SYLVIA H. RAMBO, District Judge.
Plaintiff Keith Collier filed an action pursuant to 28 U.S.C. § 1331 against officers at the United States Penitentiary at Allenwood, Pennsylvania. The basis of the complaint (Doc. 1) was that Collier was placed in the Special Housing Unit (SHU) at Allenwood as a result of a gambling investigation. Pursuant to his move to the SHU, homemade-intoxicants were found in his possession and he suffered disciplinary proceedings. To protest his confinement in the SHU, Collier went on a hunger strike. Subsequently, he alleges that Defendant Bludworth threatened to cut off water to his cell if Collier did not cease his hunger strike. Collier alleges that Defendant Adams did cut off the water in his cell.
On February 9, 2010, this court dismissed all claims in the amended complaint except for the Eighth Amendment claims against Defendants Bludworth and Adams (Doc. 15). On January 3, 2011, this court granted summary judgment in favor of Defendants Bludworth and Adams (Doc. 48) and closed the file. Plaintiff filed an appeal (Doc. 51).
On April 4, 2012, the United States Court of Appeals for the Third Circuit affirmed in part and denied in part the aforementioned decisions (Doc. 73). The circuit court vacated the grant of summary judgment to Defendants Adams and Bludworth on the Eighth Amendment claim of water deprivation. The case was reopened and the matter remanded to the magistrate judge.
The parties engaged in additional discovery. Eventually, the parties filed new motions for summary judgment (Docs. 105 and 107). On July 26, 2013, the magistrate judge filed a report and recommendation (Doc. 133) in which she recommends that Defendants' motion for summary judgment be granted and that Plaintiff's motion for summary judgment be denied on the Eighth Amendment issue of deprivation of water. Plaintiff has filed objections (Doc. 136) to the report and recommendation to which Defendants have responded (Doc. 137) and Plaintiff has replied (Doc. 142). The matter is ripe for disposition.
Collier objects to the report and recommendation as follows: (1) the court failed to appoint him counsel; (2) the court should not have denied his motion for close of discovery; (3) there is a material fact in dispute precluding summary judgment; and (4) Defendants are not entitled to qualified immunity. These issues will be addressed below.
A. Right to Counsel
Collier moved for appointment of counsel on September 18, 2012 (Doc. 91). This request was denied on September 26, 2012 (Doc. 93). Pursuant to Middle District Local Rule 72.2, a party appealing a magistrate judge's order is required to appeal within 14 days on a denial of a non-dispositive order. Raising this issue now is well beyond the time limit. Thus, this objection is untimely and is without merit.
B. Denial of Motion for Closure of Discovery
On December 7, 2012, Collier filed a motion "for close of discovery demanding statutory damages, injunctive relief, and punitive damages under § 1331; and Bivens" (Doc. 107). Middle District Local Rule 7.5 requires the filing of a supporting brief. No supporting brief was filed; therefore, according to the local rule, the motion can be deemed withdrawn. The magistrate judge made such a determination (Doc. 132). Furthermore, as on the issue of appointment of counsel, this issue requires an appeal to be filed within 14 days. The non-dispositive order on this issue was filed on July 29, 2013 and the objection to this order was raised on September 20, 2013 (Doc. 136), and is therefore untimely.
Collier claims that he was never informed as to the necessity of filing briefs in support of motions. However, the Standing Practice Order advising a pro se plaintiff of his obligations regarding the filing of briefs was issued in this case and mailed to ...