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Rosa-Diaz v. Siegel

United States District Court, W.D. Pennsylvania

May 17, 2019

GABRIEL ROSA-DIAZ, Plaintiff
v.
S. SIEGEL, LT. HEFFERNAN, CO FRIEDLINE and CO SCHLEMMER, Defendants

          SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [ECF NO. 72]

          RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE

         I. Recommendation

         It is respectfully recommended that Defendants' Motion for Summary Judgment [ECF No. 72] be GRANTED.

         II. Report

         A. INTRODUCTION

         Plaintiff Gabriel Rosa-Diaz, a former inmate of State Correctional Institution at Forest Pennsylvania (SCI-Forest), commenced this action against forty-four employees of the Pennsylvania Department of Corrections (DOC) pursuant to 42 U.S.C. § 1983.[1] Plaintiff filed his initial Complaint, pro se, on June 23, 2016. [ECF No. 3]. He filed an Amended Complaint on November 14, 2016, [ECF No. 21], and a Second Amended Complaint on January 30, 2018. [ECF No. 58]. The Second Amended Complaint asserted violations of the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution based upon actions he alleged Defendants committed against him at SCI-Forest in July 2014. The Defendants moved to dismiss the Second Amended Complaint and, on September 11, 2018, the Court entered a Memorandum Order, granting in part and denying in part Defendants' Motion. [ECF No. 66]. Specifically, the Court dismissed, with prejudice, all claims against Defendants Overmyer, Mongelluzzo and Varner and all due process claims based on the loss of and damage to Plaintiff's personal property. Id. The Court declined to dismiss Plaintiff's access to courts claim against Defendants S. Siegel, Lt. Heffernan, CO Friedline and CO Schlemmer. Id. This is the sole remaining claim in this action. This claim asserts that the four remaining Defendants deprived Plaintiff of his ability to amend his Amended Complaint in a prior lawsuit, Rosa-Diaz v. Dow, 3:14-cv- 00005-KRG (Dow Litigation). Discovery has concluded and Defendants Siegel, Heffernan, Friedline and Schlemmer have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. [ECF No. 72]. The Motion has been fully briefed and is ripe for Report and Recommendation and ultimate disposition.

         B. LOCAL RULE 56.1 VIOLATION

         Before addressing the factual background underlying this action, the Court notes that Plaintiff has failed to properly respond to Defendant's Concise Statement of Material Facts (ECF No. 74), as required by Local Rule 56.C.1. This rule requires non-moving parties to a motion for summary judgment to file a responsive concise statement in which they must: respond to each numbered paragraph in the movant's concise statement; admit or deny the facts contained in the movant's concise statement; set forth the basis for denial if any fact within the movant's concise statement is not entirely admitted by the non-moving party, with appropriate citation to the record; and set forth, in separately numbered paragraphs, any other material facts at issue. See LCvR 56.C.1. Courts of Western District of Pennsylvania require strict compliance with the provisions of Local Rule 56. See, e.g., Coleman v. Tice, 2018 WL 5724125, at *2 n. 3 (W.D. Pa. Oct. 10, 2018); First Guard Ins. Co. v. Bloom Services, Inc., 2018 WL 949224, at *2-3 (W.D. Pa. Feb. 16, 2018); Hughes v. Allegheny County Airport Authority, 2017 WL 2880875, at *1 (W.D. Pa. July 6, 2017).

         A non-moving party “faces severe consequences for not properly responding to a moving party's concise statement.” Hughes, 2017 WL 2880875, at *1. Any alleged material facts “set forth in the moving party's Concise Statement of Material Facts . . . which are claimed to be undisputed, will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party.” LCvR 56.E. While courts provide some leniency to pro se litigants when applying procedural rules, the Court “‘is under no duty to provide personal instruction on courtroom procedure or to perform any legal chores for the [pro se litigant] that counsel would normally carry out.'” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013). Nor may pro se litigants ignore procedural rules that apply to parties assisted by counsel. McNeil v. United States, 508 U.S. 106, 113 (1993) (explaining that “we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel”).

         Accordingly, to the extent that Plaintiff has failed to respond to any concise statement of material fact, that concise statement of material fact will be deemed admitted. LCvR 56.E. However, the Court will consider any facts properly alleged in Plaintiff's pro se responses that specifically contradict Defendants' statement of facts, to the extent that they are supported by the record. Boyd v. Citizens Bank of Pa., Inc., 2014 WL 2154902, at *3 (W.D. Pa. May 22, 2014) (stating that “[t]o the extent Plaintiff's statement of ‘fact' specifically controverts Defendant's, the Court will consider these facts in determining whether summary judgment should be granted”).

         C. MATERIAL FACTS

         Plaintiff alleges that the Defendants failed to provide him with his legal papers in the Dow Litigation in July, 2014 and thereby prevented him from amending his Amended Complaint in that case in response to a motion to dismiss. [ECF No. 58, ¶ 35');">35');">35');">35]. More specifically, Plaintiff alleges the failure to provide his legal papers resulted in the dismissal of several defendants in the other lawsuit, namely, Reed, Cameron, Beck, Lewis and Wetzel, and the dismissal of his due process claims under the Eighth and Fourteenth Amendments. [ECF No. 58, ¶ 35');">35');">35');">35].

         In the Dow case, Plaintiff asserted Eighth Amendment and due process claims in connection with several allegedly improper misconducts that he received after being involved in a fight with another inmate on April 9 2012, while incarcerated at SCI-Cresson. Id. The named defendants included Reed, a Hearing Examiner; Beck, an Accountant; Cameron, the Superintendent at SCI-Cresson; Varner, the Chief Grievance Coordinator for the Department of Corrections; Lewis, the Chief Hearing Examiner for the Department of Corrections; and Wetzel, the Secretary of the Department of Corrections. Id. The claims were based, in pertinent part, on allegations that Dow and Sheridan issued false misconducts charges against him and that Hearing Examiner Reed ...


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