Abney v. Younker et al

Filing 145

ORDER - IT IS HEREBY ORDERED that the R&R is ADOPTED. Dfts Motion for Summary Judgment and 104 Motion for Leave to File a Statement of Facts are DENIED. This action is REFERRED back to Magistrate Judge Susan E. Schwab for Pretrial Management. 98 112 Signed by Honorable Yvette Kane on 2/24/16. SEE ORDER. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CLARENCE ABNEY,
Plaintiff

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v.
CALEB YOUNKER, et al.,
Defendants

No. 1:13-cv-01418
(Judge Kane)
(Magistrate Judge Schwab)

ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Before the Court is the Report and Recommendation of Magistrate Judge Schwab (Doc.
No. 112), in which she recommends denying Defendants’ motion for partial summary judgment
(Doc. No. 98), as untimely and denying Defendants motion for leave to file a statement of facts
(Doc. No. 104), as moot. Magistrate Judge Schwab also recommends referring the action back to
her to set a deadline for a plenary hearing on the issue of administrative exhaustion, should the
parties request one. (Doc. No. 112 at 19-20.)
Defendants filed objections to the report and recommendation on April 3, 2015. (Doc.
No. 118.) Defendants do not object to Magistrate Judge Schwab’s recommended disposition of
their pending motions. (Id.) Rather, Defendants object to the recommendation that Magistrate
Judge Schwab preside over a plenary hearing on the issue of exhaustion, because the issue of
exhaustion could be dispositive to some claims and because the Magistrate Act, 28 U.S.C. § 636,
does not permit United States Magistrate Judges to rule on dispositive motions absent the consent
of the parties. (Doc. No. 119 at 4-8.) Defendants’ objection lacks merit, because even absent
consent, a United States Magistrate Judge may hold hearings on dispositive motions and
recommend dispositions, as they are statutorily authorized to do with any potentially dispositive
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motion. 28 U.S.C. § 636(b)(1)(B).
ACCORDINGLY, on this 24th day of February 2016, IT IS HEREBY ORDERED
THAT the Report and Recommendation of Magistrate Judge Schwab (Doc. No. 112), is
ADOPTED. Defendants’ motions for summary judgment (Doc. No. 98), and to file a statement
of facts (Doc. No. 104), are DENIED. This action is referred back to Magistrate Judge Schwab
for resolution of pending motions and further pretrial management.
s/ Yvette Kane
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania

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