United States District Court, M.D. Pennsylvania
September 26, 2005.
KEITH BARTELLI, Plaintiff,
FRITZ BLEICH, et al., Defendants.
The opinion of the court was delivered by: EDWIN KOSIK, Senior District Judge
Before this court is the Report and Recommendation issued by
United States Magistrate Judge Thomas M. Blewitt granting the
defendant's motion for summary judgment and motion for judgment
on the pleadings. (Doc. 72). For the reasons that follow, we will
adopt the Report and Recommendation of the Magistrate Judge and
grant the defendant's motion for summary judgment and motion for
judgment on the pleadings.
Keith Bartelli (hereinafter "Plaintiff"), an inmate at the
State Correctional Institution at Dallas, Pennsylvania
(SCI-Dallas), filed this civil rights action on April 26, 2004,
pursuant to 42 U.S.C. § 1983. (Doc. 1). The named defendants were
Fritz Bleich, John Galabinski, Gibbon, Sgt. William Lewis, and
Donald Jones. In his complaint, Plaintiff claims: (1) that
defendant Bleich filed a false misconduct report against him; (2)
that the defendant continually harassed Plaintiff between July
2001 and April 2002 in retaliation for Plaintiff's filing a
criminal complaint against defendant Bleich in February of 2002;
and, (3) that the defendant harassed and threatened Plaintiff in
retaliation for Plaintiff's filing a grievance against defendant Bleich on June 4, 2003.
The case was assigned to Magistrate Judge Thomas M. Blewitt
who, on March 27, 2004, issued a Report and Recommendation
recommending the dismissal of all of the defendants except Fritz
Bleich. Magistrate Judge Blewitt determined that Plaintiff failed
to assert specific allegations against any other defendants and
that Plaintiff's allegations were inadequate to support a
conspiracy claim. Magistrate Judge Blewitt also recommended that
claims one and two be dismissed as time-barred, leaving only
claim three to proceed against defendant Bleich. By Memorandum
and Order dated October 29, 2004, this court adopted in part the
Report and Recommendation of Magistrate Judge Blewitt, dismissing
all defendants other than Fritz Bleich, but allowing all three
claims to proceed against defendant Bleich.
Defendant Bleich filed a motion for summary judgment or for
judgment on the pleadings on May 26, 2005. The defendant argued
that Plaintiff's first claim should be dismissed as time-barred
by the statute of limitations, that judgment should be entered in
the defendant's favor on the second claim because Plaintiff
failed to exhaust his administrative remedies, and that Plaintiff
had not met the standard necessary to support his third
retaliation claim. Plaintiff filed a response brief on August 3,
2005, arguing that genuine issues of material fact remained
regarding the retaliation claims. On August 18, 2005, Magistrate
Judge Blewitt issued a Report and Recommendation suggesting that
this court grant defendant Bleich's motion for summary judgment
on Plaintiff's first two claims and recommending that the
alternative motion for judgment on the pleadings be granted with respect to Plaintiff's third claim. Regarding the third
claim, Magistrate Judge Blewitt determined that defendant
Bleich's alleged misconduct did not rise to the level of "adverse
action," a requisite element of a 42 U.S.C. § 1983 retaliation
claim. Neither Plaintiff nor defendant Bleich filed objections to
the Report and Recommendation.
Standard of Review Summary Judgment
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
When ruling on a motion for summary judgment, the court must view
the record in a light most favorable to the non-moving party.
Skerski v. Time Warner Cable Co., 257 F.3d 273, 278 (3d Cir.
2001). Moreover, the court must draw all reasonable inferences in
favor of the non-movant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986).
The burden rests with the moving party to demonstrate that
there is no genuine issue of material fact. Thereafter, the
non-moving party must counter with evidence that supports each
essential element of his or her claim. Skerski, 257 F.3d at 278
(citing Pittston Co. Ultramar Am. Ltd. v. Allainz Ins. Co.,
124 F.3d 508, 515 (3d Cir. 1997)). The non-moving party must do "more
than simply show that there is some metaphysical doubt as to the
material facts," and where the record taken as a whole could not
allow a rational fact-finder to find in favor of the nonmoving party, summary judgment is appropriate. Matsushita Elec. Indus.
Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
Standard of Review Motion for Judgment on the Pleadings
"A motion for judgment on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c) is subject to the same standard as
a Rule 12(b)(6) motion to dismiss. Therefore, viewing all of the
facts in a light most favorable to the non-moving party and
accepting as true the allegations in that party's pleadings and
as false all controverted assertions of the movant, the court may
only grant the motion if it is beyond doubt that the non-movant
can plead no facts that would support his claim for relief."
Constitution Bank v. DiMarco, 815 F.Supp. 154, 157 (E.D.Pa.
1993) (citing United States v. Wood, 925 F.2d 1580 (7th Cir.
1991); Haynesworth v. Miller, 820 F.2d 1245, 1249, note 11
(D.C. Cir. 1987); International Paper Company v. Inhabitants of
the Town of Jay, 736 F.Supp. 359 (D.Me. 1990)).
Review of Report and Recommendation
If no objections are filed to a Magistrate Judge's Report and
Recommendation, the Court need not conduct a de novo review of
plaintiff's claims. 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn,
474 U.S. 140, 150-53, 106 S.Ct. 466 (1985). Nonetheless, the
usual practice of the district court is to give "reasoned
consideration" to a magistrate judge's report prior to adopting
it. Henderson v. Carlson, 812 F.2d 874, 878 (3rd Cir.
Having examined the Magistrate Judge's Report and
Recommendation, we agree with his recommendation to grant
defendant Bleich's motion for summary judgment and motion for
judgment on the pleadings. We concur with the Magistrate Judge's analysis of the issues raised in the
defendants's motion and find the Magistrate Judge's review of the
record to be comprehensive. Specifically, we agree with the
Magistrate Judge's conclusion that claim one of Plaintiff's
complaint is time-barred and that claim two of the complaint
should be dismissed as Plaintiff failed to exhaust his
administrative appeals following the rejection of his July 18,
2002 grievance. This court will not restate the law and analysis
regarding the first two claims of Plaintiff's complaint as they
were set forth fully by the Magistrate Judge in his Report and
We further hold that judgment be entered in the defendant's
favor on Plaintiff's third claim as Plaintiff's assertions of
verbal abuse do not constitute "adverse action" sufficient to
support a 42 U.S.C. § 1983. A prisoner alleging that prison
officials have retaliated against him for exercising a
constitutional right must prove that: 1) the conduct in which he
was engaged was constitutionally protected; 2) he suffered
"adverse action" at the hands of prison officials; and, 3) his
constitutionally protected conduct was a substantial or
motivating factor in the decision to discipline him. Carter v.
McGrady, 292 F.3d 152, 158 (3d Cir. 2002) (citing Rauser v.
Horn, 241 F.3d 330, 333 (3d Cir. 2001)). The "adverse action"
requirement is satisfied if the prisoner plaintiff can
demonstrate that the defendant's action "was sufficient to deter
a person of ordinary firmness from exercising his
[constitutional] rights." Rauser, 241 F.3d at 333 (internal
quotations and citations omitted). In Rauser, the Third Circuit
held that the prison officials' actions in denying the plaintiff
parole, transferring him to a distant prison where his family
could not visit him regularly, and penalizing the prisoner
financially constituted an "adverse action" sufficient to overcome the defendants' motion
for summary judgment. In another retaliation case, the Eastern
District ruled that negative parole recommendations could
constitute an "adverse action. " Wolfe v. Pennsylvania Dep't of
Corrections, 334 F.Supp.2d 762, 774 (E.D.Pa. 2004). Recently, in
Montgomery v. M.E. Ray, et al., 2005 WL 1995084 (3d Cir. 2005),
the Third Circuit held that sanctioning a prisoner with 365 days
loss of telephone privileges was an adverse action "sufficient to
deter a person of ordinary firmness from exercising his First
Amendment rights." Id. at 3.
In the instant case, Plaintiff complains that the defendant
verbally harassed and threatened him after Plaintiff filed a
grievance and a criminal complaint against defendant Bleich.
Plaintiff provides no evidence, other than his own assertions,
that defendant Bleich made any oral threats. Accepting
Plaintiff's contentions as true, he has failed to support the
second prong of the retaliation analysis. Unlike negative parole
recommendations, the loss of visitation or phone rights, and a
transfer to a facility far from the prisoner's family, mere
verbal threats cannot be viewed as an "adverse action" sufficient
to deter a person of ordinary firmness from exercising his First
Amendment Rights. As the Magistrate Judge noted, the copiousness
of Plaintiff's civil rights lawsuits and complaints against
prison officials belie any assertion that defendant Bleich's
alleged threats affected Plaintiff's exercising his First
Amendment Rights.*fn1 Absent an allegation of "adverse
action" on the part of defendant Bleich, Plaintiff cannot make out a
prima facie case of retaliation. See Rauser, 241 F.3d at 333
(holding prisoner litigating a retaliation claim must show he
suffered some "adverse action" at hands of prison officials). We
will adopt Magistrate Judge Blewitt's recommendation to grant the
defendant's motion for judgment on the pleadings as to claim
three of Plaintiff's complaint. See Constitution Bank,
815 F.Supp. at 157 (holding court may only grant motion for judgment
on the pleadings if it is beyond doubt that the non-movant can
plead no facts that would support his claim for relief).
Because we find that the Magistrate Judge adequately addressed
the issues raised by the defendant, we will adopt the Magistrate
Judge's recommendation and grant the defendant's motion for
summary judgment and judgment on the pleadings. Plaintiff's first
claim is time-barred by the statute of limitations. Claim two of
the complaint must fail as Plaintiff failed to exhaust his
administrative appeals following the rejection of his July 18,
2002 grievance. Finally, Plaintiff's third claim neglects to
allege an "adverse action" necessary to pursue a claim for
retaliation. Having given "reasoned consideration" to Magistrate
Judge Blewitt's Report and Recommendation, we will adopt the
Report and Recommendation and grant the defendant's motion for
summary judgment as to claims one and two of Plaintiff's
complaint, and grant the defendant's motion for judgment on the
pleadings with regard to Plaintiff's third claim. See
Henderson, 812 F.2d at 878 (holding general practice is for
court to give reasoned consideration to Report and Recommendation where no objections are filed). The case will be
closed as no claims remain against any defendants. ORDER
AND NOW, this 26th day of September, 2005, IT IS HEREBY
 the Report and Recommendation of Magistrate Judge Thomas M.
Blewitt dated August 18, 2005 (Doc. 72) is adopted;
 the defendant's motion for summary judgment is granted as
to claims one and two of the plaintiff's complaint;
 the defendant's alternative motion for judgment on the
pleadings is granted as to claim three of the complaint;
 judgment is entered in favor of defendant, Fritz Bleich,
and against the plaintiff, Keith Bartelli, on all claims; and,
 the Clerk of Court is directed to close this case, and
forward a copy of this Memorandum and Order to the Magistrate
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