United States District Court, D. Delaware
MARSAAN L. NEWMAN, Plaintiff,
C/O C. JOHNSON, Defendant
Marsaan L. Newman, Howard R. Young Correctional Institution, Wilmington, Delaware, Pro se, Plaintiff.
Joseph Clement Handlon and Michael F. McTaggart, Deputy Attorneys General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendant.
Sue L. Robinson, District Judge.
Plaintiff Marsaan L. Newman (" plaintiff"), an inmate at the Howard R. Young Correctional Institution (" HRYCI"), Wilmington, Delaware, filed this action pursuant to 42 U.S.C. § 1983. He proceeds pro se and has been granted leave to proceed without prepayment of fees. Presently before the court are defendant's motion for summary judgment (D.I. 27) and plaintiff's motion for leave to file an amended answering brief (D.I. 39) and motion to compel discovery (D.I. 42). The court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons discussed, the court will grant defendant's motion for summary judgment and will deny plaintiff's motions.
Plaintiff filed this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights by virtue of defendant's alleged failure to protect him from harm. The complaint alleges that on March 13, 2012, plaintiff and another inmate engaged in a verbal altercation. Plaintiff tried to go to his cell, but a fight ensued that lasted well over four minutes. Plaintiff alleges that it was obvious there would be a fight, and the officer did not perform his duty to intervene to stop the fight. Plaintiff alleges that Johnson did not call a code, and he later reported that he tried to call a code twice, but his walkie-talkie was not working properly. As a result of the fight, plaintiff was seriously injured and had to be taken to the local hospital. Plaintiff concludes that, had the walkie-talkie worked properly, the assault would not have lasted long. (D.I. 2)
The evidence of record is that defendant witnessed plaintiff and inmate Anderson (" Anderson") exchange words, that plaintiff got up from his seat, " went directly" to Anderson, and both inmates began to throw punches at each other. (D.I. 29, ex. A Johnson decl.; incident report 3053656) Johnson made two Code 8 calls from his radio, but they were not transmitted. (Id. at ex. A Johnson decl.) Defendant alerted C/O John L. McMullin (" McMullin") of the fight who immediately called a Code 8 with his radio. (Id. at ex. A Johnson decl.; ex. A, incident report 3053656; ex. B McMullin decl.) According to McMullin, Johnson requested that McMullin call the Code 8 within a " few seconds" after defendant realized his walkie-talkie was not transmitting. (Id. at ex. A Johnson decl.; ex. B McMullin decl.) Neither McMullin nor defendant had immediate access to the area where the fight occurred. (Id.)
Corporal William Roemer (" Roemer"), a member of the Quick Response Team (" QRT") who responded to the fight, was contacted by primary control at 9:23 a.m. that a fight was in progress and he and another correctional officer responded. (Id. at ex. C Roemer decl.) The QRT arrived during the fight. (Id. at ex. A Johnson decl.) Plaintiff and Anderson were separated and immediately treated for their injuries. (Id. at ex. C) HRYCI log books dated March 13, 2013, indicate that the fight broke out at approximately 9:23 a.m. and was under control (i.e., " 10-1") by 9:26 a.m. (Id. at ex. D Bamford decl.)
Plaintiff did not submit a grievance regarding the March 13, 2012 incident. (Id. at E) Plaintiff acknowledges that he did not submit a grievance because he was hospitalized for four days and then spent four or five days in the HRYCI infirmary and did not have access to grievances for submission within seven days after the incident as is required. (D.I. 33)
III. STANDARD OF REVIEW
" 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 proving that no genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). " Facts that could alter the outcome are 'material, ' and disputes are 'genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n.1 (3d Cir. 1995) (internal citations omitted). If the moving party has demonstrated an absence of material fact, the nonmoving party then " must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e)). The court will " view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion." Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). The mere existence of some evidence in support of the nonmoving party, however, will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for the nonmoving party on that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Defendant moves for summary judgment on the grounds that: (1) there is no evidence that he was deliberately indifferent to plaintiff's safety in violation of the constitution; (2) he is immune under the doctrine of qualified immunity; and (3) plaintiff failed to exhaust his administrative remedies as is required by the Prison Litigation Reform Act (" PLRA"). Plaintiff opposes the motion. Some two months after plaintiff filed his opposition and defendant filed his reply, plaintiff moved for leave to file an amended answering brief. ( See D.I. 33, 38, 39) The motion is untimely. ...