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Thomas v. Norris

September 8, 2006

ELMER LEE THOMAS, PLAINTIFF,
v.
GERALD NORRIS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: (judge Kosik)

MEMORANDUM AND ORDER

Before this court are the plaintiff's objections (Doc. 69) to the Report and Recommendation (Doc. 68) issued by United States Magistrate Judge Thomas M. Blewitt. In the May 22, 2006, Report and Recommendation, Magistrate Judge Blewitt suggested that we grant the defendants' motion for summary judgment (Doc. 39) and enter judgment in favor of all defendants and against the plaintiff. For the reasons that follow, we will adopt the Report and Recommendation of the Magistrate Judge, grant the defendants' motion for summary judgment, enter judgment in favor of all defendants and against the plaintiff, and close this case.

I. BACKGROUND

This is a civil rights action filed pursuant to 42 U.S.C. §1983 by Elmer Lee Thomas (Plaintiff), an inmate currently confined at the State Correctional Institution at Huntingdon (SCI-Huntingdon), Pennsylvania. The events relevant to this suit occurred at that facility. The defendants in this action are Gerald Norris, former clothing plant supervisor at SCI-Huntingdon, Richard Ernest, garment factory foreman at SCIHuntingdon, John Rivello, a corrections officer at SCI-Huntington, and Charles Mitchell, a hearing examiner at SCI-Huntingdon.

We briefly recount only those facts necessary to comprehend Plaintiff's objections to the Report and Recommendation. On June 21, 2002, defendant Rivello was conducting searches of prisoners returning to the main prison building from the prison garment factory. Defendant Rivello noticed that Plaintiff was wearing a homemade, rather than prison issued, hat. According to prison regulations, inmates are only permitted to wear prison issued clothing. Defendant Rivello issued Plaintiff a misconduct. Plaintiff was provided with a copy of the misconduct report two days prior to a hearing on the matter before Hearing Examiner Mitchell, another defendant in this action.

Plaintiff filed a written response to the misconduct. (Doc. 57, Ex. A-1). Plaintiff requested that two witnesses appear to testify at the hearing, SCI-Huntingdon employees, Jeff Rocco and Lieutenant Kevin Kauffman. Plaintiff wrote that Mr. Rocco would testify that such hats were common among inmates, and the Lt. Kauffman would testify that defendant Norris, and not defendant Rivello, wanted Plaintiff issued a misconduct. Id. In the response, Plaintiff conceded that he did replace parts of the hat himself. Id. He further offered that he only wore the hat at issue because his other hat was still wet after having been washed. Id. Essentially admitting his violation of prison regulations, Plaintiff concluded, "[t]hus, the real question for the examiner is should he or she punish for an act not in policy, but not uncommon for all inmate shop workers to do." Id.

Hearing Examiner Mitchell denied Plaintiff's request to present the two witnesses.

Defendant Mitchell believed that the only issue to be decided was whether the hat worn by Plaintiff was contraband. (Doc. 57, Ex. A). He determined that the proffered testimony, establishing that other inmates wear similar hats and identifying the guards that wanted to issue the misconduct, was not relevant to the misconduct. Id. Defendant Mitchell found Plaintiff guilty of possessing contraband and innocent of lying to an employee. Id. Defendant Mitchell imposed sanctions of thirty (30) days of cell restriction, removal of Plaintiff's prison job, and confiscation of the contraband hat. Id.

Plaintiff filed a complaint on October 15, 2002. (Doc. 1). The matter was assigned to Magistrate Judge Thomas M. Blewitt. Magistrate Judge Blewitt determined that the complaint failed to specify any conduct or wrongful act on the part of the named defendants and ordered that Plaintiff file an amended complaint. (Doc. 3). Plaintiff filed an amended complaint on November 6, 2002. (Doc. 4). The amended complaint alleges that the defendants, motivated by racial hatred, falsely charged Plaintiff with a prisoner misconduct and subsequently denied him due process by precluding Plaintiff from presenting the two witnesses at a disciplinary hearing.

The defendants filed a motion for summary judgment on December 19, 2005. (Doc. 39). On May 22, 2006, Magistrate Judge Blewitt authored a Report and Recommendation suggesting that this court grant the defendants' motion and enter judgment in favor of all the defendants and against the Plaintiff. (Doc. 68). The Magistrate Judge noted that while Plaintiff filed a response to the defendants' motion, he failed to respond to the defendants' statement of material facts as required by Local Rule 56.1. The Magistrate Judge accepted the facts as set forth in the defendants' statement of material facts. Magistrate Judge Blewitt additionally observed that Plaintiff offered no evidence, with the exception of his own assertions, to counter affidavits and other evidence filed by the defendants. Finally, the Magistrate Judge noted that Plaintiff had acknowledged the violation, possession of a contraband hat, that resulted in the issuance of the misconduct. Magistrate Judge Blewitt suggested that there were no material facts in dispute to support any of Plaintiff's Constitutional claims. Plaintiff filed objections to the Report and Recommendation on June 1, 2006. (Doc. 69). The defendants filed a brief in opposition to Plaintiff's objections on June 15, 2006. (Doc. 70). The Plaintiff filed what appears to be a reply brief in support of the objections on June 26, 2006. (Doc. 71).

Plaintiff's objections number nine paragraphs. Read liberally, however, the objections raise three challenges to the Report and Recommendation. Paragraphs one, two, three, four, five, and seven charge that the Magistrate Judge failed to consider the surveillance video from the prison. In paragraph four, Plaintiff additionally argues that the Magistrate Judge should have held the pro se plaintiff's filings to a less stringent standard. Paragraph six may be construed to challenge Magistrate Judge Blewitt's suggestion that Plaintiff's due process rights were not violated when the defendants prevented Plaintiff from calling some witnesses at the disciplinary hearing.

II. STANDARD OF REVIEW

A. 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 ...


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