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Christopher J. Desavage v. J. Stuller

March 1, 2011

CHRISTOPHER J. DESAVAGE,
PLAINTIFF
v.
J. STULLER, B. CORBIN,
J.D. FISHER, C. MITCHELL,
R.M. LAWLER, B.J. HOLLIBAUGH,
ROBERT MACINTYRE, DEFENDANTS



The opinion of the court was delivered by: Judge James M. Munley United States District Court

Munley, D.J. Mannion, M.J.

MEMORANDUM

Before the court for disposition is Magistrate Judge Malachy E. Mannion's report and recommendation that suggests that the defendants' motion to dismiss should be granted in part and denied in part. Plaintiff Christopher J. DeSavage has lodged objections to the report and recommendation. The matter is ripe for disposition.

Background

Plaintiff is a state prisoner incarcerated at the State Correctional Institution in Huntingdon, Pennsylvania. (Doc. 4, Compl. 3). In 2009, plaintiff instituted a lawsuit against officials at the prison, a lawsuit separate from this case. (Id.) Shortly after it became known that plaintiff had filed the lawsuit, he alleges that Defendant Stuller, the CFSS Kitchen Steward, retaliated against him for filing the lawsuit by issuing him a "misconduct" which asserted that plaintiff was in an unauthorized area. (Id.) Plaintiff states that he held the job assignment of "line backer pie whole" which supplied the line with food from all over the kitchen. (Id.) A person who holds such a position is only in an "unauthorized area" of the kitchen if he is stealing or loitering or has no reason to be present in a posted unauthorized area. (Id.) Plaintiff asserts that under this definition he was not in an unauthorized area.

Plaintiff further had a disagreement with Defendant Stuller about leaving early for medline, although he had been allowed to leave early for over a month and a half. (Id. at 4). Defendant Stuller gave plaintiff permission to discuss the matter with the Ranking Steward, Defendant Mitchell, who held a hearing. (Id.) At the hearing, plaintiff requested video surveillance to discredit Defendant Stuller, he also called for a witness and documents he had brought for defense. (Id.) Plaintiff asserts that Mitchell violated his due process rights during the hearing. (Id. at 5). He complains that Mitchell did not view the video tapes, call the witness, or review relevant documents. (Id.)

Plaintiff appealed to the Program Review Committee ("PRC"). The appeal was denied by defendants Hollibaugh, Corbin and Fisher. (Id.) He claims retaliation and a due process violation in this appeal. (Id.)

Next, plaintiff appealed to Defendant Lawler, the prison's warden. (Id.) He asserts Lawler did not fulfill his duty to cure retaliation and due process violations. (Id. at 6).

Finally, plaintiff appealed to Defendant MacIntyre. Plaintiff asserts that MacIntyre also violated his rights.

Accordingly, the plaintiff filed the instant action pursuant to 42 U.S.C. § 1983 alleging that the defendants retaliated against him in violation of his right to access to the courts and in violation of due process.

The defendants filed a motion to dismiss. Magistrate Judge Mannion recommends that the motion to dismiss be granted with respect to all defendants and claims except for the First Amendment retaliation claim against Defendant Stuller. Plaintiff objects to the report and recommendation, bringing the case to its present posture.

Jurisdiction

As this case is brought pursuant to 42 U.S.C. § 1983 for constitutional violations we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under ...


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