POSITANO v. DALBALSO et al

Filing 129

ORDER ADOPTING REPORT 123 of Chief Magistrate Judge Schwab, granting DOC's MSJ 108 to extent pltf's claim under PA Human Relations Act against DOC is dismissed w/ prejudice w/ MSJ 108 otherwise denied, denying pltf's MSJ 99 & denying pltf's motion 121 for TRO & prelim inj, & noting separate pretrial scheduling order to issue. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 7/20/18. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ONOFRIO POSITANO,
Plaintiff
v.
COMMONWEALTH OF
PENNSYLVANIA DEPARTMENT
OF CORRECTIONS,
Defendant

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CIVIL ACTION NO. 3:16-CV-1570
(Chief Judge Conner)

ORDER
AND NOW, this 20th day of July, 2018, upon consideration of the report
(Doc. 123) of Chief Magistrate Judge Susan E. Schwab, wherein Judge Schwab
recommends first, that the court grant the motion for summary judgment filed by
defendant Commonwealth of Pennsylvania Department of Corrections (“DOC”) to
the extent the DOC is entitled to Eleventh Amendment immunity with respect to
the claim by pro se plaintiff Onofrio Positano (“Positano”) brought pursuant to
the Pennsylvania Human Relations Act, 43 PA. STAT. AND CONS. STAT. ANN. § 951
et seq., but deny the motion to the extent the DOC contends that Positano cannot
bring a claim under Title II of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12132, alleging disability discrimination in his exclusion from a prison
vocational program, and also to the extent the DOC asserts there are no genuine
disputes of material fact as to whether Positano is a “qualified individual” under
the ADA, (Doc. 123 at 13-30); second, that the court deny Positano’s motion for
summary judgment, (id. at 30-33); and third, that the court deny Positano’s motion

for temporary restraining order and preliminary injunction, (id. at 33-37), and the
court noting that the DOC filed objections (Doc. 124) to the report’s finding that
genuine disputes of material fact persist as to whether Positano is a qualified
individual with a disability, see FED. R. CIV. P. 72(b)(2), and that said objections have
been fully briefed by the parties, (Docs. 125, 127), and following a de novo review of
the contested portions of the report, see Behar v. Pa. Dep’t of Transp., 791 F. Supp.
2d 383, 389 (M.D. Pa. 2011) (citing 28 U.S.C. § 636(b)(1)(C); Sample v. Diecks, 885
F.2d 1099, 1106 n.3 (3d Cir. 1989)),1 the court finding Judge Schwab’s analysis to be
thorough, well-reasoned, and fully supported by the record and decisional law, and
in particular by the requirement that the court view the summary judgment record
in the light most favorable to the nonmoving party, see N.A.A.C.P. v. N. Hudson
Reg’l Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011) (quoting Scott v. Harris, 550
U.S. 372, 380 (2007)), and the proscription against courts weighing evidence or
making credibility determinations at the summary judgment stage, see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986), and finding the DOC’s objections

1

Neither the DOC nor Positano object to the balance of Chief Magistrate
Judge Schwab’s report. Failure of a party to timely object to a magistrate judge’s
conclusions “may result in forfeiture of de novo review at the district court level.”
Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007) (citing Henderson v. Carlson, 812
F.2d 874, 878-79 (3d Cir. 1987)). As a matter of good practice, a court should “afford
some level of review to dispositive legal issues raised by the report,” Henderson, 812
F.2d at 878; see also Taylor v. Comm’r of Soc. Sec., 83 F. Supp. 3d 625, 626 (M.D. Pa.
2015) (citation omitted), in order to “satisfy itself that there is no clear error on the
face of the record,” FED. R. CIV. P. 72(b), advisory committee notes. Following an
independent review of the record, we find no error with respect to the uncontested
portions of the report.
2

(Doc. 37) to be without merit and squarely addressed by the report,2 it is hereby
ORDERED that:
1.

The report (Doc. 123) of Chief Magistrate Judge Schwab is ADOPTED.

2.

The DOC’s motion (Doc. 108) for summary judgment is GRANTED to
the extent Positano’s claim under the Pennsylvania Human Relations
Act against the DOC is DISMISSED with prejudice. The DOC’s
motion (Doc. 108) is otherwise denied.

3.

Positano’s motion (Doc. 99) for summary judgment and Positano’s
motion (Doc. 121) for temporary restraining order and preliminary
injunction are DENIED.

4.

A separate pretrial scheduling order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania

2

The DOC’s objections concern its disagreement with certain inferences
drawn from the record by Judge Schwab. The DOC offers its own interpretation
of the record evidence as the only permissible one. (See Doc. 125 at 12-14). The
DOC’s articulation of its view of the evidence simply undergirds Judge Schwab’s
appropriate determination that genuine disputes of material fact preclude summary
judgment in the DOC’s favor.