The opinion of the court was delivered by: Judge Caputo
(MAGISTRATE JUDGE SMYSER)
Presently before the Court is Magistrate Judge Smyser's Report and Recommendation ("R & R") to Defendants' Motion to Dismiss Plaintiff's Amended Complaint. (Doc. 45.) The Magistrate Judge recommends that Defendants' motion to dismiss be granted in part and denied in part. Defendants have filed a single objection to the R & R. Specifically, Defendants argue that Plaintiff should not be permitted to proceed on his procedural due process claim against prison officials who were not involved with Plaintiff's prison disciplinary proceedings other than in the review of his disciplinary appeals. Plaintiff filed a timely opposition to Defendants' objection. Because the review of an inmate's grievance or appeal alone is not sufficient to demonstrate personal involvement required to establish the deprivation of a constitutional right, Plaintiff's procedural due process claim against the officials that participated in the review of his disciplinary appeals will be dismissed.
Plaintiff, a pro-se prisoner incarcerated by the Pennsylvania
Department of Corrections at SCI-Dallas, commenced this action on
September 19, 2011 against twenty-four Defendants alleging various
claims related to the conditions of confinement at SCI-Dallas. As set
forth in greater detail in Magistrate Judge Smyser's R & R,*fn1
Amended Complaint alleges that in December of 2010 a misconduct report
was filed against him after he filed a grievance against Defendant
Pieczynski. Thereafter, Defendant Hearing Examiner McKeown conducted a
hearing over Plaintiff's alleged misconduct. At the hearing, however,
Plaintiff was not permitted to call witness in his defense. Defendant
McKeown ultimately found Plaintiff guilty of the misconduct; however,
he did not provide Plaintiff with an adequate written statement of the
evidence relied upon and the reasons for the disciplinary action.
Plaintiff appealed, but Defendants Demming, Zakarauskas, Josefowicz,
Walsh, and MacIntyre refused to provide Plaintiff with an adequate
statement of the evidence relied upon to find him guilty. Furthermore,
Defendants Demming, Zakarauskas, Josefowicz, Walsh, and MacIntyre
failed to set forth a penological security reason for the refusal to
allow Plaintiff to call witnesses in his defense.
In February of 2011, another misconduct report was filed against Plaintiff in retaliation for his filing of a grievance. Defendant McKeown again refused to allow Plaintiff to call witnesses in his defense. Defendant McKeown also failed to provide an adequate statement of the evidence he relied upon to find Plaintiff guilty and the reasons disciplinary action was taken. Plaintiff appealed, but Defendants Deming, Walsh, and MacIntrye failed to provide Plaintiff with a reason why he was not permitted to call witness in his defense and failed to provide Plaintiff with a statement of the evidence relied upon to find him guilty.
Plaintiff alleges that on April 4, 2011, various Defendants unlawfully searched his cell and viciously assaulted him without provocation. After Plaintiff's grievances for the assault and search of his cell were denied, he appealed to Defendants Walsh and Varner. Plaintiff's appeals, however, were unsuccessful.
Plaintiff also alleges that Defendants Santoro and Headman issued a misconduct report charging him with assault. Defendant McKeown conducted a hearing on the alleged misconduct, but he refused to allow Plaintiff to present witnesses in his defense. Ultimately, Defendant McKeown found Plaintiff guilty of the assault. Plaintiff subsequently appealed, but his appeal was denied by Defendants Gordon, Demming, Walsh, and MacIntyre.
On May 14, 2012, Magistrate Judge Smyser recommended dismissal of Plaintiff's Fourth Amendment claim, Fifth Amendment claim, due process claim regarding the confiscation of his books, due process claim regarding the grievance process, Eighth Amendment claim regarding the issuance of false misconducts, and the state-created danger claim. Magistrate Judge Smyser recommended that Defendants' motion to dismiss be otherwise denied. Defendants filed a timely objection to the R & R. Now, as Defendants' objection has been fully briefed, it is ripe for disposition.
Where objections to the Magistrate Judge's report are filed, the court must conduct a de novo review of the contested portions of the report. Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir.1989) (citing 28 U.S.C. § 636(b)(1)(c)). However, this only applies to the extent that a party's objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6--7 (3d Cir.1984) (emphasis added). In conducting a de novo review, the court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D.Pa.1993). Although the review is de novo, the law permits the court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675--76, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F.Supp. 328, 330 (M. D. Pa.1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Goney, 749 F.2d at 7. At the very least, the court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F.Supp. 375, 376--77 (M.D. Pa.1998).
Plaintiff has not filed objections to the Report and Recommendation, and Defendants raise only a single objection to the R & R. As to uncontested portions of the R & R, the Court finds no clear error ...