The opinion of the court was delivered by: A. CAPUTO, District Judge
Presently before the Court is Magistrate Judge Malachy E.
Mannion's Report and Recommendation (Doc. 70), Plaintiffs Sharon
L. Mullins, David Kramer and William Hess' Objections to the
Magistrate Judge's Report and Recommendation (Doc. 74) and
Defendant Raymond A. Smith's Response to Plaintiffs' Objections
to the Report and Recommendation (Doc. 77). Plaintiffs filed a
reply to Defendant's Response. (Doc. 78) Magistrate Judge Mannion
recommended that the Court grant Defendant's motion for summary
judgment. For the reasons set forth below, the Court will reject
the Report and Recommendation, and the case will be remanded to
Magistrate Judge Mannion for further consideration of Defendant's
motion for summary judgment consistent with this opinion.
Magistrate Judge Mannion's Report and Recommendation contains a
full and complete recitation of the facts concerning the instant
matter. (Doc. 70) Consequently, the Court will only briefly set
forth those facts salient to the resolution of Plaintiffs' objections to the Report and Recommendation.
On January 30, 2004, Magistrate Judge Mannion issued a Report
and Recommendation. (Doc. 65) In his Report and Recommendation,
Magistrate Judge Mannion proposed that Defendant's motion for
summary judgment be granted. Id. He opined that Defendant's
motion for summary judgment should be granted as Plaintiffs
failed to show that their speech was chilled or intimidated by
Defendant's retaliatory actions. No objections were filed and on
March 5, 2004, the Court issued an order adopting the Report and
Recommendation. (Doc. 66) On March 11, 2005, the Court was
notified of Plaintiffs' non-receipt of the Report and
Recommendation (Doc. 73) and consequently, the Court vacated its
previous order adopting the Report and Recommendation (Doc.68).
Magistrate Judge Mannion's Report and Recommendation was reissued
and served to Plaintiffs. (Doc. 70) Plaintiffs filed timely
objections to which Defendant replied. In their objection,
Plaintiffs ask the Court not to grant Defendant's motion for
summary judgment. (Doc.74) The matter is fully briefed and ripe
1. Magistrate Judge's Report and Recommendation
Where objections to the magistrate judge's report are filed,
the Court must conduct a de novo review of the contested
portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106
n. 3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(C)), provided
the objections are both timely and specific, Goney v. Clark,
749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review,
the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate
judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard,
829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo,
the statute permits the Court to rely on the recommendations of
the magistrate judge to the extent it deems proper. See
United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney,
749 F.2d at 7; Ball v. United States Parole Comm'n,
849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may
be reviewed at a standard determined by the district court. See
Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7.
At the very least, the Court should review uncontested portions
for clear error or manifest injustice. See, e.g., Cruz v.
Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).
Summary judgment is appropriate if "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 that the moving party is entitled to a
judgment as a matter of law." FED. R. CIV. P. 56 (c). A fact is
material if proof of its existence or non-existence might affect
the outcome of the suit under the applicable substantive law.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party
need only establish that it is entitled to judgment as a matter
of law. Where, however, there is a disputed issue of material
fact, summary judgment is appropriate only if the factual dispute
is not a genuine one. See id. at 248. An issue of material fact
is genuine if "a reasonable jury could return a verdict for the
nonmoving party." Id. Where there is a material fact in dispute, the moving party has
the initial burden of proving that (1) there is no genuine issue
of material fact; and (2) the moving party is entitled to
judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHUR.
MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed.
1983). The moving party may present its own evidence or, where
the nonmoving party has the burden of proof, simply point out to
the court that "the nonmoving party has failed to make a
sufficient showing of an essential element of her case." Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
All doubts as to the existence of a genuine issue of material
fact must be resolved against the moving party, and the entire
record must be examined in the light most favorable to the
nonmoving party. See White v. Westinghouse Elec. Co.,
862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its
initial burden, the burden shifts to the nonmoving party to
either present affirmative evidence supporting its version of the
material facts or to refute the moving party's contention that
the facts entitle it to judgment as a matter of law. See
Anderson, 477 U.S. at 256-257.
The court need not accept mere conclusory allegations or
denials taken from the pleadings. See Schoch v. First Fidelity
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). In deciding a
motion for summary judgment, "the judge's function is not himself
to weigh the evidence and determine the truth of the matter ...