Opinion
Civil Action 19-1040 Re: ECF 140
08-12-2021
KEITH ROSARIO, Plaintiff, v. EDWARD STRAWN, Warden, DEVYN BREESE, Counselor, CAPTAIN RESTANIO, DONALD E. WAUGH, Deputy Warden, CHRISTOPHER M. CAIN, Deputy Warden, MAJOR CODDINGTON, and SERGEANT POLPECK, Defendants.
Robert J. Colville, District Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
This is a pro se civil rights action filed by Plaintiff Keith Rosario (“Plaintiff”), who is presently incarcerated at the State Correctional Institution at Albion (“SCI-Albion”). Plaintiff's only remaining claim arises out of allegations that Defendants Warden Strawn (“Strawn”), Deputy Warden Waugh (“Waugh”), and Deputy Warden Cain (“Cain”) retaliated against Plaintiff in violation of his First Amendment rights.
Presently before the Court is Plaintiff's Cross-Motion for Summary Judgment. ECF No. 140. For the following reasons, it is respectfully recommended that the Motion be denied.
II. REPORT
A. FACTUAL AND PROCEDURAL HISTORY
Plaintiff's original Complaint was filed on September 26, 2019. ECF No. 6. After Defendant Devyn Breese (“Breese”) filed a Motion to Dismiss, ECF No. 15, Plaintiff filed an Amended Complaint on November 20, 2019, ECF No. 22. Breese filed a renewed Motion to 1 Dismiss, and Defendants Captain Restanio (“Restanio”) and Strawn also moved to dismiss Plaintiff's Amended Complaint. ECF Nos. 24 and 29. Plaintiff then filed the operative Second Amended Complaint on January 14, 2020, and the Court denied the Motions to Dismiss as moot. ECF Nos. 51 and 52.
1. Second Amended Complaint
In his Second Amended Complaint, Plaintiff brought claims against seven individuals who worked at the Washington County Correctional Facility (“WCCF”) during his incarceration at this facility: Breese; Strawn; Restanio; Waugh; Cain; Major Coddington (“Coddington”), and Captain Daniel Polpeck (“Polpeck”).
Plaintiff identified this Defendant as “Sargeant Polpeck” in his Complaint. Polpeck noted in his Motion to Dismiss, however, that he is properly identified as Captain Daniel Polpeck. ECF No. 82.
Plaintiff asserted the following claims: Count “A”: failure to protect pursuant to the Eighth Amendment (against Strawn, Cain and Waugh); Count “B”: retaliation pursuant to the First Amendment (against Strawn, Cain and Waugh); Count “C”: bystander liability pursuant to the Fourteenth Amendment (against Coddington, Restanio, Polpeck and Breese); Count “D”: conspiracy (against Strawn, Cain, Waugh, Coddington, Breese, Restanio and Polpeck); Count “E”: denial of the right to hear and to be heard pursuant to the Fifth and Fourteenth Amendments (against Strawn, Cain, Waugh, Coddington, Restanio and Polpeck); Count “F”: denial of access to media and law library pursuant to the Sixth and Fourteenth Amendments (against Strawn, Cain, Waugh, Coddington, Restanio and Polpeck); and Count “G”: a “Monell claim” (against Strawn, Cain, Waugh, Coddington, Breese, Restanio and Polpeck).
2. Motions to Dismiss
Breese filed a Motion to Dismiss and Brief in Support on January 20, 2020. ECF Nos. 53 and 54. Defendants Strawn, Cain, Waugh, Coddington, and Restanio filed a Partial Motion to 2 Dismiss and Brief in Support on February 3, 2020. ECF Nos. 57 and 58. Plaintiff filed Responses in opposition. ECF Nos. 66 and 77.
Polpeck separately moved to dismiss the claims against him on July 13, 2020. ECF No. 82. Plaintiff filed a Response in opposition. ECF No. 90.
On July 29, 2020, the undersigned submitted a Report and Recommendation, ECF No. 88, regarding the Motions to Dismiss filed by Breese, Strawn, Cain, Waugh, Coddington, and Restanio, recommending that all of Plaintiff's claims against Breese be dismissed, and that Counts A, C, E, F and G be dismissed as to Strawn, Cain, Waugh, Coddington and Restanio. It was recommended that certain of Plaintiff's claims be dismissed with prejudice because it would be futile to permit Plaintiff to amend his Complaint as to those claims.
Plaintiff did not file Objections to the Report and Recommendation. While the Report and Recommendation was pending, however, Plaintiff voluntarily moved to dismiss Counts A, C, D, E, F and G of his Second Amended Complaint without prejudice. ECF No. 97. Plaintiff stated that he only intended to pursue Count B in this action. Id.
In support, Plaintiff stated that his Second Amended Complaint was “unartfully plead, ” and that he believed the claims he sought to withdraw should be brought in a state court proceeding. ECF No. 97 ¶ 3.
Upon review, United States District Judge Robert J. Colville concluded that Plaintiff was permitted to voluntarily withdraw his claims without prejudice under Federal Rule of Civil Procedure 41, but only to the extent he sought to dismiss all claims against a particular defendant. ECF No. 99 at 6. Because Plaintiff did not seek to withdraw all of his claims against Strawn, Cain and Waugh, the Court denied Plaintiff's motion to dismiss without prejudice as to his claims against these Defendants. Id. As to Strawn, Cain and Waugh, the Court adopted the Report and Recommendation, so that Counts A, D, F, G, and the portion of Count E arising under the Fifth Amendment, were dismissed with prejudice. Id. at 8-10, 15-16. Count D and the portion of Count 3 E arising under the Fourteenth Amendment were dismissed without prejudice, with leave to file an amended complaint on or before October 21, 2021. Id.
As to Breese, Polpeck, Coddington and Restanio, the Court granted Plaintiff's request to dismiss his claims against these Defendants without prejudice. Id. at 10-11, 15-16. Because Plaintiff voluntarily dismissed his claims against Polpeck, the Court denied Polpeck's Motion to Dismiss as moot. Id. at 16.
Plaintiff did not file a Third Amended Complaint. Based on the foregoing, Plaintiff's sole remaining claim is his retaliation claim, Count B, against Strawn, Cain and Waugh.
Strawn, Cain and Waugh filed an Answer to Plaintiff's Second Amended Complaint on November 11, 2020. ECF No. 101.
3. Case Management Order
After resolving the Motions to Dismiss, the Court entered a Case Management Order. ECF No. 102. Under this Order, discovery was to be completed by March 12, 2021. Plaintiff's Pretrial Statement and Motion for Summary Judgment, if any, were due by April 12, 2021. Defendants' Motion for Summary Judgment was due by May 12, 2021.
4. Motions for Summary Judgment
On May 12, 2021, the remaining Defendants, Strawn, Cain and Waugh, filed a Motion for Summary Judgment. ECF No. 126.
At Plaintiff's request, the Court granted Plaintiff an extension of time to respond. ECF Nos. 131 and 132. On July 26, 2021, Plaintiff filed a Response and Brief in Opposition to Defendants' Motion for Summary Judgment. ECF Nos. 136 and 137. 4
At the same time, Plaintiff filed a document titled “Addendum to Plaintiff's Opposition to Defendant[s] Motion for Summary Judgment, ” in which he incorporated the instant Cross-Motion for Summary Judgment. ECF No. 140.
Defendants filed a response in opposition to Plaintiff's Cross-Motion for Summary Judgment on August 10, 2021. ECF No. 142.
Plaintiff's Cross-Motion for Summary Judgment is now ripe for consideration.
B. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if the movant shows that 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). An issue of material fact is in genuine dispute if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (“A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof”). Thus, summary judgment is warranted where, “after adequate time for discovery and upon motion . . . a party . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
The moving party bears the initial burden of demonstrating to the court that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 322; Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). “[W]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some 5 metaphysical doubt as to the material facts Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
In deciding a summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party and must draw all reasonable inferences, and resolve all doubts in favor of the nonmoving party. Matreale v. N.J. Dep't of Military & Veterans Affairs, 487 F.3d 150, 152 (3d Cir. 2007); Woodside v. Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001).
C. DISCUSSION
In the instant Motion, Plaintiff argues that the Court should enter summary judgment in his favor with respect to his Eighth and Fourteenth Amendment claims. ECF No. 140. Defendants oppose this Motion, arguing that Plaintiff's Cross-Motion for Summary Judgment is untimely and that he is improperly requesting summary judgment as to claims that have already been dismissed. ECF No. 142 at 2-4. To the extent Plaintiff is attempting to raise any substantive arguments regarding his First Amendment claim, Defendants refer the Court to their pending Motion for Summary Judgment. Id. at 4-5.
Upon review, the Court should deny this Motion because (1) it is untimely filed under the Case Management Order, ECF No. 102; and (2) the Eighth and Fourteenth claims on which Plaintiff seeks summary judgment are no longer pending in this action. See, e.g., Girard v. Allis Chalmers Corp., 787 F.Supp. 482, 484 n. 1 (W.D. Pa. 1992) (denying cross-motion for summary judgment as untimely filed); In re Kaul, 773 Fed.Appx. 669, 671 (3d Cir. 2019) (summary judgment could not be granted on claims no longer pending before the court). As discussed, the only 6 remaining claim is Plaintiff's retaliation claim under the First Amendment. Therefore, the CrossMotion for Summary Judgment should be denied.
D. CONCLUSION
For the foregoing reasons, the Court should deny Plaintiff's Cross-Motion for Summary Judgment, ECF No. 140.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2. 7