NED v. DOE et al

Filing 39

MEMORANDUM ORDER - it is Ordered that the defendants' motion for summary judgment, ECF no. 30 , is granted. The Report and Recommendation at ECF no. 36 , as supplemented herein, is adopted as the opinion of the Court. The Clerk shall mark this matter closed, and as more fully stated in said Memorandum Order. Signed by Judge Kim R. Gibson on 3/21/2019. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JEREMY NED,
Plaintiff,
v.
J RARDIN, et al.,
Defendants

Case No. 3:16-cv-251-KRG-KAP

Memorandum Order
This matter was referred to Magistrate Judge Keith A.
Pesto for pretrial proceedings in accordance with the Magistrates
Act, 28 U.S.C.§ 636, and Local Civil Rule 72.
The Magistrate Judge filed a Report and Recommendation
on

January

31,

2019

at

ECF

no.

36,

recommending

that

the

defendants' motion for summary judgment at ECF no. 30 be granted.
The parties were notified that pursuant to 28 U.S.C.§
636 (b) (1),

they had fourteen days

to

file

written objections.

Plaintiff filed what was docketed as objections at ECF no. 37 that
asked for more time to file objections, and timely objections at
ECF no. 38. I have reviewed the objections de nova and reject them.
Plaintiff never alleged that his cellmate assaulted him
before September 12,

2014.

He abandons

the allegations of his

complaint that prior to the altercation between plaintiff and his
cellmate he told the defendants that his cellmate "was trying to
sexually assault him" and alleges only that on September 10 and 11,
2014, he orally and in writing informed corrections officers in the
SHU that he and his cellmate

"were not getting along and that

Plaintiff needed to move." ECF no. 34 at 2, see also id. at 4.
To have a viable deliberate
Farmer v. Brennan, 511 U.S. 825, 837

indifference claim under

(1994), plaintiff must show

there is a genuine dispute about "facts from which the inference

could be drawn that a substantial risk of serious harm exists, and
[that

defendant drew]

the

inference."

The medical

record that

plaintiff attached to his complaint indicating that plaintiff after
the

altercation

had

a

"superficial"

scratch

on

his

shoulder,

several "superficial" scratches on his face, and a 2"x2" area on
his back with "superficial" scratches. ECF no. 3, Exhibit 1. The
only evidence before the fact, however, is that there was a claim
that two cellmates were not getting along. ECF no. 34 at 2, 4. This
is insufficient to show genuine disputes of fact that a substantial
risk

of

serious

harm

existed

or

that

any

defendant

drew

the

Report

and

inference that such a risk existed.
After

de

nova

review of

the

record,

the

Recommendation, and the timely objections thereto,
order is entered:
AND NOW, this

21

the following

d-

day of March, 2019, it is

ORDERED that the defendants' motion for summary judgment,
ECF no. 30, is granted. The Report and Recommendation at ECF no.
36, as supplemented herein, is adopted as the opinion of the Court.
The Clerk shall mark this matter closed.

KIM R. GIBSON,
UNITED STATES DISTRICT JUDGE
Notice to counsel of record by ECF and by U.S. Mail to:
Jeremy Ned, Reg. No. 27986-077
F.C.I. Mendota
P.O. Box 9
Mendota, CA 93640
2