The opinion of the court was delivered by: Judge Jones
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On February 2, 2007, Magistrate Judge Mannion issued a Report and Recommendation (doc. 37) in the above-captioned matter, recommending that the Court grant in part and deny in part the Defendants' pending motion to dismiss and alternative motion for summary judgment, thereby allowing only Plaintiff's claims of deprivation of rights stemming from improper holding of reading material as against Defendants Hollenbach and Adami.
The Defendants filed objections to the Magistrate Judge's report on February 16, 2007. (Rec. Docs.38 and 39). Objections to the Magistrate Judge's report were filed by the Plaintiff on February 26, 2007. (Rec. Doc. 40). The matter is therefore ripe for our review.
When objections are filed to a report of a magistrate judge, we make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge to which there are objections. See United States v. Raddatz, 447 U.S. 667 (1980); see also 28 U.S.C. §636(b)(1); Local Rule 72.3l. Furthermore, district judges have wide discretion as to how they treat recommendations of a magistrate judge. See id. Indeed, in providing for a de novo review determination rather than a de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. See id., see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
The Plaintiff, Mansa Musa Massi ("Plaintiff" or "Massi"), formerly incarcerated at the United States Penitentiary at Lewisburg, Pennsylvania ("USP Lewisburg)*fn1 , commenced the instant action on January 6, 2006, by filing a complaint pursuant to Bivens v. Six Unnamed Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against Warden Joseph Smith, Unit Managers Dean Hollenbach and John Adami, Federal Bureau of Prisons ("BOP") Northeast Regional Director D. Scott Dodrill, BOP National Inmate Appeals Administrator Harrell Watts, and BOP Director Harley G. Lappin. (Rec. Doc. 1). In the complaint, Plaintiff, proceeding pro se, alleges that the Defendants deprived him of permissible recreational and religious reading material by violating BOP Program Statement ("PS") 5266.10, "Incoming Publications," (Jan. 10, 2003), and violated his religious rights by prohibiting the free exercise of Islam, and that BOP PS 5360.09 "Religious Belief and Practices" (Dec. 31, 2004) violates his religious freedom by not providing enough hot food to Muslim prisoners. (Rec. Doc. 1).
In response to the complaint, the Defendants moved to dismiss, or, in the alternative, for summary judgment, on May 30, 2006. (Rec. Doc. 24). The Defendants raise four main arguments in support of their motion. First, they contend that they are entitled to summary judgment based upon qualified immunity. Second, they contend that Defendants Dodrill and Lappin must be dismissed because the allegations against them are based upon the theory of liability of respondeat superior. Third, they contend that Massi lacks standing to bring the claims concerning Islamic diet. Finally, they contend that the Plaintiff's claim concerning Islamic religious practice is moot. (Rec. Doc. 26). On July 31, 2006, Plaintiff filed a brief in opposition to the Defendants' motion and statement of facts. (Rec. Docs. 31 and 32).
Plaintiff learned "leather craft" in 1981 while incarcerated at the Federal Correctional Institution at Talladega, and since that time, he has purchased numerous leather craft magazines and softcover books.
BOP PS 5266.10, which was issued by then-BOP Director Kathleen Hawk Sawyer provides that "an inmate may receive softcover publications (for example, paperback books, newspaper clippings, magazines, and other similar items) only from the publisher, from a book club, or from a bookstore." PS 5266.10(6)(a)(2). If the softcover publication is no longer available from the publisher, a book club, or a bookstore, the inmate's unit manager may grant the inmate an exception, but only if "the inmate provide[s] written documentation that the publication is no longer available from these sources." PS 5266.10(6)(a)(4).
While incarcerated at USP Lewisburg, Massi attempted to purchase various old hobbyist magazines and books from the proper sources, but discovered that they were no longer available for sale. (Rec. Doc. 1 at 2a). The Plaintiff gave documentation from the sources to his unit manager, Defendant Adami. Defendant Adami told Massi that he "accepted" the documentation, would process his request, and would issue the Plaintiff "an authorization to receive a package." (Rec. Doc. 1 at 2a). After the passage of about a month, Massi questioned Defendant Adami about the progress of his request and Adami told him that "he question[ed] the authenticity of the responses from the suppliers." (Rec. Doc. 1 at 2b). The Plaintiff filed a request for administrative ...