The opinion of the court was delivered by: Magistrate Judge Baxter
On February 28, 2003, Plaintiff James Murray, acting pro se, filed the instant action. This matter was assigned to United States District Judge Sean J. McLaughlin and was referred to United States Magistrate Judge Susan Paradise Baxter for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.
On February 14, 2006, the parties filed a Consent to the Jurisdiction of this Magistrate Judge. District Judge Sean J. McLaughlin granted the consent, andajury trial was scheduled for March 14, 2006. Plaintiff did not appear for trial and has not been heard from since he signed the consent form in February.
A. The Procedural History
The procedural history of this matter is necessarily related herein.
On February 28, 2003, Plaintiff, acting pro se*fn1 , filed this civil rights case while he was incarcerated at the State Correctional Institution at Greene ("SCI-Greene") located in Waynesburg, Pennsylvania. He has since been released from custody and is living in Philadelphia (Docket # 9).
Plaintiff originally brought suit against seven defendants employed at the State Correctional Institution at Greene ("SCI Greene).*fn2 In the original complaint, Murray charged that on April 20, 2002, he was asked by a fellow inmate to assist him in preparing claims on his behalf resulting from an assault on the inmate. He claims that after they met in the law library for this purpose, Defendant Enders began calling Plaintiff a "rat" and verbally threatening him. Plaintiff filed a grievance against Enders and requested that Enders "be removed or and (sic) separated from me." (Document #3 at pg. 2 of attached statement). Thereafter, Plaintiff claimed that "Enders and others had made threats to harm me, denied me meals, took my properties or stealing of same, denied me access to needed legal material, and send other inmates to harm me." (Id.) Specifically, Plaintiff alleged: 1) Officer Enders assaulted him on two separate occasions and then wrote up false misconduct reports to cover them up; and 2) Officer Enders ordered another inmate to assault him in the shower with an "instrument" passed to the inmate from Enders or another officer. The other named Defendants were alleged to have violated Plaintiff's rights by not stopping this behavior toward him.
Shortly after the filing of his original complaint, Plaintiff filed an Amended Complaint that purported to add at least 10 more named defendants, as well as John Does. The Amended Complaint was filed pursuant to Rule 15, Fed.R.Civ.P., but Plaintiff never forwarded the required paperwork and copies to the U.S. Marshal Service to facilitate service of the additional defendants. As these new named defendants were never served, they have not been recognized by the Court as part of this action.
Plaintiff's Amended Complaint was 79 handwritten pages long. Much of the Amended Complaint, as has been seen in Plaintiff's other prisoner civil rights cases in this Court, was a diatribe on the general violation of his rights. On September 26, 2005, Plaintiff was ordered to file a new amended complaint that was strictly limited by page number. Plaintiff was ordered to describe his allegations in simple, concise and direct statements. Although Plaintiff's Second Amended Complaint was filed six days late, it totaled only four typed pages from which sixteen claims were gleaned. On February 7, 2006, the Court accepted the Report and Recommendation of this Magistrate Judge, and granted in part and denied in part Defendants' dispositive motion on this Amended Complaint. Six claims remained for trial, three based on alleged violations of Plaintiff's right against cruel and unusual punishment and three based on Plaintiff's right not to be retaliated against for filing lawsuits and grievances against prison personnel.
Judge Sean McLaughlin held a status conference on February 13, 2006, to set the case for trial. At that conference, Plaintiff complained that he should not be required to travel to Erie for trial because of its inconvenience. He also claimed that he would not be physically able to travel for some time as he had suffered a heart attack in January 2006 and had an unscheduled surgery upcoming. Nonetheless, Plaintiff agreed to consent to the jurisdiction of the Magistrate Judge for trial, as did Defendants.
Upon learning of Plaintiff's medical concerns, the Court requested documentation from Plaintiff or his physician regarding his status and an approximate date when trial could be scheduled. Plaintiff faxed the Court a certification from the Clara Maass Medical Center in Belleville, New Jersey, that he had been a patient there from January 31, 2006, to February 3, 2006. Discharge papers were attached to the certification. On these papers, Plaintiff's physician noted no travel restrictions, and, ...