The opinion of the court was delivered by: Judge Kosik
Before this court are the plaintiff's objections to the Report and Recommendation issued by United States Magistrate Judge J. Andrew Smyser. In the September 20, 2006, Report and Recommendation (Doc. 76), Magistrate Judge Smyser suggested that we grant the defendants' second motion for summary judgment (Doc. 54), deny the plaintiff's second motion for summary judgment (Doc. 71), and dismiss the plaintiff's equal protection claim for failure to state a claim on which relief may be granted. For the reasons that follow, we will adopt the Report and Recommendation of the Magistrate Judge, grant the defendants' motion for summary judgment, deny the plaintiff's motion for summary judgment, dismiss the plaintiff's equal protection claim, 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 were 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 alleged 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. (See Complaint, Doc. 1, ¶ 30). Plaintiff asserted First Amendment retaliation and Fourteenth Amendment equal protection and due process claims, as well as state law claims of negligence. Plaintiff's complaint named defendants, Lamas and Kepner, but alleged 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 because Plaintiff failed to exhaust his appeals related to the misconduct report at issue, misconduct report No. A465945. 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). Plaintiff's motion sought summary judgment on his due process claim only. Plaintiff did not move for summary judgment on his retaliation claim. All parties briefed Plaintiff's motion. (Docs. 33-34, 36). Plaintiff additionally filed a motion for a temporary restraining order on April 27, 2006. (Doc. 38).
On May 19, 2006, we granted the defendants' motion to dismiss or for summary judgment and denied as moot Plaintiff's motions for summary judgment and for a temporary restraining order. (Doc. 43). The defendants, however, filed a motion for reconsideration retracting the assertion that Plaintiff failed to appeal the misconduct at issue. (Doc. 45). The defendants' motion asserted that Plaintiff nonetheless failed to exhaust the retaliation claim, because the latter never raised the issue of retaliation during the misconduct hearing or the subsequent administrative appeals. By an order of June 1, 2006, we vacated in part our previous order. (Doc. 49). In the June 1, 2006, order, we let stand the dismissal of Plaintiff's state law negligence claims, as well as all claims against defendants Lamas and Kepner. We vacated the dismissal of Plaintiff's retaliation and due process claims against the remaining defendants. We additionally vacated the denial of Plaintiff's motions for summary judgment and for a temporary restraining order. Finally, we reopened the case and remanded it to Magistrate Judge Smyser for further proceedings.
On June 14, 2006, Magistrate Judge Smyser filed a Report and Recommendation suggesting that this court deny Plaintiff's motions for summary judgment and for a temporary restraining order. (Doc. 53). Plaintiff filed objections thereto on June 22, 2006. (Doc. 60). By Memorandum and Order of July 7, 2006, this court dismissed Plaintiff's objections, adopted the Magistrate Judge's Report and Recommendation, and denied Plaintiff's motions for summary judgment and for a temporary restraining order. (Doc. 64).
The remaining defendants, Budgeon, Kane, Kerestes, Shutt, Shannon, Bitner, and Damiter, filed a second motion for summary judgment on June 15, 2006. (Doc. 54). Defendants again asserted that the complaint should be dismissed as Plaintiff failed to exhaust the administrative remedies available to him at SCI-Frackville. The defendants argued that throughout his appeal of the hearing examiner's decision, Plaintiff never alleged that the misconduct was issued in retaliation for his exercise of his First Amendment rights. They further asserted that Plaintiff neglected to file a grievance regarding the alleged retaliation. The defendants concluded that Plaintiff failed to exhaust administrative remedies regarding the retaliation claim as required by the Prison Litigation Reform Act (PLRA). The defendants also asserted that Plaintiff's claims for monetary damages are not recoverable in this 42 U.S.C. § 1983 action, that judgment should be entered in their favor with regard to Plaintiff's retaliation claim because Plaintiff did not engage in any constitutionally protected activity, and that Plaintiff's due process claim must fail because Plaintiff was not deprived of a protected liberty interest. (See Defendant's Brief, Doc. 57).
Plaintiff filed a brief in opposition to the defendants' motion on July 17, 2006. (Doc. 67). He filed his own, second motion for summary judgment on August 14, 2006. (Doc. 71). The defendants filed a response thereto on August 28, 2006 (Doc. 74). On September 20, 2006, Magistrate Judge Smyser filed a Report and Recommendation in which he suggested that this court grant the defendants' motion for summary judgment, deny Plaintiff's motion for summary judgment, and dismiss Plaintiff's equal protection claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim on which relief may be granted. (Doc. 76). The Magistrate Judge determined that Plaintiff had not exhausted his administrative remedies with regard to his retaliation claim and that judgment should be entered in the defendants' favor on Plaintiff's due process claim because the sanction of sixty (60) days of disciplinary confinement did not implicate a liberty interest protected by the Fourteenth Amendment.
Plaintiff filed a response to the Report and Recommendation on September 28, 2006. (Doc. 78). We will treat Plaintiff's response as objections. Plaintiff's objections challenge only the Magistrate Judge's suggestions regarding Plaintiff's due process and retaliation claims. The defendants filed a brief countering plaintiff's objections on October 4, 2006. (Doc. 79).
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. See 28 U.S.C. §636(b)(1); see also 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. See 28 U.S.C. §636(b)(1); see also 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. See 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. See 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. See 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. See 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 ...