The opinion of the court was delivered by: Judge Caputo
Presently before the Court is Magistrate Carlson's Report and Recommendation ("R & R") of April 8, 2010 (Doc. 29) and Plaintiff Richard Potts' Objections to the Magistrate Judge's R&R (Doc. 31). Magistrate Judge Carlson recommended that Defendants' Motion to Dismiss or, in the alternative, for Summary Judgment be granted. This Court will adopt Magistrate Judge Carlson's recommendation for the reasons set forth more fully below.
On April 27, 2009, Plaintiff, an inmate at United States Penitentiary ("U.S.P.") Canaan, filed a Request for Administrative Remedy alleging that U.S.P. Canaan had intentionally violated his religious right to eat foods in accordance with his religious beliefs by serving meals that were not sealed and certified and had no signs or symbols verifying their conformity with Plaintiff's religious beliefs.*fn1 (Compl., Ex. C.) On May 14, 2009, the warden of U.S.P. Canaan, Ronnie R. Holt, denied Plaintiff's Request for Administrative Remedy and advised Plaintiff that he could appeal the warden's response within twenty (20) calendar days of the date of the denial. (Id.) On June 7, 2009, Plaintiff filed a Regional Administrative Remedy Appeal, which was denied as untimely on June 11, 2009. (Id.) Plaintiff filed a Central Office Administrative Appeal on June 25, 2009; this appeal was denied because the intermediate regional appeal had been untimely. (Id.)
On September 18, 2009, Plaintiff filed the instant Complaint alleging violations of 42 U.S.C. § 1983 due to U.S.P. Canaan's serving of cereal that is not Kosher or Halaal. Plaintiff alleges in his Complaint that the Bureau of Prisons delivered his "institutional responses out of time so that [Plaintiff] could not appeal [and that] these actions were intentional and U.S.P. Canaan uses this tactic to hamper out of the institution . . . remedies (sic)." (Compl. ¶ 5.) On January 19, 2010, Defendants filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment.*fn2 (Doc. 21.) Defendants moved for summary judgment on the basis of Plaintiff's failure to exhaust his administrative remedies, and for dismissal because Defendants lacked personal involvement and could not be held liable on the basis of respondeat superior.
On April 8, 2010, Magistrate Judge Carlson issued an R&R recommending that Defendants' motion be granted. Plaintiff filed his Objections on April 22, 2010, and Defendants filed their brief in opposition on April 23, 2010. This matter is fully briefed and currently ripe for disposition.
1. Report and Recommendation
Where objections to the magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the Court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Id. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.
Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has ...