United States District Court, M.D. Pennsylvania
Saporito Magistrate Judge
JAMES M. MUNLEY, UNITED STATES DISTRICT COURT.
the court for disposition is Magistrate Judge Joseph M.
Saporito's report and recommendation (hereinafter
“R&R”) which proposes granting the
defendants' motion for summary judgment. (Doc. 60).
Plaintiff Anthony Moneyham (hereinafter
“plaintiff”), a federal prisoner incarcerated at
United States Penitentiary Lewisburg (hereinafter
“USP-Lewisburg”), filed the instant lawsuit
asserting constitutional tort claims against several Bureau
of Prisons (hereinafter “BOP”) employees. For the
following reasons, we will adopt Magistrate Judge
Saporito's R&R and grant summary judgment for the
a pro se inmate currently incarcerated at
USP-Lewisburg, initiated this action on February 24, 2015.
(Doc. 1, Compl.). Plaintiff alleges a First Amendment
retaliation claim pursuant to Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971). Plaintiff averred in his complaint that two
emergency medical technicians and a prison officer physically
assaulted him on February 21, 2015, in retaliation for his
refusal to end a hunger strike that plaintiff started to
protest the discontinuation of his prescription medication.
(Doc. 1, Compl.).
March 12, 2015, after this action had been initiated,
plaintiff submitted his first Administrative Remedy Request
with USP-Lewisburg in which he informed the prison
administration of his alleged assault. (Doc. 13, at 8).
Between March 12, 2015, and July 7, 2015, plaintiff completed
the process for exhausting his administrative remedies. (Doc.
55-1, at 56). His appeal was denied and the BOP's General
Counsel closed plaintiff's file. (Id.)
moved to dismiss plaintiff's complaint (Doc. 18), and on
June 27, 2016, we adopted Magistrate Judge Saporito's
recommendation and dismissed plaintiff's complaint for
failure to exhaust administrative remedies prior to filing
suit. (Doc. 35). We further directed plaintiff to file an
amended complaint to properly assert a constitutional tort
claim within twenty-one (21) days limited to the assertion of
a Bivens claim arising from the alleged assault on
February 21, 2015. (Id.)
filed an amended complaint on July 18, 2016. (Doc. 37, Am.
Compl.). In addition to the three defendants named in the
original complaint, the amended complaint names five
additional defendants, each of whom allegedly participated in
the February 21, 2015 assault. (Id. at 2). On July
21, 2016, Magistrate Judge Saporito recommended that
plaintiff's complaint be dismissed sua sponte
with respect to one of the newly added defendants, “C.
Brininger, ” for failure to state a claim upon which
relief can be granted. (Doc. 41). We adopted Magistrate Judge
Saporito's recommendation on August 30, 2016, and
dismissed plaintiff's claim against Defendant C.
Brininger. (Doc. 47). We provided plaintiff with twenty-one
(21) days to file an amended complaint to properly plead a
cause of action against Defendant C. Brininger.
(Id.) On September 16, 2016, plaintiff filed a
second amended complaint naming Defendant C. Brininger. (Doc.
filed a motion to dismiss the complaint or, in the
alternative, a motion for summary judgment on December 2,
2016. (Doc. 53). On August 3, 2017, Magistrate Judge
Saporito, after reviewing the record, recommended that
defendants' motion for summary judgment be granted after
finding that plaintiff failed to properly exhaust all
available administrative remedies prior to bringing this
action. (Doc. 60). In his R&R, Magistrate Judge Saporito
further found that the court lacks the authority to excuse
this failure based on plaintiff's subsequent exhaustion
of administrative remedies. Plaintiff filed timely objections
to the R&R, and defendants filed a brief in response.
(Doc. 61; Doc. 62). This matter is now ripe for disposition.
disposing of objections to a magistrate judge's R&R,
the district court must make a de novo determination
of those portions of the report against which objections are
made. 28 U.S.C. § 636(b)(1)(c); see also Sullivan v.
Cuyler, 723 F.2d 1077, 1085 (3d Cir. 1983). Absent
objections to the report and recommendation, a district court
should still "afford some level of review to dispositive
legal issues raised by the report." Henderson v.
Carlson, 812 F.2d 874, 878 (3d Cir. 1987).The law
describes this level of review as "reasoned
consideration." Id. Absent a clear error on the
face of the record or a manifest of injustice, we may adopt
the recommendation by the magistrate judge. Fed.R.Civ.P.
72(b) 1983 Advisory Committee Notes; see also 28
U.S.C. § 636(b)(1); Sullivan, 723 F.2d at 1085.
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.
Henderson, 812 F.2d at 977. The district court judge
may also receive further evidence or recommit the matter to
the magistrate judge with instructions. Id.
Judge Saporito recommends granting defendants' motion for
summary judgment based on plaintiff's failure to properly
exhaust all available administrative remedies prior to
bringing suit. Magistrate Judge Saporito found that because
plaintiff only exhausted his administrative remedies after
filing suit, we lack the authority to excuse plaintiff's
failure. In plaintiff's response to Magistrate Judge
Saporito's R&R, entitled “Plaintiff Objection
to Magistrate Judge Report and Recommendation, ”
plaintiff acknowledges Magistrate Judge Saporito's
findings, yet plaintiff does not dispute them. (Doc. 61).
Plaintiff does not contest that he failed to exhaust his
administrative remedies, nor does he contest that his ...