The opinion of the court was delivered by: Judge Jones
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
The plaintiff, Richard Simmons ("Plaintiff" or "Simmons"), an inmate incarcerated at the State Correctional Institution in Dallas, Pennsylvania ("SCI-Dallas"), proceeding pro se, initiated this civil rights actions pursuant to 42 U.S.C. § 1983 ("§ 1983") by filing a complaint in the United States District Court for the Middle District of Pennsylvania on December 23, 2004. (See Rec. Doc. 1).
This case was referred to Magistrate Judge Blewitt for preliminary review. On February 14, 2005, we adopted the Magistrate Judge's report and recommendation. (Rec. Docs. 7, 9). Accordingly, the case is only proceeding with respect to Plaintiff's First Amendment retaliation claim against Defendant Flick and his due process claim against Defendant McGrady.
On July 20, 2005, Plaintiff filed a Motion for Partial Summary Judgment and on July 25, 2005, both remaining Defendants filed a Cross-motion for Summary Judgment. Although Plaintiff did not file a brief in opposition to Defendants' Summary Judgment Motion, the Magistrate Judge deemed Plaintiff as opposing it, and considered the parties' Summary Judgment Motions on the merits in his February 10, 2006 report. (Rep. & Rec. at 3). In his February 10, 2006 report, the Magistrate Judge recommended that Defendants' Motion for Summary Judgment be granted as to both remaining claims, Plaintiff's First Amendment retaliation claim against Defendant Flick and Plaintiff's due process claim against Defendant McGrady. In addition, the Magistrate Judge recommended that Plaintiff's Motion for Partial Summary Judgment be denied and that judgment be entered in favor of Defendants in this case. (Rep. & Rec. at 24).
Objections to the Magistrate Judge's Report were due by March 2, 2006 and to date none have been filed. This matter is now ripe for disposition.
We initially note that 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." F.R.C.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. 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 325.
Rule 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 Corporation v. Catrett, 477 U.S. 317, 322-23 (1986).
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 North America, 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). "As to materiality, the substantive law will identify which facts are material." Id. at 248. A dispute is considered to be genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
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 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, 149-50 (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 ...