Kehoe v. Pennsylvania Dept. Of Corrections et al
MEMORANDUM (eo, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN C. KEHOE,
PENNSYLVANIA DEPARTMENT :
OF CORRECTIONS, et al.,
Hon. John E. Jones III
Hon. Malachy E. Mannion
July 21, 2011
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation
(“R&R”) of Magistrate Judge Malachy E. Mannion (Doc.41), filed on July 1, 2011
which recommends that we grant the Defendants’ Motion for Summary Judgment
(Doc. 30) and close this case. Plaintiff John C. Kehoe (“Plaintiff” or “Kehoe”)
filed objections to the R&R (Doc. 42) on July 13, 2011. Accordingly, this matter
is ripe for disposition. For the reasons set forth below, the Court will adopt the
Magistrate Judge’s R&R in its entirety and close this case.
Plaintiff, an inmate1 currently confined at the State Correctional Institution,
Huntingdon, Pennsylvania filed, pro se, the instant civil rights action pursuant to
42 U.S.C. § 1983 on June 1, 2010. (Doc. 1). Magistrate Judge Mannion aptly
summarized the Plaintiff’s claim as follows:
In his complaint, the plaintiff alleges that prior to entering the
state prison system he did not smoke. He alleges that when he
became incarcerated in the 1970's it was the practice of the prison
system to provide inmates with free tobacco and rolling papers, which
resulted in him becoming addicted to smoking tobacco. At one point,
the plaintiff alleges that he smoked 1 ½ packs of cigarettes or more
According to the plaintiff, the state correctional institutions
encouraged, and continue to encourage, prisoners to smoke “. . . as a
means of relieving stress and boredom . . .” Through the prison
commissaries, the plaintiff alleges that all forms of tobacco products
are aggressively marketed to the prisoners.
Although he has attempted to quit smoking “cold turkey,” the
plaintiff alleges that he has failed. In his attempts to quit smoking, the
plaintiff alleges that he has requested nicotine patches from the
Department of Corrections (“DOC”), at various institutions, but has
been informed that these patches must be purchased at a cost which
the plaintiff is unable to pay.
As a result of his addiction to tobacco, the plaintiff alleges that
he suffers various physical ailments, including shortness of breath,
dizziness and chest pain, which render him unable to work when he is
Plaintiff has been incarcerated since 1978 when he was sentenced by the Delaware
County Court of Common Pleas to a term of thirty-three to seventy years imprisonment.
Plaintiff has been incarcerated at SCI-Huntingdon since August 10, 1984.
released from prison. He alleges that he has such severe breathing
problems that he is only able to work a “token job” in prison
industries wiping down bars with a wet rag.
(Doc. 41, pp. 4-5). Based on these allegations, Plaintiff seeks monetary damages
and injunctive relief.
STANDARDS OF REVIEW
Review of Magistrate Judge’s R&R
When objections are filed to the report of a magistrate judge, the district
court makes a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objections are made. 28 U.S.C. §
636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may
accept, reject, or modify, in whole or in part, the magistrate judge’s findings or
recommendations. Id. Although the standard of review is de novo, 28 U.S.C. §
636(b)(1) permits whatever reliance the district court, in the exercise of sound
discretion, chooses to place on a magistrate judge’s proposed findings and
recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423
U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
Summary judgment is appropriate if the record establishes “that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c). Initially, the moving party bears the
burden of demonstrating the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by
pointing to an absence of evidence supporting an essential element as to which the
non-moving party will bear the burden of proof at trial. Id. at 325. Once the
moving party meets its burden, the burden then shifts to the non-moving party to
show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). An issue is
“genuine” only if there is a sufficient evidentiary basis for a reasonable jury to find
for the non-moving party, and a factual dispute is “material” only if it might affect
the outcome of the action under the governing law. Anderson v. Liberty Lobby,
Inc, 477 U.S. 242, 248-49 (1986).
In opposing summary judgment, the non-moving party “may not rely merely
on allegations of denials in its own pleadings; rather, its response must ... set out
specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2). The
non-moving party “cannot rely on unsupported allegations, but must go beyond
pleadings and provide some evidence that would show that there exists a genuine
issue for trial.” Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000).
Arguments made in briefs “are not evidence and cannot by themselves create a
factual dispute sufficient to defeat a summary judgment motion.” Jersey Cent.
Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985).
However, the facts and all reasonable inferences drawn therefrom must be viewed
in the light most favorable to the non- moving party. P.N. v. Clementon Bd. of
Educ., 442 F.3d 848, 852 (3d Cir. 2006).
Summary judgment should not be granted when there is a disagreement
about the facts or the proper inferences that a factfinder could draw from them.
Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still, “the
mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; there must be a
genuine issue of material fact to preclude summary judgment.” Anderson, 477
U.S. at 247-48.
Magistrate Judge Mannion recommends that summary judgment be granted
in favor of the Defendants because the Plaintiff has failed to exhaust his
administrative remedies. Within the thorough and well reasoned R&R, Magistrate
Judge Mannion discusses the applicable standards regarding administrative
exhaustion under the Prison Litigation Reform Act, thus we shall not endeavor to
recite the applicable law here. (See Doc. 41, pp. 7-11).
The Plaintiff’s “objections” to the R&R voice his essential disagreement
with the Magistrate Judge’s recommendations, however Plaintiff gives no
substantive legal or factual basis for this objection. (Doc. 42). Plaintiff repeatedly
asserts that he has exhausted his administrative remedies, however, the Defendants
have proffered abundant facts that establish Plaintiff has not exhausted his
administrative remedies.2 Thus, in light of the Plaintiff’s non-substantive and
unsupported objections, we shall exercise our discretion when reviewing the
Magistrate Judge’s R&R to place reliance on Magistrate Judge Mannion’s
reasoning and shall adopt his recommendations in full.
Accordingly, for the reasons set forth above, the Plaintiff’s objections are
overruled and the R&R shall be adopted in its entirety. An appropriate Order shall
To be clear, exhaustion of administrative remedies is an affirmative defense that must
be proven by the Defendants. Brown v. Croak, 312 F. 3d 109, 111 (3d Cir. 2002).
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