Bush et al v. Rendell et al

Filing 92

ORDER: 1) The court adopts in part and rejects in part the r and r 59 of MJ Mannion.a) The recommendation that the mtn for class certification 25 be denied is adopted.b) The recommendation that the mtn for a tro and pi be denied is accepted inpar t. The recommendation is not accepted at this time as to theallegations of prison officials interfering with Pltfs mailings to thiscourt and disposition of the mtn is deferred pending further order ofcourt.2) No later than 7/6/11, Pltf Bush shall sup ply to this court the names of the prison officials allegedly interfering with his mail. To the extentthat these persons are not named dfts in the present action, Pltf Bush shallfile an amended complaint.3) If Pltf Bush names any of the current Dfts as actors in the mail interceptions, it is within the discretion of the magistrate judge to hold a hearing on this issue.4) This matter is remanded to Magistrate Judge Mannion.Signed by Honorable Sylvia H. Rambo on 06/21/11 (ma, )

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

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CIVIL NO. 1:CV-10-2246

(Judge Rambo)
(Magistrate Judge Mannion)

ORDER
Before the court is a report and recommendation of Magistrate Judge
Mannion which addresses only the issues of class certification and a motion for a
temporary restraining order/preliminary injunction. The magistrate judge
recommends that Plaintiff’s motion for class certification be denied, citing Sosa v.
Delaware State Police, No. 03-0430, 2004 U.S. Dist. LEXIS 21015 at *5 (D. Del.
September 23, 2004)(quoting Maldeonado v. Terhune, 28 F. Supp.2d 284, 299 (D.
N. J. 1998) (citing Caputo v. Fauver, 800 F. Supp. 168, 170 (D.N.J. 1992), aff’d 98
F.2d 216 (3d Cir. 1993).
The magistrate judge also recommends that the motion for a temporary
restraining order and a preliminary injunction be denied because Plaintiffs seek relief
based on alleged past violations and there is no indication that there is a present
threat of harm. The magistrate judge also indicated that the acts for which the
temporary restraining order and preliminary injunction was sought to enjoin were not
committed by any of the named defendants. Plaintiffs have filed a motion for
reconsideration of the report and recommendation which will be deemed to be
objections to the report and recommendation.

The recommendation that the motion for class certification be denied
will be adopted; however, the request for a temporary restraining order and
preliminary injunction as to mail interference only will require additional
information.
In the objection to the report and recommendation, Plaintiffs assert that
mail to this court was intercepted by correctional facility employees and sent back to
Plaintiffs and that a court order sent to Plaintiffs was opened by the warden. Thus,
this claim is ongoing and appears to be a hindrance to Plaintiffs’ access to this court.
Plaintiff Bush will be directed, to the best of his ability, to identify to this court those
persons who are interfering with his mail.
IT IS THEREFORE ORDERED THAT:
1) The court adopts in part and rejects in part the report and
recommendation of Magistrate Judge Mannion.
a) The recommendation that the motion for class certification be
denied is adopted and the motion for class certification is DENIED.
b) The recommendation that the motion for a temporary
restraining order and preliminary injunction be denied is accepted in
part. The recommendation is not accepted at this time as to the
allegations of prison officials interfering with Plaintiffs’ mailings to this
court and disposition of the motion is deferred pending further order of
court.
2) No later than July 6, 2011, Plaintiff Bush shall supply to this court
the names of the prison officials allegedly interfering with his mail. To the extent
that these persons are not named defendants in the present action, Plaintiff Bush shall
file an amended complaint.

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3) If Plaintiff Bush names any of the current Defendants as actors in the
mail interceptions, it is within the discretion of the magistrate judge to hold a hearing
on this issue.
4) This matter is remanded to Magistrate Judge Mannion.

s/Sylvia H. Rambo
United States District Judge
Dated: June 21, 2011.

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