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Scerbo v. Lowe

May 7, 2007

MICHAEL JOSEPH SCERBO, PLAINTIFF,
v.
JOHN A. LOWE, ET AL., 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 pro se 42 U.S.C. § 1983 action.*fn1 (Doc. 9.) Petitioner also filed an Application to Proceed in Forma Pauperis. (Doc. 2.) Upon preliminary screening, Magistrate Judge Blewitt recommends Plaintiff's Complaint (Doc. 1) be dismissed because Plaintiff has not stated a claim on which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). (Doc. 9 at 18.) He also recommends Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2) be granted for this filing only. (Id.) Plaintiff filed objections to the Magistrate Judge's Report and Recommendation on April 17, 2007. (Doc. 11.)

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, for the reasons discussed below, we conclude this case should be served upon Defendants. We do not concur with the Magistrate Judge's conclusion that Plaintiff's action should be dismissed for failure to state a claim on all claims raised in his Complaint. Rather, we conclude Plaintiff's Eighth and Fourteenth Amendment claims should go forward. Therefore, we adopt the Report and Recommendation (Doc. 9) in part and reject it in part.

I. Background

The Magistrate Judge provided a detailed background in his Report and Recommendation. (Doc. 9 at 2-5.) Unless otherwise noted, the following information is derived from the Magistrate Judge's recitation.

Plaintiff is an inmate at the Pike County Correctional Facility ("PCCF") in Lords Valley, Pennsylvania, and the allegations in his complaint are based on his incarceration therein. Defendants, sued in their individual and official capacities, are employees of PCCF: Craig A. Lowe, Warden; Sergeant Perry Langbein; Lietenant Campos; and Ron Gerico, Classification Coordinator ("CC").

Essentially Plaintiff complains that upon entering PCCF in April 2005 ("for charges such as theft by unlawful taking" (Doc. 1 at 5)) he was placed in maximum security protective custody without any hearing and, therefore, Defendants violated his Eighth and Fourteenth Amendment rights. He asserts that this placement constitutes cruel and unusual punishment under the Eighth Amendment. Plaintiff's Fourteenth Amendment claim is grounded in procedural due process based on the lack of a hearing concerning his placement.

Plaintiff contends his placement in protective custody was based on "problems and rumors that was [sic] around the facility the last time he was here." (Doc. 1 at 5.) Plaintiff alleges he filed grievances regarding his placement which were denied and appeals to Warden Lowe were also denied. Plaintiff maintains Warden Lowe decided his protective custody status should be permanent. He further alleges the conditions on the unit where protective custody inmates are housed constitute punishment though he is only there for safety. Plaintiff describes the conditions on the unit which differ from those experienced by the general population as follows: 1) he is locked down twenty-three hours a day; 2) he is not entitled to radio or TV; 3) he has limited commissary privileges in that he can only get candy bars; 4) he gets limited hygiene items; 5) he must go to visitation in shackles and cuffs; 6) he cannot attend programs, including religious programs; 7) he does not have access to the law library; and 8) he has only one hour of recreation time, time in which he also has to clean his cell, go outside to walk around (allegedly "no exercising" allowed) (Doc. 1 at 5), shower, read the newspaper, use the phone, and use the computer.

Plaintiff maintains Defendants Langbein and Campos interfered with his attempts to use the prison grievance system to address the alleged wrongdoings regarding his placement. In addition to similar grievance issues, Plaintiff maintains Defendant Gerico also is responsible for his placement, as is Warden Lowe.

Following denial of his appeal to Warden Lowe, Plaintiff filed this 42 U.S.C. § 1983 action on March 20, 2007. The matter was referred to Magistrate Judge Blewitt who issued the Report and Recommendation here considered on April 2, 2004. (Doc. 9.) Plaintiff filed objections on April 17, 2007. (Doc. 11.) We read Plaintiff's objections to disagree with the Magistrate Judge's findings that he has no liberty interest in being in the general population and no due process rights relative to his placement. (Id.) Plaintiff also disputes the Magistrate Judge's conclusion that he has not alleged any injury, referring to discomfort and medical problems related to the conditions of his confinement and the affect on parole considerations. (Id.)

II. ...


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