BROWN v. BEARD et al

Filing 94

ORDER THAT THE REPORT AND RECOMMENDATIONS IS APPROVED AND ADOPTED; PLFF'S OBJECTIONS TO THE REPORT AND RECOMMENDATION ARE OVERRULED; PLFF'S MOTION FOR A TRO AND PRELIMINARY INJUNCTION IS DENIED AS MOOT; PLFF'S OBJECTIONS ARE OVERRULE D AS UNTIMELY; PLFF'S OBJECTIONS TO TO MAGISTRATE JUDGE ORDERS LIMITING DISCOVERY AND DENYING AN ADDITIONAL EXTENSION OF TIME TO AMEND THE COMPLAINT ARE OVERRULED; IT IS FURTHER ORDERED THAT DEFTS' MOTIONS TO DISMISS ARE DENIED WITHOUT PR EJUDICE, PENDING THE RESOLUTION OF THEIR MOTIONS FOR SUMMARY JUDGMENT. IT IS FURTHER ORDERED THAT PLFF'S MOTION FOR STAY OF FURTHER PROCEEDINGS IS DENIED.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 9/20/13. 9/24/13 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED TO COUNSEL.(lvj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ALTON D. BROWN,

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Petitioner,
v.
JEFFREY A. BEARD, et al.,
Respondents.

CIVIL ACTION
NO. 13-465

O R D E R
AND NOW, this 20th day of September, 2013, after
review of the Report and Recommendation of United States
Magistrate Judge Thomas J. Rueter (ECF No. 42)1 and Plaintiff’s
objections thereto (ECF No. 80), as well as Plaintiff’s
objections to Magistrate Judge Rueter’s orders limiting
discovery to statute-of-limitations issues (ECF No. 23), denying
his request for an extension of time to amend the Complaint (ECF
No. 25), and denying various discovery requests (ECF No. 79), it
is hereby ORDERED as follows:
(1)

The Report and Recommendation is APPROVED and

ADOPTED;
1

The Court undertakes a de novo review of the portions
of the Report and Recommendation to which a party has objected.
See 28 U.S.C. § 636(b)(1) (2006 & Supp. V 2011); Cont’l Cas. Co.
v. Dominick D’Andrea, Inc., 150 F.3d 245, 250 (3d Cir. 1998).
The Court “may accept, reject or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1).

(2)

Plaintiff’s objections to the Report and

Recommendation (ECF No. 80) are OVERRULED;2

2

Plaintiff was transferred from SCI-Graterford to SCISmithfield on July 2, 2013. Thus, Plaintiff is no longer subject
to the allegedly harmful conditions at SCI-Graterford. “An
inmate’s transfer from the facility complained of generally
moots the equitable and declaratory claims.” Sutton v. Rasheed,
323 F.3d 236, 248 (3d Cir. 2003) (citing Abdul-Akbar v. Watson,
4 F.3d 195, 197 (3d Cir. 1993)). In his objections, Plaintiff
argues that Defendants failed to meet their burden to show that
the issue is actually moot. Plaintiff is mistaken—after filing a
motion for a preliminary injunction and temporary restraining
order and once evidence of mootness has been proffered, the
burden is on him to show that the challenged action is (1) too
short in duration to be fully litigated prior to its cessation
or expiration, and (2) there is reasonable likelihood that the
same complaining party would be subjected to the same action
again. Abdul-Akbar, 4 F.3d at 206.
Neither element is present here. Plaintiff’s alleged
persistent respiratory conditions are not too short in duration
to permit full litigation. Also, although he claims there is a
reasonable likelihood he could be transferred back to SCIGraterford to make personal appearances in any of his numerous
civil and criminal cases pending in nearby courthouses, his
status as an “extreme flight risk” contradicts his assertion.
See Commonwealth Def.’s Mot. Reconsideration Ex. A, DiGuglielmo
Decl., Brown v. DiGuglielmo, No. 07-3771, ECF No. 17-1. Because
at least one of his previous nine escape attempts occurred as he
was being transported back to prison from a court hearing, see
id. ¶¶ 4-5, he is unlikely to be transported back to SCIGraterford for the sole purpose of appearing in court. And
regarding his argument that harmful conditions continue at SCISmithfield, the Court refuses to consider such allegations in
this initial Motion, limited to conduct allegedly occurring at
SCI-Graterford, because Plaintiff has filed a Supplemental
Motion for TRO and Preliminary Injunction dealing exclusively
with harm occurring at his current location (ECF No. 55).
Accordingly, the Court will approve and adopt the Report and
Recommendation and deny Plaintiff’s Motion for Preliminary
Injunction and Temporary Restraining Order as moot.
2

(3) Plaintiff’s Motion for a Temporary Restraining
Order and Preliminary Injunction (ECF No. 26) is DENIED AS MOOT;
(4) Plaintiff’s “Nunc pro Tunc” Objections (ECF No.
79) to Magistrate Judge Rueter’s order denying various discovery
requests are OVERULED as untimely;3
(5) Plaintiff’s Objections to Magistrate Judge
Rueter’s orders limiting discovery and denying an additional
extension of time to amend the Complaint are OVERRULED;4

3

Plaintiff submitted his objections to Magistrate Judge
Rueter’s order dated July 12, 2013, on August 26, 2013, well
after the fourteen-day deadline set by Local Rule 72.1(IV)(A).
He provides no valid reason for his untimeliness.
4

These objections concern non-dispositive orders.
Accordingly, Plaintiff must demonstrate that the orders were
clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A)
(2006 & Supp. V 2011). Regarding Magistrate Judge Rueter’s Order
limiting discovery to statute-of-limitations issues, Plaintiff
argues that because the Complaint sets forth a continuing
violation of his rights, there is no need to limit discovery in
this manner. But Plaintiff misunderstands the purpose behind the
Order. By permitting limited discovery, Magistrate Judge Rueter
provided Plaintiff an opportunity to obtain relevant documents,
if any, supporting the assertions in the Complaint regarding the
statute of limitations. Plaintiff fails to realize that he
cannot simply stand on the allegations in his Complaint
throughout all stages of the proceedings. Once the discovery
period is complete, the evidence of record controls and amending
the Complaint cannot save him. Therefore, Plaintiff’s objections
are unfounded.
Regarding Magistrate Judge Rueter’s Order denying
Plaintiff’s requests for an extension of time to amend the
Complaint and for leave to amend the complaint, Plaintiff is
incorrect that the order was limited only to his request for an
extension of time—he formally moved for leave on March 22, 2013,
3

It is further ORDERED that Defendants’ motions to
dismiss (ECF Nos. 8, 12) are DENIED without prejudice, pending
the resolution of their motions for summary judgment (ECF Nos.
44, 49).
It is further ORDERED that Plaintiff’s Motion for Stay
of Further Proceedings (ECF No. 87) is DENIED.5
AND IT IS SO ORDERED.

/s/ Eduardo C. Robreno
EDUARDO C. ROBRENO,
J.

and in that motion admitted that the previous request for an
extension of time to amend the complaint was supposed to be a
motion for leave to amend. See Pl.’s Request for Leave to Amend
Comp., ECF No. 15. Therefore, he was required to attach the
proposed amendments but failed to do so, and Magistrate Judge
Rueter was correct in denying the motions.
Ultimately, Plaintiff fails to demonstrate that either
of Magistrate Judge Rueter’s non-dispositive orders was clearly
erroneous or contrary to law.
5

Plaintiff’s appeal is improper. He does not appeal a
final order of the Court or an order regarding an injunction,
and the Court did not certify the Order denying his Motion for
Recusal (ECF No. 68) for immediate appeal. See 28 U.S.C. § 1292.
Accordingly, the Court has no reason to stay the proceedings.
4