IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FREDERICK T. RAY, III : CIVIL ACTION

 :

v. :

 : 

SGT. THOMAS A. MADONNA, et al. : NO. 04-cv-00805-JF

FREDERICK T. RAY, III : CIVIL ACTION

 :

v. :

 : 

MAJOR WALTER REED, et al. : NO. 04-cv-00810-JF

MEMORANDUM AND ORDER

Fullam, Sr. J. September 6, 2007

At an earlier stage, I granted the defendants’ motions

to dismiss, noting that plaintiff had failed to respond to either

motion. Plaintiff appealed, and a panel of the Third Circuit

Court of Appeals found my Order “ambiguous.” The Order, in its

entirety, stated:

“Upon consideration of Defendants’ Motion to

Dismiss, to which no response has been filed,

the Motion is GRANTED.”

The panel decision expressed uncertainty as to whether the merits

of the motion had been considered, and expressed the view that,

at least in some circumstances, it is inappropriate for a

district court to rely upon its own procedural rules concerning

motion practice to dispose of motions by default.

The defense motions in question, styled as motions to

dismiss the complaint for failure to state a claim, under Fed. R.

Case 2:04-cv-00805-JF Document 18 Filed 09/06/07 Page 1 of 4
2

Civ. P. 12(b)(6), were accompanied by a significant amount of

evidentiary material. In view of the remand from the Court of

Appeals, I consider it appropriate to treat the defense motions

as motions for summary judgment under Fed. R. Civ. P. 56, and

will therefore provide the plaintiff with a further opportunity

to respond to the motions, if he so desires. In particular,

plaintiff will be invited to address some of the more significant

evidentiary materials.

An Order follows.

Case 2:04-cv-00805-JF Document 18 Filed 09/06/07 Page 2 of 4
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FREDERICK T. RAY, III : CIVIL ACTION

 :

v. :

 : 

SGT. THOMAS A. MADONNA, et al. : NO. 04-cv-00805-JF

FREDERICK T. RAY, III : CIVIL ACTION

 :

v. :

 : 

MAJOR WALTER REED, et al. : NO. 04-cv-00810-JF

ORDER

AND NOW, this 6 day of September 2007, IT IS ORDERED: th

1. The defendants’ motions to dismiss shall be

treated as motions for summary judgment under Fed. R. Civ. P. 56. 

Plaintiff may file a response to those motions, if he so desires,

within 60 days.

2. If plaintiff decides to file a response to those

motions, plaintiff is invited to address each of the following

grounds asserted in the documents which have been presented by

the defendants in support of the motions to dismiss:

(a) that plaintiff has failed to exhaust his

administrative remedies, by failing to complete

the available appeals process within the prison.

(b) that, over a period of two years and nine months

(between May 31, 2001 and February 27, 2004),

plaintiff was the subject of disciplinary charges

Case 2:04-cv-00805-JF Document 18 Filed 09/06/07 Page 3 of 4
2

on 45 separate occasions, and entered pleas of

guilty on 25 of those occasions.

(c) that plaintiff has made a practice of filing

complaints against prison personnel on virtually a

daily basis, during the period of his

incarceration.

(d) that plaintiff has filed civil rights actions in

this court on eight or nine previous occasions,

most or all of which have been dismissed for lack

of merit.

3. Unless plaintiff files a response to the pending

motions for summary judgment, in compliance with the provisions

of this Order, the captioned actions will be dismissed with

prejudice.

BY THE COURT:

/s/ John P. Fullam 

John P. Fullam, Sr. J.

Case 2:04-cv-00805-JF Document 18 Filed 09/06/07 Page 4 of 4