Lyons v. Beard et al

Filing 57

ORDER ADOPTING REPORT of Chief Magistrate Judge Carlson 48 , GRANTING defts' motion to dismiss 26 to extent it seeks dismissal of defts Wetzel, Kazarauskas, Gandy, Maye, Mosier & Pall for lack of personal involvement & DENYING motion 26 in all other respects, directing Clrk of Ct to terminate defts Wetzel, Kazarauskas, Gandy, Maye, Mosier & Pall as defts in action, & REMANDING matter to Chief Magistrate Judge Carlson for further pretrial management. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 5/6/15. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ERIC LYONS,
Plaintiff
v.
JOHN WETZEL, et al.,
Defendants

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CIVIL ACTION NO. 1:13-CV-2952
(Chief Judge Conner)

ORDER
AND NOW, this 6th day of May, 2015, upon consideration of the lengthy
report (Doc. 48) of Chief Magistrate Judge Martin C. Carlson, recommending the
court grant in part and deny in part defendants’ collective motion (Doc. 26) to
dismiss the pro se plaintiff’s complaint (Doc. 1), wherein Judge Carlson opines that
plaintiff does not sufficiently state personal involvement in an alleged constitutional
violation by John Wetzel, Joseph Kazarauskas, Sergeant Gandy, Lieutenant Daniel
Mosier, CO I. Maye, and Captain Pall, compelling dismissal of said defendants, but
recommends that the balance of plaintiff’s claims survive defendants’ motion,1 and,
following an independent review of the record, the court being in agreement with
the magistrate judge’s findings, and the court noting that plaintiff has objected

1

Defendants also seek dismissal of perceived “failure to respond” and
“deprivation of property” claims raised by plaintiff. In his report, Judge Carlson
construes plaintiff’s allegations regarding grievances and deprivation of television,
radio, and typewriter privileges as elements of his retaliation claim, rather than
freestanding Section 1983 causes of action. In a responsive filing, plaintiff confirms
Judge Carlson’s construction of his pleading and asserts that he did not intend
these allegations as standalone constitutional claims. (See Doc. 53 at 10-12).

(Doc. 53)2 to the report, and finding plaintiff’s objection to be without merit and
squarely addressed by Judge Carlson’s report, it is hereby ORDERED that:
1.

The report (Doc. 48) of Chief Magistrate Judge Carlson is ADOPTED
in its entirety.

2.

Defendants’ motion (Doc. 26) to dismiss is GRANTED to the extent it
seeks dismissal of defendants Wetzel, Kazarauskas, Gandy, Maye,
Mosier, and Pall for lack of personal involvement. The motion (Doc.
26) is DENIED in all other respects.

3.

The Clerk of Court shall terminate defendants Wetzel, Kazarauskas,
Gandy, Maye, Mosier, and Pall as defendants in the above-captioned
action.

4.

This matter is REMANDED to Chief Magistrate Judge Carlson for
further pretrial management.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania

2

When a party objects to a magistrate judge’s report and recommendation,
the district court performs a de novo review of the contested portions of the report.
See Behar v. Pa. Dep’t of Trans., 791 F. Supp. 2d 383, 389 (M.D. Pa. 2011) (citing
Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989); 28 U.S.C. § 636(b)(1)(c)).
The court reviews uncontested portions of the report for “clear error on the face of
the record.” Cruz v. Chater, 990 F. Supp. 375, 376-78 (M.D. Pa. 1998).