United States District Court, M.D. Pennsylvania
MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE
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.
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.
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).
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).
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. As such, the
Court will grant Defendants’ motion as unopposed.
Standard of Review
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).
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).
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).
Statement of Facts
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
On the above date and approx time this officer arrived at
¶ 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 ...