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Brown v. Phelps

United States District Court, Third Circuit

July 30, 2013

ALBERT BROWN, Plaintiff,
WARDEN PERRY PHELPS, et al., Defendants.

Albert Lee Brown, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.

Joseph Clement Handlon, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendants.


LEONARD P. STARK, District Judge.


Plaintiff Albert Lee Brown ("Plaintiff"), an inmate at the James T. Vaughn Correctional Center ("VCC") in Smyrna, Delaware, filed this action on December 14, 2009, alleging constitutional violations pursuant to 42 U.S.C. § 1983.[1] Presently before the Court is Defendants' motion for summary judgment (D.I. 35).[2] For the reasons that follow, the Court will grant the motion.


In his Complaint (D.1. 2), Plaintiff alleges that he reached an out-of-court settlement in a civil case he filed in the Delaware Superior Court in and for New Castle County ("Superior Court"). Plaintiff claims that as a result of the lawsuit, he was subjected to retaliation, verbal abuse by Defendant C/O James Dempsey ("Dempsey"), and termination from his employment in the VCC kitchen. Plaintiff worked in the VCC kitchen for many years but, after the settlement, he was cited, found guilty of numerous rule infractions, and his appeal was denied. Plaintiff alleges that Defendant Lt. C. Morris ("Morris") was aware of the ongoing harassment and the insensitive treatment that was directed towards him upon his return to work. On December 29, 2008, Morris told Plaintiff not to return to work until the disciplinary action was resolved.[3] Plaintiff alleges that Defendants Warden Perry Phelps ("Phelps") and Christopher Senato ("Senato") failed to respond to his complaints. ( See D.I. 2)

Dempsey, a correctional corporal at the VCC, was supervising inmates in the chow hall at the VCC on December 26, 2008. On that date, he cited Plaintiff for disrespect. At the time he cited Plaintiff, Dempsey did not know that Plaintiff had a prior lawsuit. Dempsey denies verbally abusing Plaintiff or taking any retaliatory action against him as a result of a prior lawsuit. ( See D.I. 35 Ex. B at ¶¶ 1, 3-4)

During the relevant time period, Senato was the correctional food service director at the VCC. He states that Plaintiff was terminated from his kitchen job due to the nature of a prison violation wherein Plaintiff was found guilty of disrespecting an officer, a guilty finding that was affirmed on appeal.[4] He states the decision to terminate Plaintiff had nothing to do with any previous lawsuit filed by Plaintiff. ( See D.I. 35 Ex. A Senato Aff. at ¶¶ 1, 3)

Defendants filed their motion for summary judgment on September 14, 2012. They seek summary judgment on the grounds that there is no evidence of unconstitutional retaliation and the claims raised against Phelps, Senato, and Morris are improperly based upon their roles as supervisors. (D.I. 35) Plaintiff did not timely file an opposition but, on November 30, 2012, filed a motion for leave to do so (D.I. 37). The Court granted the motion and gave Plaintiff twenty-one days from May 21, 2013 to file his opposition (D.I. 40). Plaintiff misplaced his copy of the motion for summary judgment and, on May 29, 2013, the Clerk of Court received a request from Plaintiff to provide him a copy of the pending motion. ( See D.I. 41) On the same day, Defendants served Plaintiff with another copy of the pending motion. ( See D.I. 43) Nonetheless, Plaintiff failed to file an opposition to the motion for summary judgment.


"The 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). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10 (1986). An assertion that a fact cannot be - or, alternatively, is - genuinely disputed must be supported either by citing to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials, " or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B). If the moving party has carried its burden, the nonmovant must then "come forward with specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 587 (internal quotation marks omitted). The Court will "draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The Court will not grant the entry of summary judgment without considering the merits of Defendants' unopposed motion. See Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991) (holding that district court should not have granted summary judgment solely on basis that motion for summary judgment was not opposed).

IV. ...

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