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John Mccain A/K/A Amir Hakim Mccain v. John E. Wetzel

December 19, 2012

JOHN MCCAIN A/K/A AMIR HAKIM MCCAIN, PLAINTIFF
v.
JOHN E. WETZEL, SECRETARY OF CORRECTIONS; KERI MOORE; JAMES C. BARNACLE; JOSEPH NISH; JOSEPH J. VINANSKY; CORRECTIONAL OFFICER ROEGNER; CORRECTIONAL OFFICER NEVINS; LIEUTENANT SMITH; BRIAN COLEMAN; RHONDA HOUSE, AND LIEUTENANT CRUMB, :: DEFENDANTS



The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge

(Magistrate Judge Schwab*fn1 )

(Judge Rambo)

MEMORANDUM

I. Procedural History

Before the court is a report and recommendation (doc. 50) filed by the magistrate judge on October 25, 2012. On November 9, 2012, Plaintiff filed a motion for extension of time to file objections to the report and recommendation (doc. 54). On November 21, 2012, Plaintiff filed a motion for an extension of time to file an amended complaint (doc. 55). On November 23, 2012, Plaintiff filed objections to the report and recommendation (doc. 56). On December 10, 2012, Defendants filed a response to Plaintiff's objections to the report and recommendation (doc. 57). This matter is ripe for disposition.

II. Background

Plaintiff, Amir Hakim McCain, a state inmate, brought this civil rights action against eleven different prison officials, in which he claims that Defendants retaliated against him because he sought to bring criminal charges against prison officials. McCain also claims that the retaliation included sexual assaults in connection with strip searches and destruction of his legal property. Finally, McCain also claims that the destruction of his legal property violated his right of access to the courts.

Defendants filed a motion to dismiss McCain's complaint (doc. 20). McCain filed a motion to deny Defendants' motion to dismiss (doc. 28) and a brief in support thereof (doc. 37). Because the proper way to oppose a motion to dismiss is to file a brief in opposition to the motion, not a separate motion to deny the motion, the magistrate judge recommended that McCain's motion to deny be dismissed as a separate motion but that it be considered as McCain's brief in opposition to Defendants' motion to dismiss the complaint.

After a thorough review of the complaint, and the law applicable to the requirements for proper pleadings, the magistrate judge recommended that Defendants' motion to dismiss (doc. 20) be granted in part and denied in part; that the access-to-the-courts claims, the due process property claims, and the claims against Defendants Wetzel, Moore, Barnacle, Nish, Vinansky, Smith, Coleman, and House, be dismissed. The magistrate judge further recommended that the motion to dismiss otherwise be denied; that McCain's motion (doc. 28) to deny the motion to dismiss otherwise be dismissed, and that McCain be granted leave to file an amended complaint. Finally, the magistrate judge recommended that the case be remanded to the magistrate judge.

III. Discussion

In his objections to the report and recommendation of the magistrate judge, McCain addresses the magistrate judge's recommendation of dismissal of his access to court claim.*fn2 In his argument, McCain adds additional facts on this claim that were not set forth in his complaint. Defendants, in their response to McCain's objection to the report and recommendation, cite to Frederico v. Home Depot, 507 F.3d 188, 201-02 (3d Cir. 2007), for the proposition that "courts do not consider after the fact allegations in determining the sufficiency of [a] complaint under Rule [ ] . . . 12(b)(6)." (Doc. 57 at p. 4.)

Since the magistrate judge recommended that McCain be given an opportunity to amend his complaint, Plaintiff can assert those additional facts set forth in his objections to the report and recommendation in an attempt to support his claim of denial of access to the court.

IV. Conclusion

No other objections were made by McCain and, therefore, this court will adopt the report and recommendation of the magistrate judge. ...


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