Opinion
Case No. 1:19-cv-90
03-11-2020
TERRANCE SELDON, Plaintiff v. JOHN E. WETZEL, et al., Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT [ECF No. 78] REPORT AND RECOMMENDATION I. Recommendation
It is respectfully recommended that Plaintiff's Motion for Partial Summary Judgment (ECF No. 78) be denied. II. Report
Plaintiff Terrence Seldon, an inmate incarcerated at the State Correctional Institution at Forest (SCI-Forest), commenced this action by filing a Motion for Leave to Proceed In Forma Pauperis (ECF No. 1), which the Court granted by Order dated April 2, 2019. ECF No2. Seldon's Complaint (ECF No. 3), which was docketed the same day, asserted claims against several individuals who are employed as corrections officers or administrative personnel at SCI-Forest or as supervisory personnel of the Pennsylvania Department of Corrections (collectively, DOC Defendants) as well as individuals employed as medical personnel at SCI-Forest (Medical Defendants). The claims against all Defendants were based upon their alleged deliberate indifference to Seldon's asthma and related sensitivity to second-hand cigarette smoke. The Medical Defendants moved to dismiss some but not all of Seldon's claims against them. ECF Nos. 29, 30. The DOC Defendants also moved to dismiss certain of Seldon's claims against them. ECF Nos. 43, 44. On February 6, 2020, the undersigned issued a Report and Recommendation recommending that both motions be granted. ECF No. 62. On February 26, 2020, the Honorable Susan Paradise Baxter entered an Order (ECF No. 73) adopting the Report and Recommendation.
Following Judge Baxter's February 26, 2020 Order, this case remains at the pleadings stage of the litigation with a pretrial schedule yet to be issued. Nevertheless, Seldon has filed a Motion for Partial Summary Judgment (ECF No. 78), a Statement of Undisputed Facts (ECF No. 77), and a Brief in Support of Motion for Summary Judgment (ECF No. 79) in which he argues that the Court should enter judgment on liability in his favor because the DOC Defendants and Medical Defendants failed to argue for dismissal of his failure to protect and deliberate indifference claims in their respective motions to dismiss. Seldon asserts no other grounds for requesting judgment as a matter of law, and his Statement of Undisputed Facts relies entirely on the "fact" that the Defendants' failure to attack certain of his claims in their motions to dismiss is an implicit admission of the merits of those claims.
Seldon's motion for summary judgment should be denied as frivolous without the necessity of Defendants filing a response thereto. As the United States Supreme Court has made clear, "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). Further, as the Court of Appeals for the Third Circuit has explained, this burden applies to every element of each of the plaintiff's claims where the plaintiff, who bears the burden of proof, moves for summary judgment: "When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must show that, on all the essential elements of its case on which it bears the burden of proof at trial , no reasonable jury could find for the non-moving party." In re Bressman, 327 F.3d 229, 238 (3d Cir.2003) (emphasis supplied) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991)).
Here, the Defendants' decision to attack the legal sufficiency of certain of Seldon's claims is not an admission that he is entitled to judgment as a matter of law on his other claims. Seldon simply has submitted no record evidence upon which summary judgment can be entered in his favor. II. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge Dated: March 11, 2020