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Fernando Real v. Lt. Dunkle

April 23, 2012

FERNANDO REAL PLAINTIFF,
v.
LT. DUNKLE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

(MAGISTRATE JUDGE BLEWITT)

MEMORANDUM

Presently before the Court is the Report and Recommendation ("R & R") of Magistrate Judge Blewitt (Doc. 9) to Plaintiff's Complaint. (Doc. 1.) Magistrate Judge Blewitt recommends dismissing four (4) of the fifteen (15) Defendants in this action without prejudice and three (3) Defendants with prejudice. The Magistrate Judge also recommends dismissing a number of claims against the remaining eight (8) Defendants. Plaintiff filed timely objections to the R & R. (Doc. 12.) The Magistrate Judge's recommendations will be rejected in part and adopted in part. As Defendants McMillan, Burns, Romig, Segedy, Mowrey, Dascani, and Mason are not personally alleged to have participated in the deprivation of Plaintiff's viable constitutional claims, the claims against these Defendants will be dismissed. However, because Plaintiff's pro se pleading adequately alleges that Defendants Murphy, Dunkle, Gormley, Doe, Meyers, Hyslack, Malik, and Clark violated his constitutional rights after he availed himself of the prison's grievance process, Plaintiff may proceed on his § 1983 conspiracy claim, his retaliation claim, and his denial of access to the courts claim as against these Defendants.

I. Background

A. Plaintiff's Complaint

Plaintiff, Fernando Real, an inmate at the State Correctional Institute ("SCI") at Camp Hill, Pennsylvania, commenced the instant civil rights action pro se against fifteen (15) Defendants*fn1 in November of 2011. ("Complaint," Doc. 1.) The facts as alleged in Plaintiff's Complaint are as follows:

On November 2, 2009, Plaintiff was on restriction at SCI-Mahanoy without any of his personal property in his cell. (Complaint, ¶ 21.) Plaintiff's restrictions were to be completed that day and his personal property was to be returned. (Complaint, ¶ 22.) However, when Plaintiff asked Defendant Murphy when he would receive his property back, Plaintiff was informed that "there is a price you pay for filing grievances, you will never see us in court, today will be the last time you see our faces." (Complaint, ¶¶ 21-23.) A few hours later, Defendant Dunkle informed Plaintiff that he was being transferred to another institution. (Complaint, ¶ 24.) Defendant Dunkle assured Plaintiff that all of his personal property was accounted for and that it would be transferred with Plaintiff. (Complaint, ¶ 25.)

Later that morning, Plaintiff viewed Dependants Gormley and Hyslack load his property into a van for transfer to SCI-Coal Township. (Complaint, ¶¶ 26-27.) Plaintiff asked the officers if all of his property was accounted for and Defendant Gormley replied "this is the price you pay." (Complaint, ¶ 27.) Subsequently, Plaintiff was transported to SCI-Coal Township. (Complaint, ¶ 29.)

Despite Department of Corrections' policy, an inventory sheet identifying Plaintiff's property was never completed in Plaintiff's presence by Defendants Dunkle, Meyers, Doe, Gormley, Hyslack, Malik, or Clark. (Complaint, ¶¶ 30-32.) Had Defendants completed the inventory sheet in Plaintiff's presence as required, Plaintiff would be able to demonstrate that his property was lost or destroyed. (Complaint, ¶ 33.) Plaintiff's personal property disappeared because of prior grievances he had filed against Defendants Gormley and Murphy. (Complaint, ¶ 28.)

The next day, on November 3, 2009, Plaintiff was provided with a portion of his remaining property. (Complaint, ¶ 35.) At that time, Plaintiff was only able to determine that two photograph albums were missing. (Complaint, ¶ 36.) Plaintiff filed a request slip for the missing property with Defendants McMillan and Burns, but neither Defendant pursued action on Plaintiff's missing property. (Complaint, ¶¶ 36-37.) Eventually, Plaintiff received a photocopy of the inventory sheet completed on November 2, 2009, but Department of Corrections' policy was violated because Defendants Romig and Segedy did not provide Plaintiff with a goldenrod copy. (Complaint, ¶¶ 38-39.) Defendant Romig later informed Plaintiff that he was aware of his requests for his missing property, but that "everything happens for a reason." (Complaint, ¶ 40.)

Plaintiff also informed Defendant Mowrey, the assigned grievance officer to his claim, of his missing property, but Defendant Mowrey conducted no investigation to recover Plaintiff's property. (Complaint, ¶ 42.)

On December 4, 2009, Plaintiff submitted a request slip for legal documents from his personal property. (Complaint, ¶ 44.) At that time, Plaintiff learned that various documents pertaining to his pending criminal matters had disappeared. (Complaint, ¶ 45.) One document included a dying declaration from a witness relevant to his pending criminal appeal. (Complaint, ¶ 45.) Plaintiff submitted additional requests on December 17, 2009, December 22, 2009, and January 5, 2010 to Defendants Dascani and Mason. (Complaint, ¶¶ 47-48.) None of these requests were acknowledged or processed. (Complaint, ¶ 48.)

Plaintiff subsequently commenced this action alleging numerous causes of action:

(1) § 1983 due process violation claim; (2) § 1983 denial of access to the courts claim; (3) § 1983 retaliation claim; (4) § 1983 conspiracy claim; (5) § 1981 claim; (6) § 1985(3) conspiracy claim; and (7) § 1986 claim. (Complaint, ¶ 66.) Plaintiff seeks injunctive relief, compensatory damages, and punitive damages. (Complaint, ¶¶ 67-73.)

B. Magistrate Judge Blewitt's Recommendations

On December 28, 2011, Magistrate Judge Blewitt issued a R & R setting forth numerous recommendations. (Doc. 9.) First, Magistrate Judge Blewitt recommends dismissing with prejudice the claims for punitive and compensatory damages against Defendants in their official capacity and striking the request for specific monetary damages from Plaintiff's Complaint. (Doc. 9.) Second, the Magistrate Judge recommends dismissing the Fourteenth Amendment Due Process claim with prejudice. (Doc. 9.) Third, the R & R suggests the First Amendment access to the courts claim be dismissed as to Defendants Murphy, McMillan, Burns, Romig, Segedy, Mowrey, Dascani, and Mason. (Doc. 9.) Fourth, Magistrate Judge Blewitt recommends dismissing with prejudice the First Amendment retaliation claim as to Defendants Dunkle, Meyers, Doe, Hyslack, Malik, and Clark. (Doc. 9.) Fifth, the Magistrate Judge recommends dismissing Defendants McMillan, Burns, Romig, and Segedy from this action without prejudice, and dismissing Defendants ...


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