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Ferrer v. Pottage

United States District Court, M.D. Pennsylvania

September 30, 2019

GUILLERMO FERRER, Plaintiff
v.
CO1 POTTAGE, et al., Defendants

          MEMORANDUM

          MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE

         I. Background

         Guillermo Ferrer, an inmate presently confined in the State Correctional Institution, Frackville (SCI-Frackville), Pennsylvania, filed this pro se civil rights action pursuant to 42 U.S.C. §1983. (Doc. 1). The named Defendants are the following SCI-Frackville correctional officers: COI Pottage, COI Walter and COII Sgt. Rarick. Id.

         Plaintiff states that “on February 3rd [he] went to the hospital to put a cast on [his] left hand.” Id. He claims that when he got back from the hospital he told Correctional Officers Rarick, Water and Pottage that he “wanted a handicap cell because of [his] broken left hand” and “they denied the handicap cell because they had no empty cell” and, instead, “put [him] in EB-19 with inmate Luis Colon-Vasquez, #LY8304.” Id. Plaintiff states that “5 minutes later [he] was assaulted by inmate Vasquez.” Id. He was then “put in a handicap cell” and “forced to the hospital again because [he] had a fracture to [his] jaw and head” and “also needed another cast due to [him] defending himself.” Id. For relief, Plaintiff seeks “$100, 000 for the damages that was done to [his] left hand, back of [his] head and [his] jaw.” Id.

         On January 29, 2019, Defendants filed a motion to dismiss Plaintiff’s complaint pursuant to Federal Rule Civil Procedure 12(b)(6), arguing that Plaintiff’s action should be dismissed for Plaintiff’s failure to properly exhaust his administrative remedies in accordance with the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §1997e(a). (Docs. 23).

         On June 14, 2019, in accordance with Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018), (holding that the District Court shall provide the parties notice that it will consider exhaustion in its role as fact finder under Small v. Camden Cty., 728 F.3d 265 (3d Cir. 2013)), this Court issued an Order, converting Defendants’ motion to dismiss to a motion for summary judgment and allowing the parties an opportunity to supplement the record with supporting evidence relevant to the exhaustion of administrative remedies. (Doc. 18).

         On September 3, 2019, Defendants filed a statement of material facts in support of their motion for summary judgment. (Doc. 25). Although the Plaintiff has had more than ample time to file a brief in opposition to Defendants’ motion, he has failed to oppose the motion.[1] As such, the Court will grant Defendants’ motion as unopposed.

         II. Standard of Review

         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).

         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

          On February 3, 2018, Plaintiff received Misconduct Report No. 726917 for fighting. (Doc. 17-5 at 2, Misconduct Report). The misconduct report, written by C/O Walter, reads as follows:

On the above date and approx time this officer arrived at ΒΆ 19 cell (housing I/M Ferrer LN7566 and Colon-Vasquez LY8304) to move I/M Ferrer from EB 19 to EB 24. Upon opening the cell door it was observed by this officer that I/M Ferrer had injuries to his face and blood on his jumpsuit and in the cell. Both I/Ms stated ...

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