1

 Although Plaintiff filed the instant action while he was incarcerated at FCI McKean, he

has since been transferred to another federal institution.

1

 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

REGINALD T. GILBERTBEY )

Plaintiff )

)

)

v. ) C.A. No. 05-69 Erie

)

) District Judge McLaughlin

UNITED STATES OF AMERICA, et al., ) Magistrate Judge Baxter

Defendants. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the motion to dismiss or alternatively for summary

judgment [Document # 27] be granted.

II. REPORT

A. Procedural History

On May 16, 2005, Plaintiff, a federal inmate formerly incarcerated at FCI-McKean1 in

Bradford, Pennsylvania, filed the instant civil rights action. Named as Defendants are: the

United States of America, Department of Justice, Federal Bureau of Prisons, and FCI-McKean. 

In his amended complaint, Plaintiff alleges that while he was on a hunger strike, he was placed

in the Special Housing Unit, threatened with force feeding and his access to water was

controlled. As relief, Plaintiff seeks only injunctive relief in the form of an order from this

Court directing that any force feeding be videotaped and not be done though his nasal passage,

free copies of his Central file, a stay of all disciplinary charges (presumably involving the hunger

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strike) and an immediate transfer to FMC Lexington. 

Defendants have filed a motion to dismiss or in the alternative, for summary judgment. 

Plaintiff has filed a opposition to the pending motion.

B. Standards of Review

1. Pro Se Litigants

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim

if it appears “<beyond a doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.’” Haines v. Kerner, 404 U.S. 519, 520-521(1972), quoting

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). If the court can reasonably read pleadings to state

a valid claim on which the litigant could prevail, it should do so despite failure to cite proper

legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant’s

unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United

States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)(petition prepared by a

prisoner may be inartfully drawn and should be read “with a measure of tolerance”); Smith v.

U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992); Freeman v. Department of Corrections, 949

F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, during the initial stages of

litigation, a district court should construe all allegations in a complaint in favor of the

complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d

63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land

Company, 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this

Court will consider facts and make inferences where it is appropriate. 

2. Motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) 

must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of

the complaint must be accepted as true. Neitzke v. Williams, 490 U.S. 319 (1989); Estelle v.

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Gamble, 429 U.S. 97 (1976). The motion cannot be granted unless the court is satisfied “that no

relief could be granted under any set of facts that could be proved consistent with the

allegations.” Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). The issue is not whether the

plaintiff will prevail at the end but only whether he should be entitled to offer evidence to

support his claim. Neitzke; Scheuer v. Rhodes, 419 U.S. 232 (1974). Rule 8(a) of the Federal

Rules of Civil Procedure states that a pleading must set forth a claim for relief which contains a

short and plain statement of the claim showing that the pleader is entitled to relief. Therefore, in

order to survive a motion to dismiss for failure to state a claim, the complaint must set forth

sufficient information to suggest that there is some recognized legal theory upon which relief

can be granted.

3. Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted

if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Rule 56(e) further provides that when

a motion for summary judgment is made and supported, “an adverse party may not rest upon the

mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is

a genuine issue for trial. If the adverse party does not so respond, summary judgment, if

appropriate, shall be entered against the adverse party.” Id. 

A district court may grant summary judgment for the defendant when the plaintiff has

failed to present any genuine issues of material fact. See Fed.R.Civ.P. 56(c); Krouse v.

American Sterilizer Co., 126 F.3d 494, 500 n.2 (3d Cir. 1997). The moving party has the initial

burden of proving to the district court the absence of evidence supporting the non-moving

party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v.

Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). Further,

“[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential

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fact <to demand at least one sworn averment of that fact before the lengthy process of litigation

continues.’” Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) quoting

Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). 

The burden then shifts to the non-movant to come forward with specific facts showing a

genuine issue for trial. Matsushita Elec. Indus. Co. v Zenith Radio Corp., 475 U.S. 574 (1986);

Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the nonmovant must present affirmative evidence - more than a scintilla but less than a preponderance -

which supports each element of his claim to defeat a properly presented motion for summary

judgment). The non-moving party must go beyond the pleadings and show specific facts by

affidavit or by information contained in the filed documents (i.e., depositions, answers to

interrogatories and admissions) to meet his burden of proving elements essential to his claim. 

Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.

A material fact is a fact whose resolution will affect the outcome of the case under

applicable law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). Although the court

must resolve any doubts as to the existence of genuine issues of fact against the party moving for

summary judgment, Rule 56 “does not allow a party resisting the motion to rely merely upon

bare assertions, conclusory allegation or suspicions.” Firemen’s Ins. Co. of Newark, N.J. v.

DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Summary judgment is only precluded if the

dispute about a material fact is “genuine,” i.e., if the evidence is such that a reasonable jury

could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-249. 

C. Mootness

Plaintiff voluntarily ended his hunger strike on June 9, 2005 and was transferred to USP

Allenwood, a federal institution outside of this district, on December 16, 2005. Plaintiff’s

claims for injunctive relief relating to actions involving FCI McKean have become moot. 

The general principle of mootness derives from the case or controversy requirement of

Article III of the U.S. Constitution. “This case-or-controversy requirement subsists through all

stages of federal judicial proceedings, trial and appellate ... the parties must continue to have a

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personal stake in the outcome of the lawsuit.” Lewis v. Continental Bank Corp., 494 U.S. 472,

477-78 (1990). In other words, “throughout the litigation, the plaintiff must have suffered, or be

threatened with, an actual injury traceable to the defendant and likely to be redressed by a

favorable judicial decision.” Id. at 477. See also Maleng v. Cook, 490 U.S. 488, 491-492

(1989)(habeas petitioner does not remain "in custody" under conviction after the sentence

imposed has fully expired merely because of possibility that prior conviction will be used to

enhance sentences imposed for any subsequent crimes of which he is convicted). Once a

controversy ceases to exist, the court must dismiss the case for lack of jurisdiction. United

States v. Kissinger, 309 F.3d 179, 180 (3d Cir. 2002) citing Lewis, 494 U.S. at 477-78. 

In the prison context, the transfer of an inmate from the facility complained of moots

claims for injunctive relief involving that facility. See Abdul-Akbar v. Watson, 4 F.3d 195 (3d

Cir. 1993); Sutton v. Rasheed, 323 F.3d 236 (3d Cir. 2003). Accordingly, the motion to dismiss

should be granted.

III. CONCLUSION

It is respectfully recommended that the motion to dismiss or alternatively for summary

judgment [Document # 27] be granted.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local

Rule 72.1.4 B, the parties are allowed ten (10) days from the date of service to file written

objections to this report. Any party opposing the objections shall have seven (7) days from the

date of service of objections to respond thereto. Failure to timely file objections may constitute a

waiver of any appellate rights.

S/ Susan Paradise Baxter

SUSAN PARADISE BAXTER

Chief United States Magistrate Judge

Dated: December 13, 2006

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