YUNIK v. MCVEY et al

Filing 165

ORDER accepting and adopting the Magistrate Judge's Order of April 12, 2013. Plaintiff's Notice of Appeal 164 is dismissed and this case shall remain closed until Plaintiff retains counsel. Signed by Judge Donetta W. Ambrose on 7/17/2013. (sps)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JAY V. YUNIK,

)

)

Plaintiff

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vs.

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)

CATHERINE C. McVEY,
Chairperson - Pennsylvania Board of
Probation and Parole; ET AL.,
Defendants

)
)

Civil Action No.2: 08-cv-1706
Senior District Judge Donetta W. Ambrose
Magistrate Judge Cynthia Reed Eddy

)

)

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiffs Notice of Appeal of the Magistrate Judge's Order [ECF
No. 164]. By Memorandum Order of April 12, 2013, the Magistrate Judge vacated an earlier
decision which had granted Plaintiffs Motion to Reopen the case (ECF No. 159). For the
reasons that follow, after a de novo review, the Court accepts and adopts the Magistrate Judge's
Order of April 12, 2013. Therefore, Plaintiffs Notice of Appeal is dismissed and this case shall
remain closed until Plaintiff retains counsel.
Background

The extensive background of this case is well known to the parties. Distilled to its
essence, in his Amended Complaint, filed on April 8,2009, Plaintiff, Jay V. Yunik, an inmate at
the State Correction Institution at Fayette, named eleven (11) individual defendants, all of whom
are employed either by the Pennsylvania Board of Probation and Parole ("the Board") or the
Pennsylvania Department of Corrections ("DOC"). In addition, Plaintiff named several groups
of John and Jane Doe Defendants, including "ALL ATTORNEYS WORKING FOR ANY &
ALL CITY, COUNTIES, OR STATE OF PENNSYLVANIA" and "ALL FEDERAL
ATTORNEYS WORKING FOR ANY & ALL FEDERAL GOVERNMENTS OF THE STATE

OF PENNSYLVANIA." (ECF No. 12). Plaintiff s Amended Complaint was not a model of
clarity, but the Magistrate Judge l concluded that Plaintiff had three sets of complaints: First, that
the Board and DOC require him to undergo various treatment programs so that the DOC can
determine whether to recommend him for parole or not and that the Board considers Plaintiffs
participation in this programming in order to determine his suitability for parole. Second, the
Board engages in reverse discrimination, routinely granting African American prisoners parole
while routinely denying white prisoners parole. Plaintiff also alleges age discrimination,
claiming that older prisoners are not paroled as frequently as younger prisoners. Third, that some
of the Defendants are engaging in retaliation against Plaintiff. (ECF No. 15).
Pursuant to the PLRA screening provisions, on November 9, 2009, the Court ordered that
the Amended Complaint be dismissed in part for failure to state a claim upon which relief could
be granted. The Court ordered that only the following claims remain: (1) Plaintiffs claims for
violation of his equal protection rights and (2) Plaintiffs claims for retaliation. (ECF No. 34.)
On April 18, 2011, following what best can be described as "more than two years of
torturous litigation" (ECF No. 159), Plaintiff filed a Motion / "Notice of Dismissal of Actions"
(sic) in which he requested that his case be dismissed "without prejudice until such time that
Appellant acquires counsel." (ECF No. 145.) Said Motion was granted by the District Court and
the case was closed on April 19, 2011 (ECF No. 147).
Almost two (2) years later, on February 9, 2013, Plaintiff filed a Motion to Reopen Civil
Suit (ECF No. 149). The grounds set forth in support of this Motion failed to indicate that
Plaintiffhad retained counsel the only basis available under the Order of April 19,2011, for

This case was originally assigned to Magistrate Judge Amy Reynolds Hay. On February 6,
2009, Plaintiff elected to have the case randomly assigned to a United States District Judge (ECF
No.6). Thereafter, on November 12,2009, the case was randomly assigned to the undersigned
and referred to Magistrate Judge Amy Reynolds Hay for all pre-trial matters.
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reopening the case. On March 12,2013, the Magistrate Judge granted the Motion to Reopen
(ECF No. 150), failing to appreciate the import of the fact that Plaintiff had not obtained or
described any effort to obtain counseL Upon reflection and more closely examining the docket
memorializing prior proceedings in this case, the Magistrate Judge concluded that the Motion to
Reopen had been improvidently granted. Accordingly, by Memorandum Order of April 12,
2013, the Magistrate Judge vacated its Order of March 12,2013, denied the Motion to Reopen,
and ordered that the Clerk of Courts mark the case closed. (ECF No. 159). All parties were
advised that they could appeal the Order entered by the Magistrate Judge to the District Court
within fourteen (14) days from the date of the Order. (Id.)
Plaintiff did not file an appeal to the District Court, but rather on April 29, 2013, he filed
in this Court a Notice of Appeal, which stated as follows:
Now comes, Jay V. Yunik, Plaintiff, pro se, in forma pauperis, in opposition to
Magistrates Order dated April 12, 2013, issued by Magistrate judge Cynthia
Eddy, and appeals to the United States Court of Appeals, third district
Pennsylvania.
Notice of Appeal (ECF No. 160). The civil case was docketed by the Office of the Clerk, Third
Circuit Court of Appeals, on May 1,2013 at USCA Case Number 13-2246. By Order of June
18, 2013, the appellate court dismissed the appeal for failure to timely prosecute insofar as
Plaintiff failed to pay the requisite fee as directed. (ECF No. 163).
Unbeknownst to the Court, on April 29, 2013, Plaintiff also filed directly with the United
States Court of Appeals for the Third Circuit a "Petition for Permission for Leave to File
Interlocutory Appeal," which also challenged the Magistrate Judge's Memorandum Order of
April 12, 2013. The Petition was docketed at USCA Case Number 13-0847. On June 28, 2013,
the appellate court dismissed Plaintiff s petition for permission to appeal for lack ofjurisdiction.
The Petition was thereafter forwarded by the Court of Appeals to this Court with the suggestion

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that the document be construed as a notice of appeal of the Magistrate Judge's Memorandum
Order to the District Court Judge. Accordingly, the Petition was filed in this Court on June 28,
2013 at ECF No. 164.

Discussion
A. Was The Motion to Reopen Civil Suit a Dispositive or Non-Dispositive Motion

Preliminarily, the Court must determine whether Plaintiff's Motion to Reopen Civil Suit
is a dispositive or non-dispositive motion. The jurisdiction and powers of magistrate judges are
governed by 28 U.S.C. § 636, and limited by the Constitution. U.S. Const. art. III, § l.
28 U.S.C. § 636(b) establishes that magistrate judges may hear and determine any pretrial
matters pending before the court, save for eight excepted, dispositive motions. Magistrate judges
may issue orders as to non-dispositive pretrial matters. District courts review such orders under
a "clearly erroneous or contrary to law" standard of review. 28 U.S.C. § 636(b)(l)(A). While
magistrate judges may hear dispositive motions, they may only make proposed findings of fact
and recommendations, and district courts must make de novo determinations, as to those matters
if a party objects to the magistrate's recommendations. Id. § 636(b)(1 )(B) & (C).
The District Court granted Plaintiffs Motion to Dismiss without prejudice until such time
as the Plaintiff obtained counsel. (ECF No. 147). Accordingly, it appears that the Plaintiff's
Motion to Reopen Suit is a dispositive motion and the Magistrate Judge's Order of April 12,
2013, will be construed as a Report and Recommendation. Likewise, Plaintiffs notice of appeal
of the Magistrate Judge's Order of April 12,2013, to the District Court Judge (ECF No. 164)
will be construed as objections to the Report and Recommendation.

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B. Standard of Review
In disposing of objections to a magistrate judge's report and recommendation, the district
court must make a de novo determination of those portions of the report to which objections are
made. 28 U.S.c. § 636(b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874,877 (3d Cir.
1987). This court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The district court judge may also receive further
evidence or recommit the matter to the magistrate judge with instructions. Id.; 28 U.S.C. §
636(b)(l).
C.

The Magistrate Judge Was Correct in Denying Plaintiffs Motion to Reopen
After careful and independent review of the Plaintiff's notice of appeal of the Magistrate

Judge's Order of April 12,2013, to the District Court Judge, and after de novo review of the
pleadings and documents in this case, together with the Magistrate Judge's Memorandum Order
of April 12, 2013, this Court will adopt the Memorandum Order as the Opinion of the District
Court.
Plaintiff was very clear in his Notice / Motion of Dismissal of Actions that he sought
dismissal "in order to obtain counsel .... [He] expect[ed] to be released soon and could then
soon thereafter hire counsel with the aid of a computer and phone book." Mot. at 2 (ECF No.
145). It is not disputed that Plaintiffs Motion / Petition to Reopen Civil Suit (ECF No. 149)
failed to indicate that Plaintiff had retained counsel. In fact, in his Notice of Appeal, Plaintiff
states that it "is immaterial/irrelevant" that he had not retained counsel. Nothing could be
further from the truth. The only basis available under the District Court Order for reopening the
case was if Plaintiff retained counsel.

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Moreover, in his Notice of Appeal, Plaintiff offers a new and completely different
explanation for why he requested that his case be dismissed. Now, Plaintiff states that "being
frustrated by Caiazza's2 hostile behavior, [he] decided to file a 'motion to dismiss' action
without prejudice, until Mr. Caiazza was replaced with a permanent magistrate." Petition at ~ 7.
If, as Plaintiff claims, his Motion to Reopen was premised on a notion ofjudge shopping, such a
claim is plainly inadequate as a ground for reopening his case, and his request to reopen must be
rejected by this Court.
In conclusion, the Court finds that the Magistrate Judge properly examined all issues of
fact and law relevant to the disposition of the Motion to Reopen. Accordingly, the Court agrees
in all respects with the Memorandum Order issued by the Magistrate Judge on April 12,2013.

Conclusion
For the foregoing reasons, after a de novo review, the Court accepts and adopts the
Magistrate Judge's Order of April 12, 2013. Therefore, Plaintiffs Notice of Appeal is dismissed
and this case shall remain closed until Plaintiff retains counsel.
So ORDERED this

fl~y of July, 2013.

~J.~
Donetta W. Ambrose
Senior U.S. District Court Judge

2 On June 1, 1994, Francis X. Caiazza was appointed as a Magistrate Judge to the United States
District Court for the Western District of Pennsylvania, where he served until his retirement in
July of 2008. In November 2010, this case was reassigned from Magistrate Judge Amy
Reynolds Hay to Magistrate Judge Caiazza, who had returned to the bench on a recall basis. On
February 28, 2013, the case was referred from Magistrate Judge Caiazza to Magistrate Judge
Cynthia Reed Eddy.
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cc: Jay V. Yunik

EK 5560

SCI Fayette

Box 9999

La Belle, PA 1540-0999

Scott A. Bradley
Office of the Attorney General
Email: [e-mail]

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