The opinion of the court was delivered by: A. Richard Caputo United States District Judge
On December 29, 2011, Plaintiff, Thomas Guy Thomasson, an inmate confined at the United States Penitentiary Canaan (USP Canaan), Waymart, Pennsylvania, filed this Bivens action*fn1 claiming that he was placed in the Special Housing Unit (SHU) in retaliation of his First Amendment rights, subjected to excessive force, the object of racial slurs, and denied medical attention by the Defendants.*fn2 (Doc. 1, Compl.) Presently before the Court is Defendants James Koehn, Allen Farley, William Sevison, Carl Michko, J. Schwartz, R. Burns, and B. Alvaro's Motion to Dismiss and/or Summary Judgment. (Doc. 27, Mot. to Dismiss.) The Defendants assert that all of Mr. Thomasson's claims, except for his excessive use of force claim against Allan Farley, are subject to dismissal due to his failure to exhaust his available administrative remedies. With respect to the use of force claim against Allen Farley, Defendants contend given the totality of the situation the actions of Allan Farley do not rise to the level of a constitutional violation. Even though Mr. Thomasson was granted an enlargement of time to file a brief in opposition to Defendants' motion, he failed to do so or request additional time to respond.
For the reasons set forth below, the Defendants' unopposed motion will be granted.
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." Fed.R.Civ.P. 56(a). "Summary judgment is appropriate when 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' " Wright v. Corning, 679 F.3d 101, 103 (3d Cir. 2012) (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995)). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 667 F.3d 408, 412 (3d Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 2510, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
At summary judgment the moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. See Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the moving party has carried its burden under Rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). Under Fed. R. Civ. P. 56(e), the opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. See Martin v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007). Ultimately, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (internal quotation marks omitted); NAACP v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011).
Along with their motion of summary judgment and brief, Defendants filed a Statement of Material Facts and supporting evidentiary materials. (Doc. 33). Because Mr. Thomasson failed to file a Statement of Material Facts in response to Defendants' submission, the facts as set forth in Defendants' statement will be deemed admitted pursuant to M.D. Pa. Local Rule 56.1.See Smith v. Addy, 343 F. App'x 806, 808 (3d Cir. 2009) (District Court entitled to deem Defendants' statement of facts as admitted due to Plaintiff's failure to file a counter-statement of material facts). The undisputed facts are as follows.
A. December 28, 2010 SHU Incident
Thomas Guy Thomasson was committed to the Bureau of Prisons (BOP) on October 29, 2010, for a probation violation. (Doc. 33, Defs.' Statement of Material Facts, ¶ 1.) On December 6, 2010, he was designated to USP Canaan. (Id. ¶ 3.) On December 23, 2010, he was assigned to USP Canaan's Special Housing Unit (SHU) and placed in Administrative Detention pending an initial classification and a Captain's review. (Id. ¶ 13). At all times relevant to this action, Allan Farley was employed in the capacity of an Acting Unit Manager at USP Canaan. (Id. ¶ 4.)
On December 28, 2010, at approximately 9:50 a.m., Unit Manager Allen Farley and Case Manager Jamey Koehn met with Mr. Thomasson in the Disciplinary Hearing Officer's (DHO) Office of the SHU to conduct his initial classification. (Id. ¶ 14.) During the course of the meeting, upon learning of the points assessed toward his case, Mr. Thomasson became increasingly agitated and verbally abusive, suddenly jumped up from his chair, and attempted to leave the room unescorted.*fn3
(Id. ¶ 15, ¶ 24, ¶ 32 and ¶¶ 64-65.) He was given a direct order by Case Manager Koehn to sit down. (Id. ¶ 32.) When Mr. Thomasson continued toward the door in an attempt to leave the DHO's office, Unit Manager Farley placed his hands on Mr. Thomasson's right shoulder to attempt to stop him from leaving. (Id. ¶ 16, ¶ 32 and ¶ 65.) Mr. Thomasson immediately turned and lunged at Defendant Farley in an aggressive manner. (Id. ¶ 17 and ¶ 32.) Defendant Farley then placed Mr. ...