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Scerbo v. Orifice

December 20, 2006

MICHAEL JOSEPH SCERBO, PLAINTIFF,
v.
JOHN ORIFICE, DEFENDANT.



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

(Magistrate Judge Blewitt)

MEMORANDUM

Here we consider Magistrate Judge Thomas M. Blewitt's Report and Recommendation concerning Plaintiff Michael Joseph Scerbo's 42 U.S.C. § 1983 action. (Doc. 55.) Magistrate Judge Blewitt recommends Defendant's Motion for Judgment on the Pleadings on Behalf of Defendant, John Orifice (Doc. 28-1) be granted and the action be dismissed because Plaintiff did not exhaust his administrative remedies until after he filed his Complaint. (Id.)

Plaintiff filed objections to the Magistrate Judge's Report and Recommendation on November 8, 2006, (Doc. 57), and Defendant filed a brief in opposition to Plaintiff's objections on November 13, 2006, (Doc. 58). Therefore, this matter is now ripe for disposition.

When a magistrate judge makes a finding or ruling on a motion or issue, his determination should become that of the court unless objections are filed. See Thomas v. Arn, 474 U.S. 150-53 (1985). When a plaintiff files objections to a magistrate judge's Report and Recommendation, the district judge makes a de novo review of those portions of the report or specified proposed findings or recommendations to which objection is made. See Cippolone v. Liggett Group, Inc., 822 F.2d 335, 340 (3d Cir. 1987), cert. denied, 484 U.S. 976 (1987). As to the matters to which a plaintiff has filed no objection, the district court is required only to review the record for "clear error." See Cruz v. Chater, 990 F. Supp. 375-78 (M.D. Pa. 1998); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998). Therefore, we will review the issues raised in Plaintiff's objections de novo and otherwise review for clear error.

Having considered Plaintiff's objections, we conclude that they are without merit. We concur with the Magistrate Judge's conclusion that Plaintiff's action should be dismissed for failure to exhaust administrative remedies. We therefore adopt the Report and Recommendation (Doc. 55), grant Defendant's motion (Doc. 28-1) and dismiss Plaintiff's 42 U.S.C. § 1983 action without prejudice.

I. Background

The Magistrate Judge provided a detailed background in his Report and Recommendation. (Doc. 55 at 1-5.) Because we adopt the Report and Recommendation and do not decide this case on substantive grounds, we need not repeat the Magistrate Judge's recitation. To provide context for our discussion, we note here that the remaining Defendant in this action allegedly failed to take steps to avoid an attack on Plaintiff by another inmate at the Pike County Correctional Facility.*fn1

Central to our decision is the fact that Plaintiff did not exhaust administrative remedies before filing suit. As Defendant notes in his brief in opposition to Plaintiff's objections, Plaintiff's Complaint admits that he never pursued administrative remedies and Defendant raised this as an affirmative defense in his Answer. (Doc. 58 at 2.) Defendant filed a motion for judgment on the pleadings on the basis that Plaintiff did not comply with the exhaustion requirement of the Prison Litigation Reform Act ("PLRA"). (Doc. 28-1.) While the motion was pending, Plaintiff filed grievances at the prison. (Doc. 58 at 2.)

The Magistrate Judge determined that Plaintiff's failure to exhaust administrative remedies before filing suit required dismissal of the case and, therefore, Defendant's Motion for Judgment on the Pleadings on Behalf of Defendant, John Orifice (Doc. 28-1) should be granted. (Doc. 55.) The Magistrate Judge concluded because his dismissal recommendation is based on the threshold issue of exhaustion, there is no need to consider Defendant's alternative argument for dismissal. (Doc. 55 at 13 n.12.)

As noted above, Plaintiff filed objections to the Report and Recommendation. (Doc. 57.) For the most part, Plaintiff's eighteen (18) paragraph document addresses the substantive merits of his claim against Defendant. (Id.) Only one paragraph can be construed as an objection to the Magistrate Judge's findings and recommendation regarding exhaustion: Plaintiff "urges the Court to take a look at the claim exhaustion approach that courts have applied in the context of federal anti-discrimination laws such as Title VII The Americans with Disabilities Act, and the Age Discrimination in Employment Act" (Doc. 57 para. 3).

Defendant's response to Plaintiff's objections notes that Plaintiff's objections do not address the issues raised in the Prison Litigation Reform Act, the basis of the Magistrate Judge's Recommendation. (Doc. 58 at 5.)

II. Discussion

We agree with Defendant that Plaintiff has not objected to the Magistrate Judge's conclusion that the PLRA requires dismissal of his action for failure to exhaust administrative remedies. Rather, Plaintiff urges the Court to adopt a different standard than the PLRA requires and other courts, ...


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