Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Busey v. Smith

United States District Court, M.D. Pennsylvania

April 15, 2014

OFFICER SMITH, et al., Defendants.


JOHN E. JONES, III, District Judge.


On March 15, 2012, Plaintiff, Anthony Busey, filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 naming as Defendants employees of the Pennsylvania Department of Corrections ("DOC"). (Doc. 1). The Complaint alleges constitutional violations for events that occurred while Plaintiff was incarcerated at the State Correctional Institution ("SCI") at Camp Hill, Pennsylvania.[1] (Doc. 1 ¶¶ 4-7). A motion to dismiss was previously filed by Hearing Examiner K.P. Reisinger. (Doc. 14). Plaintiff was ordered to respond to the motion, however he failed to do so. (Doc. 20). By Order dated January 30, 2013, this Court adopted the Magistrate Judge's Report, (Doc. 32), which recommended that the motion to dismiss be granted and that Hearing Examiner Reisinger be dismissed as a defendant to this action. (Doc. 33). The remaining Defendants are Corrections Officers Brian Smith and A. Anstead. ( Id. ).

On November 22, 2013, Defendants filed the instant motion for summary judgment, supporting brief, statement of material facts, and exhibits. (Docs. 45-48). By Order dated February 4, 2014, Plaintiff was directed to file a brief in opposition to the motion for summary judgment and a responsive statement of material facts. (Doc. 52). The Order also warned Plaintiff that "failure to file his opposition as directed within the required time will result in Defendants' Motion being deemed unopposed and addressed on the merits." (Doc. 52). Plaintiff failed to respond to this motion for summary judgment. Accordingly, the motion will be deemed ripe for disposition and, for the reasons set forth below, will be granted.


Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). "[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. Id. ; 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).

The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once such a showing has been made, the non-moving party must go beyond the pleadings with affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. FED. R. CIV. P. 56; Celotex, 477 U.S. at 324; Matsushita Electric Industrial Co. v. Zenith Radio, 475 U.S. 574, 586 (1986) (stating that the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts"). The party opposing the motion must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323; see also Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992). "[T]he non-moving party may not rely merely on allegations or denials in its own pleadings; rather, its response must... set out specific facts showing a genuine issue for trial.'" Picozzi v. Haulderman, 2011 U.S. Dist. LEXIS 21277, *5-6 (M.D. Pa. 2011) (quoting FED. R. CIV. P. 56(e)(2)). "Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of North America. Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993).


Rule 56 of the Federal Rules of Civil Procedure provides: "If a party... fails to properly address another party's assertion of fact as required by Rule 56(c), the court may... consider the fact undisputed for purposes of the motion." FED. R. CIV. P. 56(e)(2). Similarly, Middle District of Pennsylvania Local Rule 56.1 states: "[a]ll material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party." M.D. Pa. L.R. 56.1.

Plaintiff has failed to file a brief in opposition to Defendants' motion for summary judgment or a responsive statement of facts; therefore, Defendants' statement of facts, which are supported by affidavits, will be deemed admitted. The undisputed facts, taken from Defendants' statement of material facts, (Doc.47), are as follows.

The incident at issue occurred on December 22, 2011. (SOF ¶ 3). Approximately one week prior to the incident, Plaintiff received a misconduct for refusing to return his meal tray and he was placed on a razor restriction as a result. (SOF ¶ 5). The razor restriction was for seven (7) days and Plaintiff believed that the restriction ended on December 22, 2011, at 12:00 p.m. (SOF ¶ 6). Plaintiff therefore requested a razor after 12:00 p.m. on that day, however Defendant Smith refused to give him one and an argument ensued. (SOF ¶¶ 7-8). Defendant Smith verbally harassed Plaintiff by calling him a vulgar name. (SOF ¶¶ 3, 9). In response, Plaintiff threatened Defendant Smith stating, "[i]f the door was open, you wouldn't say that." (SOF ¶ 10) (citing Doc. 48, Ex. A, Deposition of Plaintiff, p. 21, 1.7). Plaintiff admitted that such words constituted a threat and that it was against prison policy to threaten an Officer. (SOF ¶¶ 11). Plaintiff never filed a grievance regarding Defendant Smith's alleged verbal harassment. (SOF ¶ 4).

Shortly thereafter, Officers went to Plaintiff's cell to assist a nurse in weighing him. (SOF ¶ 12). The entire incident was captured on video. ( Id. ). When Plaintiff stepped out of his cell to be weighed, he believed the Officers were going to do "something", though Defendant Smith never took any aggressive action towards Plaintiff, which was confirmed by video. (SOF ¶¶ 13-15) (citing Doc. 48, Ex. A, Deposition of Plaintiff, p. 22, 1.8-12; p. 23, 1.6-11). When Plaintiff stepped off the scale, he "flinched", which was actually a kick by Plaintiff towards Defendant Smith. (SOF ¶¶ 16-17). Plaintiff admitted that he picked up his left leg as if to kick Defendant Smith. (SOF ¶ 18). Defendant Smith grabbed Plaintiff's left leg and Officer Hoffman took Plaintiff to the ground. (SOF ¶ 19). Plaintiff suffered from a swollen knee after the incident which was caused by Officer Hoffman, not by the Defendants named in this action. (SOF ¶ 28).

In his deposition, Plaintiff admitted he could understand why Defendant Smith thought Plaintiff was going to kick him, why the Officers took him to the ground, and why the Officers would perceive a threat of harm. (SOF ¶¶ 20-22). Plaintiff thereafter received two (2) misconducts relating to this incident, one for attempting to kick Defendant Smith, and one for refusing to obey orders to stop kicking. (SOF ¶ 23). At the disciplinary hearing on these misconducts, the Hearing Examiner found Plaintiff guilty and he received an additional seven (7) day razor restriction.[2] (SOF ¶¶ 24-25).

On the day of the incident, Inmate Robinson encouraged Plaintiff to file a lawsuit regarding the events that occurred. (SOF ¶¶ 26-27). However, Inmate Robinson also convinced Plaintiff not to file a grievance regarding the alleged excessive use of force as he believed Plaintiff could exhaust his administrative remedies by challenging the misconducts issued by the Officers. (SOF ¶ 41).

Plaintiff is familiar with the Grievance Policy and had access to the prison grievance system. (SOF ¶¶ 35-36). Around the same time as the incident at issue, Plaintiff filed four (4) unrelated grievances. (SOF ¶ 36). Plaintiff never filed a grievance complaining that Defendant Smith harassed him; he never filed a grievance complaining that Defendant Smith denied him a razor; and, he never filed a grievance complaining that Defendants Smith and Anstead used excessive force against him. (SOF ¶¶ 38-40).


A. Rule 41(b)

Rule 41(b) of the Federal Rules of Civil Procedure allows a court to dismiss an action for a plaintiff's failure to comply with procedural rules or orders of the court. See FED. R. CIV. P. 41(b); Link v. Wabash Railroad Co., 370 U.S. 626, 629 (1962); Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 341 (3d Cir. 1982). In deciding whether to dismiss a case pursuant to Rule 41(b), the court must consider the factors identified in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984). The six (6) factors include:

(1) the extent of the party's personal responsibility; (2) the prejudice to the adversary; (3) history of dilatoriness; (4) whether the conduct of the party was willful or in bad faith; (5) the effectiveness of sanctions; and (6) the meritoriousness of the claim or defense.

Id. at 868. Not all of the Poulis factors need be satisfied to dismiss a complaint. See Shahin v. Delaware, 345 Fed.Appx. 815, 817 (3d Cir. 2009) (citing Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992)).

Here, Plaintiff is pro se and is solely responsible for not filing an opposition brief or responsive statement of material facts. See Colon v. Karnes, 2012 U.S. Dist. LEXIS 14692, *7 (M.D. Pa. 2012) ("Plaintiff is proceeding pro se, and thus is responsible for his own actions.").

Second, Defendants are prejudiced by Plaintiff's inaction because they "cannot defend an action that Plaintiffs do not pursue." See Taliaferro v. Darby Twp. Zoning Bd., 2008 U.S. Dist. LEXIS 55695, *7 (E.D. Pa. 2008) (dismissing the complaint pursuant to Rule 41(b)).

Third, Plaintiff has a history of dilatoriness. The instant motion for summary judgment was filed nearly five (5) months ago. This Court entered an Order, (doc. 52), directing Plaintiff to respond, however he has still failed to file an opposition brief or a responsive statement of material facts and he never filed a motion for an extension of time. See Murray v. Stickman, 2006 U.S. Dist. LEXIS 11027, *8 (W.D. Pa. 2006) (the third Poulis factor was satisfied because the plaintiff had ignored numerous orders and deadlines despite being given multiple extensions of time). Additionally, a ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.