WATSON v. ROZUM et al

Filing 43

MEMORANDUM ORDER granting 32 Motion for Summary Judgment; denying 37 Motion for Summary Judgment; 41 Report and Recommendation is adopted as the Opinion of this Court. 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, Petitioner has 30 days to file a notice of appeal as provided by Rule 3 of the Federal Rules of Appellate Procedure, and as more fully stated in said Memorandum Order. Signed by Judge Kim R. Gibson on 8/6/2013. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOSEPH WATSON
Plaintiff,
v.

GERALD L. ROZUM, et al.,
Defendants.

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Civil Action No. 12- 35J
District Judge Kim R. Gibson
Chief Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM ORDER

This action is before the Court on the Report and Recommendation of Chief Magistrate
Judge Lenihan issued on July 16, 2013, recommending that Defendants' Motion for Summary
Judgment be granted and that Plaintiffs Motion for Summary Judgment be denied. The parties
were served with the Report and Recommendation and informed that they had until August 2,
2013, to file written objections. Plaintiff filed timely objections on August 1, 2013. Upon
review, the Court finds that Plaintiffs objections do not undermine the recommendation of the
magistrate judge and the Report and Recommendation will therefore be adopted as the Opinion
ofthe Court. However, the Court will address the following objections.
First, Plaintiff objects on the ground that the magistrate judge cited to the wrong section
of the Pennsylvania Department of Corrections policy regarding contraband.

Plaintiff is

mistaken, the magistrate judge correctly cited to the section that contains the DOC's policy on
contraband, which expressly states that "any item altered from its original state (state issued or
personal) may be considered contraband." DC-ADM 815, § 3(C)(l). Plaintiffs objection on the

basis that the magistrate judge did not cite to the exact subsection wherein that definition is
located is frivolous and immaterial.
Second, Plaintiff attempts to raise a new claim in his objections; specifically, that
Defendants denied him access to the courts because they would not provide him with a grievance
form when he requested it on the day he received the misconduct. Plaintiff may not raise a new
claim through his objections, but, this objection is without merit because he was provided with a
grievance form, albeit later that day, and was able to grieve the incident that is the subject of this
lawsuit. Hence, he was not denied access to the courts.
Third, Plaintiff claims that he was not afforded due process in his misconduct hearing
because the hearing examiner was not impartial, because his radio was not present at the hearing
and because the evidence was not sufficient to sustain his sanction. Plaintiffs due process
claims were dismissed on November 29, 2012, and the Court refers Plaintiff to the magistrate
judge's previous Report and Recommendation dated October 29, 2012 regarding this objection.
Fourth, Plaintiff claims that the taking ofhis radio was in violation ofthe Takings Clause.
This claim was also disposed of on November 29, 2012, and the Court again refers Plaintiff to
the magistrate judge's previous Report and Recommendation as to why this claim is without
merit.
Fifth, Plaintiff has presented many objections based on the fact that Defendants failed to
follow their own policy and procedures in numerous respects. This issue, too, was addressed in
the magistrate judge's previous Report and Recommendation. Plaintiff may refer to that report
for an explanation of why a claim based on prison officials' failure to follow their own internal
policies and procedures does not amount to a constitutional violation in and of itself.

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Finally, Plaintiff objects on the basis that it was not he who broke his radio's antenna, but
instead Officer Kline broke it during the search of Plaintiff's cell. Therefore, he maintains that
he should not have been given the misconduct. The fact that Officer Kline may have further
broken the antenna, which was already loose, is completely irrelevant to the misconduct Plaintiff
received. Plaintiff received the misconduct for possession of contraband because he altered his
radio's antenna by securing it to the radio it with tape. This occurred prior to the search of his
cell and he readily admits to that he did it. This very fact alone is dispositive of the sole
remaining claim before the Court; which is whether Plaintiff was issued and found guilty of the
misconduct in retaliation for requesting a grievance and for lawsuits he had previously filed
(some which are still pending) in this Court. Whether or not Office Kline broke his radio's
antenna after Plaintiff had already secured it with tape is completely irrelevant to this issue.
Therefore, after de novo review of the pleadings and documents in the case, together
with the Report and Recommendation, the following order is entered.
AND NOW,

this<O"f~ay of August, 2013,

IT IS HEREBY ORDERED that the Motion for Summary Judgment filed by
Defendants Dupont, Simosko, Snyder and Coutts (ECF No. 32) is GRANTED and Plaintiff's
Motion for Summary Judgment (ECF No. 37) is DENIED.
IT IS FURTHER ORDERED that the magistrate judge's Report and Recommendation
dated July 16, 2013 (ECF No. 41 ), as it is supplemented herein, is adopted as the Opinion of this
Court.
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.

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AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(l) of the Federal Rules

of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by
Rule 3 ofthe Federal Rules of Appellate Procedure.

Kim R. Gibson
United States District Judge

cc:

JOSEPH WATSON
EF-9383
SCI Somerset
1600 Walters Mill Road
Somerset, PA 15510
Via US. Postal Mail

Counsel of Record
Via ECF Electronic Mail

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