Opinion
CIVIL ACTION NO. 1:15-cv-00850
03-22-2017
DOYLE B. DANIEL, JR., a/k/a Kalonji Diop Cazembe, Plaintiff, v. JOHN WETZEL, in his official and individual capacity as Secretary of the Pennsylvania Department of Corrections, et al., Defendants.
(KANE, J.)
() REPORT AND RECOMMENDATION
Doyle B. Daniel, Jr., a/k/a Kalonji Diop Cazembe, is a Pennsylvania prisoner serving a sentence of nine to eighteen years imprisonment for voluntary manslaughter. He is currently incarcerated at SCI Pine Grove, located in Indiana County, Pennsylvania. At the time of the events underlying this action, and at the time of filing, he was incarcerated at SCI Forest, located in Forest County, Pennsylvania. Daniel initiated this federal civil rights action by filing his pro se complaint on May 1, 2015. (Doc. 1). He was granted leave to proceed in forma pauperis on May 26, 2015. (Doc. 10).
The sole defendant in the original complaint was John Wetzel, Secretary of the Pennsylvania Department of Corrections ("DOC"). In lieu of an answer, Secretary Wetzel filed a motion for summary judgment on the ground that Daniel failed to exhaust all available administrative remedies before filing this lawsuit. (Doc. 20). We filed a report and recommendation on the motion recommending that it be denied, but that the complaint nevertheless be dismissed sua sponte for failure to state a claim. (Doc. 38). The presiding district judge subsequently adopted that recommendation and dismissed the original complaint with leave to file a curative amendment. (Doc. 40).
As permitted, Daniel filed an amended complaint. (Doc. 45). The amended complaint includes far more robust allegations with respect to Secretary Wetzel, and it added several new defendants. Once again, in lieu of an answer, the defendants filed a motion for summary judgment on the ground that Daniel failed to exhaust all available administrative remedies before filing this lawsuit. (Doc. 50). That motion is now fully briefed and ripe for disposition. (See Doc. 56; Doc. 57; Doc. 58; Doc. 59; Doc. 64; Doc. 69; Doc. 70).
The original complaint was dismissed on the ground that Daniel had failed to allege sufficient facts to establish Wetzel's personal involvement in the conduct or conditions challenged.
Daniel has also filed a motion for a preliminary injunction. (Doc. 71). That motion is fully briefed and ripe for disposition as well. (See Doc. 72; Doc. 73; Doc. 75; Doc. 76).
I. BACKGROUND
On March 26, 2002, Daniel was sentenced to serve an aggregate term of nine to eighteen years in prison for voluntary manslaughter. For much—if not all—of his time in state prison, Daniel has been housed in administrative or disciplinary segregation. It appears that the victim of Daniel's offense of conviction was affiliated with a criminal gang. Daniel claims to have received death threats, and he fears for his life and safety if returned to the general prison population.
Daniel filed his pro se complaint in this action on May 1, 2015, asserting a federal civil rights claim against Secretary Wetzel under 42 U.S.C. § 1983. (Doc. 1). He filed his pro se amended complaint on July 5, 2016. (Doc. 45). Daniel seeks injunctive and declaratory relief, as well as compensatory and punitive damages. In his amended complaint, Daniel alleges that he suffers from post-traumatic stress disorder and other related mental disorders. He alleges that he has repeatedly received death threats from members of the victim's family and criminal gang throughout his years of incarceration. He alleges that he has been confined in the Restricted Housing Unit ("RHU") or Special Management Unit ("SMU") of a state prison for an extended period of years. Although housed in a segregated unit for much of his time behind bars, Daniel alleges that he has been denied protective custody, and that he has been prohibited from working, participating in vocational or rehabilitative programs, or attending religious services—apparently due to the restrictions that accompany his RHU or SMU housing status. Daniel alleges that he has been denied parole or a transfer to an out-of-state institution. Daniel alleges that he is an adherent of the Jewish Orthodox faith, and he has been denied kosher meals and regular visits from a Rabbi.
Daniel alleges that all of the foregoing conduct was in retaliation for the filing of unspecified grievances and civil lawsuits. He further alleges that he was issued an unspecified number of misconducts, placed in disciplinary custody status for unspecified periods of time, transferred to the special assessment unit twice, and placed in the SMU in retaliation for filing unspecified grievances and civil lawsuits.
Daniel alleges that he has used the prisoner grievance process on multiple occasions at various correctional facilities, but his grievances have all been denied. He specifically alleges having appealed the denial of an unspecified number of grievances to the final level of administrative appeal. He alleges that he has personally spoken with Secretary Wetzel about his complaints on a number of occasions while in the RHU, and he has written Secretary Wetzel several letters on these same issues as well.
Daniel has alleged that a collection of legal papers he had maintained, which would include any documentation of grievance proceedings that he had kept, was lost or destroyed during a transfer to SCI Waymart for evaluation by the special assessment unit. He has submitted copies of grievance responses in connection with his various motions to document acknowledgment of this event by prison officials, and to document their payment of $50 in compensation for his lost materials.
The defendants have filed a motion for summary judgment on the ground that Daniel has failed to exhaust all available administrative remedies. (Doc. 50). In support of this motion, the defendants have submitted the declarations of Lisa Reeher, the Superintendent's Assistant and Facility Grievance Coordinator at SCI Forest, and Michael Bell, a Grievance Officer at Secretary's Office of Inmate Grievance Appeals ("SOIGA"). (Doc. 56-1; Doc. 56-2). The Reeher Declaration provides an overview of the inmate grievance process established by DC-ADM 804, a prison regulation adopted by the DOC. It also includes Reeher's testimonial statement that: "Since 2013, Daniel has filed over one hundred twenty-eight (128) grievances at SCI-Forest." (Doc. 56-1 ¶ 13). Meanwhile, the Bell Declaration includes his testimonial statements that (1) he has "reviewed the grievance records of inmate Doyle B. Daniel, EY-4039," and (2) "Daniel has never filed a final appeal of any grievance during his incarceration at SCI-Forest since 2013." (Doc. 56-2 ¶¶ 7, 8). Neither declaration provided any further substantive or procedural detail regarding these 128 grievances.
Actually, as the Reeher Declaration notes, due to amendments, three separate versions of DC-ADM 804 were in effect during the relevant time period. The relevant provisions of the regulation, however, were identical in all three versions. (Doc. 56-1 ¶ 5).
These two declarations are substantively similar to the single declaration by Bell submitted in support of Secretary Wetzel's original motion to dismiss Daniel's original complaint, which we found lacking in our prior report and recommendation. (See Doc. 38, at 4). Indeed, if anything, these two declarations provide even less factual detail than the original declaration.
The Reeher Declaration included attachments, but these consisted solely of the three different versions of DC-ADM 804 that were in effect during the relevant time period. Nothing directly related to Daniel or his grievances was submitted by the defendants in support of their motion for summary judgment.
Daniel has filed a brief in opposition to the motion for summary judgment, together with a declaration in support of his opposition. (Doc. 58; Doc. 59). In his declaration, he provides a testimonial statement that he has exhausted administrative remedies to the extent administrative remedies were available. (Doc. 59 ¶ 11).
II. MOTION FOR PRELIMINARY INJUNCTIVE RELIEF
Daniel has moved for preliminary injunctive relief. He seeks the same injunctive relief as in the amended complaint, but on a pendente lite basis.
Preliminary injunctive relief is extraordinary in nature and should issue in only limited circumstances. See Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994). Moreover, issuance of such relief is at the discretion of the trial judge. Merrill Lynch, Pierce, Fenner & Smith Inc. v. Chamberlain, 145 F. Supp. 2d 621, 625 (M.D. Pa. 2001). In determining whether to grant a motion seeking preliminary injunctive relief, courts in the Third Circuit consider the following four factors: "(1) likelihood of success on the merits; (2) irreparable harm resulting from a denial of the relief; (3) the harm to the non-moving party if relief is granted; and (4) the public interest." United States v. Bell, 238 F. Supp. 2d 696, 699 (M.D. Pa. 2003); see also Bieros v. Nicola, 857 F. Supp. 445, 446 (E.D. Pa. 1994) ("The standards for a temporary restraining order are the same as those from a preliminary injunction."). It is the moving party who bears the burden of satisfying these factors. Bell, 238 F. Supp. 2d at 699. "Only if the movant produces evidence sufficient to convince the trial judge that all four factors favor preliminary relief should the injunction issue." Opticians Ass'n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 192 (3d Cir. 1990).
Daniel has failed to satisfy this burden. Although Daniel has presented a colorable argument that additional time spent in solitary confinement may cause him irreparable harm, see, e.g., Johnson v. Wetzel, ___ F. Supp. 3d ___, 2016 WL 5118149, at *11 (M.D. Pa. Sept. 20, 2016), upon review of the amended complaint and the remainder of the record before the Court, we find little evidence at this stage to support any likelihood of success on the merits of his claim. While some events are alleged with a degree of specificity in his amended complaint—enough to avoid our recommendation of a sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B), 28 U.S.C. § 1915A(b), and 42 U.S.C. § 1997e(c)—most of his claims are best described as generalized grievances without sufficient factual allegations to support a plausible claim for relief. Neither party has addressed the third factor (harm to the defendants) at all, and Daniel's argument on the fourth factor (the public interest) is merely a circular reference to the first two factors without any articulation of the public interest at stake here.
We note, however, that the recital of material facts in the Johnson decision suggests great potential for distinction from the facts alleged or shown so far in this case.
Accordingly, it is recommended that the plaintiff's motion for a preliminary injunction (Doc. 71) be denied.
III. MOTION FOR SUMMARY JUDGMENT
A. Legal Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is "genuine" only if the evidence "is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion," and demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes such a showing, the non-movant must set forth specific facts, supported by the record, demonstrating that "the evidence presents a sufficient disagreement to require submission to the jury." Anderson, 477 U.S. at 251-52.
In evaluating a motion for summary judgment, the Court must first determine if the moving party has made a prima facie showing that it is entitled to summary judgment. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 331. Only once that prima facie showing has been made does the burden shift to the nonmoving party to demonstrate the existence of a genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 331.
Both parties may cite to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers or other materials." Fed. R. Civ. P. 56(c)(1)(A). "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). "Although evidence may be considered in a form which is inadmissible at trial, the content of the evidence must be capable of admission at trial." Bender v. Norfolk S. Corp., 994 F. Supp. 2d 593, 599 (M.D. Pa. 2014); see also Pamintuan v. Nanticoke Mem'l Hosp., 192 F.3d 378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary judgment, to consider evidence that is not admissible at trial).
B. Discussion
We have been here before. The defendants have moved for summary judgment on the ground that Daniel failed to exhaust available administrative remedies before filing suit. This very same issue was addressed in our prior report and recommendation, in which we found the evidence insufficient to support Secretary Wetzel's failure-to-exhaust affirmative defense, and we find no discernable difference in the record before us now.
Before bringing a § 1983 action concerning prison conditions, a prisoner must first exhaust all available administrative remedies. 42 U.S.C. § 1997e(a); see also Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) ("[A]n inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues."). "[I]t is beyond the power of this court . . . to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis." Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000). A plaintiff is not required to allege that he has exhausted administrative remedies—failure to exhaust administrative remedies is an affirmative defense that generally must be pleaded and proven by the defendant. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002) ("Prison officials are likely to have greater legal expertise and, as important, superior access to prison administrative records in comparison to prisoners.") (alteration omitted). Nevertheless, "a complaint may be subject to dismissal under Rule 12(b)(6) when an affirmative defense like the [failure to exhaust available administrative remedies] appears on its face." ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994); see also Pena-Ruiz v. Solorzano, 281 Fed. App'x 110, 112 n.3 (3d Cir. 2008) (per curiam); Ray, 285 F.3d at 293 n.5; Schott v. Doe, No. CIVA 05-1730, 2007 WL 539645, at *6 (W.D. Pa. Feb. 15, 2007).
Moreover, § 1997e(a) requires "proper" exhaustion of administrative remedies, meaning strict compliance with DOC deadlines and other procedural rules. Woodford v. Ngo, 548 U.S. 81, 89-95 (2006). "A procedural default by the prisoner, either through late or improper filings, bars the prisoner from bringing a claim in federal court unless equitable considerations warrant review of the claim." McKinney v. Kelchner, No. 1:CV-05-0205, 2007 WL 2852373, at *3 (M.D. Pa. Sept. 27, 2007) (citing Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004)). "[T]o properly exhaust administrative remedies prisoners must 'complete the administrative review process in accordance with the applicable procedural rules'—rules that are defined not by [§ 1997e(a)], but by the prison grievance process itself." Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S. at 88) (citation omitted); see also Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002) ("Section 1997e(a) does not delineate the procedures prisoners must follow."). "The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not [§ 1997e(a)], that define the boundaries of proper exhaustion." Jones, 549 U.S. at 218. "The only constraint is that no prison system may establish a requirement inconsistent with the federal policy underlying § 1983 and § 1997e(a)." Strong, 297 F.3d at 649. Thus, it follows that "grievances must contain the sort of information that the administrative system requires." Strong, 297 F.3d at 649. But,
if prison regulations do not prescribe any particular content for inmate grievances, "a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought. . . . [T]he grievant need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming."Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (quoting Strong, 297 F.3d at 650).
In adopting DC-ADM 804, the DOC has established a multi-stage administrative remedy process through which an inmate may seek formal review of "a wide range of issues, procedures, or events that may be of concern to an inmate." (Doc. 56-1, at 11, 46, 78). As summarized by the original Bell Declaration, submitted in support of Secretary Wetzel's motion for summary judgment on the original complaint, DC-ADM 804 provides a three-tiered grievance process: "(1) an initial review by a Grievance Coordinator; (2) appeal to the Facility Manager or designee; and (3) appeal to the SOIGA for final review." (Doc. 22, at 4). DC-ADM 804 sets forth various substantive and procedural requirements for inmate grievances, including requirements that the initial grievance "identify individuals directly involved in the event(s)," that it "specifically state any claims . . . concerning violations of [DOC] directives, regulations, court orders, or other law," and that it specifically request any "compensation or other legal relief normally available from a court." (Doc. 56-1, at 12, 47, 79).
Notably, this process does not include a stage where grievances are reviewed by the Secretary of the Department of Corrections himself. We turn to the original Bell Declaration because, as we noted in our prior report and recommendation, it "sets forth the applicable procedures in a commendably clear and concise manner." (Doc. 38, at 4 n.1). The declarant unfortunately declined to reiterate his summary for this second round.
DC-ADM 804 also provides for a "grievance restriction" status. If an inmate files five grievances within a thirty-day period that are determined to be "frivolous," the inmate may be placed on grievance restriction for up to ninety days. (Doc. 56-1, at 67, 102). While on grievance restriction, an inmate is permitted to file no more than one grievance each fifteen working days. (Id.). Among his other arguments in opposition to summary judgment, Daniel notes that he was on grievance restriction for some part of the time period covered by his complaint in this action, suggesting that administrative remedies were unavailable to him as a result. But the mere fact that an inmate was placed on grievance restriction pursuant to DC-ADM 804 does not render administrative remedies unavailable, as the inmate is still permitted to file a limited number of grievances. See Cummings v. Crumb, 347 Fed. App'x 725, 727 (3d Cir. 2009) (per curiam) ("[Under DC-ADM 804], being on grievance restriction would not have prevented [the inmate] from exhausting his remedies."); Ball v. Struthers, Civil No. 1:11-CV-1265, 2012 WL 2946785, at *11 (M.D. Pa. July 19, 2012) ("[T]he fact that [the inmate] was under a grievance restriction pursuant to DC-ADM 804[] does not, by itself, excuse her failure to grieve this matter prior to filing suit in federal court, since those Corrections policies plainly allow inmates to file a limited number of grievances."). --------
As previously noted, in evaluating a motion for summary judgment, the Court must first determine if the moving party has made a prima facie showing that it is entitled to summary judgment. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 331. Only once that prima facie showing has been made does the burden shift to the nonmoving party to demonstrate the existence of a genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 331.
On this issue, the defendants rely exclusively on the declaration of a facility grievance coordinator attesting that Daniel filed more than 128 grievances while incarcerated at SCI Forest (presumably based on her review of facility or DOC records), and the declaration of a SOIGA grievance officer attesting that, based on a review of DOC records, Daniel has appealed none of those grievances to SOIGA for final review. (Doc. 56-1 ¶ 13; Doc. 56-2 ¶ 8). The declarations provide no substantive or procedural detail regarding these 128 grievances, and none of the grievance papers were attached as exhibits or otherwise submitted into the record. On summary judgment, an affiant or declarant "must ordinarily set forth facts, rather than opinions or conclusions. An affidavit [or declaration] that is essentially conclusory and lacking in specific facts is inadequate to satisfy the movant's burden." Maldonado v. Ramirez, 757 F.2d 48, 51 (3d Cir. 1985) (emphasis added, internal quotation marks omitted); see also Bender v. Norfolk S. Corp., 994 F. Supp. 2d 593, 601 (M.D. Pa. 2014) ("Declarations that are essentially conclusory and lacking in specific facts have no probative value."); McShane Contracting Co., Inc. v. U.S. Fid. & Guar. Co., 61 F.R.D. 478, 481 (W.D. Pa. 1973) ("[T]he [summary judgment] affidavit is no place for ultimate facts and conclusions."). Moreover, Daniel has submitted his own declaration, stating in equally conclusory fashion that: "I followed all the procedures that are set forth in [DC-ADM 804] and DC-ADM 801 . . . and 'properly' exhausted all my administrative remedies in accordance with the Prison Litigation Reform Act (PLRA) before filing [the] current complaint in federal court." (Doc. 59, at 8).
But even if the Reeher and Bell Declarations did constitute competent evidence on this issue, they fall short of establishing that the defendants are entitled to judgment as a matter of law. By its very terms, DC-ADM 804 is not a comprehensive administrative remedy process. Grievances directly related to misconduct charges or disciplinary sanctions must be addressed instead through the administrative process outlined in DC-ADM 801. (Doc. 56-1, at 11-12, 47, 79). See generally Fortune v. Bitner, No. 3:CV-01-0111, 2006 WL 2796158, at *7 (M.D. Pa. Sept. 25, 2006) (Vanaskie, J.). Grievances directly related to the reasons for placement in administrative custody must be addressed through the administrative process outlined in DC-ADM 802. (Doc. 56-1, at 11-12, 47, 79). See generally Fortune, 2006 WL 2796158, at *8 (citing Boyd v. Dep't of Corr. 32 Fed. App'x 16, 17-18 (3d Cir. 2002)). On or after May 1, 2014, grievances regarding sexual abuse must be addressed through the administrative process outlined in DC-ADM 008. (Doc. 56-1, at 47, 79). Grievances alleging abuse of an inmate by a staff member or other non-inmate may be addressed through the DC-ADM 804 grievance process, or they may also be addressed by alternative reporting methods set forth in DC-ADM 001. See McCain v. Wetzel, Civil No. 1:12-CV-00789, 2012 WL 6623689, at *6 (M.D. Pa. Oct. 6, 2012); Victor v. SCI Smithfield, Civil No. 3:08-cv-1374, 2011 WL 3584781, at *9-*11 (M.D. Pa. Aug. 12, 2011); McKinney v. Zihmer, Civil No. 1:CV-01-02088, 2010 WL 1135722, at *7 (M.D. Pa. Mar. 23, 2010); Knauss v. Shannon, Civil No. 1:CV-08-1698, 2010 WL 569829, at *7 (M.D. Pa. Feb. 12, 2010); Carter v. Klaus, Civil No. 1:CV-05-1995, 2006 WL 3791342, at *3 (M.D. Pa. Dec. 22, 2006). Here, it is clear that, at a minimum, Daniel's broadly stated claims include allegations related to misconduct charges, disciplinary sanctions, and his placement in administrative custody.
The defendants have failed to meet their burden of making a prima facie showing that they are entitled to judgment as a matter of law. Accordingly, it is recommended that the defendants' motion for summary judgment (Doc. 50) be denied.
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that:
1. The plaintiff's motion for preliminary injunctive relief (Doc. 71) be DENIED;
2. The defendants' motion for summary judgment (Doc. 50) be DENIED;
3. The defendants be directed to file an answer to the complaint within 14 days after disposition of this report and recommendation and the underlying motions; and
4. This matter be remanded to the undersigned for further proceedings. Dated: March 22, 2017
s/ Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated March 22, 2017. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing
requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: March 22, 2017
s/ Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge