Opinion
Civil Action No. 2: 16-cv-1448
01-15-2019
GEORGE DALIE, Plaintiff, v. FNU GUMBERT, FNU ELYNOFF, FNU CARTER, and M. HOWELLS, Defendants.
cc: GEORGE DALIE HC-9826 SCI Rockview P.O. Box A Bellefonte, PA 16823 (via U.S. First Class Mail) Yana L. Warshafsky Office of the Attorney General (via ECF electronic notification)
Chief United States District Judge Mark R. Hornak
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that Defendants' Motion for Summary Judgment, with brief in support, be granted. (ECF Nos. 54 and 55).
Plaintiff's response to the motion for summary judgment was originally due by September 28, 2018. (ECF No. 53). On October 12, 2018, the Court received a request from Plaintiff, dated September 25, 2018, seeking a thirty-day extension in which to respond to the motion. (ECF No. 60). The request was granted and Plaintiff was given an extension until November 19, 2018, to respond to the motion. (ECF No. 61). To date, Plaintiff has not responded to the motion, and the time for responding has now passed. Therefore, in the absence of any timely response by Plaintiff, the Court will deem the motion for summary judgment to be ripe for resolution. For the reasons set forth below, it is recommended that the motion for summary judgment be granted.
II. REPORT
A. Relevant Background
Plaintiff, George Dalie ("Plaintiff" or "Dalie") is a state prisoner in the custody of the Pennsylvania Department of Corrections ("DOC") currently confined at SCI-Rockview. The events giving rise to this lawsuit occurred in February of 2015 while Plaintiff was housed in the RHU at SCI-Greene. Initially, Dalie raised several claims, some of which were dismissed via the Court's Order partially granting Defendants' motion to dismiss. (ECF Nos. 31 and 32). Following the Court's decision on the motion to dismiss, the parties proceeded on three remaining claims: (1) an excessive force claim against Defendant Gumbert arising from an incident that occurred on February 18, 2015; (2) a failure to protect claim against Defendant Elyanoff arising from the February 18, 2015, incident; and (3) a retaliation claim against Defendants Gumbert and Carter arising out of their alleged misappropriation of Plaintiff's legal property on February 21, 2015. See Transcript of Plaintiff's Deposition, at 5 (ECF No. 56-1).
Following the close of discovery, Defendants filed the instant motion for summary judgment. In support of their motion, Defendants have filed the Transcript from the videoconference deposition of Plaintiff taken May 25, 2018; a video from February 15, 2015; the Declarations of Defendants Eric Gumbert and Kevin Elyanoff (the "Declarations"); and Plaintiff's Grievance 552787 (ECF No. 56-1, 2, 3, 4, and 5), together with a Concise Statement of Material Facts ("Defendants' Concise Statement"). (ECF No. 57).
Where critical events at issue have been captured on videotape, the Court is obliged to consider that videotape evidence in determining whether there is any genuine dispute as to material facts. See Scott v. Harris, 550U.S. 372, 380-81 (2007). Where a videotape completely refutes an inmate's claims that excessive force was used against him, and the video evidence does not permit an inference that prison officials acted maliciously and sadistically, summary judgment is appropriate. Tindell v. Beard, 351 F. App'x 591 (3d Cir. 2009). In the case sub judice, however, the limited perspective of the video does not permit any definitive conclusions regarding what transpired on February 18, 2015. The video has no audio so the Court is unable to hear anything said by any of the parties and the view of Plaintiff's cell and the interaction between Plaintiff and Defendant Gumbert is obscured by the date and time stamp on the video itself. Therefore, the Court does not find that the video is helpful in assessing the credibility of the parties' competing factual narratives.
In response, and despite this Court's express direction (ECF No. 59), and grant of an extension of time in which to respond (ECF No. 61), Plaintiff has elected to file nothing. More particularly, in the Case Management Order issued March 13, 2018 (ECF No. 35), Plaintiff was advised that in opposing a summary judgment motion, he must comply with Local Rule 56.C by filing a brief in response, concise counter statement of facts, and any appendix. The parties were further advised that pursuant to Local Rule 56.E, "alleged material facts set forth in the moving party's Concise Statement of Material Facts or in the opposing party's Responsive Concise Statement, which are claimed to be undisputed, will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement the opposing party." (Id.). And finally, the Order expressly cautioned "that should any party fail to comply with this Order, the motion for summary judgment will be decided without the benefit of that party's response." (Id.)
No Response to Defendants' Motion for Summary Judgment, Concise Statement, or other responsive pleading or controverting evidence has been filed. Plaintiff has, therefore, adduced no evidence in support of his claims, and the facts set forth in Defendants' Motion papers and Concise Statement are accepted as true, in accordance with the procedural rules.
B. Standard of Review
The standard for assessing a Motion for Summary Judgment under Rule 56 of the Federal Rules of Civil Procedure is well-settled. A court should grant summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Furthermore, "summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 250.
On a motion for summary judgment, the facts and the inferences to be drawn therefrom should be viewed in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587(1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The moving party has the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. The party opposing the motion, however, cannot rely merely upon bare assertions, conclusory allegations, or suspicions to support its claim. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, and must produce more than a "mere scintilla" of evidence to demonstrate a genuine issue of material fact. See Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
This standard is somewhat relaxed with respect to pro se litigants. Where a party is representing himself pro se, the complaint is to be construed liberally. A pro se plaintiff may not, however, rely solely on his complaint to defeat a summary judgment motion. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) ("Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial."). Allegations made without any evidentiary support may be disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000); see also Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) ("[U]nsupported allegations . . . and pleadings are insufficient to repel summary judgment.").
In order to survive a motion for summary judgment on a § 1983 claim, a plaintiff must adduce evidence that the defendants acted under color of state law, a fact not in dispute sub judice, and that the plaintiff was deprived of a federal constitutional right.
When a motion for summary judgment is unopposed, the Court must still assess whether the moving party has met its burden of demonstrating that it is entitled to judgment as a matter of law. It is appropriate to grant the defendant's motion for summary judgment where (a) the pro se plaintiff has received adequate notice that failure to file any opposition may result in a judgment against him, and (b) the facts as to which there is no genuine dispute show that the moving party is entitled to judgment as a matter of law. See, e.g., Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (quoting Fed.R.Civ.P. 56).
C. Discussion
1. Excessive Use of Force Claim Against Defendant Gumbert and Failure to Protect Claim Against Defendant Elyanoff
Plaintiff's Complaint and deposition testimony and the Defendants' Declarations contain significantly conflicting versions of the events which occurred on February 18, 2015. Plaintiff asserts that Defendant Gumbert assaulted him by repeatedly slamming the handcuffs he had placed on Plaintiff's wrists in his cell door wicket and by having the handcuffs so tight that they cut off the circulation in Plaintiff's hands. When Plaintiff complained that the handcuffs were too tight, Defendant Gumbert then began yanking up and down, back and forth, on the handcuffs. In his Grievance, Plaintiff reported that Gumbert eventually removed the handcuffs, but that he then slammed Plaintiff's wrist in the door wicket. Plaintiff also asserts that while Defendant Gumbert was assaulting him, Defendant Elyanoff failed to protect him from this assault.
In their Declarations, Defendants Gumbert and Elyanoff dispute these allegations and present a much different story. The Declarations both state that after Plaintiff was handcuffed, he was escorted to the showers and that "[a]t no time did inmate Dalie make a comment or a complaint about the handcuffs being too tight, or express other concerns." (ECF No. 56-3 at ¶ 11; ECF 56-4 at ¶ 8). Further, both Declarations state that had Plaintiff complained or made a comment about the handcuffs being too tight, either Defendant Gumbert or Elyanoff would have checked to ensure that there was sufficient space between his wrist and the restraints. (ECF No. 56-3 at ¶ 12; ECF 56-4 at ¶ 9). Defendant Gumbert, through his Declaration, also states that it is his "customary practice to ensure that handcuffs are not too tight by placing one finger in between the restraints and the inmate's wrists," (ECF No. 56-3 at ¶ 9), and Defendant Elyanoff, through his Declaration, states that "[a]t no time did I witness Officer Gumbert act unprofessionally or aggressively toward inmate Dalie." (ECF No. 56-4 at ¶ 10).
When substantiating evidence has been presented, such "conflicts of credibility should not be resolved on summary judgment 'unless the opponent's evidence is too incredible to be believed by reasonable minds.' " Grove v. City of York, 342 F.Supp.2d 291, 309 (M.D.Pa. 2004). In this case, however, Plaintiff has elected to present no evidence in response to Defendants' Declarations and Concise Statement. Accordingly, no issue of material fact exists regarding whether Defendant Gumbert assaulted Plaintiff on February 18, 2015, and whether Defendant Elyanoff failed to protect Plaintiff from such assault. Accordingly, it is recommended that summary judgment be granted on these claims.
In his Complaint and Grievance, there is a passing reference by Plaintiff that the assault on February 18, 2015, was in retaliation for Plaintiff making a verbal complaint to Deputy Zaken and Major Leggett about not getting yard time. Even assuming that Plaintiff could show that his verbal complaint should be considered constitutionally-protected activity, this claim would fail because as discussed supra, no issue of material facts exists regarding whether Plaintiff was assaulted by Defendant Gumbert on February 18, 2015, and that Defendant Elyanoff failed to protect him from such an assault.
2. Retaliation Claim Against Gumbert and Carter
Plaintiff also alleges that he was retaliated against on February 21, 2015, when Defendants Gumbert and Carter improperly confiscated his legal papers. Plaintiff contends that the retaliation was in response to him filing a grievance arising out of the February 18, 2015 incident. According to Gumbert's Declaration, neither he nor Defendant Carter were aware of the grievance Plaintiff had filed. Moreover, Gumbert's Declaration explains that as he and Defendant Carter were escorting Plaintiff from the law library, they noticed that Plaintiff was in possession of another inmate's legal property, which is a violation of DOC property. The property was confiscated because it did not belong to Plaintiff and a confiscation slip was issued.
Again, Plaintiff has elected to present no evidence in response to Defendant Gumbert's Declaration and Defendants' Concise Statement. Accordingly, no issue of material fact exists regarding whether the confiscation of the property was done in retaliation or whether the confiscation was improper and it is, therefore, recommended that summary judgment be granted on this claim.
5. Claim Against Defendant Howells
The only claim against Defendant Howells is that he issued the Initial Review Response denying Plaintiff's Grievance No. 561453, a grievance in which Plaintiff alleged he had been retaliated against and sexually harassed by C/O Carter on April 5, 2015. Because Plaintiff had failed to exhaust his administrative remedies, summary judgment previously was granted on this claim on February 26, 2018. (ECF Nos. 31 and 32). Since there are no additional discernable claims raised against Defendant Howells, it is recommended that he be dismissed with prejudice from this lawsuit.
Plaintiff agreed during his deposition that the only remaining defendants in the case are Gumbert, Elyanoff, and Carter. Depo. at 4 (ECF No. 56-1). However, as the Court has never received a formal request to terminate Howells as a defendant in this case, it is recommended that he be formally terminated as a party at this time.
III. Conclusion
For all the foregoing reasons, it is recommended that the Motion for Summary Judgment filed by Defendants be granted.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, must file objections to this Report and Recommendation by February 1, 2019, and Defendants, because they are electronically registered parties, must file objections, if any, by January 29, 2019. The parties are cautioned that failure to file Objections within this timeframe "will waive the right to appeal." Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
s/Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge Dated: January 15, 2019 cc: GEORGE DALIE
HC-9826
SCI Rockview
P.O. Box A
Bellefonte, PA 16823
(via U.S. First Class Mail)
Yana L. Warshafsky
Office of the Attorney General
(via ECF electronic notification)