Bush et al v. Rendell et al

Filing 183

MEMORANDUM AND ORDER: 1) The notices of appeal (docs. 178 , 180 and 182 are STRICKEN.2) No later than 3/12/12, Pltf Bush may file objections to the r and r (doc. 173 ) addressing only those issues addressed in the r and r.3) Pltf Bushs failure to restrict the objs to the issues addressed in the r and r will result in the striking of those objs.4) The court will not permit Pltf Allen to file additional objs to the r and r as he has already filed objs of record (docs. 176 and 177 ). Signed by Honorable Sylvia H. Rambo on 02/24/12. (ma, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FELDON BUSH, SR.; JAMES HILL; :
and ANTHONY ALLEN,
:
:
Plaintiff
:
:
v.
:
:
ED RENDELL, GOVERNOR, et al., :
:
Defendants
:

CIVIL NO. 1:10-CV-2246
(Judge Rambo)
(Magistrate Judge Mannion)

MEMORANDUM

Before the court is a report of the magistrate judge to whom this matter
was referred in which he recommends that the motions to dismiss filed by the County
Defendants and the Commonwealth Defendants be dismissed; that Plaintiffs’
motions for a temporary restraining order/preliminary injunction, for mandatory
injunctions, to compel and for temporary restraining order be denied as moot.
Plaintiff Allen has filed objections.
The history of this case is fully set forth in the report and
recommendation of the magistrate judge (doc. 173) and will not be repeated herein.
The report and recommendation addressed the issues raised in the first amended
complaint to which Plaintiffs agreed.
The grievance of the complaints by Bush, Hill and Allen is that they
were transferred from a state correctional institution to a county facility because of
overcrowding issues within the Department of Corrections. Plaintiffs claim that the
conditions of confinement at the Centre County Correctional Facility at Bellefonte,
Pennsylvania are more onerous than at SCI-Rockview in which they were previously
confined.

The magistrate judge recommended dismissal of the complaint against
the Commonwealth and County Defendants as they were acting in their official
capacities and are, therefore, immune from suit. The magistrate judge further found
that there was no policy or custom by Centre County that caused a constitutional
violation.
The magistrate judge recommended that Plaintiffs’ due process claim be
dismissed based on the fact that an inmate has no constitutional right to placement in
any particular correctional institution, citing to Olim v. Wakinekona, 461 U.S. 238,
245 and n.9 (1983), and 61 Pa. Cons. Stat. § 1151(a), among other cites.
Plaintiffs also raised First, Eighth, and Fourteenth Amendment claims
on behalf of other inmates. The magistrate judge recommended that these claims be
dismissed as Plaintiffs lack standing to raise claims on behalf of others.
The magistrate judge recommended that Bush’s Eighth Amendment
claim for denial of medical care be dismissed as he failed to allege that any of the
named defendants denied him treatment.
The magistrate judge found that Plaintiffs failed to meet the
requirements of stating a Fourth Amendment claim of violation of equal protection
and explained that in order to state an equal protection violation, they must show that
they were similarly situated to and treated differently from others and that this
discrimination was purposeful or intentional rather than incidental. The latter
elements are missing in Plaintiffs’ complaint and, thus, they failed to state a claim.
On January 4, 2012, Plaintiff Allen filed a response and opposition to
the report and recommendation (doc. 176) and a brief in support thereof (doc. 177).
On January 23, 2012, Allen filed a request to withdraw his response to the report and
recommendation and stated his desire to file an appeal with the court of appeals.
2

(doc. 180). On January 6, 2012 and February 15, 2012, Plaintiff Bush filed Notices
of Appeal (docs. 178 and 182) with the district court. Bush did not file objections to
the report and recommendation.
A magistrate judge’s report and recommendation is not a final,
appealable order under 28 U.S.C. § 1291. Therefore, the notices of appeal by Allen
and Bush will be stricken. The court will address at a later date Allen’s objections as
filed under documents 176 and 177. Plaintiff Bush will be given an opportunity to
file objections to the report and recommendation. These objections must only
address the issues set forth in the report and recommendation.
An appropriate order will be issued.
s/Sylvia H. Rambo
United States District Judge
Dated: February 24, 2012.

3

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FELDON BUSH, SR.; JAMES HILL; :
and ANTHONY ALLEN,
:
:
Plaintiff
:
:
v.
:
:
ED RENDELL, GOVERNOR, et al., :
:
Defendants
:

CIVIL NO. 1:10-CV-2246
(Judge Rambo)
(Magistrate Judge Mannion)

ORDER

In accordance with the accompanying memorandum, IT IS HEREBY
ORDERED THAT:
1) The notices of appeal (docs. 178, 180, and 182) are STRICKEN.
2) No later than March 12, 2012, Plaintiff Bush may file objections to
the report and recommendation (doc. 173) addressing only those issues addressed in
the report and recommendation.
3) Plaintiff Bush’s failure to restrict the objections to the issues
addressed in the report and recommendation will result in the striking of those
objections.
4) The court will not permit Plaintiff Allen to file additional objections
to the report and recommendation as he has already filed objections of record (docs.
176 and 177).
s/Sylvia H. Rambo
United States District Judge
Dated: February 24, 2012.