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Mark A. Robinson v. Franklin Tennis

July 19, 2011


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

(Judge Munley) (Magistrate Judge Mannion)


Before the court are defendants' objections to the report and recommendation of Magistrate Judge Malachy E. Mannion, which proposes that portions of plaintiff's complaint be dismissed with leave to re-file an amended complaint with respect to certain claims.


This case arises out of disputes between the plaintiff, a prisoner at the Pennsylvania State Correctional Institution in Rockview, Pennsylvania ("SCIRockview") and officials and staff at that prison. (Complaint (Doc. 1) (hereinafter "Complt.") at 1). Plaintiff alleges that in May 2008 he filed a civil complaint in this court regarding his treatment in prison. (Id.; see Case No. 3:08cv0924). Soon after, plaintiff was transferred to another institution, SCI-Graterford. (Id.). In March 2009, plaintiff returned to SCI-Rockview. Plaintiff contends that as soon as he returned to Rockview prison officials retaliated against him for this complaint by placing him in the restricted housing unit ("RHU"). (Id.). According to plaintiff, the SCI-Rockview Superintendent, Deputy Superintendents, medical staff, and other prison officials conspired to retaliate against him by denying medical treatment, using excessive force and filing false misconduct reports. (Id. at 2).

Plaintiff raised specific allegations against the three defendants whose motions are the subject of this opinion. He alleges that Defendant Kevin Burke, a prison psychiatrist, told him that he agreed that plaintiff deserved a cell with a window. (Id. at 10, ¶ 10). Burke also admitted to plaintiff that Deputy Superintendent Robert Marsh was retaliating against him. (Id.). Marsh had taken plaintiff's lawsuit personally. (Id.). Though aware of Marsh's misconduct, Burke failed to take action to prevent that behavior. (Id.). Defendant Abdollah Nabavi, a prison psychologist, allegedly attempted to convince plaintiff not to file the instant lawsuit and to drop his earlier action. (Id. at 10, ¶ 12). Nabadi also allegedly assisted in having plaintiff released from medical care and to security prematurely, which resulted in abuse. (Id.). Finally, plaintiff alleges that Defendant Julie Pengiero, a physician's assistant, denied him medical treatment because she felt he wanted to sue the prison. (Id. at 11, ¶ 18). She did not completely examine the plaintiff or order that pictures be taken of his injuries, and did not consider whether he should be handcuffed in front to limit pain in his arms and shoulders. (Id.).

Plaintiff filed a complaint and motion to proceed in foma pauperis on February 5, 2010. (Docs. 1, 3). Judge Mannion granted the motion for leave to proceed in forma pauperis on April 14, 2010. (Doc. 14). The court then issued summons for the defendants. Most of the defendants answered the complaint (Doc. 53), but Defendants Pensiero, Burke and Nabavi filed motions to dismiss the complaint. (Docs. 27, 36). On March 4, 2011, Magistrate Judge Mannion issued a report and recommendation that proposed that all of plaintiff's claims against Defendants Pensiero and Nabavi be dismissed with prejudice, as amendment of those claims would be futile. The Magistrate Judge also recommended that both plaintiff's claims against Defendant Burke be dismissed. He proposed, however, that the court allow plaintiff leave to amend his Eighth Amendment claim against Defendant Burke to allege facts sufficient to establish the knowledge Burke had of retaliation against plaintiff and how he could have acted to prevent that retaliation.

Plaintiff then filed objections to the report and recommendation, and Defendant Pensiero filed a brief opposing those objections, bringing the case to its present posture.


Because plaintiff filed his complaint pursuant to 42 U.S.C. § 1983, this court has jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").

Legal Standard

In disposing of objections to a magistrate judge's report and recommendation, the district court 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 also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district court judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id.

Magistrate Judge Mannion's opinion addresses motions to dismiss from various defendants brought pursuant to Federal Rule of Civil Procedure 12(b)(6). When a defendant files such a motion, all well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether "under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir. 1988) (citing Estate of Bailey by Oare v. County of York, 768 F.3d 503, 506 (3d Cir. 1985), (quoting Helstoski v. Goldstein, 552 F.2d 564, 565 (3d Cir. 1977) (per curium)). The court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).

The federal rules require only that plaintiff provide "'a short and plain statement of the claim showing that the pleader is entitled to relief,'" a standard which "does not require 'detailed factual allegations,'" but a plaintiff must make "'a showing, rather than a blanket assertion, of entitlement to relief' that rises 'above the speculative level.'" McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). The "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). Such ...

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