The opinion of the court was delivered by: O'neill, J.
Now before me is defendants Sergeant William Aberts and Officer Rodney Simione's motion for summary judgment (Dkt. No. 37), plaintiff Israel Diaz's response thereto (Dkt. No. 38), and defendants' reply in support of their motion (Dkt. No. 39). For the following reasons I will deny defendants' motion.
I.Background Facts and Procedural History
On May 14, 2010, Diaz was incarcerated at Lancaster County Prison.*fn1 Around 12:30 pm defendant correctional officers Sergeant Aberts and Officer Simione and nondefendants Sergeant Steberger-Simione and Officer Sherpos were called to the Medical Housing Unit of the prison to assist Nurse Jennifer Wynn in administering Diaz's court-ordered medication. See Def.'s Mot. Summ. J. ECF p. 5; see also Def.'s Mot. Summ. J. Ex. E, Aberts Dep. 109:21-23. Prior to anyone's entrance into Diaz's cell, Diaz was handcuffed through a hole in his cell door. Def.'s Mot. Summ. J. ECF p. 6; see also Video Tr. 14:23. A tether was also attached to the handcuffs for extra control of Diaz.*fn2 Def.'s Mot. Summ. J. ECF p. 6. Defendants and the other officers then entered the cell in order to restrain Diaz and allow Nurse Wynn to give Diaz his injection, which she did after following them inside; Wynn then left the cell, followed by StebergerSimione, Sherpos, and Simione. Def.'s Mot. Summ. J. ECF p. 6; see also Video Tr. 14:23-16:18. Diaz, hooked to the tether and still handcuffed, was walked back to his cell door by Aberts, who retained control of the tether. Pl.'s Op. Br. ECF p. 12; see also Video Tr. 16:23-16:45. During this time, Diaz was yelling continuously and intermittently threatening violence upon various prison personnel by name, including Simione. Video Tr. 14:23-17:03.
The next events, though captured on video, occurred rapidly. While the tether was being unhooked, Diaz pulled back on the tether at least once through the hole in his cell door. Id. at 16:47-50. This led the officers to re-enter his cell. Id. at 17:03. Simione was the first officer back inside and he grabbed Diaz and began to attempt to restrain him by applying "pressure points," Def.'s Mot. Summ. J. ECF p. 7, to his head and neck and then a chokehold; Aberts immediately followed Simione into the cell and the two together pushed Diaz to the back wall of the cell and then onto the bed. Video Tr. 17:04-15. Aberts can be heard shouting that Diaz had shut him in the door, id. at 17:16, and he then twice yelled "you think you're tough?" at Diaz, who at this point was pinned to his bed. Id. at 17:20-24. During this time, Aberts was on top of Diaz, Simione was positioned toward Diaz's head and shoulders, his hands obscured by Aberts's and his own body, and Diaz appeared to be lying face up on his back. Id. at 17:12-18-10.
The other officers followed Simione and Aberts into the cell and pinned Diaz's legs down against the bed. Id. at 17:18-24. The struggle continued and the parties dispute exactly what happened next.
Diaz alleges that Simione punched him twice while he was restrained on the bed. Pl.'s Op. Br. Ex. D, Diaz Dep. 21:3-4 ("I was lying on my back and was punched twice by [Simione]"). The video on this point is unclear, but Simione, whose hands were obscured, can be seen moving his arms near Diaz's head and upper torso. Video Tr. 17:29, 31. It is clear, however, that Aberts used his knees to pin down Diaz, id. at 17:30-39, and Aberts also used his right knee to strike Diaz while Diaz remained pinned on the bed by the other officers. Id. at 17:31-32. Aberts also can be heard yelling at Diaz after kneeing him: "don't you fucking come up." Id. at 17:32. Aberts then warned Diaz not to resist again or he "will strap him to the [ ] bunk." Id. 17:41-48. After a few seconds, Aberts instructed Diaz to grab his hand three times, id. at 17:57, while Diaz remained pinned down, and Diaz's labored breathing is audible on the video. Id. at 17:58-18:10. Steberger-Simione can be heard to say, "make sure he's breathing," id. at 18:02, to which Aberts replied "he's breathing," id. at 18:04; Aberts then repeated himself several seconds later. Id. at 18:11 ("That a boy; he's breathing."). Diaz at this point appears to have ceased resisting.
Aberts, Simione and Sherpos then raised Diaz to a standing position and moved Diaz to the floor, placing him first on his knees and then bringing him to rest face down on the cell floor. Id. at 18:15-58. The officers then called for someone to photograph Diaz's injuries as well as for the nurse to return to the cell. Id. at 18:23-40. During this time, Aberts can be heard telling Diaz: "wrong group of people." Id. at 18:26. At this point, Diaz was being restrained by the officers and was lying face down on the floor. Id. at 18:59. The officers then stood Diaz up again, moved him to a seated position on the bed, id. at 20:20-33, and pictures were taken of his head and neck. Id. at 20:40-21:26. Nurse Wynn at this point returned and cursorily examined Diaz. Id. at 21:30 - 22:00. During this time she asked about Diaz's nose, which appeared to be bleeding: "where was he injured at?", id. at 21: 30, and "how'd he hit it, facedown?", id. at 21:44. "On the bunk," replied Aberts. Id. at 21:45. Wynn can be heard saying that Diaz's nose "doesn't look like it's broken," id. at 21:51, but that it "looks like [his nose was] bleeding from the inside." Id. at 21:59. Diaz then said, "I'm all right." Id. at 22:00. The officers then stood Diaz up again, Aberts said "we're gonna do this the right way," id. at 22:25, and the officers walked Diaz back to front of cell, where the officers all exited and Diaz was untethered and uncuffed. Id. at 22:20-23:23.
Diaz initiated the present action on November 1, 2010 by filing for leave to proceed in forma pauperis. Diaz filed his complaint pro se on November 5, 2010 and subsequently moved for appointment of counsel, a motion this Court granted on June 8, 2011. Diaz filed an amended complaint on February 17, 2012 alleging constitutional violations for "malicious and sadistic use of force" under the Eighth Amendment against both defendants and a claim for "failure to intervene" under the Eighth Amendment against defendant Aberts only. Am. Compl. p. 3-4. Defendants filed answers on March 7, 2012. Discovery was completed on March 20, 2012.
I heard oral arguments on defendants' motion for summary judgment on December 6, 2012.
Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the burden of demonstrating 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); see Celotex, 477 U.S. at 322-23. If the movant sustains its burden, the non-movant must set forth facts demonstrating the existence of a genuine dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A dispute as to a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. A fact is "material" if it might affect the outcome of the case under governing law. Id.
To establish "that a fact cannot be or is genuinely disputed," a party must:
(A) cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce ...