Opinion
CIVIL NO. 1:13-CV-00140
01-05-2016
PATRICK HORAN, Plaintiff v. JOHN WETZEL, et al., Defendants
ORDER
AND NOW, this 5th day of January, 2016, upon consideration of Magistrate Judge Mehalchick's Report and Recommendation ("R&R"), IT IS ORDERED that:
The Court must conduct a de novo review of the contested portions of an R&R, Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). The Court, at minimum, should review uncontested portions of an R&R for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F.Supp. 375, 376-77 (M.D. Pa. 1998).
(1) Judge Mehalchick's R&R (Doc. 125) is ADOPTED.
(2) Plaintiff's objection (Doc. 127) is OVERRULED.
(3) Defendant Serginski's motion (Doc. 106) for judgment on the pleadings is GRANTED.
(4) The Clerk of Court shall enter judgment in favor of Defendant Serginski.
(5) The matter is REMANDED to Judge Mehalchick with respect to the remaining claims and defendants.
According to Plaintiff, he alleges in the amended complaint that Serginski retaliated against him for exercising his constitutional rights by denying him access to the law library and religious services, as well as issuing him a false misconduct. (See Doc. 127 at 2, 3). As we construe the allegations in the amended complaint, however, Plaintiff solely alleges that Serginski retaliated against him by filing a false misconduct that was ultimately dismissed. (Doc. 49 at p. 9, ¶¶ 66, 68). Under Third Circuit precedent, a false misconduct that was ultimately dismissed is not sufficient to meet the adverse-action element of a retaliation case. Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011)(citations omitted); see Marten v. Hunt, No. 08-77, 2011 WL 767815, at *1-*2 (W.D. Pa. Feb. 28, 2011)(citing Brightwell and dismissing plaintiff's retaliation claim involving the issuance of a fabricated misconduct that was ultimately dismissed). Thus, Serginski is entitled to judgment on the pleadings. --------
/s/ William W. Caldwell
William W. Caldwell
United States District Judge