HYMAN v. GIORLA et al

Filing 25

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED IN PART. PLAINTIFF'S DENIAL OF ACCESS TO COURTS CLAIM (CLAIM NO. 1) IS DISMISSED. DISCOVERY ON PLAINTIFF'S REMAINING CLAIMS SHALL BE COMPLETED NO LATER THAN 7/29/2011. ANY DIS POSITIVE MOTIONS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 56 ARE TO BE FILED NO LATER THAN 9/16/2011. FURTHER INSTRUCTIONS ARE AS OUTLINED HEREIN.. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 4/28/2011. 4/29/2011 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(jmf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
FRANK HYMAN,
Plaintiff
v.
COMMISSIONER LOUIS GIORLA,
et al,
Defendants

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CIVIL ACTION

NO. 10-499

ORDER

AND NOW, this

28th day of April, 2011, upon careful and independent

consideration of plaintiff’s complaint, and after review of the Report and Recommendation of
United States Magistrate Judge Linda K. Caracappa, IT IS HEREBY ORDERED that:
1.

The Report and Recommendation is APPROVED and ADOPTED in part as
follows:
a.

Plaintiff’s denial of access to courts claim (Claim No. 1) is DISMISSED.

b.

Plaintiff’s individual and official capacity claims against Lieutenant
Anderson and Corrections officers Dwayne Corley, Ryan Hoover, Rob
Bubas, and Marshall are DISMISSED.

c.

Plaintiff’s Eighth Amendment claims against Warden Clyde Gainey,
Deputy Warden Gerald May, and Captain Harmond in their official
capacities for prospective injunctive relief shall remain.1

1

While the Eleventh Amendment bars suits for money damages against state officials
acting in their official capacities, it does not proscribe actions for injunctive relief against such
defendants. See Sarteschi v. Burlein, 508 F.2d 110, 113 (3d Cir.1975); Koslow v.
Commonwealth of Pa., 302 F.3d 161, 178 (3d Cir. 2002) (“The Eleventh Amendment has not
been interpreted to bar a plaintiff’s ability to seek prospective relief against state officials for
violations of federal law.”). As set forth in Judge Caracappa’s Report and Recommendation,

d.

Plaintiff’s Eighth Amendment claims against Warden Clyde Gainey,
Deputy Warden Gerald May, and Captain Harmond in their individual
capacities for monetary damages shall remain.

2.

Discovery on plaintiff’s remaining claims shall be completed no later than July
29, 2011.

3.

Any dispositive motions pursuant to Federal Rule of Civil Procedure 56 are to be
filed no later than September 16, 2011.

BY THE COURT:
/s/ Lawrence F. Stengel
LAWRENCE F. STENGEL, J.

plaintiff has sufficiently alleged that defendants Gainey, May, and Harmond used excessive force
against him in violation of the Eighth Amendment. Therefore, his personal capacity claims
against these individuals seeking damages, and his official capacity claims against these
individuals seeking injunctive relief, shall not be dismissed.