United States District Court, Middle District of Pennsylvania
RICHARD P. CONABOY United States District Judge
This pro se civil rights action pursuant to 42 U.S.C. § 1983 was initiated by Robert Hankins (Plaintiff), an inmate presently incarcerated at the State Correctional Institution, Camp Hill, Pennsylvania (SCI-Camp Hill). Plaintiff's Amended Complaint (Doc. 56) concerns actions which purportedly transpired when Hankins was previously confined at the Rockview State Correctional Institution, Bellefonte, Pennsylvania (SCI-Rockview).
Following service of the Amended Complaint, a motion to dismiss filed by Defendant Bureau of Health Care Services was granted. By Memorandum and Order dated February 26, 2013, a motion to dismiss filed by Defendants Physician's Assistants (PAs) Jeremy Tipton and Julie Pensiero-Koltay, was partially granted. While dismissal was granted in favor of Defendant Tipton, the claims that Pensiero-Koltay retaliated against Plaintiff by: delaying his request for replacement eyeglasses; having his inmate financial account improperly assessed for ongoing medical conditions; denying him a physical; and placing false information in the prisoner's institutional records were allowed to proceed. See Doc. 56, ¶ 27.
Presently pending is Defendant Pensiero-Koltay's motion seeking entry of summary judgment. motion is ripe for consideration. See Doc. 177. The opposed motion is ripe for consideration.
Pensiero-Koltay argues that she is entitled to summary judgment "because the prisoner has insufficient facts to establish that he was a victim of actionable retaliation by the defendant." Doc. 178, p. 4.
Standard of Review
Summary judgment is proper 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party.
Id. at 248. The court must resolve all doubts as to the existence of a
genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992). Unsubstantiated arguments made in briefs are not considered evidence of asserted facts. Versarge v. Township of Clinton, 984 F.2d 1359, 1370 (3d Cir. 1993).
Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non- moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) . Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322-23. "‘Such affirmative evidence – regardless of whether it is direct or circumstantial – must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.'" Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
According to the Amended Complaint, PA Pensiero-Koltay retaliated against Plaintiff by: delaying his request for replacement eyeglasses; having his inmate financial account improperly assessed; denying him a physical; and placing false information in the prisoner's institutional records. The moving Defendant argues that the Complaint fails to set forth a viable claim of retaliation. See Doc. 178, p. 7.
PA Pensiero-Koltay initially notes that Plaintiff in his deposition testimony was unable to articulate a reason as to why she would retaliate against him and conceded that the Moving Defendant was not responsible for getting his eyeglasses. See Doc. 178, p. 2. According to the summary judgment request, Hankins made an assumption that Pensiero-Koltay was involved in the delay of the inmate's receipt of his eyeglasses solely because the Moving Defendant had asked him if he had received his eyeglasses.
With respect to the claim that Hankins was improperly charged a co-pay for chronic care related medical services, PA Pensiero-Koltay asserts that the inmate could not identify any chronic condition which he sought treatment for in his deposition testimony and acknowledged that he might have been treated for non- chronic problems. She also notes that Plaintiff was unable to describe any false information placed in his institutional medical file by Pensiero-Koltay and that a notation in his file that Hankins made derogatory comments to the Defendant was accurate. Finally, with respect to the alleged denial of a physical examination by Pensiero-Koltay, it is undisputed that ...