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Bartelli v. Fedak

April 13, 2006

KEITH BARTELLI, PLAINTIFF,
v.
"TRADESMAN" FEDAK, DEFENDANT.



The opinion of the court was delivered by: Judge Kosik

MEMORANDUM

Before this court is, "Plaintiff's Brief In Support Of 60 (B) Motion," filed on March 13, 2006. (Doc. 107). For the reasons that follow, we will dismiss the plaintiff's motion, enter judgment in favor of the defendant, and close this case.

FACTUAL HISTORY

On April 26, 2004, the plaintiff filed this 42 U.S.C. § 1983 action against the present defendant and Michael Greigo, both of whom were staff members at the State Correctional Institution at Dallas, Pennsylvania (SCI Dallas). In his complaint, the plaintiff claims that "Tradesman" Fedak issued a "false and fabricated" misconduct report against the plaintiff (hereinafter "Bartelli" or "Plaintiff") on August 12, 2003, in retaliation for Bartelli's filing a formal grievance against defendant Fedak earlier in the day. (Doc. 1). The matter was assigned to United States Magistrate Judge Thomas M. Blewitt, who preliminarily screened the complaint pursuant to 28 U.S.C. § 1915(e)(2), and authored a Report and Recommendation on June 2, 2004. (Doc. 7). The Magistrate Judge suggested dismissing the claims against defendant, Michael Greigo. Magistrate Judge Blewitt determined that Bartelli failed to assert a cognizable § 1983 claim against Greigo.

(Doc. 7). On June 23, 2004, we adopted the Report and Recommendation of Magistrate Judge Blewitt and dismissed Bartelli's claims against Greigo. (Doc. 8).

The remaining defendant filed a motion for summary judgment on August 26, 2005. (Doc. 72). Both parties eventually briefed the motion. (Docs. 77, 78, 79, 93 and 94). In his brief in support of the motion for summary judgment, the defendant argued that Bartelli failed to exhaust his administrative remedies and failed to present facts sufficient to make out a claim for retaliation. (Doc. 78). In support of the motion, counsel for the defendant submitted two affidavits. (Doc. 79). In one affidavit, Fedak, a painting instructor at SCI-Dallas, asserts that he filed a misconduct against Bartelli after he overheard the latter tell another inmate that he was going to "bust [defendant] in the head" with an orange. (Doc. 79, Ex. B, ¶ 5). The defendant additionally asserts that at the time he issued the misconduct, he was unaware that Bartelli had filed a grievance against him. Id. The second affidavit is signed by Sharon Burks, Chief Grievance Officer of the Pennsylvania Department of Corrections. Ms. Burks avers that there are no records evidencing that Bartelli ever filed a grievance concerning the claims raised in this suit (Doc. 79, Ex. A).

On October 5, 2005, Bartelli filed a notice of change of address indicating that he had been transferred from SCI Dallas to SCI Huntingdon. (Doc. 83). 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 respond to the defendant's motion and 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 Plaintiff's mail referenced any case by name or provided any docket numbers.*fn1

Bartelli filed his own motion for summary judgment on December 6, 2005. (Doc. 95). Both parties briefed Bartelli's motion. (Docs. 96, 97, 99, and 101). Magistrate Judge Blewitt issued a Report and Recommendation on January 18, 2006, suggesting that we grant the defendant's motion for summary judgment, deny Bartelli's motion, and enter judgment in favor of the defendant. (Doc. 102). Specifically, the Magistrate Judge determined that: (1) Bartelli failed to exhaust the administrative remedies available to challenge the August 14, 2003, misconduct report; and, (2) Bartelli failed to establish a cause of action for retaliation as he never filed a grievance complaint against the defendant and because the defendant filed the misconduct report against Bartelli for unrelated, legitimate reasons.

On March 13, 2006, the plaintiff filed a document entitled "Plaintiff's Brief In Support Of 60 (B) Motion." (Doc.107). On March 15, 2006, Bartelli filed affidavits signed by two other prisoners that Bartelli contends support his claims of governmental interference. (Doc. 106). We will construe the March 13 and 15, 2006, filings together as objections to Magistrate Judge Blewitt's January 18, 2006, Report and Recommendation.*fn2

STANDARD OF REVIEW

When objections are filed to a Report and Recommendation of a Magistrate Judge, we must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. §636(b)(1); see Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). In doing so we may accept, reject or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. §636(b)(1); Local Rule 72.3. Although our review is de novo, we are permitted to rely upon the Magistrate Judge's proposed recommendations to the extent we, in the exercise of sound discretion, deem proper. United States v. Raddatz, 447 U.S. 667, 676 (1980). 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.

DISCUSSION

A. OBJECTIONS UNTIMELY

Pursuant to Local Rule 72.3, Bartelli had ten days from January 18, 2006, to file objections with the court. Plaintiff did not file Objections within the time allotted by the Local Rules. Rather, Bartelli waited eight weeks before filing what we have construed as objections on March 15, 2006. As noted in footnote one above, Bartelli is an experienced pro se litigant who has prosecuted over a dozen ยง 1983 lawsuits in this court. He cannot claim ignorance of Local Rule 72.3 as several of his prior cases were dismissed subsequent to Plaintiff's failure to file objections within ten days of the Report and Recommendation. See e.g., Bartelli v. Bleich et al., 04-CV-0899, Doc. 77 (dismissing plaintiff's objections to report and recommendation as out of time); Bartelli v. Galabinski, 04-CV-0900, Docs. 66 and 70 (discussing plaintiff's failure to file objections within time allotted by Local Rule 72.3);and Bartelli v. Nagy and Jones, ...


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