United States District Court, M.D. Pennsylvania
MAGISTRATE JUDGE CARLSON
Richard Caputo United States District Judge
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.
is a prisoner who was housed at the United States
Penitentiary, Canaan (“USP Canaan”) in Waymart,
Pennsylvania in 2013 and 2014.
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.
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.
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).
never filed an appeal of his parole decision. 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
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.
Review of the Report and Recommendation
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).