The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
Currently before the Court are Defendant's objections to Magistrate Judge DiBianco's October 28, 2008 Report-Recommendation in which he recommends that this Court deny Plaintiff's motion to stay and deny Defendant's motion for judgment on the pleadings. See Dkt. No. 19. On November 13, 2008, Defendant, by letter motion, requested leave to withdraw his motion for judgment on the pleadings. See Dkt. No. 20.
On November 14, 2008, this Court issued a Text Order finding withdrawal unnecessary and construing Defendant's letter as a request for additional time to file an objection to the Report-Recommendation. On November 28, 2008, Defendant filed objections to the Report-Recommendation raising the "Good-Time" issue as well as objecting to Magistrate Judge DiBianco's findings with respect to Defendant's personal involvement.
Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 seeking monetary and injunctive relief for due process and Eighth Amendment violations. Plaintiff's complaint alleges that he was subjected to two disciplinary hearings for the same conduct, was found guilty, and received penalties at both hearings.
On April 30, 2008, Plaintiff filed a petition for writ of habeas corpus in this District, Goston v. Woods, 9:08-CV-462 (NAM/GHL), and filed this action on May 5, 2008; Plaintiff did not indicate a loss of good time in either case. See Dkt. No. 19 at 2. In the habeas corpus proceeding, Magistrate Judge Lowe ordered Plaintiff to show cause why the action should be adjudicated as a petition for writ of habeas corpus or whether there was any difference between his habeas petition and the instant action. See id. at 2-3. Plaintiff did not respond to Magistrate Judge Lowe's Order; and Magistrate Judge Lowe recommended, and Chief Judge Mordue approved, the dismissal of Plaintiff's habeas corpus petition. See id. at 3.
On August 20, 2008, Magistrate Judge DiBianco denied Plaintiff's first motion to stay because Plaintiff did not allege a loss of good time and there was no reason to stay pending exhaustion of state-court remedies. See id. Defendant filed his motion for judgment on the pleadings on August 27, 2008, and Plaintiff filed a second motion for a stay on August 27, 2008. See id. In this second motion for a stay, Plaintiff alleged for the first time that he lost six months of good time at the Tier III hearing. See id. On January 29, 2009, Plaintiff filed a motion to amend his complaint. See Dkt. No. 22.
A. Plaintiff's Motion for a Stay
Magistrate Judge DiBiancofound that, because Plaintiff now states that he lost good time, Plaintiff would need to have his disciplinary determination reversed. Since this action could continue only where Plaintiff's state-court proceedings result in a reversal, Magistrate Judge DiBianco found that a stay was not warranted. Magistrate Judge DiBianco also noted that, if Plaintiff's state-court proceedingsdid not result in a reversal, Plaintiff would need to file a habeas corpus proceeding.*fn1
Neither party objected to this recommendation. Accordingly, the Court adopts this recommendation and denies Plaintiff's motion for a stay for the reasons stated in the Report-Recommendation.
B. Defendant's Motion for Judgment on the Pleadings
With respect to Defendant's motion for judgment on the pleadings, Magistrate Judge DiBianco found that Plaintiff, in response to Defendant's motion, alleged that Defendant Potter was personally involved in the alleged violation. Furthermore, Magistrate Judge DiBianco found that, given the liberal construction of pro se pleadings and that a court may consider Plaintiff's responsive papers ...