The opinion of the court was delivered by: Judge Caputo
Presently before the Court is Magistrate Judge J. Andrew Smyser's Report and Recommendation (Doc. 34), Plaintiff William R. Underwood's Objection to the Magistrate Judge's Recommendations (Doc. 35) and Defendants Jake Mendez, Richard Matlack and R.L. Wolever's Partial Objection to the Report And Recommendation (Doc. 36). Defendants filed a reply to Plaintiff's Objections. (Doc. 37) Magistrate Judge Smyser recommended that Defendants' Motion to Dismiss And For Summary Judgment (Doc. 28) be granted in part and dismiss in part. For the reasons set forth below, the Court will adopt the Report and Recommendation, and the case will be recommitted to Magistrate Judge Smyser for further pre-trial proceedings.
Magistrate Judge Smyser's Report and Recommendation contains a full and complete recitation of the facts concerning the instant matter. (Doc. 34) Consequently, the Court will only briefly set forth those facts salient to the resolution of Plaintiff and Defendants' objections to the Report and Recommendation.
On September 9, 2005, Magistrate Judge Smyser issued a Report and Recommendation (Doc. 34) on Defendants' Motion to Dismiss and for Summary Judgment (Doc. 28). In his Report and Recommendation, Magistrate Judge Smyser proposed that Defendants' Motion be granted in part and denied in part. (Id. at 4)Defendants' Motion asked that the following claims be dismissed and/or summary judgment granted in favor of Defendants: (1) claim that Defendants falsified information on a progress report because Plaintiff has failed to exhaust his administrative remedies; (2) claim that Defendants' transfer of Plaintiff was unconstitutional because the transfer was not based on any constitutional violations and in any event Defendants are entitled to qualified immunity; and (3) claim against former warden Jake Mendez because there was no personal involvement. Magistrate Judge Smyser recommends that Defendants' motion to dismiss "be denied as to the claim of the [P]laintiff that [D]efendants Mendez and Matlack caused the [P]laintiff to be transferred to another prison in retaliation for the exercise by the [P]laintiff of his right of access to the court. It is recommended that the [D]efendants' motion to dismiss the complaint otherwise be granted." (Id.) Where Magistrate Judge Smyser denied Defendant's motion to dismiss, he addressed whether summary judgment should be granted in Defendants' favor on some of those issues. Specifically, Magistrate Judge Smyser ruled that "[P]laintiff did exhaust his administrative remedies on his claims of an unlawful transfer on the basis of racial discrimination and on the basis of unlawful retaliation for the exercise of the right of access to the courts." (Doc. 34 at 8.)
Both Plaintiff and Defendants filed timely objections. In his objections, Plaintiff asks the Court to reconsider Magistrate Judge Smyser's recommendation as to (1) Plaintiff's failure to state the materiality of the content of Plaintiff's progress report in relation to his retaliation claim and (2) Plaintiff's failure state a claim of discrimination based upon race upon which relief can be granted. (Doc.35 at 2-3) Defendants ask the Court to reconsider Magistrate Judge Smyer's recommendation as to the exhaustion requirement of Plaintiff's claims of conspiracy and falsification of a progress report. (Doc. 36-1 at 1) The matter is fully briefed and ripe for disposition.
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).
2. Motion to Dismiss: Rule 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting all factual allegations in the complaint as true and "drawing all reasonable inferences in the plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations in the complaint." Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998).
In deciding a motion to dismiss, a court should consider the allegations in the complaint, exhibits attached to the complaint and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The court may also consider "undisputedly authentic" documents where the plaintiff's claims are based on the documents and the defendant has attached a copy of the document to the motion to dismiss. Id. The court need not assume that the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998), nor credit a complaint's "bald assertions" or "legal conclusions." Morse v. Lower Marion School District, 132 F.3d 902, 906 (3d Cir. 1997).
When considering a Rule 12(b)(6) motion, the court's role is limited to determining whether the plaintiff is entitled to offer evidence in support of the claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court does not consider whether the plaintiff will ultimately prevail. See id. In order to survive a motion to dismiss, the plaintiff must set forth information from which each element of a claim may be inferred. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The defendant bears the burden of establishing that the plaintiff's ...