JOHN E. JONES, III, District Judge.
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
On January 14, 2013, Plaintiff Shawn Henderson ("Plaintiff" or "Henderson") initiated the above pro se action by filing a civil rights complaint pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) against Warden J.E. Thomas, Captain F. Entzel, and Correctional Officer T. Crawley alleging claims of retaliation, excessive use of force, and failure to protect. (Doc. 1). At the time of the filing, Plaintiff was an inmate confined in the United States Penitentiary in Lewisburg ("USP-Lewisburg"), Pennsylvania. ( Id. ).
On May 20, 2013, Defendants filed a motion to dismiss or, in the alternative, a motion for summary judgment. (Doc. 17). Defendants filed a brief in support of the motion (Doc. 19) and a statement of material facts (Doc. 20) on June 3, 2013. Plaintiff has failed to file a brief in opposition to Defendants' motion.
For the reasons set forth below, the Defendants' unopposed motion will be granted.
I. PROCEDURAL BACKGROUND
Service of the Complaint was directed by Order dated February 20, 2013. (Doc. 7). On February 25, 2013, Henderson filed an additional memorandum, including an affidavit and documentation, in support of his Complaint. (Doc. 9). On May 20, 2013, Defendants filed a motion to dismiss or, in the alternative, a motion for summary judgment. (Doc. 17). Defendants filed a brief in support of the motion (Doc. 19) and a statement of material facts (Doc. 20) on June 3, 2013. Defendants assert that Henderson has failed to exhaust his administrative remedies. (Doc. 19).
Henderson's opposition to the motion was due twenty-one (21) days after the service of Defendants' brief, or by June 24, 2013. See Middle District of Pennsylvania Local Rule ("Local Rule") 7.6. Henderson failed to file an opposition brief, but did file a motion asking for an extension of time. (Doc. 21). On June 20, 2013, Magistrate Judge Carlson granted the extension of time, ordering Henderson to file a response on or before August 5, 2013. (Doc. 23). Henderson failed to file an opposition brief on or before August 5, 2013.
On August 29, 2013, this Court issued an Order directing Plaintiff to file his opposition to the Motion to Dismiss or, in the alternative, for Summary Judgment on or before September 12, 2013. (Doc. 24). The mail was returned to us on September 9, 2013 explaining that Henderson had been released. (Doc. 25). The warning order was then sent to Plaintiff's new address on September 11, 2013, but inadvertently, the date was not changed to give Plaintiff additional time. A second warning order was then sent on October 3, 2013 to Plaintiff's new address giving him an additional twenty-one (21) days to file his opposition to the defendants' motion. (Doc. 26). To date, Henderson has neither filed his opposition nor requested another extension of time in which to do so.
II. STANDARD OF REVIEW
A. Motion to Dismiss
Defendants seek dismissal of Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In the alternative, Defendants seek summary judgment and have submitted evidentiary documents outside the pleadings in support of their motion. Federal Rule of Civil Procedure 12(d) provides:
(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable ...