The opinion of the court was delivered by: Edwin M. Kosik United States District Judge
Before this court are the plaintiff's objections to the Report and Recommendation issued by United States Magistrate Judge J. Andrew Smyser suggesting that we dismiss the claims against various defendants, grant summary judgment in favor of others, and deny the plaintiff's motion for summary judgment. For the reasons that follow, we will adopt the Report and Recommendation of the Magistrate Judge, dismiss the plaintiff's claims against defendants, Lamas and Kepner, dismiss the plaintiff's state law negligence claims, grant summary judgment in favor of the remaining defendants on the plaintiff's federal claims, and close this case.
John D. Wilson (hereinafter "Plaintiff"), an inmate at the State Correctional Institution at Frackville, Pennsylvania, filed this civil rights action on October 15, 2005, pursuant to 42 U.S.C. §1983. (Doc. 1). The defendants are Timothy Budgeon, corrections officer at the State Correctional Institution at Frackville (SCI-Frackville); Kevin Kane, hearing examiner at SCI-Frackville; John Kerestes, deputy for centralized services at SCI-Frackville; J.D. Shutt, deputy for facilities management at SCIFrackville; Robert Shannon, Superintendent at SCI-Frackville; Robert Bitner, Chief Hearing Examiner for the Pennsylvania Department of Corrections; Pete Damiter, Assistant to Superintendent/Grievance Coordinator at SCI-Frackville; M. Lamas; and William Kepner. Plaintiff alleges that on January 5, 2004, defendant Budgeon issued Plaintiff a false and fabricated misconduct report in retaliation for Plaintiff's being "voicetrous" in a disagreement between the two men over the prison block television. (Doc. 1, ¶ 30). Plaintiff asserts First and Fourteenth Amendment claims of discrimination and retaliation, as well as state law claims of negligence against the other named defendants. Plaintiff's complaint names defendants, Lamas and Kepner, but alleges no improprieties on the part of those two defendants.
On January 11, 2006, the defendants filed a motion to dismiss or, in the alternative, for summary judgment. (Doc. 17). Defendants asserted that the complaint should be dismissed as Plaintiff failed to exhaust the administrative remedies available to him at SCI-Frackville. All parties briefed the defendants' motion. (Docs. 18-21, 24-25, 27-28, 30). Plaintiff filed his own motion for summary judgment on March 24, 2006. (Doc. 32). All parties briefed Plaintiff's motion. (Docs. 33-34, 36).
On April 26, 2006, Magistrate Judge Smyser filed a Report and Recommendation suggesting that this court: (1) dismiss all claims against defendants, M. Lamas and William Kepner, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim against said defendants; (2) grant the remaining defendants' motion for summary judgment on the federal claims; (3) dismiss Plaintiff's state law claims as barred by sovereign immunity; (4) deny Plaintiff's motion for summary judgment; and, (5) close the case. The Magistrate Judge determined that summary judgment should be entered in the defendants' favor as they established that Plaintiff failed to exhaust the available administrative remedies with respect to his Constitutional claims of discrimination and retaliation. Magistrate Judge Smyser additionally concluded that the defendants were entitled to sovereign immunity with respect to Plaintiff's state law negligence claims.
Plaintiff filed objections to the Report and Recommendation on May 11, 2006. (Doc. 41). Plaintiff's objections only challenge the Magistrate Judge's determination that Plaintiff did not exhaust his administrative remedies. Plaintiff's objections are silent on the dismissal of the claims against defendants, M. Lamas and William Kepner, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), as well as the suggested dismissal of Plaintiff's state law negligence claims. Plaintiff's objections offer no evidence to support his contention that he exhausted the available administrative remedies. On April 27, 2006, Plaintiff filed motion seeking a temporary restraining order. (Doc. 38). On May 4, 2006, Plaintiff filed a motion to compel defendants' answers to discovery. (Doc. 39).
A. Standard Of Review - Objections To Report And Recommendation
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, 100 S.Ct. 2406, 2413 (1980).
B. Summary Judgment Standard
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When ruling on a motion for summary judgment, the court must view the record in a light most favorable to the non-moving party. Skerski v. Time Warner Cable Co., 257 F.3d 273, 278 (3d Cir. 2001). Moreover, the court must draw all reasonable inferences in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The burden rests with the moving party to demonstrate that there is no genuine issue of material fact. Thereafter, the non-moving party must counter with evidence that supports each essential element of his or her claim. Skerski, 257 F.3d at 278 (citing Pittston Co. Ultramar Am. Ltd. v. Allainz Ins. Co., 124 F.3d 508, 515 (3d Cir. 1997)). The non-moving party must do "more than simply show that there is some metaphysical doubt as to the material facts," and where the record taken as a whole could not allow a rational fact-finder to find ...