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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KENNETH RAYMOND :

McKETTRICK, :

: Civil Action No. 4: 06-CV-329

Plaintiff, :

: (Judge McClure)

v. :

: (Magistrate Judge Blewitt)

TROY WILLIAMSON, Warden, :

and John Doe, B.O.P. Northeast :

Regional Director :

:

Defendants :

O R D E R

May 22, 2006

BACKGROUND:

On February 14, 2006, plaintiff Kenneth Raymond McKettrick, instituted,

pro se, a Bivens civil rights action in the United States District Court for the Middle

District of Pennsylvania. McKettrick is currently a federal prisoner incarcerated at

United States Penitentiary (USP) Lewisburg, Lewisburg, Pennsylvania. His

complaint names the warden of Lewisburg and an unnamed defendant who is the

Northeast Regional Director for the Bureau of Federal Prisons. Plaintiff alleges in

his complaint that the defendants violated his rights to due process when they

placed him in the special management unit (SMU) program at Lewisburg, and

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 On May 10, 2006 we dismissed that petition, as McKettrick had not

challenged “the fact or duration of his physical confinement itself, . . . [nor did he]

seek[] immediate release or a speedier release from that confinement–the heart of

habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 498 (1973). McKettrick v.

Williamson, No. 06-543 (M.D. Pa. May 10, 2006) (McClure, J.). 

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removed him from the general prison population. McKettrick asserts that his

assignment to the SMU program is because he is Native American. McKettrick

requested leave to file in forma pauperis, but shortly thereafter paid the filing fee. 

On March 15, 2006, McKettrick also filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241.1

McKettrick’s cases were initially referred to United States Magistrate Judge

Thomas M. Blewitt. The magistrate judge then screened McKettrick’s complaint

pursuant to 28 U.S.C. § 1915A(b). On March 21, 2006, Magistrate Judge Blewitt

issued an eighteen-page report and recommendation in connection with

McKettrick’s Bivens claim. Magistrate Judge Blewitt construed McKettrick’s

complaint to allege a Fifth Amendment due process claim for confinement in SMU

against the two individual defendants as well as a First Amendment retaliation claim. 

The magistrate judge recommended that McKettrick’s Due Process claim be

dismissed for failure to allege the defendants’ personal involvement and for failure

to state a claim. The magistrate judge then recommended that McKettrick be

allowed to file an amended complaint with respect to his First Amendment

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 As we indicated in our May 10, 2006 order dismissing McKettrick’s

petition under section 2241 docketed to case number 06-CV-543, he erroneously

asserted in that filing that his cases were consolidated. This was only the

recommendation of the magistrate judge, which we did not adopt for the reasons

set forth in our May 10, 2006 order docketed to case number 06-CV-543.

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retaliation claim against the responsible prison staff members. Finally, the

magistrate judge recommended that the case be remanded to him for further

proceedings.

McKettrick requested an extension of time to file his objections to the

magistrate judge’s report and recommendation, which we granted. On May 9,

2006, McKettrick filed objections to the magistrate judge’s report.

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 For the

following reasons we will adopt the magistrate judge’s report dismissing

McKettrick’s due process claim, providing him leave to amend his complaint as to

his First Amendment retaliation claim, and remanding the matter for further

proceedings before the magistrate judge.

DISCUSSION:

I. RELEVANT LEGAL STANDARD

A district court reviews de novo those portions of a magistrate judge’s

report and recommendation to which a party objects. L.R. 72.3. The court may

“accept, reject, or modify, in whole or in part, the findings or recommendations

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made by the magistrate judge.” Id.

II. DISMISSAL OF DUE PROCESS CLAIM, LEAVE TO AMEND FIRST

AMENDMENT CLAIM & REMAND TO MAGISTRATE JUDGE 

FOR FURTHER PROCEEDINGS IS APPROPRIATE

On May 9, 2006, McKettrick filed a document with a caption stating

“Plaintiff Standing Objection to Magistrate Judge Report and Recommendations in

Part; and Submit Plaintiffs Amended Complaint, Memorandum of Points and

Authorities in Support Thereof . . .” (Rec. Doc. No. 11.) In our May 10, 2006

order dismissing McKettrick’s petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241, and docketed to case number 06-CV-543, we noted we were

construing this filing as objections to the magistrate judge’s report and

recommendations to both 06-CV-329 and 06-CV-543.

Essentially, McKettrick’s filing is an amended complaint, which we will leave

to the magistrate judge to address. However, at page 12 of his filing McKettrick

states his objections to the magistrate judge’s report and recommendation. First he

asserts that the magistrate judge misconstrued plaintiff’s pleadings regarding“well

established fundamental principles of due process of law violations.” (Rec. Doc.

No. 11, at 12.) McKettrick then asserts that the magistrate judge erred in denying

him leave to amend his due process claim before making its final adjudication

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 Magistrate Judge Blewitt noted in footnote 8 of his report and

recommendation that despite McKettrick’s pro se status he should not be permitted

leave to amend his due process claim because based on well-settled case law his

due process claim fails to state a constitutional violation and leave to amend would

be futile. (Rec. Doc. No. 7, at 18 n. 8) (citing Foman v. Davis, 371 U.S. 178, 182

(1982)). We agree.

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because he is a pro se litigant.3

The magistrate judge carefully and thoroughly set forth the case law relating

to McKettrick’s due process claim from pages ten to seventeen of the report and

recommendation. We will not repeat that case law here. As the magistrate judge

noted this court has already found that placement in SMU does not implicate a due

process liberty interest. Francis v. Dodrill, No. 04-CV-1694, 2005 WL 2216582

(M.D. Pa. Sept. 12, 2005) (Munley, J.). McKettrick’s objections are without merit.

We will adopt the magistrate judge’s report and recommendation in full. 

Thus, we will dismiss McKettrick’s due process claims, provide him leave to

amend his First Amendment retaliation claim against the appropriate prison

officials, and remand the matter for further proceedings before United States

Magistrate Judge Thomas M. Blewitt.

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NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Magistrate Judge Blewitt’s report and recommendation is adopted in full. 

(Rec. Doc. No. 7.)

2. McKettrick’s due process claims are dismissed for failure to state a

claim. Furthermore, we agree with the magistrate judge that leave to amend these

claims would be futile.

3. McKettrick is granted leave to amend his complaint’s First Amendment

retaliation claim. An amended complaint shall be filed on or before June 23, 2006.

4. The matter is remanded to the magistrate judge for further proceedings.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge 

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