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Hackley v. Ebbert

United States District Court, M.D. Pennsylvania

March 3, 2017

DAVID EBBERT, et al., Defendants.



          A. Richard Caputo United States District Judge

         Presently before me is the Report and Recommendation (“R&R”) of Magistrate Judge Carlson (Doc. 28) regarding a "Motion to Dismiss and/or for Summary Judgment" (Doc. 16), which movies to dismiss Plaintiff Wilbert Hackley's (“Plaintiff”) Amended Complaint (Doc. 10). For the reasons that follow, the R&R will be adopted in its entirety and the action will be dismissed with prejudice.

         I. Background

         Plaintiff is a prisoner who was housed at the United States Penitentiary, Canaan (“USP Canaan”) in Waymart, Pennsylvania in 2013 and 2014.

         Plaintiff filed his original complaint (Doc. 1) on February 1, 2016, and an amended complaint (Doc. 10) on February 22, 2016, alleging that two correctional counselors, Case Manager Coordinator Cynthia Hugar (“Hugar”) and Case Manager Joseph Mushala (“Mushala”), retaliated against Plaintiff, denied him due process, and interfered with his right to petition the courts.[1]

         Specifically, Plaintiff alleges that, although the United States Parole Commission (“the Commission”) issued a Notice of Action (“Notice”) on August 27, 2013, advising of its decision that Plaintiff was to “[c]ontinue to a 15-year Reconsideration Hearing in July 2028, ” (Doc. 17-1, at 15), Defendants did not provide Plaintiff with the Notice until approximately six months later, after the appeal period for the Commission's decision had expired. (Doc. 10, at 7, 8). Pursuant to 28 C.F.R. §§ 2.26(a)(2); 2.27(a), an administrative appeal of a Commission decision must be submitted to the National Appeals Board within thirty (30) days of the date the Notice of Action was sent.

         Plaintiff alleges that Defendants conspired to deliberately deny him his right to pursue the appeal. Id. Although there is some indication that a copy of the decision was faxed to the USP Canaan shortly after it was issued by the Commission on August 27, 2013, (see Doc. 33, at 9), Plaintiff insists that he did not timely receive the Notice. When Plaintiff inquired about this matter in February of 2014, Case Manager Coordinator Hugar contacted the Commission on his behalf. (Doc. 17, at 5-6). Learning of the Commission's August 27, 2013 action in Plaintiff's case, Hugar immediately obtained a copy of the Notice and directed Mushala to deliver the decision to Plaintiff. Id. Defendants also provided Plaintiff with a sworn declaration verifying that Plaintiff first received the Notice on February 20, 2014. (Doc. 33, at 7). By providing the sworn statement to Plaintiff, prison officials wanted to ensure that Plaintiff could still appeal the parole action, and the Commission has since confirmed that this verified delay in receiving the Notice would have provided Plaintiff with “good cause” for filing an untimely appeal. (Doc. 17-1, Declaration of Helen H. Krapels).

         Plaintiff never filed an appeal of his parole decision.[2] He now claims that the correctional counselors who aided him in restoring his appeal rights conspired to prevent him from timely receiving the August 27, 2013 Notice, thus interfering with his right to petition the courts and depriving him of due process.

         Defendants have responded to these accusations by filing the instant motion to dismiss, or, in the alternative, for summary judgment. (Doc. 16) On September 21, 2016, Magistrate Judge Carlson issued the instant R&R (Doc. 28) and, on October 3, 2016, Plaintiff filed his objections (Doc. 29). The R&R and the objections thereto are now ripe for review.

         II. Legal Standards

         1. Review of the Report and Recommendation

         Where objections to the Magistrate Judge's report are filed, the court must conduct a de novo review of the contested portions of the report. Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir.1989) (citing 28 U.S.C. § 636(b)(1)(c)). However, this only applies to the extent that a party's objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir.1984). In conducting a de novo review, the court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F.Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the law permits the court to rely on the recommendations of the magistrate judge to the extent it deems proper. United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. U.S. Parole Comm'n, 849 F.Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985). At the very least, the court should review uncontested portions for clear error or manifest injustice. Cruz v. Chater, 990 F.Supp. 375, 376-77 (M.D. Pa. 1998).

         2. ...

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