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Salley v. Wetzel

United States District Court, Third Circuit

June 20, 2013

JOHN E. WETZEL, et al., Defendants.


MALACHY E. MANNION, District Judge. [1]

Presently before the court is the report and recommendation of Magistrate Judge Thomas M. Blewitt, (Doc. No. 17). Judge Blewitt recommends that the motion for leave to proceed in forma pauperis, (Doc. No. 2), be granted; the plaintiff's amended complaint, (Doc. No. 15), be dismissed with prejudice in part and without prejudice in part; certain claims be transferred to the Western District of Pennsylvania (WDPA); and, the plaintiff's motion for a restraining order, (Doc. No. 16), be denied. For the reasons stated below, the court will adopt the report and recommendation in all parts except as to the recommendation to transfer to the WDPA.


On August 6, 2012, the plaintiff, an inmate currently confined at the State Correctional Institution in Houtzdale, Pennsylvania (hereinafter "SCI-Houtzdale"), filed a pro se complaint alleging violations of his federally protected rights pursuant to 42 U.S.C. § 1983. On October 3, 2012, Judge Blewitt issued an order, (Doc. No. 10), which, in part, directed the plaintiff to file an amended complaint. The order specifically informed the plaintiff that his thirty-three page complaint contained unrelated and improperly pled claims, in violation of Federal Rules of Civil Procedure 8 and 20. The court directed plaintiff to file an amended complaint that complied with the Federal Rules of Civil Procedure.

On November 23, 2012, the plaintiff filed his amended complaint, (Doc. No. 15). The amended complaint comprises thirty-seven pages and names seventy-three defendants. Judge Blewitt diligently recapitulated the claims erratically set forth in the plaintiff's amended complaint. As stated by Judge Blewitt, the main allegation is a vast conspiracy to retaliate against the plaintiff for past grievances and lawsuits. The conspiracy is alleged to involve employees at all levels of the Pennsylvania Department of Corrections in addition to Federal Judge Sylvia Rambo and former Federal Judge Andrew Smyser of this court. The allegations date back as far as 1998 and include alleged violations of the plaintiff's First, Eighth and Fourteenth Amendment rights. Specifically, the plaintiff alleges that various groups of defendants deprived him of personal property and legal papers, filed false misconduct reports, denied him basic conditions of confinement and medical care, failed to take remedial action against other defendants who had violated his rights, keeping him in administrative segregation and treating him differently than other inmates.

On January 14, 2013, the plaintiff filed a motion for a "restraining order" alleging further retaliation by prison officials at SCI-Houtzdale, (Doc. No. 16).

On January 22, 2013, Judge Blewitt issued the instant report and recommendation in which he recommends that: (1) the plaintiff's motion to proceed in forma pauperis be granted; (2) all claims raised against Judge Rambo and Judge Smyser be dismissed with prejudice on the basis of judicial immunity; (3) all claims arising before July 25, 2010 be dismissed with prejudice as they exceed the two year statute of limitations for § 1983 claims; (4) the plaintiff's request to be transferred to another facility be dismissed with prejudice; (5) the plaintiff's request for expungement of misconduct reports filed against him be dismissed without prejudice pending exhaustion of administrative remedies; (6) the plaintiff's request for a court order to return the plaintiff's allegedly stolen property be dismissed without prejudice pending exhaustion of administrative remedies; (7) claims alleged to have occurred at SCI-Houtzdale, SCI-Pittsburgh and SCI-Fayette be transferred to the United States District Court for the Western District of Pennsylvania; (8) the remainder of the amended complaint be dismissed without prejudice; and, (9) the plaintiff's motion for restraining order be denied.

On February 11, 2013, the plaintiff filed objections to Judge Blewitt's report and recommendation, (Doc. No. 17). On March 4, 2013, the plaintiff filed an exhibit in support of his objections, (Doc. No. 22). Much of the plaintiff's twenty-four page objection is devoted to outlining new factual allegations, arising after the filing of the amended complaint, and reasserting prior allegations. Nevertheless, the court is able to discern four objections from the plaintiff's scattered submission. The plaintiff objects to Judge Blewitt's findings that: (1) the plaintiff has failed to properly plead the existence of a conspiracy, (Doc. No. 17 at 10); (2) Judges Rambo and Smyser are entitled to judicial immunity (Id. at 11); (3) the plaintiff's complaint fails to meet the requirements of Federal Rule of Civil Procedure 20, (Id. at 18); (4) it would be futile for the plaintiff to amend his complaint, (Id. at 19); and, (5) the plaintiff has had unfettered access to the court in the instant action, (Id. at 2).


When objections are timely filed to the report and recommendation of a magistrate judge, the district court must review de novo those portions of the report to which objections are made. See 28 U.S.C. § 636(b)(1); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo, the extent of review is committed to the sound discretion of the district judge, and the court may rely on the recommendations of the magistrate judge to the extent it deems proper. See Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no objection is made, the court should, as a matter of good practice, "satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining judges should give some review to every report and recommendation)). Nevertheless, whether timely objections are made or not, the district court may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Local Rule 72.31.


The central claim of the plaintiff's amended complaint is a vast conspiracy among all seventy-three defendants to deprive him of his rights. The plaintiff appears to agree that to properly plead a conspiracy claim "a plaintiff must make specific factual allegations of combination, agreement, or understanding among all or between any of the defendants to plot, plan, or conspire to carry out the alleged chain of events." Marchese v. Umstead, 110 F.Supp.2d 361, 371 (E.D.Pa. 2000)(quoting Panayotides v. Rabenhold, 35 F.Supp.2d 411, 419 (E.D.Pa. 1999), see also Tindell v. Beard, 351 Fed.Appx. 591, 594 (3d Cir.2009)(citing Rose v. Bartle, 871 F.2d 331, 366 (3d Cir.1989)); Doc. No. 17 at 15; Doc. No. 21 at 11. The plaintiff believes that his amended complaint demonstrates sufficient facts under this standard. The court, however, agrees with Judge Blewitt's finding that the plaintiff has failed to demonstrate sufficient evidence of the existence of a conspiracy. The plaintiff's amended complaint contains numerous factual allegations related to the alleged acts which deprived him of his rights. The amended complaint does not, however, contain any facts specific to the formation or maintenance of a conspiracy. Rather the plaintiff relies on conclusory allegations that each of the individual acts are somehow linked and therefore part of a conspiracy against him. Such bald conslusory assertions cannot support his claim.

In light of the fact that the plaintiff has failed to properly support his allegations of a conspiracy, Judge Blewitt examined the various individual claims raised in the amended complaint. Judge Blewitt recommends that time barred claims, the request for a transfer to another facility and all claims against the two Judges be dismissed with prejudice and the ...

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