The opinion of the court was delivered by: Judge Munley
Before the court are plaintiff's objections (Doc. 81) to the report and recommendation (Doc. 80) of Magistrate Judge Malachy E. Mannion, which proposes that we grant the defendants' motions for summary judgment and dismiss all other outstanding motions in the case as moot. Plaintiff objects to the report and recommendation. The matter has been briefed, and is ripe for disposition. Background
Plaintiff filed the instant complaint on June 6, 2006, while he was incarcerated at the Federal Correctional Institution in Allenwood, Pennsylvania. (See Doc. 1). The complaint stems from an altercation that occurred at the prison on April 9, 2006. Plaintiff alleges that on that day he and Defendant Parker, a correctional officer, had a verbal dispute in plaintiff's cell. (Complaint (hereinafter "Complt." Doc. 1) at 4). The correctional officer insulted plaintiff when he appeared to disobey an order, ridiculing plaintiff about his ethnic origin and sexuality. (Id.). Minutes later, Parker reappeared, accompanied by Defendants Marr, Betzer, Cioffi and Garrison, who were also corrections officers.*fn1 (Id.). Plaintiff alleges that the officers entered his cell and beat him up, picking him up and dropping him on the floor. (Id.). He hit his head on the wall, as well as injuring his face. (Id.). Plaintiff sustained cuts to his left and right elbows. (Id.). He also suffered from a head contusion and decreased vision in his right eye. (Id.). The alleged beating also caused plaintiff to suffer from blood in his urine. (Id.). After their attack, Defendant Marr asked plaintiff if he needed to see a doctor. (Id.). Plaintiff responded affirmatively. (Id.). The physician's assistant who saw plaintiff refused his request to take pictures of his injuries. (Id.). The physician's assistant instead took plaintiff's information and left without providing any medication. (Id.). While plaintiff received ibuprofen from another physician's assistant later in the day, officers refused his requests to be taken to the hospital or receive more extensive treatment and examination. (Id. at 5).
Plaintiff contends that as a result of this incident he suffers from anxiety. (Id.). He fears that the officers will beat him again, and has nightmares about that possibility. (Id.). Post-traumatic stress disorder has made plaintiff easy to startle and fearful of threats and retaliation from his assailants. (Id.). Because of this situation, plaintiff has sought transfer to another facility. (Id.). Officials in the prison system have refused this request. (Id.).
Plaintiff's complaint contends that he pursued his administrative remedies in the case, but prison official's failure to respond made that avenue of relief fruitless. (Id. at 6).
Prior to discovery, Defendants Marr, Parker and Cioffi filed a motion to dismiss the complaint. (Doc. 47). When discovery closed, they submitted another motion on May 30, 2007, this time for summary judgment. (Doc. 68). On May 3, 2007, Defendants Hogsten, Betzer and Garrison submitted their own motion for summary judgment. (Doc. 54). Both of these motions contended that plaintiff had not exhausted his administrative remedies and therefore could not bring suit. On April 30, plaintiff filed a motion for a sixty-day extension of time to respond to defendants' motions. (Doc. 50). Magistrate Judge Mannion granted this motion. (Doc. 57). On May 21, 2007, plaintiff filed another motion for an extension of time to respond to defendants' motions. (Doc. 63). The court took no action on this motion. Still, plaintiff never filed a brief in opposition to the motions for summary judgment, nor did he file any opposing statement of facts. During the pendency of the action, plaintiff filed four motions to compel discovery (Docs. 59, 71-73).
On August 20, 2007, the magistrate judge filed his report and recommendation. The magistrate judge, after examining the evidence contained in the defendants' filings, concluded that plaintiff had not exhausted his administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Though plaintiff had submitted numerous appeals after filing administrative complaints, none of those appeals raised any claim alleged in the present action. Since this requirement is mandatory under the Act, Magistrate Judge Mannion found that the defendants were entitled to summary judgment. Magistrate Judge Mannion also concluded that no evidence existed in the record to support the plaintiff's underlying claims, justifying summary judgment on those grounds as well. Because he recommended dismissing the underlying action, Magistrate Judge Mannion also suggested that we dismiss plaintiffs' other outstanding motions as well.
On August 27, 2007, plaintiff filed objections to the report and recommendation. (Doc. 81). He contended that he had been unable to develop evidence in the case because the prison had not responded to his discovery requests and the magistrate judge had ignored his motions to compel. Plaintiff also contended that he had submitted affidavits and other evidence which could support his claim with the complaint, but that the magistrate judge had not addressed that evidence in his report.
On September 17, 2007, plaintiff filed a notice of appeal. (Doc. 82). He apparently intended to appeal the decision of the magistrate judge. On February 6, 2008, the Court of Appeals for the Third Circuit issued an order dismissing plaintiff's appeal for want of jurisdiction. (Doc. 90). Since plaintiff had attempted to appeal the report and recommendation of the magistrate judge, which is not a final decision of this court within the meaning of 28 U.S.C. § 1291, the Court of Appeals did not have authority to hear the case. The court therefore remanded the case to this court to render a decision on the magistrate judge's report and recommendation. That decision brought the case to its present posture.
As this case is brought pursuant to 42 U.S.C. § 1983, we have jurisdiction pursuant to 42 U.S.C. 1331. ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").
When dealing with objections to a Magistrate Judge's report and recommendation, a district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636(b)(1)(c). See also, Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). The court 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)(c). ...