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Kevin Walker Murden v. Dominick Derose

February 15, 2012

KEVIN WALKER MURDEN, PLAINTIFF,
v.
DOMINICK DEROSE, DEFENDANT.



The opinion of the court was delivered by: (judge Conaboy)

:(Magistrate Judge Mannion)

MEMORANDUM

Here we consider the Report and Recommendation issued by Magistrate Judge Malachy E. Mannion on January 27, 2012, in which he recommends that Defendant DeRose's Motion for Summary Judgment (Doc. 44) in the above-captioned action be granted. (Doc. 52.) With the present motion Defendant DeRose, the only remaining Defendant in this action, seeks judgment in his favor on Plaintiff's Amended Complaint (Doc. 31). (Doc. 44.)

Plaintiff filed a Motion to Vacate Judgment on February 10, 2012. (Doc. 53.) He indicates the Motion is filed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, and he requests the Court to vacate "the judgment of this Court entered on January 27, 2012." (Doc. 53 at 1.) This filing shows Plaintiff misapprehends the effect of Magistrate Judge Mannion's January 27, 2012, Report and Recommendation, although he received notice of the methodology for objecting to the Report and Recommendation (Doc. 52-1). Because Plaintiff's Motion and Memorandum of Law (Docs. 53-1, 53-2) presents issues and argument which can be construed as objections to the Report and Recommendation, we will review Plaintiff's filings as such.

For the reasons discussed below, we conclude Plaintiff's objections are without merit. We adopt the Report and Recommendation (Doc. 52) and grant Defendant DeRose's Motion for Summary Judgment (Doc. 44).

I. Background

The Magistrate Judge set out the following background information in his Report and Recommendation.*fn1

By way of relevant background, the plaintiff, a former inmate at the Dauphin County Prison, filed the instant civil rights action pursuant to 42 U.S.C. § 1983 on January 21, 2009. (Doc. 1.) By report dated February 25, 2010, it was recommended that a motion to dismiss the plaintiff's original complaint be granted in part and denied in part. (Doc. No. 22). By memorandum and order dated April 29, 2010, the report of the undersigned was adopted and the plaintiff was directed to file an amended complaint addressing only his placement in segregation, his claims for excessive force alleging that he was subject to brutal assaults and that he was pepper sprayed without provocation, his claim for denial of access to the courts, and his free exercise claims, including a claim newly raised in the plaintiff's objections to the report of the undersigned that he was denied running water necessary to purify himself prior to prayer. In amending his complaint, the plaintiff was directed to set forth the specific actions taken by each of the defendants in order to establish their personal involvement in each of the claims raised by the plaintiff. (Id.)

On May 28, 2010, the plaintiff filed his amended complaint. (Doc. 31.) On June 14, 2010, a motion to dismiss the plaintiff's amended complaint was filed. (Doc. 32.) By report dated February 3, 2011, it was recommended that the defendants' motion be granted in part and that the plaintiff be permitted to proceed only on his claim of a violation of his First Amendment rights by defendant DeRose, which had not been addressed by the defendants in their motion to dismiss the amended complaint. (Doc. 37.) By order dated February 28, 2011, the report was adopted and the matter was remanded for consideration of the final remaining claim. (Doc. 38.)

On March 14, 2011, an answer was filed to the amended complaint. (Doc. 41.)

On June 30, 2011, defendant DeRose filed the pending motion for summary judgment (Doc. 44) along with a supporting brief (Doc. 47), statement of material facts (Doc. 48), and supporting exhibits (Doc. 49). On August 22, 2011, the plaintiff filed a brief in opposition to the defendant's motion for summary judgment. (Doc. 50.) A reply brief was filed by defendant DeRose on September 1, 2011. (Doc. 51.) . . . .

The only remaining claim by the plaintiff is a First Amendment claim alleging improper confiscation of the plaintiff's religious materials against defendant DeRose. To this extent, the plaintiff alleges that on June 16, 2008, a corrections officer came to his cell and confiscated the plaintiff's Qur'an, kufi, and another religious book, and threw them in the garbage. When asked why he did so, the plaintiff alleges that the officer responded that he was "just following the orders of the Warden (DeRose) and the rest of his superiors."

In response to the plaintiff's allegations, defendant DeRose has provided a statement of material facts supported by the record which indicates that the plaintiff was admitted to the Dauphin County Prison on August 28, 2007, after having been convicted on charges of criminal homicide, four counts of aggravated assault, recklessly endangering another person, person not to possess, use, etc. a firearm, carrying a firearm without a license, criminal attempt -- criminal homicide, possession with intent to manufacture and/or deliver a controlled substance, drug paraphernalia, and a state probation/parole detainer.

On May 29, 2008, the plaintiff was housed on the C-Block in the Dauphin County Prison. This same day, there was an altercation on the upper tier of C-Block which resulted in a call for "all guards" as an inmate was assaulted by other inmates. As a result of this incident, C-Block was placed on lockdown status. Lockdown status was maintained because of the disruptive behavior of ...


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