Voneida v. Stoehr et al

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATION of Magistrate Judge Smyser 33 w/ re: Rule 12(b)(6) motions 15 , 16 , 23 & 28 of defts Stoeher, Spainer, Consiglio, Marsico, Taylor, Allegrini, Lower Paxton Twp, Unknown Number of Lower Paxton Twp Polic e Officers, Terz, Smith & Holder & the motions are GRANTED, and REMANDING case to Magistrate Judge Smyser for further proceedings on issue of svc as to remaining defts... (See order for complete details.) Signed by Honorable Christopher C. Conner on 09/29/11. (ki)

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

KENNETH L. VONEIDA,
Plaintiff
v.
KEVIN STOEHR, et al.,
Defendants

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CIVIL ACTION NO. 1:10-CV-2572
(Judge Conner)

ORDER
AND NOW, this 29th day of September, 2011, upon consideration of the Report
and Recommendation of United States Magistrate Judge J. Andrew Smyser (Doc. 33),
recommending that the Rule 12(b)(6) motions of defendants Stoeher, Spainer, Consiglio,
Marsico, Taylor, Allegrini, Lower Paxton Township, Unknown Number of Lower Paxton
Township Police Officers, Terz, Smith, and Holder to dismiss be granted, and that the
complaint also be dismissed as to all other defendants, and, following an independent
review of the record and noting that plaintiff filed objections1 to the report on
September 5, 2011 (Doc. 34), and the court finding Judge Smyser’s analysis to be
thorough and well-reasoned, and the court finding plaintiff’s objections to be without
merit and squarely addressed by Judge Smyser’s report (Doc. 33), it is hereby
ORDERED that:

1

Where objections to a magistrate judge’s report and recommendation are
filed, the court must perform a de novo review of the contested portions of the
report. Supinski v. United Parcel Serv., Civ. A. No. 06-0793, 2009 WL 113796, at *3
(M.D. Pa. Jan. 16, 2009) (citing Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir.
1989); 28 U.S.C. § 636(b)(1)(c)). “In this regard, Local Rule of Court 72.3 requires
‘written objections which . . . specifically identify the portions of the proposed
findings, recommendations or report to which objection is made and the basis for
those objections.’” Id. (citing Shields v. Astrue, Civ. A. No. 07-417, 2008 WL
4186951, at *6 (M.D. Pa. Sept. 8, 2008)).

1.

The Report and Recommendation of Magistrate Judge Smyser (Doc. 33) are
ADOPTED with respect to the Rule 12(b)(6) motions (Docs. 15, 16, 23 and
28) of defendants Stoeher, Spainer, Consiglio, Marsico, Taylor, Allegrini,
Lower Paxton Township, Unknown Number of Lower Paxton Township
Police Officers, Terz, Smith, and Holder, and the motions are hereby
GRANTED.

2.

The above-captioned case is REMANDED to Magistrate Judge Smyser for
further proceedings on the issue of service as to the remaining defendants
in light of the plaintiff’s assertion of proper service. See Doc. 34, p. 2-3.

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