McCain v. Wetzel et al

Filing 64

ORDER ADOPTING REPORT AND RECOMMENDATIONS - IT IS HEREBY ORDERED THAT: 1) Plaintiffs motion for an extension of time to file objections to the report and recommendation (doc. 54) is granted and Plaintiffs objections (doc. 56) are deemed timely filed . 2) The court adopts the report and recommendation of the magistrate judge (doc. 50). 3) Defendants motion to dismiss is GRANTED in part as to the following claims: access to the courts, due process property claims, and the claims against Defendants Wetzel, Moore, Barnacle, Nish, Vinansky, Smith, Coleman, and House, are dismissed. The motion to dismiss is otherwise denied. 4) Plaintiffs motion and brief to deny the motion to dismiss (docs. 28 & 37) are deemed to be a brief in opposition to the motion to dismiss. The motion to deny is otherwise dismissed. 5) Plaintiffs motion for an extension of time to file an amended complaint (doc. 55) is GRANTED. Plaintiff is granted leave to file an amended complaint no later than January 22, 2013. 6) This matter is remanded to Magistrate Judge Schwab. Signed by Honorable Sylvia H. Rambo on 12/19/12. (pw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN McCAIN a/k/a
Amir Hakim McCain,
Plaintiff
v.
JOHN E. WETZEL, Secretary
of Corrections; KERI MOORE;
JAMES C. BARNACLE;
JOSEPH NISH; JOSEPH J.
VINANSKY; CORRECTIONAL
OFFICER ROEGNER;
CORRECTIONAL OFFICER
NEVINS; LIEUTENANT SMITH;
BRIAN COLEMAN; RHONDA
HOUSE, and LIEUTENANT
CRUMB,
Defendants

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CIVIL NO. 1:12-CV-0789
(Judge Rambo)
(Magistrate Judge Schwab1)

MEMORANDUM
I.

Procedural History
Before the court is a report and recommendation (doc. 50) filed by the

magistrate judge on October 25, 2012. On November 9, 2012, Plaintiff filed a
motion for extension of time to file objections to the report and recommendation
(doc. 54). On November 21, 2012, Plaintiff filed a motion for an extension of time
to file an amended complaint (doc. 55). On November 23, 2012, Plaintiff filed
objections to the report and recommendation (doc. 56). On December 10, 2012,
Defendants filed a response to Plaintiff’s objections to the report and
recommendation (doc. 57). This matter is ripe for disposition.
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This case was originally referred to Magistrate Judge J. Andrew Smyser. Upon his
retirement, the case was temporarily transferred to Magistrate Judge Martin Carlson pending
appointment of Magistrate Judge Smyser’s successor, Magistrate Judge Susan E. Schwab.

II.

Background
Plaintiff, Amir Hakim McCain, a state inmate, brought this civil rights

action against eleven different prison officials, in which he claims that Defendants
retaliated against him because he sought to bring criminal charges against prison
officials. McCain also claims that the retaliation included sexual assaults in
connection with strip searches and destruction of his legal property. Finally, McCain
also claims that the destruction of his legal property violated his right of access to the
courts.
Defendants filed a motion to dismiss McCain’s complaint (doc. 20).
McCain filed a motion to deny Defendants’ motion to dismiss (doc. 28) and a brief
in support thereof (doc. 37). Because the proper way to oppose a motion to dismiss
is to file a brief in opposition to the motion, not a separate motion to deny the
motion, the magistrate judge recommended that McCain’s motion to deny be
dismissed as a separate motion but that it be considered as McCain’s brief in
opposition to Defendants’ motion to dismiss the complaint.
After a thorough review of the complaint, and the law applicable to the
requirements for proper pleadings, the magistrate judge recommended that
Defendants’ motion to dismiss (doc. 20) be granted in part and denied in part; that
the access-to-the-courts claims, the due process property claims, and the claims
against Defendants Wetzel, Moore, Barnacle, Nish, Vinansky, Smith, Coleman, and
House, be dismissed. The magistrate judge further recommended that the motion to
dismiss otherwise be denied; that McCain’s motion (doc. 28) to deny the motion to
dismiss otherwise be dismissed, and that McCain be granted leave to file an amended
complaint. Finally, the magistrate judge recommended that the case be remanded to
the magistrate judge.
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III.

Discussion
In his objections to the report and recommendation of the magistrate

judge, McCain addresses the magistrate judge’s recommendation of dismissal of his
access to court claim.2 In his argument, McCain adds additional facts on this claim
that were not set forth in his complaint. Defendants, in their response to McCain’s
objection to the report and recommendation, cite to Frederico v. Home Depot, 507
F.3d 188, 201-02 (3d Cir. 2007), for the proposition that “courts do not consider
after the fact allegations in determining the sufficiency of [a] complaint under Rule
[ ] . . . 12(b)(6).” (Doc. 57 at p. 4.)
Since the magistrate judge recommended that McCain be given an
opportunity to amend his complaint, Plaintiff can assert those additional facts set
forth in his objections to the report and recommendation in an attempt to support his
claim of denial of access to the court.

IV.

Conclusion
No other objections were made by McCain and, therefore, this court will

adopt the report and recommendation of the magistrate judge. An appropriate order
will be issued.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: December 19, 2012.

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No other portion of the report and recommendation is challenged by McCain.
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN McCAIN a/k/a
Amir Hakim McCain,
Plaintiff
v.
JOHN E. WETZEL, Secretary
of Corrections; KERI MOORE;
JAMES C. BARNACLE;
JOSEPH NISH; JOSEPH J.
VINANSKY; CORRECTIONAL
OFFICER ROEGNER;
CORRECTIONAL OFFICER
NEVINS; LIEUTENANT SMITH;
BRIAN COLEMAN; RHONDA
HOUSE, and LIEUTENANT
CRUMB,
Defendants

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CIVIL NO. 1:12-CV-0789
(Judge Rambo)
(Magistrate Judge Schwab)

ORDER

In accordance with the accompanying memorandum, IT IS HEREBY
ORDERED THAT:
1) Plaintiff’s motion for an extension of time to file objections to the
report and recommendation (doc. 54) is granted and Plaintiff’s objections (doc. 56)
are deemed timely filed.
2) The court adopts the report and recommendation of the magistrate
judge (doc. 50).

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3) Defendants’ motion to dismiss is GRANTED in part as to the
following claims: access to the courts, due process property claims, and the claims
against Defendants Wetzel, Moore, Barnacle, Nish, Vinansky, Smith, Coleman, and
House, are dismissed. The motion to dismiss is otherwise denied.
4) Plaintiff’s motion and brief to deny the motion to dismiss (docs. 28
& 37) are deemed to be a brief in opposition to the motion to dismiss. The motion to
deny is otherwise dismissed.
5) Plaintiff’s motion for an extension of time to file an amended
complaint (doc. 55) is GRANTED. Plaintiff is granted leave to file an amended
complaint no later than January 22, 2013.
6) This matter is remanded to Magistrate Judge Schwab.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: December 19, 2012.

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