MEMORANDUM ORDER

DAVID STEWART CERCONE, Senior District Judge.

Darold Palmore, an individual formally confined in the Clarion County Corrections, filed this prisoner civil rights case on July 16, 2018.1 Plaintiff's motion to proceed in forma pauperis was granted (ECF No. 4) and the case was referred to United States Magistrate Judge Cynthia Reed Eddy for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and the Local Rules of Court for Magistrate Judges.

Defendants filed a motion to dismiss seeking to have the Complaint dismissed on the grounds that the Complaint failed to state a claim. (ECF No. 32). Plaintiff filed a Response in opposition. (ECF No. 43).

On July 8, 2019, Magistrate Judge Eddy filed a Report and Recommendation ("R&R") recommending that the motion be granted and that the case be dismissed with prejudice in its entirety for failure to state a claim. Plaintiff timely filed timely objections to the R&R. (ECF No. 45).

Where, as here, timely objections have been filed, the Court is required to "make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The district court may accept, reject, or modify the recommended disposition, as well as receive further evidence or return the matter to the magistrate judge with instructions.

As the R&R explains, in his Complaint, Plaintiff raises three claims: (1) a violation of his First Amendment right to petition the government; (2) a violation of his First Amendment Right against retaliation for engaging in protected activity; and (3) a violation of his Fourteenth Amendment Due Process rights. The R&R recommends that the Complaint be dismissed in its entirety. Plaintiff only objects to the dismissal of his retaliation and due process claims.

Turning to his first objection, Plaintiff argues that the magistrate judge erroneously focused on the issuance of the misconduct, when in fact, the "[t]he order to lockdown is itself retaliatory due to its position after Plaintiff asked for a grievance and before the supposed failure to obey the order." Obj. at 2. The Court finds that Plaintiff's first objection is without merit and can be summarily denied.

According to the Complaint, on May 1, 2018, an incident arose between OIC Fink and Inmate Emerick, which caused unrest among several of the inmates on D-Block. The Grievance Reply issued by Deputy Warden David Sprankle, attached to Plaintiff's Complaint, provides the following relevant information:

Complaint, Exh. 3 (emphasis added) (ECF No. 29-3). As our appellate court has observed, "refusing orders ... is typically punishable by time in the RHU. Such a policy is necessary to advance the legitimate penologic interest in an orderly facility. Mincy v. Klem, 277 F. App'x 239, 243 (3d Cir. 2008). Simply put, an inmate is not entitled to refuse an order to lock down even if an inmate disagrees with an officer's motivation for issuing that order.

Moreover, plaintiff's contention that the sequence of his request for a grievance form and CO Fink's order to lock down is in itself sufficient to support a showing of causation for his retaliation claim is misplaced. The setting in which plaintiff's claim arises involved a disturbance by other inmates and an order by CO Carr that had been issued for the entire block to lock down, all of which occurred right before CO Fink also ordered plaintiff to lock down. Thus, plaintiff was under a duty to lock down independent of CO Fink's order to lock down and he purposefully failed to comply with the order. It is this course of admitted conduct that 1) cannot be displaced by a bald assertion that CO Fink had some other subjective motivation that placed plaintiff's non-compliance outside the bounds of the exercise of legitimate institutional discipline and 2) precludes plaintiff from making a plausible showing that there was a causal connection between the adverse action and his request for a grievance form.

Plaintiff's second objection meets the same fate as his first. Interestingly, through his objection, Plaintiff seems to be attempting to reframe his claim as one challenging the Clarion County Corrections' policy to charge inmates if found guilty through the misconduct process. Obj. at 3. In his response to the motion to dismiss, however, Plaintiff specifically argued that "Defendants Hornberger and Sprankle refused to review video footage of an incident that could have exonerated or exculpated the Plaintiff.... Here Plaintiff was issued information statements, however he was hindered in reviewing/bringing forward evidence to support his defense (block video footage)." Resp. at 12 (ECF No. 43). As Plaintiff acknowledges, he has a pending lawsuit in this Court filed at Civil Action No. 2:18-cv-1446, which challenges the Clarion County Corrections' policy to charge inmates if found guilty through the misconduct process. The issue of whether Plaintiff's procedural due process rights were violated by this policy is the central issue in Civil Action No. 2:18-cv-1446.

The Court has reviewed the matter and concludes that the R&R correctly analyzes the issues and makes a sound recommendation. Accordingly, after de novo review of the pleadings and documents in the case, together with the Report and Recommendation, the following order is entered:

AND NOW, this 5th day of September, 2019;

IT IS ORDERED that Defendants' motion to dismiss is GRANTED and this case is dismissed with prejudice.

IT IS FURTHER ORDERED that the Report and Recommendation filed on July 8, 2019 (ECF No. 44) is ADOPTED as the opinion of the Court as supplemented herein.

IT IS FURTHER ORDERED that the Clerk of Court mark this case closed.

AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, Plaintiff has thirty (30) days to file a notice of appeal as provided by Rule 3 of the Federal Rules of Appellate Procedure.