The opinion of the court was delivered by: JOHN JONES III, District Judge
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
The plaintiff, Brian N. Baker ("Plaintiff" or "Baker"), a
prisoner proceeding pro se, commenced this 42 U.S.C. § 1983 ("§
1983") action by filing a complaint in the United States District
Court for the Middle District of Pennsylvania on February 8,
2005. (See Rec. Doc. 1). The case was referred to Magistrate
Judge J. Andrew Smyser for preliminary review.
On April 29, 2005, Defendant Newton filed a Motion to Dismiss
the complaint or alternatively for Summary Judgment, a statement
of undisputed material facts, and a brief in support of his
Motion. The same day, Defendant Newton filed a Motion to Submit
an Exhibit Appendix to his Motion to Dismiss or for Summary Judgment under seal, which the Magistrate Judge
granted as per a July 14, 2005 Order. (Rep. & Rec. at 4-5; Rec.
Doc. 51). On July 22, 2005, Defendant Newton filed his appendix
exhibit under seal and filed a redacted Motion to Dismiss or for
Summary Judgment. The redacted Motion to Dismiss or for Summary
Judgment has been briefed by the parties and is therefore ripe
On September 13, 2005, Magistrate Judge Smyser issued a report
recommending that Defendant Newton's Motion to Dismiss or for
Summary Judgment (doc. 25) be denied as moot, and that Defendant
Newton's redacted Motion to Dismiss or for Summary Judgment (doc.
54) be granted in part and denied in part. The Magistrate Judge
recommends that Defendant Newton's redacted Motion to Dismiss be
denied but that Defendant Newton's redacted Motion for Summary
Judgment be granted. He also recommends that the case be remanded
for further proceedings. (See Rep. & Rec. at 19-20).
Objections to the report were due on September 30, 2005 and to
date none have been filed.
When no objections are made to a magistrate's report, the
district court is not statutorily required to review a magistrate
judge's report before accepting it. See Thomas v. Arn, 474 U.S. 140, 149 (1985). According to the
Third Circuit, however, "the better practice is to afford some
level of review to dispositive legal issues raised by the
report." Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.
1987). When a district court accepts a magistrate judge's report,
the report becomes the judgment of the court. Id.
In considering a motion to dismiss, a court must accept the
veracity of a plaintiff's allegations. See Scheuer v. Rhodes,
416 U.S. 232, 236 (1974); see also White v. Napoleon,
897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver, 82 F.3d 63, 65
(3d Cir. 1996), our Court of Appeals for the Third Circuit added
that in considering a motion to dismiss based on a failure to
state a claim argument, a court should "not inquire whether the
plaintiffs will ultimately prevail, only whether they are
entitled to offer evidence to support their claims." Furthermore,
"a complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to
relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see
also District Council 47 v. Bradley, 795 F.2d 310 (3d Cir.
Summary judgment is appropriate if "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); see
also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary judgment bears
the burden of showing "there is no genuine issue for trial."
Young v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary
judgment should not be granted when there is a disagreement about
the facts or the proper inferences which a fact finder could draw
from them. See Peterson v. Lehigh Valley Dist. Council,
676 F.2d 81, 84 (3d Cir. 1982).
Initially, the moving party has a burden of demonstrating the
absence of a genuine issue of material fact. Celotex Corporation
v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the
moving party pointing out to the court that there is an absence
of evidence to support an essential element as to which the
non-moving party will bear the burden of proof at trial. Id. at
Federal Rule of Civil Procedure 56 provides that, where such a
motion is made and properly supported, the non-moving party must
then show by affidavits, pleadings, depositions, answers to
interrogatories, and admissions on file, that there is a genuine
issue for trial. Fed.R.Civ.P. 56(e). The United States Supreme
Court has commented that this requirement is tantamount to the
non-moving party making a sufficient showing as to the essential
elements of their case that a reasonable jury could find in its
favor. Celotex Corp., 477 U.S. at 322-23.
It is important to note that "the non-moving party cannot rely
upon conclusory allegations in its pleadings or in memoranda and
briefs to establish a genuine issue of material fact." Pastore
v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994)
(citation omitted). However, all inferences "should be drawn in
the light most favorable to the non-moving party, and where the
non-moving party's evidence contradicts the movant's, then the
non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW
of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert.
denied, 507 U.S. 912 (1993) (citations omitted).
Still, "the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original). "As to materiality, the substantive law will identify
which facts are material." Id. at 248. A dispute is considered
to be ...