Opinion

Rosa-Diaz v. Rivello

Court
District Court, M.D. Pennsylvania
Filed
Nov 3, 2020
Cited by
0 cases
Authority
More cited than 29.1%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GABRIEL ROSA-DIAZ : Civil No. 1:19-cv-1914

:

Plaintiff, :

:

v. :

:

RIVELLO, et al., :

:

Defendants. : Judge Sylvia H. Rambo

M E M O R A N D U M

Before the court is a report and recommendation of Magistrate Judge Carlson

(Doc. 30) in which he recommends that the defendants’ motion to dismiss the

complaint (Doc. 20) be granted, in part, and that the pendant state law claims be

remanded to state court. He further recommends that the plaintiff’s motion to amend

(Doc. 25) be denied without prejudice to the plaintiff alleging well-pleaded facts in

support of certain narrowly tailored claims. The plaintiff timely filed objections to

the report and recommendation (Doc. 31) and the defendants responded (Doc. 32).

The plaintiff also filed a “Supplemental Appeal” to the report and recommendation

(Doc. 33), which the defendants have moved to strike (Doc. 34). For the following

reasons, the objections will be overruled, the motion to strike will be granted, and

the report and recommendation will be adopted.

I. Background

After a de novo review of the record, the court adopts the report and

recommendation’s thorough statement of the facts and of the case. Briefly, this is a

pro se civil rights action brought by Gabriel Rosa-Diaz, a state prisoner who has

prior litigation pending in this court. In this case, Rosa-Diaz has named seven

defendants, consisting mostly of correctional officials at the State Correctional

Institution Smithfield where Plaintiff is now housed. The amended complaint seeks

redress for incidents spanning almost two years and involving Rosa-Diaz’s belief

that correctional staff are conspiring against him to deny his advancement in the

Behavior Management Unit (“BMU”) and to steal his personal property. The

defendants have moved to dismiss the amended complaint, arguing that it does not

comply with the requirements of Federal Rules of Civil Procedure 8 and 20, that the

defendants are entitled to qualified immunity, and that the claims are otherwise

without merit. In his brief in opposition, Rosa-Diaz requested that Correctional

Officer Yoder be voluntarily dismissed as a defendant in this case. He has also

moved to amend his complaint for a second time.

II. Legal Standard

When objections are timely filed to a magistrate judge’s report and

recommendation, the district court must conduct a de novo review of those portions

of the report to which objections are made. 28 U.S.C. § 636(b)(1); Brown v. Astrue,

649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo, the extent of

review is committed to the sound discretion of the district judge, and the court may

rely on the recommendations of the magistrate judge to the extent it deems proper.

Rieder v. Apfel, 115 F. Supp. 2d 496, 499 (M.D. Pa. 2000) (citing United States v.

Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no objection is

made, the court should, as a matter of good practice, “satisfy itself that there is no

clear error on the face of the record in order to accept the recommendation.” Fed.

R. Civ. P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply

Intern., Inc., 702 F. Supp. 2d 465, 469 (M.D. Pa. 2010) (citation omitted).

Nonetheless, whether timely objections are made or not, the district court may

accept, not accept, or modify, in whole or in part, the findings or recommendations

made by the magistrate judge. 28 U.S.C. § 636(b)(1); Local Rule 72.31.

III. Objections

In his objections to the report and recommendation, Rosa-Diaz predominantly

seeks to add facts to his amended complaint and restate arguments previously

presented to the court. These purported objections are not entitled to de novo review.

Turning to his proper objections, Rosa-Diaz argues that his claims regarding his

confiscated property should be permitted to proceed. As the report and

recommendation properly explains, however, there are two issues with these claims.

First, Rosa-Diaz availed himself of the prison grievance system regarding the

confiscated items and therefore he had an adequate post-deprivation remedy. (See

Doc. 30, pp. 36-37.) Second, to the extent he seeks to hold the supervisory

defendants responsible for denying his grievances, he has failed to state a claim. (See

id. at pp. 38-39.) Rosa-Diaz also argues that his equal protection claims should be

allowed to proceed as he was similarly situated with several other inmates in the

BMU. However, as the report and recommendation correctly found, these other

inmates were not similarly situated to him because they were acting as informants

for the Department of Corrections while Plaintiff was not. (See id. at pp. 34-36.)

The court has reviewed the remainder of the report and recommendation and

is satisfied that it contains no clear error. It will be adopted in its entirety.1

IV. Conclusion

For these reasons, the court agrees with Magistrate Judge Carlson’s statement

of facts, application of the law and his well-reasoned conclusions. Accordingly, the

court will overrule Rosa-Diaz’s objections and adopt the report and

recommendation.

s/Sylvia H. Rambo

United States District Judge

Dated: November 3, 2020

1 The court will also grant the defendants’ motion to strike Rosa-Diaz’s supplemental appeal.

The defendants filed their response to Rosa-Diaz’s objections on July 30, 2020, but Rosa-Diaz

did not file his supplemental appeal, which the court construes as a reply brief, until August 30,

2020. The reply is therefore untimely.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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