The opinion of the court was delivered by: Judge McClure
On September 23, 2008, the plaintiff, Sammy Naranjo, currently an inmate at the United States Penitentiary at Allenwood ("USP Allenwood"), White Deer, Pennsylvania, filed this Bivens*fn1 civil rights action, pro se, under 28 U.S.C. § 1331. (Rec. Doc. Nos. 1 and 9). Naranjo named as the defendants Ricardo Martinez, Warden at USP Allenwood, and the Bureau of Prisons ("BOP").
In his complaint, Naranjo alleges that his due process rights were violated by Warden Martinez and the BOP for his being characterized as a domestic terrorist and/or gang member. (Rec. Doc. No. 4 at 1). Naranjo seeks, as relief, an evidentiary hearing as well as a court order requiring that the BOP remove the gang member and domestic terrorist classification from Naranjo's "institutional central file, and all State and Federal agencies that monitor gang members." Id. at 4-5.
On January 20, 2009, the defendants filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. (Rec. Doc. No. 13). Naranjo filed a brief in opposition to the defendants' motion to dismiss or for summary judgment on January 25, 2009 (Rec. Doc. No. 14), which was later stricken from the record, (Rec. Doc. No. 23), as well as his own motion for summary judgment on February 2, 2009. (Rec. Doc. No. 18). The defendants filed a brief in support of their motion to dismiss or for summary judgment on February 3, 2009. (Rec. Doc. No. 21). On April 30, 2009, Naranjo filed a response to the defendants' statement of material facts. (Rec. Doc. No. 28). On that same day, Naranjo filed a brief in opposition, in part, to the defendants' motion to dismiss or for summary judgment. (Rec. Doc. No. 29).
Magistrate Judge Mannion, on August 31, 2009, issued a Report and Recommendation recommending that the defendants' motion to dismiss be granted. (Rec. Doc. No. 30 at 16). First, as to Warden Martinez, Magistrate Judge Mannion concluded that dismissal was appropriate because Naranjo had failed to exhaust administrative remedies;*fn2 in fact, it appeared as though Naranjo failed to exhaust any administrative remedies with regard to Warden Martinez. (See Rec. Doc. No. 30 at 13). Second, as to the BOP, Naranjo had exhausted his administrative remedies; however, Magistrate Judge Mannion concluded that Naranjo's claim against the BOP should still be dismissed as there is no individual constitutional right to a classification, a placement, or a custody level within the BOP.*fn3 Id. at 15. Magistrate Judge Mannion recommended that both the defendants' alternative motion for summary judgment and Naranjo's motion for summary judgment be dismissed as moot. Id.
On the same day that Magistrate Judge Mannion issued his Report and Recommendation, Naranjo filed three documents with this Court. First, Naranjo filed a motion seeking leave to amend his brief in opposition, in part, to the defendants' motion to dismiss or for summary judgment. (Rec. Doc. No. 31). Second, Naranjo filed an amended opposition to the defendants' motion to dismiss. (Rec. Doc. No. 32). Third, Naranjo filed an amended response to the defendants' statement of material facts supporting their motion for summary judgment. (Rec. Doc. No. 33).
Naranjo filed his objections to Magistrate Judge Mannion's Report and Recommendation on October 16, 2009 (Rec. Doc. No. 39), as well as his brief in support of such objections. (Rec. Doc. No. 40).*fn4 Naranjo appears to object to the Report and Recommendation because Magistrate Judge Mannion did not consider Naranjo's amended brief in opposition to the defendants' motion to dismiss or for summary judgment. (Rec. Doc. No. 39 at 1). In addition, Naranjo claims that Magistrate Judge Mannion did not recognize Naranjo's claim to a "due process right of access to the court." Id.
This matter is now ripe for disposition. For the following reasons, we will adopt the magistrate judge's Report and Recommendation.
A district court reviews de novo those portions of a magistrate judge's Report and Recommendation to which a party objects. See Middle District Local Rule 72.3. The court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.
1. The Magistrate Judge's Failure to Consider Naranjo's Amended Brief in Opposition to Defendants' Motion to Dismiss ...