Winston v. Rendell et al

Filing 11

ORDER re: report & recommendation of magistrate judge 7 - It is hereby ORDERED that: 1. Report & recommendation of magistrate judge 7 is ADOPTED in part & REJECTED in part as follows - a. ADOPTED insofar as it recs that complaint 1 be dismissed for failure to state a claim upon which relief may be granted & b. REJECTED insofar as it recs that Winston be denied opp to amend complaint.; 2. Winston may file by 7/20/10 an amended complaint that alleges that each of the above-named deft was per sonally involved in civil rts violations for which he seeks relief - failure to comply w/ this Para shall result in complaint 1 being dismissed w/ prejudice.; 3. Case REMANDED to magistrate judge for further proceedings. (See order for complete details.) Signed by Honorable Christopher C. Conner on 06/29/10. (ki)

Winston v. Rendell et al

Doc. 11

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL WINSTON,

: : Plaintiff : : v. : : EDWARD RENDELL, TOM : CORBETT, FRANK E. PAWLOWSKI, : and MICHAEL P. DALEY, : : Defendants :

CIVIL ACTION NO. 1:10-CV-0867 (Judge Conner)

ORDER AND NOW, this 29th day of June, 2010, upon consideration of the report (Doc. 7) of the magistrate judge, recommending that the complaint (Doc. 1) filed by plaintiff Michael Winston ("Winston") be dismissed for failure to state a claim upon which relief may be granted, and, following an independent review of the record, it appearing that Winston has alleged that his civil rights were violated, but has not alleged that any of the above-named defendants participated in, or were personally involved in, those purported violations, and recognizing that "[an individual government] defendant in a civil rights action must have personal involvement in the alleged wrongdoing," Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005), and that "if a plaintiff requests leave to amend a complaint vulnerable to dismissal before a responsive pleading is filed, such leave must be granted in the absence of undue delay, bad faith, dilatory motive, unfair prejudice, or futility of amendment," Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002), and concluding that Winston should be afforded an opportunity to seek leave to amend in order to

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rectify the deficiencies identified in the magistrate judge's report, it is hereby ORDERED that: 1. The report and recommendation (Doc. 7) of the magistrate judge is ADOPTED in part and REJECTED in part as follows: a. The report is ADOPTED insofar as it recommends that the complaint (Doc. 1) be dismissed for failure to state a claim upon which relief may be granted. The report is REJECTED insofar as it recommends that Winston be denied the opportunity to amend the complaint. See Grayson, 293 F.3d at 108.

b.

2.

Winston shall be permitted to file, on or before July 20, 2010, an amended complaint that alleges that each of the above-named defendants was personally involved in the civil rights violations for which he seeks relief. Failure to comply with this Paragraph shall result in the complaint (Doc. 1) being dismissed with prejudice. The above-captioned case is REMANDED to the magistrate judge for further proceedings.

3.

S/ Christopher C. Conner CHRISTOPHER C. CONNER United States District Judge