The opinion of the court was delivered by: (Judge Kosik)
Before the court are plaintiff's objections to the Report and Recommendation of Magistrate Judge Thomas M. Blewitt filed on April 29, 2008. For the reasons which follow, we will adopt the Report and Recommendation of the Magistrate Judge.
Plaintiff, Ravanna Spencer, an inmate at the State Correctional Institution at Fayette, commenced the instant civil rights action on January 19, 2007. The basis of plaintiff's action are incidents which allegedly occurred while he was confined at the State Correctional Institution at Camp Hill. Named as defendants in the action were Correctional Officer Zimmerman, Correctional Officer Ayers and Lt. Kreider, all staff members of SCI-Camp Hill. The extensive procedural history of this case is set forth in detail by the Magistrate Judge and we will adopt these facts in their entirety. Plaintiff was ultimately left to proceed on his First Amendment claim of retaliation and his Fourteenth Amendment equal protection claim against all three defendants.
On June 11, 2007, defendants filed an answer to the complaint with affirmative defenses, including immunity and a failure to exhaust administrative remedies. Defendants filed a motion for summary judgment on October 18, 2007. In their motion for summary judgment, defendants argued that plaintiff did not exhaust his DOC administrative remedies with respect to his equal protection and retaliation claims.
On April 29, 2008, the Magistrate Judge issued a Report and Recommendation wherein he recommended that the defendants' motion for summary judgment be granted in that plaintiff did not exhaust his administrative remedies. On May 12, 2008, plaintiff filed objections to the Report and Recommendation. Defendants filed a brief in opposition to the objections on May 27, 2008.
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. 28 U.S.C. §636(b)(1)(C); see 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. 28 U.S.C. §636(b)(1); Local Rule 72.3. Although our review is de novo, we are permitted by statute to rely upon the Magistrate Judge's proposed recommendations to the extent we, in the exercise of sound discretion, deem proper. United States v. Raddatz, 447 U.S. 667, 676 (1980); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
Defendants seek dismissal of the claims against them on the basis that plaintiff failed to exhaust his available administrative remedies as required by 42 U.S.C. §1997(e)(a), which provides as follows:
No action shall be brought with respect to prison conditions under §1983 of this title, or any other Federal Law, by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted.
There is a three-tiered grievance procedure available to inmates confined by the Pennsylvania Department of Corrections which is set forth in DC-ADM 804. The three levels consist of initial review, followed by an appeal to the facility manager, and then finally an appeal to the Secretary's Office of Inmate Grievances and Appeals.
The underlying facts were set forth by the Magistrate Judge as follows:
Plaintiff averred that a June 10, 2006 search of his cell by Defendants Zimmerman and Ayers violated DOC policy since no ranking officer was present. Plaintiff averred that Defendant Kreider did not follow DOC policy and was grossly negligent in failing to supervise the search by Zimmerman and Ayers. Plaintiff alleged that this was all done based on harassment, retaliation, and racial discrimination of a mentally disabled inmate. Plaintiff stated that he asked Defendant Kreider why he let Zimmerman and Ayers ransack his cell, and Kreider sang a racially derogatory song. Plaintiff alleged that Defendants Zimmerman and Ayers put Nazi signs on his cell walls, ransacked his cell, and scattered his property around his cell, and that this was an unreasonable search in violation of the Fourth Amendment. Plaintiff averred that Defendants Zimmerman and Ayers issued a false misconduct against Plaintiff, and that Defendant Kreider signed off on it in order to prevent Plaintiff from filing a grievance against them, in violation of his First Amendment right. Specifically, Plaintiff alleged that Defendants issued the false misconduct against him to prevent him from filing a grievance against them, since under DOC policy, misconducts are non-grievable issues.
Plaintiff alleged racial discrimination against Defendants Zimmerman and Ayers since they wrote Nazi signs on his cell walls. Plaintiff alleged retaliation by Defendant Kreider because he filed grievances against this Defendant. Plaintiff alleged that his First Amendment right to access to the courts was deprived since he could not file a grievance against Defendants and exhaust his Administrative remedies, and that Defendants' false misconduct against him prevented him from filing a grievance against them about their cell search because under DOC policy, misconducts are non-grievable issues. Plaintiff alleged that Defendants violated the equal protection clause because he is a black mentally disabled person, and that Defendants treated ...