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BARTELLI v. BLEICH

December 8, 2005.

KEITH BARTELLI, Plaintiff,
v.
FRITZ BLEICH, et al., Defendants.



The opinion of the court was delivered by: EDWIN KOSIK, Senior District Judge

MEMORANDUM

Before this court is the plaintiff's "Objection to Report and Recommendation," filed on November 14, 2005 (Doc. 74), as well as his "Application For a Bill of Judicial Review" and "Re: Receipt of Returned Documents By The Clerk Of Court For Middle District Regarding Notification Of Governmental Interference With Access To The Court In The Matters Of 3:CV-900, 907, 908, 909, and 910," filed on November 23 and 25, 2005 (Doc. 75 and 76), construed together as a motion for reconsideration. For the reasons that follow, we will dismiss the plaintiff's Objections, deny his motion for reconsideration, and will let stand our September 26, 2005 order entering judgment in favor of the defendant and closing this case.

FACTUAL HISTORY

  On April 26, 2004, plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 1983, against Fritz Bleich, John Galabinski, Gibbon, Sgt. William Lewis, and Donald Jones, all staff members at the State Correctional Institution at Dallas, Pennsylvania (SCI Dallas). On April 28, 2004, this court issued a Standing Practice Order informing the plaintiff, among other procedural issues, of his obligation to notify the court in the event that he is transferred to a new prison. (Doc.6). The matter was assigned to United States Magistrate Judge Thomas M. Blewitt. On October 29, 2004, this court adopted in part the Report and Recommendation of Magistrate Judge Blewitt, and dismissed all defendants other than Fritz Bleich.

  The remaining defendant filed a motion for summary judgment or for judgment on the pleadings on May 25, 2005. (Doc. 57). Both parties briefed the motion for summary judgment. (Docs. 66 and 69). Magistrate Judge Blewitt issued a Report and Recommendation on August 18, 2005, suggesting that this court grant defendant Bleich's motion for summary judgment on the plaintiff's first two claims and recommending that the alternative motion for judgment on the pleadings be granted with respect to the plaintiff's third claim. (Doc. 72). Neither the plaintiff, nor the defendant filed timely objections to the Report and Recommendation. On September 26, 2005, this court signed an order adopting Magistrate Judge Blewitt's Report and Recommendation, entering judgment in the defendant's favor, and closing the case. (Doc. 73).

  On October 5, 2005, Bartelli filed a notice of change of address, indicating that he had been transferred from SCI Dallas to SCI Huntingdon. Bartelli filed another document on October 5, 2005, alleging that staff at both SCI Huntingdon and SCI Dallas interfered with his legal mail, and requesting an extension of time, until roughly October 8, 2005, to file objections to the various Report and Recommendations entered in his numerous 42 U.S.C. § 1983 lawsuits before this court. Neither the change of address, nor the document alleging interference with the plaintiff's mail referenced any case by name or provided a docket number.*fn1

  On November 14, 2005, the plaintiff filed a document entitled "Objection to Report and Recommendation." (Doc. 74). The plaintiff filed an "Application For a Bill of Judicial Review" on November 23, 2005. (Doc. 75). Finally, on November 25, 2005, the plaintiff filed two letters with this court in which he again complained that staff at SCI Huntingdon interfered with his legal mail. (Doc. 76). The plaintiff dated the letters November 17, 2005, and labeled the document, "Re: Receipt of Returned Documents By The Clerk Of Court For Middle District Regarding Notification Of Governmental Interference With Access To The Court In The Matters Of 3:CV-04-0900, 0907, 0908, 0909, and 0910." Bartelli also filed his own affidavit with documents that he claims support his claims of governmental interference. (Doc. 76, Exhibits). We will construe the November 23 and 25, 2005 filings together as a motion for reconsideration of this court's September 26, 2005, order entering judgment in favor of the defendant.*fn2

  DISCUSSION I. Objections to the Report and Recommendation

  Local Rule 72.3 requires that a party file objections to a Report and Recommendation of a Magistrate Judge within ten (10) days of being served with a copy of the Report and Recommendation. In this case, Bartelli had ten days from August 18, 2005, to file objections with the court. The plaintiff did not file Objections within the time allotted by the Local Rules. In the plaintiff's October 5, 2005, request for an extension he indicated that he was aware that Report and Recommendations had been filed in some of his cases. He also noted that he intended to file Objections thereto by October 8, 2005. The plaintiff presents no justification for failing to timely object to the Report and Recommendation or explaining why he did not file Objections by October 8, 2005, as indicated in his October 5, 2005, request for extension of time.*fn3

  Bartelli's transfer from SCI Dallas to SCI Huntingdon is not a valid justification for his failure to object to the Report and Recommendation within the time allotted by the Local Rules. It is a prisoner plaintiff's obligation to notify the court in the event that he is transferred from one facility to another. This plaintiff does not appear to have timely notified the court of his transfer from S.C.I. Dallas to S.C.I. Huntingdon, despite the fact that he was provided with a Standing Practice Order on April 28, 2004, informing him of his obligation to notify the court in the event that he was transferred to a new prison. (Doc.6). He cannot now be heard to complain that his transfer to SCI Huntingdon somehow affected his ability to file Objections. Accordingly, the plaintiff's objections should be overruled as out of time.

  Even if we accept the plaintiff's Objections at this time, we would not alter our September 26, 2005, order adopting Magistrate Judge Blewitt's Report and Recommendation.*fn4 We adopted the Report and Recommendation and granted the motion for summary judgment or for judgment on the pleadings as the defendant established: (1) claim one of the plaintiff's complaint was time-barred by the applicable statute of limitations; (2) the plaintiff failed to exhaust his administrative remedies with regard to claim two of the complaint; and, (3) the plaintiff's third claim failed to state a cognizable claim in that his assertions of verbal abuse did not constitute "adverse actions" sufficient to support a 42 U.S.C. § 1983 claim. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (holding prisoner litigating a retaliation claim must show he suffered some "adverse action" at hands of prison officials). Bartelli's present Objections fail to present any evidence to contradict that proffered by the defendant in support of his motion for summary judgment or for judgment on the pleadings. Rather, Bartelli's Objections merely restate allegations of misconduct on the part of the defendant and other S.C.I. Dallas staff. He additionally argues that his first claim is not time-barred, that he exhausted all administrative remedies regarding his second claim, but that all records were destroyed or lost, and that the defendant's conduct complained of in his third claim did rise to the level of "adverse actions." Accepting the allegations in the third claim of plaintiff's complaint as true, we nonetheless find that his assertions of misconduct do not constitute "adverse actions" sufficient to support a 42 U.S.C. § 1983 claim. Viewing the facts in the light most favorable to Bartelli, we arrive at the same conclusion: claim one of the plaintiff's complaint is time-barred and the plaintiff failed to exhaust his administrative remedies with regard to his second claim. Therefore, if received within the time allotted by the Local Rule 72.3, Bartelli's Objections would not have altered our order of September 26, 2005, adopting the Report and Recommendation of Magistrate Judge Blewitt and entering judgment in favor of the defendant.

  II. Motion For Reconsideration

  A motion for reconsideration is a device of limited utility. It may be used only to correct manifest errors of law or fact, or to present newly discovered precedent or evidence which, if discovered previously, might have affected the court's decision. Harsco Corp. V. Zlotnicki, 779 F.2d 906 (3d Cir. 1985). It has also been held that a motion for reconsideration is appropriate in instances where the court has "misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning, but of apprehension." Rohrbach v. AT&T Nassau Metals Corp., 902 F. Supp. 523, 27 (M.D. Pa. 1995), vacated in part on other grounds, 915 F. Supp. 712 (M.D. Pa. 1996). "Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." Continental Casualty Co. v. Diversified Indus. Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995). Local Rule 7.10 requires that motions for reconsideration be filed within ten (10) days after the entry of the order at issue.

  In this case, the plaintiff failed to file his motion for reconsideration within ten days of this court's September 26, 2005, order. Moreover, Mr. Bartelli cites no recent precedent that would compel this court to revisit the September 26, 2005, order. The plaintiff fails to offer any newly discovered evidence that, if discovered previously, may have affected our decision. Rather, the plaintiff merely restates the arguments found in his various responses to the defendant's motion for summary judgment and other previous filings. Finally, there is no support for the plaintiff's claims that the authorities at SCI Dallas and SCI Huntingdon obstructed his legal mail. Even if such allegations were accepted as valid, the ...


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