McClain v. Kale et al

Filing 87

ORDER ADOPTING REPORT AND RECOMMENDATIONS/ORDER REFERRING CASE to Magistrate Judge J. Andrew Smyser - ACCORDINGLY, this 14th day of June, 2012, it is ORDERED as follows: 1. The R&R 76 is approved. 2. Pur. to Mag. Judge Smyser's recommendation, defts.' mtn. for SJ 53 63 are granted in part & denied in part as follows: a. The corrections defts.' mtn. 53 is granted insofar as it seeks SJ on plf.'s claim that deft. Wilkes allegedly stole and/or ate plf.'s cookies. b. The mtns. are denied in all other respects. 3. This case is remanded to Judge Smyser for further proceedings, including an R&R on dispositive mtns. (See order for complete details.) Signed by Honorable William W. Caldwell on 6/14/12. (am, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RALPH W. MCCLAIN, JR.,
Plaintiff
v.
DR. KALE, M.D., et al.,
Defendants

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CIVIL NO. 1:10-CV-35

ORDER
The background of this order is as follows:
Presently before us is Magistrate Judge Smyser’s Report and
Recommendation (“R&R”) (Doc. 76), wherein Judge Smyser recommends that we
deny Defendants’ pending motions for summary judgment (Docs. 53, 63) in part, but
grant summary judgment as to a claim that Defendant Wilkes stole and/or ate cookies
that Plaintiff had purchased from the commissary. Also before us are Plaintiff’s
objections to the R&R (Doc. 78), Defendants’ brief in opposition to Plaintiff’s
objections (Doc. 80), and Plaintiff’s reply brief (Doc. 86).
Plaintiff objects only to the recommendation that summary judgment be
entered against him, and in favor of Defendant Wilkes, on Plaintiff’s claim that Wilkes
stole and/or ate his cookies. Neither party objects to the denial of summary judgment
as to the other claims and Defendants in this case. We will therefore adopt the latter
recommendation without further discussion, as we find no error in it.
We now turn to the former recommendation—specifically, the
recommendation that we grant summary judgment on the claim concerning Plaintiff’s
cookies, on the basis that Plaintiff procedurally defaulted this claim. Upon
independent review of the record, we agree with Judge Smyser’s conclusion that
Plaintiff failed to exhaust this claim by failing to identify Wilkes in his grievance.

Accordingly, we will adopt his recommendation of granting summary judgment in favor
of Wilkes, and against Plaintiff, on this claim.
ACCORDINGLY, this 14th day of June, 2012, it is ORDERED as follows:
1.

The R&R (Doc. 76) is approved.

2.

Pursuant to Magistrate Judge Smyser’s recommendation,
Defendants’ motions for summary judgment (Docs. 53, 63) are
granted in part and denied in part as follows:
a.

b.
3.

The corrections defendants’ motion (Doc. 53) is granted
insofar as it seeks summary judgment on Plaintiff’s claim
that Defendant Wilkes allegedly stole and/or ate Plaintiff’s
cookies.
The motions are denied in all other respects.

The case is remanded to Judge Smyser for further proceedings,
including an R&R on dispositive motions.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

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