United States District Court, M.D. Pennsylvania
William W. Caldwell, United States District Judge.
sole remaining defendant in this action, Counselor Edwards,
an employee of the Franklin County Prison (the Prison), seeks
dismissal of the pro se plaintiff, Joseph Bookwalter's,
failure-to-protect claim against him, arguing that it is
time-barred. (ECF No. 26, Mot. to Dismiss).
March 6, 2017, we converted Counselor Edwards' motion to
dismiss to a motion for summary judgment because Counselor
Edwards' motion relied on documents outside of the
complaint. (ECF No. 28, Order). Bookwalter was given
twenty-one days to file an opposition to Counselor
Edwards' motion for summary judgment. To date, Bookwalter
has failed to respond or otherwise oppose Counselor
Edwards's potentially dispositive motion.
reasons that follow, the unopposed motion will be granted and
the case dismissed.
Standard of Review
Rule of Civil Procedure 56 sets forth the standards and
procedures for granting a motion for summary judgment.
Summary judgment is proper where “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). The court must determine “whether
the pleadings, depositions, answers to interrogatories,
admissions on file, and affidavits show that there is no
genuine issue of material fact and whether the moving party
is therefore entitled to judgment as a matter of law.”
MacFarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 271
(3d Cir. 2012)(citing Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505, 2509 - 10,
91 L.Ed.2d 202 (1986).
“material” fact is any fact that might affect the
outcome of a suit under the governing substantive law.
Gonzalez v. Sec'y of Dept. of Homeland Sec., 678
F.3d 254, 261 (3d Cir. 2012). An issue of material fact is
“genuine” if supported by evidence such that a
reasonable jury could return a verdict in the non-moving
party's favor. Id. at 248, 106 S.Ct. at 2510.
reviewing a motion for summary judgment, the court must view
all facts and draw all reasonable inferences “in the
light most favorable to the party opposing the motion.”
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265
(3d Cir. 2014)(internal quotation marks omitted). To prevail
on summary judgment, the moving party must affirmatively
identify those portions of the record which demonstrate the
absence of a genuine issue of material fact. Santini v.
Fuentes, 795 F.3d 410 (3d Cir. 2015) (citing
Celotex, 477 U.S. at 323, 106 S.Ct. 2553). If this
burden is met, the nonmoving party “must do more than
simply show that there is some metaphysical doubt as to
material facts.” Big Apple BMW, Inc. v. BMW of N.
Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) (citation
and internal quotation marks omitted). Rather, the party
opposing summary judgment “must set forth specific
facts showing that there is a genuine issue for trial.”
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
2001)(citing Fed.R.Civ.P. 56(e); Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986)). Failure to properly support or
contest an assertion of fact may result in the court
considering the fact undisputed for the purpose of the
motion. Fed.R.Civ.P. 56(e).
Statement of Facts
the pleadings, declarations and exhibits submitted therewith,
the following facts are ascertained as undisputed or, where
disputed, reflect Bookwalter's version of the facts,
pursuant to this court's duty to view all facts and
reasonable inferences in the light most favorable to the
nonmoving party. Anderson, 477 U.S. at 255, 106
S.Ct. at 2510.
November 16 and December 23, 2013, Bookwalter was housed at
the Franklin County Prison, in Chambersburg, Pennsylvania.
(ECF No. 1, Compl.) In November 2013, Bookwalter witnessed a
female staff member having sex with a male inmate in the
F-Block Janitor's closet. (Id., p. 5).
Bookwalter reported this event via an institutional request
slip “which ended up getting into the hands of other
inmates somehow when only counselors had availability to
access to (sic) them.” (Id.) Counselor Edwards
was the “only person who had access to the request slip
[Bookwalter] put in that leaked its way back to the
block.” (Id., ¶ 22). Following this
disclosure, Bookwalter was assaulted by another inmate.
(Id., ¶ 21). Bookwalter affirms that he
exhausted all available administrative remedies concerning
his 2013 assault claim. (Id., p. 2).
November 29, 2012, Bookwalter filed a grievance claiming that
he was assaulted (“jumped”) by another inmate
after his request slip reporting staff fraternization with
inmates was “leaked.” (ECF No. 26-3, Inmate
Grievance). Bookwalter was ...