The opinion of the court was delivered by: Judge Munley
Before the court for disposition is Magistrate Judge Martin C. Carlson's Report and Recommendation. (Doc. 39). The Report and Recommendation proposes that Plaintiff Love Altonio Brooks' (hereinafter "plaintiff") pro se civil rights action pursuant to 42 U.S.C. § 1983 be dismissed, in part, and permitted to proceed, in part. Plaintiff has filed objections (Doc. 41) to the Report and Recommendation and a motion to recall original claims. (Doc. 42). The matters have been fully briefed and are ripe for disposition.
This is a pro se civil rights case that was first brought by plaintiff, a federal prisoner, on January 11, 2012. (Doc. 1, Compl. (hereinafter "Compl.")). Plaintiff is an inmate formerly incarcerated in the Special Management Unit at the United States Penitentiary in Lewisburg, Pennsylvania (hereinafter "USP Lewisburg"). Plaintiff's initial complaint brought constitutional tort claims, pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80. Plaintiff named the United States of America as a defendant and the following USP Lewisburg staff: Warden Bryan Bledsoe, Associate Warden Donald Hudson, Deputy Captain Sean Snider, Captain Bradley Trate, Correctional Officer Ty Crawley, Senior Officer Dennis Kepner, Psychologist Danielle Mink and Senior Officer Specialist Shannon Prutzman (hereinafter "defendants"). (Compl. at 2).
On May 14, 2012, the defendants filed a motion to dismiss and for summary judgment. (Doc. 14). On August 20, 2012, Magistrate Judge J. Andrew Smyser recommended that defendants' motion to dismiss and summary judgment be granted in part and denied in part. (Doc. 31).
Prior to the court ruling on Magistrate Judge Smyser's report and recommendation, plaintiff voluntarily sought leave to amend his complaint. (Doc. 32). The court granted plaintiff's unopposed request and directed plaintiff to file a full and complete amended complaint in all respects. (Doc. 34) (emphasis added).
Plaintiff filed his amended complaint on September 24, 2012. (Doc. 38, Am. Compl. (hereinafter "Am. Compl."). Plaintiff's amended complaint alleged a myriad of claims. (Id.) Generally, plaintiff alleges he has been the recipient of staff retaliation because he has been filing administrative grievances. Additionally, plaintiff alleges staff retaliation because plaintiff successfully prevailed in a previous pro se Bivens lawsuit against other USP Lewisburg staff.*fn1
Plaintiff's specific allegations of retaliation include: (1) placement in a recreation cage with ice on the ground; (2) false accusations of "fondling my penis while wearing no pants" by Dr. Mink in a loud manner leading to strife between plaintiff and several other prisoners; (3) having personal items stolen and damaged by Defendants Smith and Prutzman; (4) denial of sheets, blankets, toilet paper, a shower and recreation by Defendant Smith; (5) exposure to chemical agents which filtered into plaintiff's area from other locations; (6) an attack by another inmate (as orchestrated by Defendant Kepner) while Defendant Crawley stood idly by, and a cover-up of the attack by medical staff who failed to assess his injuries; (7) the issuance of an incident report for fighting by Defendant Crawley and the finding of guilt and imposition of sanctions, including the loss of twenty-seven days of good conduct time by Defendant Jordan, after Defendant Jordan "colluded" with staff and falsely stated that plaintiff's witness refused to make a settlement; (8) the switching of plaintiff's staff representative at the disciplinary hearing to Case Manager Cotteral, who allowed Defendant Jordan to violate plaintiff's rights; (9) the double celling of inmates in smaller cells with no room to exercise; (10) being forced to cell with inmates who make it known they do not want cell mates, take psychiatric medication, are compulsive masturbators, and then being placed in shackles for long periods of time if you refuse a cell mate; (11) no duress buttons; (12) no ladders on the bunk beds, no storage shelves, no lockers and only one desk in the cells; (13) inadequate ventilation in cells, which caused heat rash; (14) visiting restrictions with one-hour video visits; (15) a rule by Warden Bledsoe prohibiting inmates from obtaining Uniform Commercial Code (hereinafter "UCC") documents; and (16) a rule by Warden Bledsoe rejecting books containing sexually explicit materials. (See generally Am. Compl; Doc. 44, Br. in Opp'n to Pl.'s Objections at 3-4).*fn2
On September 21, 2012, upon the retirement of Magistrate Judge Smyser, the case was referred to Magistrate Judge Martin C. Carlson for report and recommendation.
Liberally construed, the amended complaint names a number of supervisory officials as defendants, including two newly named Supervisory Defendants, Regional Director Norwood and National Appeals Administrator Harrell Watts. (See Am. Compl.). The other Supervisory Defendants include Warden Bledsoe, Associate Warden Hudson and Captains Snyder and Trate. (Id.)
On October 1, 2012, Magistrate Judge Carlson recommended that plaintiff's amended complaint be dismissed with prejudice as to Supervisory Defendants Bledsoe, Hudson, Snyder, Trate, Watts and Norwood, with the exception of plaintiff's complaint that Defendant Bledsoe adopted a policy that unconstitutionally restricted plaintiff's access to UCC materials, and materials depicting nudity. (Doc. 39, Report and Recommendation at 17-18). Magistrate Judge Carlson also recommended that defendants' motion to dismiss the original complaint be dismissed as moot because plaintiff's amended complaint rendered the original complaint null and void. (Id. at 18).
On October 15, 2012, plaintiff filed objections to Magistrate Judge Carlson's recommendations (Doc. 41) and a motion to recall plaintiff's original claims. (Doc. 42). On October 31, 2012, defendants filed a brief in opposition to plaintiff's objections. On November 5, 2012, defendants filed a brief in opposition to plaintiff's motion to recall original claims (Doc. 45) to which plaintiff filed a reply on November 19, 2012. (Doc. 48). For the following reasons, plaintiff's objections and motion to recall original claims will be denied.
When deciding whether to adopt the report and recommendation when no objections have been filed, we must determine if a review of the record evidences plain error or manifest injustice. FED. R. CIV. P. 72(b) 1983 Advisory Committee Notes ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record to accept the recommendation"); see also 28 U.S.C. § 636(b)(1); Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir. 1983).
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 against which objections are made. 28 U.S.C. § 636(b)(1)(c); see also Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir. 1983). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). The district court judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id.
Finally, courts are to construe complaints so "as to do substantial justice," keeping in mind that pro se complaints in particular should be construed liberally. Alston ...