United States District Court, M.D. Pennsylvania
MARTIN C. CARLSON, Magistrate Judge.
I. Statement of Facts and of the Case.
The pro se plaintiff, Angelo Carter, is a federal prisoner, who filed a lawsuit on September 6, 2011, against the United States, alleging that in July 2010 he was housed at FCI Allenwood, and contracted food poisoning. (Doc. 1) Alleging negligence on the part of the prison in the preparation and service of this food, the plaintiff seeks damages from the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2675, et seq.
The defendant has now moved for summary judgment on this claim alleging that the undisputed facts show that the plaintiff has not presented any competent proof that he contracted food poisoning. Specifically, the defendant alleges that the undisputed evidence shows that on July 21, 2010, multiple inmates at FCI Allenwood made complaints of stomach pain, diarrhea, and vomiting. (Doc. 46, Declaration of Jim Reid (Ex. 2) at & 3) Following this reported outbreak of illness, prison officials endeavored to determine whether some food-borne contamination was responsible for this medical episode. Prison officials report that they uncovered no evidence of food poisoning. As part of this effort, prison officials sought fecal specimens from inmates. Such specimens are necessary to diagnose food poisoning. Seven of the inmates experiencing symptoms of gastro-intestinal illness were able to provide fecal specimens. (Id. at ¶ 7.) In this case, "[n]one of the seven fecal specimens tested positive for food poisoning." (Id. at ¶ 9.) Furthermore, on July 21, 2010, the Food Services Department took numerous precautions including a thorough sanitizing of the entire kitchen and food preparation areas. (Id., Ex. 1 (DeWald Dec.) at ¶ 8.). The feeding of all meals continued as scheduled, including the dinner meal on July 21, 2010, with normal inmate turnout and without any additional issues or concerns. (Id.)
A review of Carter's medical record reveals that he was evaluated in his housing unit on July 21, 2010. (Id., Declaration of Kelley DeWald (Ex. 1) at & 5, Attach. 2 (Food-Borne Illness Screening Form).) At that time, Carter complained of having diarrhea, nausea, vomiting, and abdominal pain, but examination revealed he had a temperature of 97.6 degrees, pulse of 50, respiration 18, and his blood pressure was 123/72. Carter's mucus membranes and skin turgor were normal, and his abdominal exam was firm and tender with normal bowel sounds noted. (Id.) Carter could not provide a fecal specimen, and, therefore, prison officials were unable to conduct further testing for food poisoning (Id., Ex. 2 (Reid Dec.) at ¶ 9.)
Two days later, on July 23, 2010, Carter reported to sick call triage with complaints of continued diarrhea, nausea, and vomiting and was evaluated by Nurse Cost. (Id. at ¶6, Attach. 3 (7/23/10 Clinical Encounter).) Nurse Cost assessed Carter's condition as "unspecified gastritis and gastroduodenitis." (Id. at Attach. 3.) An examination revealed that Carter had a blood pressure of 108/67 while lying down, and 109/71 and 109/61 while sitting, as well as a temperature of 99.9 prior to the end of the clinical encounter. (Id.) Carter was provided one liter of Ringers lactate intravenously and was prescribed Ciprofloxacin and Metronidazole for the "unspecified gastritis and gastroduodenitis." (Id.) Carter was also advised to return to sick call if his condition worsened. (Id.) These encounters were Carter's only visits and evaluations for any stomach or gastro-intestinal condition. (Id.)
At his deposition, Carter testified that he does not remember what he ate on July 21, 2010. (Id., Carter Depo. (Ex. 3) at 27:15-22, 30:1-6.) Furthermore, at his deposition Carter was unable to identify any admissible evidence that supported his claim that he suffered from food poisoning as a result of this incident, as he alleged in his complaint. Specifically, at his deposition, Carter simply testified that when he saw Nurse Cost on July 23, 2010, she put him on an IV and told him he had a "bacteria." (Id., Ex. 3 (Carter Depo.) at 11:5-19, 14:12-19.) When Carter was asked about the July 23, 2010, medical record at his deposition, he did not dispute Nurse Cost's diagnosis of "unspecified gastritis and gastroduodenitis." (Id. at 42:5-24, 43:1; Dep. Ex. 1 (Affirmation of Carter) at Attach. 2.) When Carter was asked if "anyone [told him] the food was spoiled, " he testified "inmates." (Id. at 63:15-24, 64:1-4.) Thus, while Carter has previously stated (Doc. 19-1) that "CPNR Cost told me that I, and at least 50 other inmates had incurred Food Poisoning, from something served at the lunch meal on July 21, 2010, " (Id. at Dep. Ex. 1 (Carter Affirmation) at ¶ 10), his current deposition testimony and medical records do not support this factual assertion. Instead, the only source for this claim that Carter's intestinal ailments were the result of food poisoning are other unnamed inmates.
On December 30, 2013, the defendant filed a summary judgment motion and brief in this case. (Doc. 44) This motion raised a straightforward legal claim, arguing that the plaintiff's claim failed because the undisputed evidence failed to show that plaintiff had ever contracted food poisoning.
When seven weeks passed without a response by Carter to this motion, we entered an order on February 24, 2014, which underscored for the plaintiff in clear and precise terms his obligation to respond to this motion, as well as the consequences which would flow from a failure to respond, stating:
[T]he plaintiff shall file a response to the motion in accordance with Local Rule 7.6 on or before March 14, 2014. Pursuant to Local Rule 7.7 the movant may then file a reply brief within 14 days of the filing of this response, or on or before March 28, 2014. All briefs must conform to the requirements prescribed by Local Rule 7.8. The plaintiff is also placed on notice that a failure to respond to a motion may result in the motion being deemed unopposed and granted. Further, Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on the plaintiff to respond to motions, and provides that
Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion. Nothing in this rule shall be construed to limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition. A brief in opposition to a motion for summary judgment and LR 56.1 responsive statement, together with any transcripts, affidavits or other relevant documentation, shall be filed within twenty-one (21) days after service of the movant's brief.
Local Rule 7.6 (emphasis added).
It is now well-settled that "Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency if a party fails to comply with the [R]ule after a specific direction to comply from the court.' Stackhouse v. Mazurkiewicz , 951 F.2d 29, 30 (1991)." Williams v. Lebanon Farms Disposal, Inc., No. 09-1704 , 2010 WL 3703808, *1 (M.D. Pa. Aug.26, 2010). Therefore, a failure to comply with this briefing order may result in the motion being deemed unopposed and granted.
(Doc. 49) Despite this explicit notice, the plaintiff has not responded to this motion, and the time for responding has now passed. Therefore, in the absence of any timely response by the plaintiff, we will deem the motion to be ripe for resolution.
For the reasons set forth below, this motion ...