United States District Court, M.D. Pennsylvania
September 29, 2005.
MELVIN X. LINDSAY, Plaintiff,
JOSEPH W. CHESNEY, JOHN SOMMERS, CHARLES ERICKSON, DAVID WILDE, Captain, J.R. BUBB, OMAR HAMILTON, JOHN MACK, JEFFREY BEARD, and MICHAEL FARNAN, Chief Counsel, Defendants.
The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
We are considering the report of the magistrate judge, dated
July 27, 2005, recommending that Defendants' motion for summary
judgment be granted. The pro se plaintiff, Melvin X. Lindsay, an
inmate at FCI-Fayette, LaBelle, Pennsylvania, filed this action,
alleging that Defendants retaliated against him by transferring
him from SCI-Retreat after he tried to assert his First Amendment
right to practice his Nation of Islam faith. Defendants' position
is that Plaintiff was transferred after he was discovered
attempting to engage in unauthorized group activities.
Plaintiff did not oppose summary judgment, but has filed
objections and a motion for return of legal materials and to interview a witness. Both filings are concerned with Plaintiff's
allegations that legal material was taken from him, including a
list of witnesses, on March 24, 2005, that makes summary judgment
improper at this time. We disagree and will adopt the magistrate
This action was filed on January 26, 2004. Defendants filed an
answer on April 22, 2004. Thereafter, both sides sought
extensions of time to complete discovery. Eventually, Defendants
moved for an extension of time to file a dispositive motion, and
then to file documents in support of their summary-judgment
motion. These requests were granted.
Thereafter, Plaintiff twice sought an extension of time to
oppose summary judgment. The first extension motion was filed on
March 28, 2005, and sought an extension to May 2, 2005,
representing that Plaintiff needed this time to review case law
and obtain affidavits. This extension was granted. The second
extension motion was filed on April 26, 2005, and sought ninety
additional days, representing that prison officials had
confiscated legal materials on March 24, 2005, including a list
of witnesses. The magistrate judge granted a thirty-day
extension, noting that no further time would be granted.
Plaintiff filed nothing in opposition to the summary-judgment
motion, and the magistrate judge then filed his report
recommending summary judgment in Defendants' favor. Plaintiff's objections to the report are essentially that
Defendants prevented him from using his "legal material" to
oppose summary judgment and that he should be allowed to depose,
or obtain an affidavit from, an inmate witness relevant to
Plaintiff's supposed infraction of attempting to engage in
unauthorized group activities. Neither reason is sufficient to
reject the magistrate judge's recommendation.
As to the legal material, Plaintiff does not specify what this
legal material is. Second, as to the witness, Plaintiff does not
say why the witness's evidence was not obtained during the normal
discovery period or during the sixty additional days the
magistrate judge allowed. Further, Plaintiff asserts the witness
would say that "inmates at Retreat were permitted to come
together in groups of 10, and that on or about 5-11-03, defendant
Wilde, stood amongst such a group and listened and spoke for
about 10 or 15 min., and afterwards, he advised us and
corrections officers' (sic) that we were no problem." (Doc. 64 at
2). This does nothing to establish an element of Plaintiff's
retaliation claim, nor does it create an issue of fact, since it
relates to only one meeting and Plaintiff was charged in June
2003 with having committed the infraction.
Accordingly, this 29th day of September, 2005, upon
consideration of the report (doc. 62) of the magistrate judge,
filed July 27, 2005, and the objections that were filed, and upon
independent review of the record, it is ordered that: 1. The magistrate judge's report is adopted.
2. Plaintiff's motion (doc. 64) to compel return of
legal material and interview witness is dismissed as
3. Defendants' motion (doc. 49) for summary judgment
4. The Clerk of Court shall enter judgment in favor
of Defendants and against Plaintiff and close this
© 1992-2005 VersusLaw Inc.