Tejada v. Delbalso et al

Filing 263

ORDER ADOPTING REPORT AND RECOMMENDATIONS for the reasons set forth therein. Plaintiff's Motion to Strike (Doc. 260) GRANTED. Plaintiff's Motion for Reconsideration 9Doc. 247) is DENIED. This matter is REMANDED to Magistrate Judge Saporito for further pretrial handling. See Order for full details. Signed by Honorable Robert D Mariani on 4/14/23. (jam)

THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RICKY TEJADA,
Plaintiff,

: CIVIL ACTION NO. 3:18-CV-1096
: (JUDGE MARIANI)
: (Magistrate Judge Saporito)

V.

SUPERINTENDENT DELBASO, et al.,
Defendants.

., J, ORDER
AND NOW, THIS J!i_!!__ DAY OF APRIL 2023, upon de novo consideration of
Magistrate Judge Joseph F. Saporito's Report and Recommendation (''R&R) (Doc. 256) and
all relevant documents, IT IS HEREBY ORDERED THAT:
1. Plaintiff's "Motion to Strike the Written Statement of Appeal and Instead Include the
Attached Written Statement of Appeal - Court Receiving Wrong Statement" (Doc.
260) is GRANTED as follows:
a. Plaintiff's "Written Statement of Appeal" (Doc. 259) is STRICKEN.
b. The Court deems the statement attached to Document 260 (see Doc. 260-1)
to be the Plaintiff's Objections to the R&R (Doc. 256).
2. The R&R (Doc. 256) is ADOPTED for the reasons set forth therein.
3. Plaintiff's Objections (Doc. 260-1) are OVERRULED. Plaintiff's Objections largely
reiterate the arguments previously raised and considered by this Court when
overruling Plaintiff's objection to Magistrate Judge Saporito's prior R&R

recommending the grant of summary judgment as to Plaintiff's access-to-courts
claim. Furthermore, Plaintiff's Objections fail to refute this Court's finding that the
operative complaint does not plead any facts relating to the access-to-courts claim
he is now attempting to raise. (See Doc. 242, at 4) . Although Plaintiff's Objections
claim that he alleged an access to courts claim in paragraph 64 of his second
amended complaint, that paragraph, and the operative complaint as a whole, do not
support Plaintiff's contention. Rather, paragraph 64, states that "by defendants
taking the property outlined above and never returning it to Plaintiff has hindered
Plaintiff in his PCRA efforts at case No. CR-570-2001 before the Lehigh County
Court and preparing for appeal and PCRA at case No. CR-389-2014 before the
Huntington County Court regarding evidence withheld from Plaintiff, among other
issues regarding that Huntington case." (Doc. 122, ~ 64). However, the "property"
detailed by Plaintiff includes "soap, toothpaste, toothbrush , toilet paper, sheets and
blanket" as wel l as magazines, books, notes, and photos. (See id. at~~ 23, 62, 63) .
Plaintiff's Complaint does not raise Defendant Wall's alleged late mailing of his
appeal of the Lehigh County Court's April 7, 2016, denial of his PCRA petition or his
appeal of the PCRA denial to the Superior Court. This fact is, in essence, admitted
by Plaintiff where, following the issuance of Magistrate Judge Saporito's R&R
recommending denial of Plaintiff's motion for reconsideration, Plaintiff filed a "Motion
for Leave to Amend Paragraph 64 in the Second Amended Pro Se Complaint" (Doc.

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261) and supporting brief (Doc. 262). The motion specifically notes this Court's prior
determination that he had not "mention[ed] anything about his appeal of the PCRA
denial to the Superior Court" in his second amended complaint (Doc. 242, at 4) and
requests permission to amend paragraph 64 to include "additional facts which would
clarify or amplify the First Amendment access to courts claim or theory .. ." (Doc.
262, at 1-2). For these reasons, Plaintiff has not set forth any argument or evidence
to support a determination that good cause exists for this Court to reconsider its prior
decision and his Objections (Doc. 260-1) are overruled .
4. Plaintiff's Motion for Reconsideration (Doc. 247) is DENIED.
5. This matter is REMANDED to Magistrate Judge Saporito for further pretrial handling.

Ro ert D. MariaA·
United States District Judge

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