The opinion of the court was delivered by: Judge Rambo
(Magistrate Judge Mannion)
The plaintiffs commenced this civil rights action by filing a complaint on November 1, 2010. (Doc. No. 1). On December 27, 2010, the plaintiffs filed their first amended complaint, (Doc. No. 25), and on April 25, 2011, the plaintiffs filed a motion for a temporary restraining order/preliminary injunction ("TRO/PI"), (Doc. No. 53). On May 11, 2011, the magistrate judge to whom this matter was referred issued a Report and Recommendation that recommended the plaintiffs' motion for a TRO/PI be denied because (1) the relief sought by the plaintiffs was based on alleged past violations and there was no indication that there was a present threat of harm, and (2) the acts the TRO/PI sought to enjoin were not committed by any of the named defendants. (Doc. No. 59). After the issuance of that Report and Recommendation, the plaintiffs filed a motion for reconsideration of the Report and Recommendation which this court deemed as objections to the Report and Recommendation. See (Doc. No. 64) & (Doc. No. 92). In the objections to the Report and Recommendation, the plaintiffs asserted that mail to this court was intercepted by correctional facility employees and sent back to plaintiffs, and that a court order sent to plaintiffs was opened by the warden. (Doc. No. 64). Based on that information, this court found that the mail tampering claim was ongoing and appeared to be a hindrance to plaintiffs' access to this court. (Doc. No. 92). Accordingly, on June 21, 2011, the court issued an ordered that stated:
b) The recommendation that the motion for a temporary restraining order and preliminary injunction be denied is accepted in part. The recommendation is not accepted at this time as to the allegations of prison officials interfering with Plaintiffs' mailings to this court and disposition of the motion is deferred pending further order of court.
2) No later than July 6, 2011, Plaintiff Bush shall supply to this court the names of the prison officials allegedly interfering with his mail. To the extent that these persons are not named defendants in the present action, Plaintiff Bush shall file an amended complaint. (Doc. No. 92 at 2).
Consequently, on June 30, 2011, the plaintiffs filed their second amended complaint, (Doc. No. 96). A review of that amended complaint revealed that plaintiff Bush had asserted claims against defendants Prime Care Medical, Inc., Nurse Dawn, Nurse Mary Ann, Lieutenant Flasher, Lieutenant Gordon and Mail Inspector Correctional Officer Calhoun. Id. More specifically, the plaintiff had brought claims regarding the interference with his mail against defendants Flasher, Gordon and Calhoun; claims regarding the medical care he had received against defendants Prime Care Medical, Inc., Nurse Dawn and Nurse Mary Ann; and retaliation claims against defendant Flasher. Id.
The magistrate judge found that "to the extent Plaintiff Bush had alleged any new claims against any newly added defendants that did not relate to his claims regarding interference with his mail, those newly added claims were improper." (Doc. No. 123.) These newly added claims regarded his medical treatment and retaliation. The magistrate judge also noted that Plaintiff Bush's amended complaint had omitted the claims that were raised in the first amended complaint. (Doc. No. 25.) The magistrate judge directed the plaintiffs to file a third amended complaint by September 20, 2011 that contained (1) the claims the plaintiffs still wished to pursue that were raised in the first amended complaint (Doc. 25), and (2) Plaintiff Bush's claims regarding interference with his mail. Accordingly, on September 16, 2011, the plaintiffs filed their third amended complaint. (Doc. 128.) In the third amended complaint, the plaintiffs indicate that:
[T]he court misconstrued the plaintiffs' second amended complaint. It was not intended to remove the original defendants from this suit. The second amended complaint was only meant to be an add on to those claims that were already filed in the first well-pleaded amended complaint.
Plaintiffs wish for this court to consider all claims already raised in the first original amended complaint with all of the evidence submitted by the plaintiffs . . . . Plaintiffs respectfully request this court to reinstate the first original amended complaint and all claims raised therein. As concerning the other defendants [that were newly added in the second amended complaint,] Lt. Flasher, Lt. Gordon, C/O Caloun, Prime Medical Care Inc., Nurse Dawn, and Nurse Lee Ann, the plaintiffs' will file a new complaint against those defendants. (Id. at 3-4 (emphasis in original).)
As a result of the foregoing, the first amended complaint (Doc. 25)
was deemed to be the operative complaint. (Doc. 128.)*fn1
The County and Commonwealth defendants filed motions to
dismiss. The report and recommendation of the magistrate judge (Doc.
173) recommended that the motions to dismiss (Docs. 68 &
70) be granted; and the plaintiffs' motions for a temporary
restraining order/preliminary injunction (Doc. 53), for mandatory injunctions
(Doc. 113), to compel (Doc. 131), and for a temporary restraining
order (Doc. 147) be denied as moot.
On January 4, 2012, Plaintiff Allen filed a response and opposition to the report and recommendation (Docs. 176 & 177). On January 23, 2012, Allen filed a request to withdraw his response to the report and recommendation and stated his desire to file an appeal. (Doc. 180.) On January 6, 2012, and February 15, 2012, Plaintiff Bush filed Notices of Appeal. (Docs. 178 & 182.) Bush did not file objections to the report and recommendation. By order dated February 24, 2012 (Doc. 183), this court ordered that the notices of appeal be stricken and that Bush file objections to the report and recommendation by March 12, 2012. Bush filed objections on March 16, 2012 (Doc. 185). The objections of Plaintiffs Bush and Allen will be addressed.
A. Allegations in Amended ...