United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION 
Cynthia Reed Eddy United States Magistrate Judge.
pending is the partial motion for summary judgment filed by
Defendants. (ECF No. 23.) The issues have been fully briefed
and the factual record has also been thoroughly developed.
(ECF Nos. 24, 25, 26, 33, 34, 35, 36, and 37). The motion is
ripe for disposition. For the reasons that follow, the motion
will be granted in part and denied in part.
Talley (“Talley”) is a state prisoner currently
confined at SCI-Graterford. He alleges that while
incarcerated at SCI-Greene, Defendant Corrections Officer
King used excessive force against him and Defendant
Corrections Officer Orbash failed to protect him. Defendants
do not seek summary judgment on these two claims. Talley also
asserts claims for due process, equal protection, racial
discrimination, retaliation, assault and battery, and mental
harm. Defendants seek summary judgment on these
morning of September 16, 2015, Defendants, Corrections
Officers Robert King (“King”) and Robert Orbash
(“Orbash”), were distributing breakfast trays in
the SCI-Greene Restricted Housing Unit (“RHU”).
They did not give inmate, Patrick Davis, a breakfast tray.
Orbash gave Talley his food try, Talley took his “food
slot hostage” by sticking his arm out the food
aperture. At that point, King repeatedly slammed the wicket
on Talley's arm while yelling racial epithets at him.
According to Talley, Orbash saw the whole thing but failed to
to Defendants, after the incident with Talley, they continued
to feed the prisoners on the pod. As they were exiting the
pod, Talley attempted to strike King with the tray lid and
his fists. Talley also allegedly threw food at King, spat at
him, threw coffee and other drink items at him, and several
minutes later, Talley threw material outside of his cell door
and set the material on fire.
was issued two misconduct reports as a result of the incident
with King: (1) Charge B561610 for assault and other
infractions for assaulting King; and (2) Charge B561613 for
arson. Both misconducts were dismissed without prejudice due
to procedural problems and were not refiled.
Rule of Civil Procedure 56(a) provides that summary judgment
shall be granted 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.” When applying
this standard, the court must examine the factual record and
reasonable inferences therefrom in the light most favorable
to the party opposing summary judgment. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). “A fact is material if it might affect the
outcome of the suit under the governing law.”
Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir.
2013) (citing Scheidemantle v. Slippery Rock Univ. State
Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006)).
non-moving party cannot rest solely on assertions made in the
pleadings, legal memoranda, or oral argument, but must
“put up or shut up.” Berckeley Inv. Grp.,
Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006)
(quoting Jersey Cent. Power & Light Co. v. Lacey
Twp., 772 F.2d 1103, 1109-10 (3d Cir. 1985)). Plaintiff
must go beyond the pleadings and show specific facts by
affidavit or by information contained in the filed documents
(i.e., depositions, answers to interrogatories and
admissions) to meet his burden of providing elements
essential to his claim. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); see also Saldana v. Kmart
Corp., 260 F.3d 228, 232 (3d Cir. 2001). The non-moving
party “must present more than just bare assertions,
conclusory allegations or suspicions to show the existence of
a genuine issue.” Podobnik v. U.S. Postal
Serv., 409 F.3d 584, 594 (3d Cir. 2005).
considering a motion for summary judgment, the court is not
permitted to weigh the evidence or to make credibility
determinations, but is limited to deciding whether there are
any disputed issues and, if there are, whether they are both
genuine and material. Anderson v. Liberty Lobby, 477
U.S. 242, 255 (1986). The inquiry, then, involves determining
“‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.'” Brown v. Grabowski, 922 F.2d 1097,
1111 (3d Cir. 1990), cert. denied, 501 U.S. 1218
(1991) (quoting Liberty Lobby, 477 U.S. at 251-52).
“After making all reasonable inferences in the
nonmoving party's favor, there is a genuine issue of
material fact if a reasonable jury could find for the
nonmoving party.” Pignataro v. Port Auth. of N.Y.
& N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing
Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d
moving party has the initial burden of proving to the
district court the absence of evidence supporting the
non-moving party's claims. Celotex, 477 U.S. at
322; UPMC Health Sys. v. Metro. Life Ins. Co., 391
F.3d 497, 502 (3d Cir. 2004). The burden then shifts to the
non-movant to come forward with specific facts showing a
genuine issue for trial. Williams v. Borough of West
Chester, 891 F.2d 458, 460-61 (3d Cir. 1989) (non-movant
must present affirmative evidence-more than a scintilla but
less than a preponderance-which supports each element of his
claim to defeat a properly presented motion for summary
Claims Under 42 U.S.C. § 1983
plaintiff “must [show] a deprivation of a
constitutional right and that the constitutional deprivation
was caused by a person acting under the color of state
law” to establish a viable Section 1983 claim.
Phillips v. Cty. of Allegheny, 515 F.3d 224, 235 (3d
Cir. 2008), superseded on other grounds by Ashcroft v.
Iqbal, 556 U.S. 662 ...