being escorted to the G-block holding cell. (Id. ¶ 29). Likewise, as this was not a planned use of force event, but rather a rapid response to Mr. Clark's assault of inmate Toney, no hand held camera was immediately available to staff as their first priority was stopping the assault and securing the inmates involved. (Id.)
Mr. Clark continued to be disruptive in the basement holding cell; therefore, a use of force team was assembled at approximately 11:02 a.m. to move him to a different housing unit. (Id. ¶ 30.) Plantiff's transfer from the basement of G-block to I-block was filmed.*fn4 (Id.) Upon removing Mr. Clark from the basement G-block holding cell, and placing him in restraints, D. DeLeon, R.N., a member of the use of ...