The opinion of the court was delivered by: Magistrate Judge Mannion
This matter is before the Court on the report and recommendation of Magistrate Judge Malachy E. Mannion (Doc. 65) which recommends that the motion for summary judgment of the plaintiff Mansa Musa Massi (Doc. 52) be denied and that the defendants' motion for summary (Doc. 54) be granted. Massi filed objections to the report and recommendation (Doc. 66), to which the defendants filed a response (Doc. 67). This matter is now ripe for review. Although the Court will base its decision, to some extent, on slightly different reasoning, we will adopt the Magistrate Judge's recommendation, deny Massi's summary judgment motion, and grant the defendants' summary judgment motion.
A. Review of a Magistrate Judge's Report and Recommendation
Where, as here, objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or the proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). Under this standard, a court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
B. Summary Judgment Standard of Review
Summary judgment is appropriate if the record establishes "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by pointing to an absence of evidence supporting an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325. Once the moving party meets its burden, the burden then shifts to the non-moving party to show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). An issue is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a factual dispute is "material" only if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 248-49 (1986).
In opposing summary judgment, the non-moving party "may not rely merely on allegations of denials in its own pleadings; rather, its response must ... set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). Arguments made in briefs "are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985). However, the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the non- moving party. P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir. 2006).
Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; there must be a genuine issue of material fact to preclude summary judgment." Anderson, 477 U.S. at 247-48.
With this standard of review in mind, the following are the procedural history and undisputed facts material to the disposition of the parties' cross-motions for summary judgment.*fn1
Massi's claims in this action arise from his incarceration at the United States Penitentiary in Lewisburg, Pennsylvania. Massi alleged that various USPLewisburg and other Bureau of Prisons officials violated his rights by denying him certain recreational and religious publications, violated his free exercise rights by restricting his exercise of Islam, and violated his free exercise rights by not providing enough hot food to Muslim prisoners. The defendants moved to dismiss Massi's complaint, and by order of March 2, 2007, the Court adopted the Magistrate Judge's report and recommendation in part and dismissed all of Massi's claims except his claims against defendants Hollenbach, Adami, Smith, Dodrill, and Watts regarding the denial of recreational and religious publications. (Doc. 41.)
Massi's remaining claims thus arise from his attempt to obtain certain publications. In 2004 and 2005, Massi wanted to obtain various magazines and softcover books about his hobby of leathercraft. Massi already owns copies of these publications, which are located at his home, but under BOP regulations, he may only receive such publications at the prison from a publisher, book club, or bookstore, unless an exception is made. The relevant BOP policy is found at 28 C.F.R. § 540.71(a), and provides, in relevant part:
(a)(2) At medium security, high security, and administrative institutions, 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. ...
(4) The Unit Manager may make an exception to the provisions of paragraphs (a)(1) and (2) of this section if the publication is no longer available from the publisher, book club, or bookstore. The Unit Manager shall require that the inmate provide written documentation that the publication is no longer available from these sources. The approval or disapproval of any request for an exception is to be documented, in writing, on an Authorization to Receive a Package form which will be used to secure the item.
28 C.F.R. § 540.71(a)(2), (4).*fn2
In an attempt to take advantage of the exception provided for by § 540.71(a)(4), in April 2004, Massi wrote to seven publishers or bookstores, inquiring if certain leathercraft books were available to purchase. Massi received responses from three of these sources indicating that they did not carry the books. Each response was handwritten, not on company letterhead, did not identify the name of the source providing the response, and did not indicate the books at issue.*fn3 (See Doc. 55-4 at 43, 49, 51.) Massi presented these responses to Unit Manager John Adami as written documentation that the leathercraft books are no longer available from a publisher, book club, or bookstore.*fn4 Adami agreed to review Massi's request for an exception under § 540.71(a)(4). Upon review, however, Adami questioned the authenticity of the documentation because it was not possible to determine from the documents themselves who had provided the response. Adami believed it was possible that the responses came from Massi's family rather than from an authorized source. Massi gave Adami the telephone numbers for the authorized sources and requested that Adami call them to ...