The opinion of the court was delivered by: Simandle, District Judge
This action is before the Court upon the motion of remaining defendants Sergeant Phillips and Officer Sears for summary judgment on the claims against them contained in plaintiff's Complaint and Amended Complaint, pursuant to Rule 56, Fed. R. Civ. P. Plaintiff's opposition to this motion for summary judgment, due on or before May 24, 2002, has not been received by the Court or filed with the Clerk of Court. Additionally, no request for an extension of time was received. This motion, therefore, will be considered as unopposed. For the reasons stated herein, defendants' motion will be granted and plaintiff's Complaint and Supplemental Complaint will be dismissed with prejudice as to the remaining defendants.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, John Edmonds ("Edmonds"), is a former New Jersey State inmate who was incarcerated at Midstate Prison in Wrightstown, New Jersey. Plaintiff initiated this action against a number of defendants, several of whom were previously granted summary judgment and dismissed from the case, *fn1 pursuant to 42 U.S.C. § 1983 alleging that the negligence of defendants caused him to slip and fall during a prison work detail, with resulting injuries. In his supplemental complaint, plaintiff alleged that his constitutional right to protection under the Eighth Amendment had been violated because defendants acted with deliberate indifference to his serious medical needs. Defendants Phillips and Sears seek summary judgment on the claims against them, asserting that plaintiff's negligence claim may not be asserted under Section 1983 and also that plaintiff has failed to show that defendants acted with deliberate indifference to plaintiff's purported serious medical need.
As discussed in greater detail in this Court's November 26, 2001 Opinion, plaintiff's injury occurred on September 9, 1999, when he allegedly slipped on a wet curb and fell as he was exiting a van which carried prisoners to their work detail. (Edmonds v. New Jersey Dep't of Corrections, No. 00-5669, slip op. at 4-5 (D.N.J. Nov. 26, 2001)). Plaintiff claims that Officer Sears was negligent because he parked in a no parking zone and forced him to participate in the work detail after his fall. (Compl., ¶ 6.) Plaintiff, in his Supplemental Complaint, also alleges that defendants were deliberately indifferent to his serious medical need because they made him work after his fall. (Supp. Compl. at 8-9.)
On July 11, 2001, plaintiff was deposed in this matter. Plaintiff indicated that he advised defendants Phillips and Sears that the fall caused pain and aggravated an old back injury. (Josephson Aff., Ex. A, Edmonds Dep., Jul. 11, 2001, Tr. 40:5-8.) Defendant Phillips advised plaintiff that he should not lift during the work detail. (Edmonds Dep., Tr. 40:2-14.) Plaintiff conceded that his pain decreased shortly after his fall and after he moved around a little bit, (Edmonds Dep., Tr. 94:22-95:3, 100:4-5), but also stated that he experienced some shooting pain as he worked (id. at Tr. 100:5-9.)
As indicated earlier, defendants' motion for summary judgment is unopposed. Pursuant to a scheduling order signed by the Honorable Joel B. Rosen on April 1, 2002, "[a]ny opposition by plaintiff to Defendants' Motion for Summary Judgment [was] due on or before May 3, 2002." (Apr. 1, 2002 Order, Docket Item 63-1.)
A. Unopposed Summary Judgment Motion Standard of Review
On a motion for summary judgment, the court must determine whether "there is no genuine issue as to any material fact and that the moving party is entitled to judgment of law." Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999) (citing Fed. R. Civ. Proc. 56(c)). A party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the nonmoving party fails to oppose the motion by evidence such as written objection, memorandum, or affidavits, the court "will accept as true all material facts set forth by the moving party with appropriate record support." Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990) (quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir. 1989)). If the nonmoving party has failed to establish a triable issue of fact, summary judgment will not be granted unless "appropriate," and only if movants are entitled to a judgment as a matter of law. Fed. R. Civ. Proc. 56(e); see Anchorage Assocs., 922 F.2d at 175.
Plaintiff asserts that defendants Phillips and Sears negligently caused his fall and also that they committed a constitutional violation when they were deliberately indifferent to his serious medical needs, which he asserts arose from that fall. The Court will first address plaintiff's deliberate indifference claim and will then address plaintiff's negligence claim against the remaining defendants.
To properly state a claim under 42 U.S.C. § 1983 for depravation of medical treatment in violation of the Eighth Amendment, a plaintiff must show that the defendant acted with "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. ...