UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

FELIX CORDERO, :

: No. 4:CV-99-2165

Plaintiff, :

vs. : Complaint filed 12/15/99 

:

BUREAU OF PRISONS, ET AL., : (Judge Muir)

:

Defendants. : (Magistrate Judge Mannion)

ORDER

June 10, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On December 15, 1999, Plaintiff Felix Cordero initiated this

action by filing a complaint containing two counts, both of which

have been brought pursuant to the Privacy Act, 5 U.S.C. § 552a. 

Cordero is proceeding pro se and in forma pauperis.

Cordero alleges that the Federal Bureau of Prisons is

maintaining and using inaccurate records to deprive him of

opportunities which would otherwise be made available to him. He

specifically claims that an inaccurate report issued in the

course of disciplinary proceedings brought against Cordero has

resulted in adverse determinations with respect to his inmate

classification and security level.

The material procedural history of this case from the filing

of the complaint up to November 8, 2004, is set forth in our

order issued on that date.

On April 27, 2005, United States Magistrate Judge Malachy E.

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Mannion issued a report recommending that the Defendants’ motion

for summary judgment be granted because Cordero has failed to

substantiate his claim that the Bureau of Prisons has made any

decision adverse to Cordero based on the allegedly inaccurate

information. 

On May 9, 2005, Cordero filed objections to that Report and

Recommendation. Cordero argues in his objections that he has

submitted sufficient evidence demonstrating that such an adverse

decision has been made. Although Cordero did not file a separate

brief in support of his objections, on May 18, 2005, the

Defendants filed a brief in opposition to Cordero’s objections. 

The time allowed for Cordero to file a reply brief expired on

June 6, 2005, and to this date no such brief has been filed. 

Cordero’s objections to the Magistrate Judge’s Report and

Recommendation are ripe for disposition.

When objections are filed to a report of a Magistrate Judge,

we make a de novo determination of those portions of the report

or specified proposed findings or recommendations made by the

magistrate judge to which there are objections. United States v.

Raddatz, 447 U.S. 667 (1980); 28 U.S.C. §636(b)(1); M.D. Pa.

Local Rule 72.31. Furthermore, district judges have wide

discretion as to how they treat recommendations of the Magistrate

Judge. Id. In providing for a de novo review determination

rather than a de novo hearing, Congress intended to permit

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whatever reliance a district judge, in the exercise of sound

discretion, chooses to place on a Magistrate Judge’s proposed

findings and recommendations. Id. See also Mathews v. Weber, 423

U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir.

1984). We will review de novo the Magistrate Judge’s conclusion

that the Defendants’ motion for summary judgment should be

granted.

Summary judgment is appropriate only when there is no

genuine issue of material fact which is unresolved and the moving

party is entitled to a judgment as a matter of law. Fed. R. Civ.

P. 56(c). Summary judgment should not be granted when there is a

disagreement about the facts or the proper inferences which a

fact finder could draw from them. Peterson vs. Lehigh Valley

Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). “When a motion

for summary judgment is made and supported as provided in

...[Rule 56], an adverse party may not rest upon mere allegations

or denials of the adverse party’s pleading....” Fed.R.Civ.P.

56(e).

Initially, the moving party has a burden of demonstrating

the absence of a genuine issue of material fact. Celotex

Corporation vs. Catrett, 477 U.S. 317, 323 (1986). This may be

met by the moving party pointing out to the court that there is

an absence of evidence to support an essential element as to

which the non-moving party will bear the burden of proof at

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trial. Id. at 325. 

Rule 56 provides that where such a motion for summary

judgment is made and properly supported the adverse party must

show by affidavits, pleadings, depositions, answers to

interrogatories, and admissions on file that there is a genuine

issue for trial. Fed. R. Civ. P. 56(e). The United States

Supreme Court has commented that this requirement is tantamount

to the non-moving party making a sufficient showing as to the

essential elements of his or her case that a reasonable jury

could find in its favor. Celotex Corporation vs. Catrett, 477

U.S. 317, 322-23 (1986).

When addressing a motion for such a judgment, our inquiry

focuses on “whether the evidence presents a sufficient

disagreement to require submission to the jury or whether it is

so one-sided that one party must prevail as a matter of law.”

Anderson vs. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)

(emphasis added).

As summarized by the Advisory Committee On Civil Rules,

“[t]he very mission of the summary judgment procedure is to

pierce the pleadings and to assess the proof in order to see

whether there is a genuine need for trial.” Fed. R. Civ. P. 56

advisory committee note to 1963 Amendment.

The claims Cordero asserts in his complaint have been

brought pursuant to the Privacy Act, 5 U.S.C. § 552a. In order

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to succeed in a civil action authorized by that statute, a

plaintiff is required to show that “a determination is made which

is adverse to the individual” based on the inaccurate record at

issue. 5 U.S.C. § 552a(g)(1)(C). The fundamental issue to be

resolved in ruling on Cordero’s objections is whether he has

submitted sufficient evidence for a reasonable trier of fact to

conclude that he has suffered some adverse decision as a result

of the information in the Bureau of Prisons’ records which is

allegedly inaccurate.

Cordero was sentenced on January 31, 1997, in a federal

court to 156 months’ imprisonment for conspiracy to commit murder

and conspiracy to commit assault. On September 4, 1997, the

Bureau of Prisons assigned Cordero a high security level

classification, which resulted in his placement at a high

security institution.

On October 21, 1998, an inmate assaulted another inmate at

the Federal Correctional Institution at Allenwood. Cordero was

charged in a disciplinary proceeding with being involved in the

assault and a hearing in the matter was held on March 24, 1999. 

The Disciplinary Hearing Officer concluded that Cordero had

participated in the assault. Cordero alleges that some of the

records generated in the course of those proceedings are

inaccurate.

The only adverse consequences Cordero cites in this case as

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resulting from the alleged inaccuracies relate to the

classification and security level assigned to him by the Bureau

of Prisons. He contends that inaccurate information contained in

the Disciplinary Hearing Officer’s report have led to a more

severe classification which has in turn limited his privileges

while incarcerated.

The government disputes Cordero’s contentions, arguing that

Cordero’s security classification within [the Bureau of

Prisons] has not been effected [sic] by the disputed

information in the [Disciplinary Hearing Officer’s] Report. 

Because of the nature of his convictions and his history,

Cordero’s BOP security classification was “high” at the time

he entered the system. As a result of Cordero’s custody

classification level scoring, he was designated to serve his

sentence in a high security institution. Accordingly,

Cordero’s security classification remains “high.” Thus,

there has been no change to Cordero’s security

classification as a result of the information contained in

the [Disciplinary Hearing Officer’s] Report. Again, even if

the other inmate had never been assaulted, Cordero’s

security classification would still be “high.”

(Brief in support of motion for summary judgment, p. 16). The

evidence of record supports those assertions and Cordero has not

presented any evidence to place those material facts in dispute. 

Cordero’s reliance upon unsupported allegations is not sufficient

to avoid the entry of summary judgment. See Fed.R.Civ.P. 56(e).

No reasonable trier of fact could conclude, based on the

evidentiary record presented to us, that Cordero has suffered any

adverse decision as a result of the Disciplinary Hearing

Officer’s report referenced in Cordero’s complaint. For that

reason we will grant the Defendants’ motion for summary judgment.

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NOW, THEREFORE, IT ORDERED THAT:

1. Cordero’s objections to Magistrate Judge Mannion’s

Report and Recommendation filed on April 27, 2005, are

overruled.

2. Magistrate Judge Mannion’s Report and Recommendation

filed on April 27, 2005, is adopted in toto.

3. The Defendant’s motion for summary judgment (Document

69) is granted.

4. The Clerk of Court shall close this file.

5. Any appeal of this order shall be deemed frivolous,

without probable cause, and not taken in good faith.

s/Malcolm Muir 

MUIR, U.S. District Judge

MM:ga

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