McMillian v. Walsh et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION of Magistrate Judge Martin C. Carlson 11 , granting pltf's motion for leave to proceed IFP 7 , DISMISSING multiple claims & parties from action (see Para 3 for specifics), DISMISSING claims (see Para 3) w/out prejudice, granting pltf 20 days leave to file amended complaint, DENYING pltf's motion to stay 17 , DENYING pltf' motion for temporary restraining order 18 & REMANDING action to Magistrate Judge Carlson for further proceedings. (See order for complete details.) Signed by Honorable Christopher C. Conner on 12/17/12. (ki)

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

CORLIVEETHO McMILLAN,
Plaintiff
v.
JEROME WALSH, et al.,
Defendants

:
:
:
:
:
:
:

CIVIL ACTION NO. 1:12-CV-1707
(Judge Conner)

ORDER
AND NOW, this 17th day of December, 2012, upon consideration of the Report and
Recommendation of Magistrate Judge Martin C. Carlson (Doc. 11) recommending that
plaintiff’s motion for leave to proceed in forma pauperis (Doc. 7) be granted, and that the
following claims and parties be dismissed or dropped from plaintiff’s complaint (Doc. 1):
(1) supervisory liability and failure to investigate claims against Defendants Walsh,
Brittin, Moiser, Demming, Tera, Keller, Buck, Detrett, Josewicz, Dingler, Judge,
Wenerowicz, Hoover and Papalinous, (2) all claims based solely upon allegations of
verbal abuse, (3) all claims arising out of events which are alleged to have occurred prior
to August 27, 2010, and (4) all claims and parties involving conduct at SCI Graterford,
including all claims against Defendants Wenerowicz, Drissel and Van Cliff, and,
following an independent review of the record, noting that plaintiff filed objections1 to

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)).

the report on November 30, 2012 (Doc. 16), and the court finding Judge Carlson’s
analysis to be thorough and well-reasoned, and the court finding plaintiff’s objections to
be without merit and squarely addressed by Judge Carlson’s report (Doc. 11), it is hereby
ORDERED that:
1.

The Report and Recommendation (Doc. 11) of Magistrate Judge Carlson are
ADOPTED.

2.

Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 7) is
GRANTED.

3.

The following claims and parties are DISMISSED or DROPPED from this
action:
a.

Plaintiff’s supervisory liability and failure to investigate claims
against Defendants Walsh, Brittin, Moiser, Demming, Tera, Keller,
Buck, Detrett, Josewicz, Dingler, Judge, Wenerowicz, Hoover and
Papalinous;

b.

All claims based solely upon allegations of verbal abuse;

c.

All claims arising out of events which are alleged to have occurred
prior to August 27, 2010; and

d.

All claims and parties involving conduct at SCI Graterford, including
all claims against Defendants Wenerowicz, Drissel and Van Cliff,

4.

The claims set forth above (3a.-d.) are DISMISSED without prejudice.
Plaintiff is granted leave to file an amended complaint within twenty (20)
days of the date of this order, which must address the deficiencies noted in
Judge Carlson’s Report and Recommendation. Failure to file an amended
complaint in a timely fashion shall be deemed an abandonment of these
claims and they shall be dismissed with prejudice.

5.

Plaintiff’s motion to stay (Doc. 17) is DENIED.

6.

Plaintiff’s motion for temporary restraining order (Doc. 18) is DENIED.

7.

The instant action is REMANDED to the magistrate judge for further
proceedings.

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