United States District Court, M.D. Pennsylvania
SCOTT J. NJOS, Plaintiff,
S. ARGUETA, et al., Defendants.
EDWIN M. KOSIK, District Judge.
Before the court are Plaintiff's Objections to the Report and Recommendation of Magistrate Judge Joseph F. Saporito, Jr. filed on May 5, 2015 (Doc. 180). For the reasons which follow, we will adopt the Report and Recommendation of the Magistrate Judge.
Plaintiff, Scott Njos, an inmate confined at the United States Penitentiary-Lewisburg, Lewisburg, Pennsylvania, filed the instant civil rights action pursuant to 28 U.S.C. §1331 on June 1, 2012. This case has had an extensive procedural history. The remaining claims are based on an excessive use of force by Defendants Argueta and Prutzman. There also remains an outstanding issue on the exhaustion of administrative remedies involving the excessive use of force claims.
On July 25, 2014, Defendants filed a Motion for an Evidentiary Hearing and Supporting Brief with regard to the exhaustion issue (Docs. 124 and 125). An evidentiary hearing on the exhaustion issue was held on May 19, 2015.
On April 24, 2015, Plaintiff filed an "Emergency Motion for Conditional Voluntary Dismissal" (Doc. 162) and a Brief in Support thereof (Doc. 163). A Brief in Opposition to the Motion was filed by Defendants on April 28, 2015 (Doc. 170). On May 5, 2015, the Magistrate Judge filed a Report and Recommendation (Doc. 180), recommending that Plaintiff's Emergency Motion for Conditional Voluntary Dismissal be denied. Plaintiff filed a Reply Brief (Doc. 181) on May 11, 2015. On May 14, 2015, Plaintiff filed a Letter and Objections to the Report and Recommendation (Docs. 182 and 183).
When objections are filed to a Report and Recommendation of a Magistrate Judge, we must make a de novo determination of those portions of the Report to which objections are made. 28 U.S.C. §636(b)(1)(C); see Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). In doing so, we 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 72.3. Although our review is de novo, we are permitted by statute to rely upon the Magistrate Judge's proposed recommendations to the extent we, in the exercise of sound discretion, deem proper. United States v. Raddatz, 447 U.S. 667, 676 (1980); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
From the onset of this action, there has been an issue of whether Plaintiff has exhausted his administrative remedies prior to filing the instant action. Specifically, Defendants have argued that Plaintiff has failed to exhaust his administrative remedies. In response, Plaintiff has asserted that he started the administrative remedies process, but withdrew his administrative filings in response to threats made by a correctional officer and the resulting fear. He thus asserted that he exhausted the administrative remedies that were available to him. Because there were issues of fact, including issues of credibility, an evidentiary hearing was scheduled by the Magistrate Judge.
After the Magistrate Judge scheduled the evidentiary hearing, Plaintiff filed his Emergency Motion for Conditional Voluntary Dismissal. In his Brief in support of the Motion, Plaintiff asserts that after his fear of the threats subsided, he filed a new Administrative Grievance concerning the 2012 events and that these claims were properly exhausted on September 17, 2013. Plaintiff proposes the following conditions for voluntary dismissal:
(1) That the court dismiss without prejudice and instantly refile the complaint on the same day; and
(2) That the court consider the "degree of permanence" to be when Central Office refused to provide relief (#720162-Sep. 17, 2013) concerning the excessive use of force and threats of death and crippling by Defendants; and
(3) That Plaintiff be granted equitable tolling during exhaustion of administrative remedies;
In opposition to Plaintiff's Motion, Defendants argue that the evidentiary hearing on the exhaustion issue should proceed. The ...