Smith v. Lindsey et al
MEMORANDUM re REPORT AND RECOMMENDATIONS 44 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 01/07/15. (ma)
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
HORATIO DEMARIOS SMITH,
R. LINDSEY, et al.,
: CIVIL NO. 1:13-CV-2914
We are considering Plaintiff’s objections to the Report and
Recommendation of Magistrate Judge Carlson. (Doc. 44). This matter relates to
allegations that Defendants Lindsey and Gonzalez (Defendants) used excessive force
against Plaintiff while he was incarcerated at United States Penitentiary Canaan. On
December 3, 2013, Plaintiff filed a complaint pursuant to Bivens, asserting that the force
used by Defendants violated his Eighth Amendment right against cruel and unusual
punishment.1 (Doc. 1). On August 4, 2014, Defendants Lindsey and Gonzalez filed a
motion for summary judgment. (Doc. 28). They claim that they are entitled to judgment
as a matter of law because video evidence establishes that the force in question was not
applied in a malicious and sadistic manner. (Doc. 37). On December 4, 2014,
Magistrate Judge Carlson recommended that we grant Defendants’ motion for summary
1. Plaintiff’s complaint includes an additional Bivens claim against Defendant Sudul. Plaintiff
asserts that Defendant Sudul retaliated against Plaintiff for pursuing his administrative remedies.
With respect to that claim, Defendant Sudul has filed a separate motion for summary judgment,
arguing that Plaintiff failed to exhaust his administrative remedies. (Doc. 16).
judgment. Because Plaintiff has filed objections (Doc. 48), we must “make a de novo
determination of those portions of the report or specified proposed finding or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). For the
reasons discussed below, we will adopt the Report and Recommendation with one
Because the magistrate judge’s Report and Recommendation provides a
detailed recitation of the facts and procedural history, we need not repeat them here.
A. Timeliness of Plaintiff’s Opposition
Magistrate Judge Carlson recommends that we grant Defendants’ motion
for summary judgment because Plaintiff’s opposition was not timely filed. (Doc. 44 at 69). Plaintiff was ordered by Judge Carlson to file his opposition to Defendants’ motion by
November 28, 2014. (Id. at 6). Further, Plaintiff was warned that, pursuant to Local Rule
7.6, failure to file the opposition by that date would result in the motion being deemed
unopposed and summarily granted. (Id.) (quoting Stackhouse v. Mazurkiewicz, 951 F.2d
29, 30 (1991)). Nonetheless, as of the date Judge Carlson issued his Report and
Recommendation, no opposition had been received by the clerk of courts. (Id.).
Accordingly, Judge Carlson recommends that we grant the motion for summary judgment
as unopposed pursuant to Local Rule 7.6. (Id. at 9). Moreover, Judge Carlson
recommends that Plaintiff’s failure to oppose the motion, as well as other delays by
Plaintiff, warrant dismissal of his Eighth Amendment claims for failure to prosecute under
Federal Rule of Civil Procedure 41(b). (Id. at 9-14). Plaintiff objects. He argues that his
opposition was timely filed pursuant to the prisoner mailbox rule. (Doc. 48 at 3-4). We
The “prisoner mailbox rule” dictates that the filings of pro se prisoners are
deemed filed on the date deposited in the prison mailbox. Houston v. Lack, 487 U.S.
266, 270-71 (1988); In re Flanagan, 999 F.2d 753, 759 (3d Cir. 1993). To benefit from
the rule, however, the prisoner must demonstrate, typically by declaration, that the
documents were placed in the mail system before the filing deadline and postage was
prepaid when deposited. Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 84
n.2 (3d Cir. 2013). Here, Plaintiff, a pro se prisoner, has filed a declaration in which he
states that the opposition documents were given to prison personnel for mailing on
November 25, 2014 – three days before the filing deadline.2 (Doc. 48 at 4). However, in
an apparent attempt to mislead the court, Plaintiff omits from his declaration the fact that
his documents were returned to him on December 2, 2014 for lack of postage.3 (Doc. 48
at 13). Without proper postage, the November 25, 2014 date cannot be considered the
date of filing under the prisoner mailbox rule. See Jenkins, 705 F.3d at 84 n.2. If we
assume that Plaintiff attached the appropriate postage and redeposited the documents in
2. This date is consistent with markings on the envelope. On the back of the envelope, a date
stamp indicates that the documents were received by prison officials on November 26, 2014.
3. The front of Plaintiff’s envelope has another date stamp indicating the date of December 2,
2014. Underneath the stamp, “Returned for postage” is written.
the prison mail system the same day the documents were returned,4 the earliest the
prisoner mailbox rule would credit Plaintiff with filing his opposition would be December 2,
2014. Therefore, we agree with Magistrate Judge Carlson that Plaintiff failed to submit
his opposition before the November 28, 2014 filing deadline, and we will overrule
B. Remainder of the Report and Recommendation
In addition to the recommendations discussed above, Judge Carlson
alternatively recommends that we grant Defendants’ motion for summary judgment
because (1) Plaintiff’s Eighth Amendment claim fails on its merits, and (2) Defendants are
entitled to qualified immunity. (Doc. 44). With respect to these recommendations,
Plaintiff identifies no specific portion to which he objects. Instead, he makes a general
objection by objecting to the Report and Recommendation in its entirety. (Doc. 48 at 3).
“When the parties have registered either no objections or only ‘general’ objections, ‘the
district court need only review the record for plain error or manifest injustice.” Forrester
Lincoln Mercury, Inc. v. Ford Motor Co., No. 1:11-CV-1136, 2012 WL 1642760 at *1
(M.D. Pa. May 10, 2012) (quoting Cruz v. Chater, 990 F. Supp. 375, 377 (M.D. Pa.
Upon independent review, we find no plain error or manifest injustice, and we
will adopt the Report and Recommendation with respect to these findings.
There is one finding in the Report and Recommendation, however, that we
find to be plain error. Plaintiff’s complaint includes a separate Bivens claim against a
4. This assumption is consistent with the postmark of December 3, 2014 on Plaintiff’s envelope.
third defendant – Defendant Sudul. (Doc. 1). In that claim, Plaintiff alleges that
Defendant Sudul retaliated against him for pursuing administrative remedies. (Id.). On
May 15, 2014, Defendant Sudul filed a motion for summary judgment on that claim.
(Doc. 16). In the Report and Recommendation, Magistrate Judge Carlson recommends
that we dismiss Defendant Sudul’s motion because disposition of the instant motion
renders it moot. (Doc. 44 at 5 n.1). We disagree. The motion for summary judgment on
which Judge Carlson issued his Report and Recommendation only addresses Plaintiff’s
Eighth Amendment claim and only includes Defendants Lindsey and Gonzalez as moving
parties. See (Doc. 49 at 2-3). Therefore, even after adopting the Report and
Recommendation, Plaintiff’s retaliation claim against Defendant Sudul remains.
Accordingly, the May 15, 2014 motion for summary judgment will not be rendered moot
by our disposition of the instant motion.
Based on the foregoing reasons, we will adopt Magistrate Judge Carlson’s
recommendation to grant the motion for summary judgment filed by Defendant Lindsey
and Defendant Gonzalez. We will remand the case to Judge Carlson, however, to issue
a report and recommendation on Defendant Sudul’s pending motion for summary
judgment on Plaintiff’s retaliation claim.
/s/William W. Caldwell
William W. Caldwell
United States District Judge
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