GAINES v. SENA et al
Filing
41
MEMORANDUM ORDER OF COURT ADOPTING 36 United States Magistraite Judge Eddy's Report and Recommendation as the opinion of this Court; DENYING 37 Pro Se Plaintiff's Motion for Defendants to Comply with Order for Plaintiff to Obtain Offici al Records; and GRANTING 16 Defendants' Motion to Dismiss for Failure to State a Claim, which was converted to a Motion for Summary Judgment. Mailed to Pro Se Plaintiff and Dwayne Rieco this same day. Signed by Judge Arthur J. Schwab on 06/09/2014. (lcb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LAWRENCE GAINES,
Plaintiff,
v.
PSYCHIATRIST DR. SENA and
MENTAL HEALTH MANAGEMENT,
Defendants.
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Civil Action No. 2: 13-cv-0471
United States District Judge
Arthur J. Schwab
United States Magistrate Judge
Cynthia Reed Eddy
MEMORANDUM ORDER
This case was commenced on March 29, 2013, and was referred to United States
Magistrate Judge Cynthia Reed Eddy for pretrial proceedings in accordance with the Magistrate
Judges Act, 28 U.S.C. § 636(b)(1), and the Local Rules of Court for Magistrate Judges. The
Magistrate Judge initially denied Plaintiff’s motion to proceed in forma pauperis for failure to
include the appropriate financial documentation, but the motion was later granted upon
Plaintiff’s compliance with the statutory requirements. (ECF Nos. 1, 2, and 7.)
Defendants filed a motion to dismiss arguing that the case should be dismissed as
Plaintiff had failed to exhaust his administrative remedies.
Because Defendants presented
material outside of the Complaint, the Magistrate Judge converted the motion to dismiss into a
motion for summary judgment, and allowed the parties time to submit additional briefing and
evidence.
On May 19, 2014, Magistrate Judge Eddy filed a Report and Recommendation (ECF No.
36) recommending that Defendants’ motion to dismiss, which had been converted into a motion
for summary judgment, be granted on the ground that Plaintiff had not properly exhausted his
administrative remedies pursuant to the Prison Litigation Reform Act. Plaintiff was served with
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the Report and Recommendation at his listed address and was advised that he had until June 5,
2014, to file written objections to the Report and Recommendation.1 Plaintiff filed timely
Objections to the Report and Recommendation (ECF No. 39).
As an initial matter, the Court notes that while it appears to be Plaintiff’s signature on the
Objections, under the signature line is the following notation: “executed by Dwayne L. Rieco
#HU2494 on behalf of Plaintiff.” Objections at 15. Rieco is a frequent flier, currently having
three lawsuits pending in this Court alone, and Rieco clearly wrote the Objections, as his
handwriting is readily recognized by the Court.
As a non-attorney, Rieco may not act as an attorney for other individuals. He cannot
represent other inmates in court, even if those inmates consent to his representation. He may
only represent himself in this Court. See 28 U.S.C. § 1654; Alexander v. New Jersey State
Parole Bd., 160 F. App’x 159, 160 n.1 (3d Cir. Dec. 28, 2005) (holding prisoner proceeding pro
se may not act on behalf of his fellow inmates); Baker v. Vaughn, 2010 WL 3893465 (D. Del.
Sept. 30, 2010) (holding a non-attorney inmate may not act as an attorney for other inmates).
Inmate Rieco is placed on notice that future documents executed by Rieco in cases in which
Rieco is not the named plaintiff will be docketed, but not considered by the Court. A copy of
this Memorandum Order will be sent to Rieco.
Turning to the merits of Plaintiff’s objections, the Court finds that Plaintiff's Objections
do not undermine the recommendation of the Magistrate Judge. Plaintiff has offered a series of
contradictory explanations for why he was not able to exhaust, all of which were discussed and
rejected by the Magistrate Judge.
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Likewise, this Court finds that Plaintiff’s contradictory
At the time Plaintiff commenced this lawsuit he was an inmate in the custody of the
Pennsylvania of Corrections confined at SCI-Pittsburgh. Contemporaneously with filing his
explanations have no evidentiary support and, accordingly, will grant summary judgment in
favor of Defendants on the basis of Plaintiff’s failure to exhaust. See Small v. Camden County,
728 F.3d 265, 270 (3d Cir. 2013).
After de novo review of the pleadings and documents in the case, together with the
Report and Recommendation, and the Objections thereto, the following order is entered:
AND NOW, this 9th day of June, 2014:
1.
Defendants’ motion to dismiss, which has been converted into a motion for
summary judgment (ECF No. 16) is GRANTED on the ground that Plaintiff did not properly
exhaust his administrative remedies;
2.
IT IS FURTHER ORDERED that the Report and Recommendation (ECF No.
36) dated May 19, 2014, is ADOPTED as the Opinion of the Court; and
3.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Defendants to Comply
with Order for Plaintiff to obtain official records (ECF No. 37) is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules
of Appellate Procedure, Plaintiff has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.
So ORDERED this 9th day of June, 2014:
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge
objections, Plaintiff notified the Court that he had been released from prison and provided a
change of address.
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cc:
All Registered ECF Counsel and Parties
LAWRENCE GAINES
229 Nelson Street
Jersey Shore, PA 17740
Dwayne L. Rieco, #HU2494
SCI - Pittsburgh
P. O. Box 99991
Pittsburgh, PA 15233
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