United States District Court, M.D. Pennsylvania
WILLIAM J. NEALON, District Judge.
On September 19, 2011, Paul Azzara, an inmate formerly confined in the Canaan United States Penitentiary ("USP-Canaan"), Waymart, Pennsylvania,  filed the above captioned Bivens action. Named as Defendants are D. Ebbert, Warden; F. Strada, Warden; R. Martinez, Warden; A. Nicklin, Associate Warden; D B Kranzel, Associate Warden; C. Maiorana, Warden; D. Sauers, Associate Warden; E. Bradley Associate Warden; K. Gabrielson, Captain; C. Bergen, Captain; B. Feitman, Captain; W. Haas, Lieutenant; B. Stahl, Lieutenant; J. Lyons Lieutenant; R. Womeldorf, Lieutenant; B. Sheets, Lieutenant; T. Matthews, Lieutenant; K. Bittenbender, DHO; D. Brown, Correctional Officer; J. Norwood, Northeast Regional Director; S. Dodrill, Assistant Director, (Retired); H. Lappin, Director (Retired); Frederick E. Martin; Peter J. Smith; C. Patrick Austin; and Unknown Defendants. (Doc. 1, Complaint at 4-9).
Azzara alleges that he has a constitutional right to association with family which is being interfered with via disciplinary sanctions which include suspension of visiting, phone, and e-mail privileges. Id. at 5-11. He further alleges conspiracy and retaliation for exercising his rights. Id.
Presently pending is Defendants' motion to dismiss or, in the alternative, for summary judgment, in which Defendants argue, inter alia, that Azzara has failed to exhaust available administrative remedies. (Doc. 40). For the reasons outlined below, Defendants' motion for summary judgment will be granted.
II. Standards of Review
A. Motion to Dismiss
Defendants' motion to dismiss is based upon a contention that Plaintiff has failed to exhaust administrative remedies. In rendering a decision on a motion to dismiss, the Court must accept the plaintiff's allegations as true. White v. Napoleon , 897 F.2d 103, 106 (3d Cir. 1990). As Defendants' motion relies upon supplemental documentation attached to the motion, the motion to dismiss will be denied.
B. Summary Judgment
Defendants also move for summary judgment, again based upon a contention that Plaintiff has failed to exhaust his administrative remedies. The Court agrees. Pursuant to Federal Rule of Civil Procedure 56(a), "[t]he court shall grant summary judgment 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); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). "[T]his standard provides that the 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 (1986) (emphasis in original).
A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson , 477 U.S. at 248; Gray v. York Newspapers, Inc. , 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson , 477 U.S. at 257; Brenner v. Local 514, United Brotherhood of Carpenters and Joiners of America , 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether there is a genuine issue of material fact, the court must view the facts and all reasonable inferences in favor of the nonmoving party. Moore v. Tartler , 986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail Corporation , 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Company , 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary judgment, however, parties may not rely on unsubstantiated allegations. Parties seeking to establish that a fact is or is not genuinely disputed must support such an assertion by "citing to particular parts of materials in the record, " by showing that an adverse party's factual assertion lacks support from cited materials, or demonstrating that a factual assertion is unsupportable by admissible evidence. FED. R. CIV. P. 56(c)(1); see Celotex , 477 U.S. at 324 (requiring evidentiary support for factual assertions made in response to summary judgment). The party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio , 475 U.S. 574, 586 (1986). Parties must produce evidence to show the existence of every element essential to its case that they bear the burden of proving at trial, for "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex , 477 U.S. at 323; see Harter v. G.A.F. Corp. , 967 F.2d 846, 851 (3d Cir. 1992). Failure to properly support or contest an assertion of fact may result in the fact being considered undisputed for the purpose of the motion, although a court may also give parties an opportunity to properly provide support or opposition. FED. R. CIV. P. 56(e).
III. Statement of Facts
Azzara is currently serving a 172-month aggregate term of imprisonment for mailing threatening communication and for other charges, with a projected release date of July 31, 2016. See (Doc. 41-1, Att. A, Public Information Inmate Data). Azzara was assigned to USP-Canaan from March 8, 2012, until his transfer to USP-Coleman in June, 2013. (Doc. 41-1, Att. B, Inmate History). Plaintiff's complaint encompasses alleged violations of his constitutional rights on the following dates: June 25, 2009, September 10, 2009, June 3, 2010, June 17, 2010, February 25, 2011, August 8, 2011, and September 1, 2011. (Doc. 1, Complaint at 16-17). Specifically, Plaintiff alleges that on June 25, 2009, Defendants Womeldorf, Bradley, Haas, Gabrielson, Ebbert, and others, the identity of whom are unknown to Plaintiff, "wantonly and maliciously assaulted Azzara, participated in this assault upon Azzara and/or failed to interject and prevent the assault upon Azzara", which ...