Grant v. Varano et al

Filing 67

MEMORANDUM (Order to follow as separate docket entry)Based upon the undisputed facts, the unopposed request for entry of summary judgment will be granted. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 2/26/16. (cc)

IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

BRAHEEM GRANT,
Plaintiff

v.

CIVIL NO. 3:CV-13-2371
(Judge Conaboy)

DAVID VARANO, ET AL.,
Defendants

MEMORANDUM

Background

Braheem Grant, an inmate presently confined at the State
, Pennsylvania (SCI-Coal

Correctional Institution, Coal Towns

1 rights action.

TWp.), initiated this

By Memorandum

ed September 15, 2014, Defendants' motion to di

Order

was partially granted.

See Doc. 35.
is

Plaintiff's surviving cIa

Remai

Defendant,

. Correctional Officer Tony Kinney, served the

SCI-Coal

Plaintiff a dinner tray in the prison's Rest
(RHU) on September IS, 2011 wh
blade) which caused

cted Housing Unit

h contained a metal object (razor

ions to Plaintiff's mouth.l Kinney, who

wa accompanied by Correctional Off

r Baker, also purportedly told

Plaintiff to enjoy his meal and flashed him a quick smile.
Doc. 1,

ss

~

48.

See

At a later point in the Complaint, Plaintiff

1. The claim for money damages
nst CO Kinney in his official
capacity was previously found to be barred by the Eleventh
Amendment.
1

similarly alleges that Kinney "intentionally placed a razor blade
In Plaintiff's meal tray."

rd. at

~

72.

Presently pending is the Remaining Defendant's motion for
summary judgment.

See Doc. 59.

Although granted an enlargement of

time in which to file a response, Plaintiff has failed to do so.
Consequently, the unopposed motion is ripe for consideration.
Discussion

The Remaining Defendant argues that he is entitled to entry
of summary judgment because "Grant is without any evidence that
Kinney tampered with his food."

Doc. 60, p. 6.

Standard of Review

Summary judgment is proper if "the pleadings, the discovery
and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the
movant is entitled to a judgment as a matter of law."

Fed. R. Civ.

P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d
Cir. 2001).

A factual dispute is "material" if it might affect the

outcome of the suit under the applicable law.
Lobby, Inc., 477 u.S. 242, 248 (1986).

Anderson v. Liberty

A factual dispute is

"genuine" only if there is a sufficient evidentiary basis that
would allow a reasonable fact-finder to return a verdict for the
non-moving party.

rd. at 248.

The court must resolve all doubts

as to the existence of a genuine issue of material fact in favor of
the non-moving party.

Saldana, 260 F.3d at 232; see also Reeder v.

Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Unsubstantiated arguments made in briefs are not considered
evidence of asserted facts.

Versarge v. Township of Clinton, 984

F.2d 1359, 1370 (3d Cir. 1993).
2

Once the moving party has shown that there is an absence of
ev

to support the c

of

moving party may not simply s
s complaint.

non-moving party, the non­

back and rest on the allegations in

See

, 477 U.S. 317, 324

(1986).

Instead, it must "go

aff

s, or by the depos

the pleadings and by [
s, answers to interrogator

s] own
s, and

admissions on file, designate specific facts showing that t
a

ine issue for trial."

is

(internal quotations omitted); see

Saldana, 260 F.3d at 232 (citations omitted).

Summary

should be granted where a party "fails to make a showing

j

suff

ient to establish the

s case, and on which that party will bear the

that

1."

tr

of an element essential to

Celotex, 477 U.S. at 322
is

regardless of whether
amount to more than a sc

3.

rect or

at

"'Such affirmat
circu~stant

1

must

ilIa, but may amount to less (in the

evaluation of the court) than a preponderance.'"

, 260 F.3d

at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458,
460 61 (3d Cir. 1989)).
As discussed earl
t

r. Although granted an enl

in which to do so, Grant has not filed either an opposing
f nor an opposing statement of material facts.

PIa

nt of

iff has not responded

summary judgment motion

In fact, the

any manner whatsoever to the pending
n seeking an extension

time.

Once the moving party has satisfied its burden of
ifying evidence which demonstrates an absence of a genuine
issue of material fact, see Childers v. Joseph, 842 F.2d 689, 694
(3d cir. 1988), the nonmoving party is required by Federal Rule of
C

1 Procedure 56(e) to go beyond the pleadings by way of

3

affidavits, depositions, answers to interrogatories or the like in
order to demonstrate specific mater

1 facts which give rise to a

genuine issue.

Celotex, 477 U.S. at 324.

56(e) states

In relevant part, Rule

relevant part :

If a party fails to properly support an assertion of
fact or fails to
ly address another party's
assertion of fact as required in Rule 56(c), the
court may:
the fact undisputed for purposes of the
(2) cons
motion;
( 3 ) grant summary judgment if the motion and
supporting materials incl
the
s
considered
sputed--show
movant is entitled
to
When Rule 56(e} shifts the burden of proof to the nonmoving party,
that party must produce evidence to show the existence of every
element es
at tr

I

to

case wh

it bears the burden of proving

. Celotex, 477 U.S. at 324.

If, however,

"the evidentiary

matter in support of the motion does not establish the absence of a
genuine issue, summary judgment must be denied even if no opposing
evidentiary matter is presented." Advisory Committee Notes to
F.R.C.P. 56(e)(1963 Amend.).
Local Rule 56.1 similarly provides that all material facts
set forth in the statement of materials of facts required to be
served by the moving party will be deemed to be admitted unless
controverted by the statement required to be served by the opposing
party.
Razor Blade

As acknowl

by the Remaining Defendant, "[u]

facts show Kinney and Baker served Grant

s dinner meal tray.

Grant bit into his food and felt a sharp pain.

4

ed

Grant

out his

ood.

food and noticed

Metal was

scovered in Grant's food.

Grant suffered minor lacerations inside his mouth."

Doc.

60, p. 5.

Remaining Defendant Kinney has submitted a declaration under
penalty of perjury wherein he acknowledges that he is employed as
an SCI-Coal Twp. Correctional Officer.
1.

See Doc. 62, Exhibit C,

~

Kinney admits that on September 15, 2011 he was working in the

RHU with CO Baker.

nney points out that that the meal served to

Plaintiff would have been on a tray covered by a lid and that on
said date, Inmate Grant was housed in the second to last RHU cell
to be served the evening meal. As such, the meal served to Grant
would have been at the bottom of a stack of trays delivered to the
RHU on a cart.

The Remaining Defendant notes that the food cart

sits in the RHU hallway prior to distribution and two correctional
officers and an inmate joint

hand out the meals.

In addition,

numerous staff and prisoners have access to the meal trays from the
time they are prepared in the kitchen until they are delivered to
the cells.
According to the Remaining De

'8

declaration for

Kinney "to place a foreign object in food in the specific meal tray
Grant eventually received would have required approaching the cart
loaded with meal trays in a well traveled hallway ... removing a
number of meal trays sitting on top of that one and setting them
aside momentarily at some point prior to pushing the cart with the
meal trays into and around the Unit or removing the cover just
prior to handing out that specif

tray which would occur in front

of the other officer and inmate assisting with handing out the meal
trays."

Id. at

~

13.

5

Furthermore, while Kinney was admittedly involved in
distribution of the evening meal, access to and distribution of
razors to RHU prisoners occurs three times a week and is performed
by correctional off
Remaining De

working on an earlier shift.

The

avers that he "did not place a razor, part of a

razor or any metal object in any food on any meal
15, 2011."

~

14.

on Sember

Moreover, Kinney adds that he was not aware

of anyone else doing so.
Also submitted in support of the request for summary
judgment is an undisputed declaration under penalty of perjury by
SCI-Coal TWp. Correctional Officer Brock Baker.
D.

id. at Exhibit

Baker admits that he worked with the Remaining Defendant in the

RHU on September 15, 2011.

His declaration reiterates the vers

of the relevant events provided by Kinney.

Baker denies placing a

razor or any metal object in the meal delivered to Inmate Grant on
sa

date and specifically states that "I am not aware of CO Tony

Kinney or anyone else placing a razor or any met
food on any meal tray on
Remaining De
depos

r 15,

011."

object in any
. at ,

has also provided a copy of Plaintiff's

ion testimony which does not provide any indicat

Grant witnessed Kinney plac

anything

See id. at Exhibit E.

that

his food, only that

nney was one of two correctional officers who del
tray.

15.

red his meal

Moreover, neither the Complaint nor

Plaintiff's deposition indicate that he has any evidence
establsihing that it was Kinney who tampered with his food.
The Ei

Amendment's proh

punishment imposes duties on
with the basic necess

tion of cruel and unusual

son officials to provide prisoners

ies of life, such as food, clothing,
6

shelter, sanitation, medical care and personal safety.
v. McKinney, 509 U.S. 25, 31 (1993).

Prison conditions may amount

to cruel and unusual punishment if t

cause "unquestioned and

serious deprivations of basic human needs ...

lized measure of I i ' s necessities."

minimal

inmates of

[that] deprive

Tillman v. Lebanon County Correctional Facility, 221 F.3d 410 (3d
Cir. 2000).

An Eighth Amendment claim against a prison official

must meet two requirements:

( 1)

"

deprivation alleged must be,

objectively, sufficiently serious;" and (2) the "prison official
must

a sufficiently cu

Ie state of mind."2

Brennan, 511 U.S. 825, 834 (1994).
"that state of mind is one of 'del

Farmer v.

In prison conditions cases,
rate indifference' to inmate

health or safety."
This Court's September 1 , 2014 Memorandum and Order noted
that there were no facts asserted which clearly showed that Kinney
was the individual who tampered with the Plaintiff's food tray.
It is the function of this Court in reviewing the pending request
for summary judgment to determine whether the Remaining Defendant
has satisfied his burden of showing that there is no genuine issue
as to any material fact.

In light of Plaintiff's failure to oppose

the request for summary judgment that burden has been satisfied.
Based upon the undisputed evidence submitted by the

2.
Under Farmer, deliberate indifference is a subjective
standard in that the prison official must actually have known or
been aware of the excessive risk to inmate safety.
Beers-Capitol
v. Whetzel, 256 F. 3d 120, 125 (3d Cir. 2001).
This requirement of
actual knowledge means that "the official must both be aware of
facts from which the inference could be drawn that a substant 1
risk of serious harm exists, and he must also draw
inference."
Farmer, 511 U.S. at 837.
7

Remaining Defendant, especially the declarations of Baker and
Ki nney as well as as the Plai nti f f's own depos i t i o n t estimony,
there are simply no facts other than the Pla intiff's speculative
contention which could support a claim that the Remaining Defendant
had any personal involvement whatsoever in the purported food
tampering incident.
This conclusion is bolstered that the undisputed record
indicates that this was a one time incident and that numerous other
prison staff members and prisoners had opportunity to tamper with
Plaintiff's food tray.

There are simply no facts presented to show

that Kinney had any participation, knowledge or acquiescence in the
alleged act of food tampering.

Based upon the undisputed facts,

the unopposed request for entry of summary judgment will be
granted.

An appropriate Order will enter.

CONA OY
United States District

FILED
SeRAI TO
~.

Fr

DATED: FEBRUARY ;;& , 2016
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8

2 5 2016

c17

DEPUT Y CLERK

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