Gerber v. Pennsylvania Department of Corrections et al

Filing 24

ORDER - It is hereby ORDERED that: 1. Report 23 of Magistrate Judge Schwab is ADOPTED.; 2. Defts' MTD 14 pltf's amended complaint is GRANTED in part & DENIED in part to following extent: a. Granted in its entirety w/ re: deft Burd - all claims against deft Burd in amended complaint DISMISSED, b. Granted in part w/ re: deft Campbell - pltf's 8th Amend & Due Process Clause claims & pltf's request for punitive damages against deft Campbell DISMISSED., c. Denied to extent it seeks dismissal of pltf's retaliation claim against deft Campbell.; 3. Matter REMANDED to Magistrate Judge Schwab for further proceedings. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 6/18/15. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD GERBER,

:
:
Plaintiff
:
:
v.
:
:
WARDEN WILLIAM CAMPBELL, :
et al.,
:
:
Defendants
:

CIVIL ACTION NO. 1:14-CV-674
(Chief Judge Conner)

ORDER
AND NOW, this 18th day of June, 2015, upon consideration of the report
(Doc. 23) of Magistrate Judge Susan E. Schwab, recommending the court grant in
part and deny in part the motion (Doc. 14) to dismiss plaintiff’s pro se amended
complaint (Doc. 7) pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by
defendants Warden William Campbell and A. Burd,1 wherein Judge Schwab opines
that the bulk of plaintiff’s claims, with the exception of a single retaliation claim
against defendant Campbell, are meritless and should be dismissed, (see Doc. 23 at
11-30), and, following an independent review of the record, the court in agreement
with Judge Schwab that a large majority of plaintiff’s claims are either meritless or
barred by the doctrine of qualified immunity, and it appearing that neither party

1

A third defendant, identified in the amended complaint as “First Shift
Nurse (Name Unknown),” has now been identified by defendants as Kelly Henry.
(See Doc. 19 at 2 n.1). Magistrate Judge Schwab has separately ordered plaintiff to
provide an address for Kelly so that the amended complaint (Doc. 7) can be served
on her.

has objected to the report, and that there is no clear error on the face of the record,2
see Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007) (explaining that the failure to
timely object “may result in forfeiture of de novo review at the district court level”),
it is hereby ORDERED that:
1.

The report (Doc. 23) of Magistrate Judge Schwab is ADOPTED.

2.

Defendants’ motion (Doc. 14) to dismiss plaintiff’s amended complaint
(Doc. 7) is GRANTED in part and DENIED in part to the following
extent:
a.

The motion is GRANTED in its entirety with respect to
defendant Burd. All claims against defendant Burd in the
amended complaint (Doc. 7) are DISMISSED.

2

When parties fail to timely object to a magistrate judge’s report and
recommendation, the Federal Magistrates Act does not require a district court to
review the report before accepting it. See Thomas v. Arn, 474 U.S. 140, 149 (1985).
As a matter of good practice, however, the Third Circuit expects courts to “afford
some level of review to dispositive legal issues raised by the report.” Henderson v.
Carlson, 812 F.2d 874, 878 (3d Cir. 1987). The advisory committee notes to Rule
72(b) of the Federal Rules of Civil Procedure indicate that “[w]hen no timely
objection is filed, the court need only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b),
advisory committee notes; see also Henderson, 812 F.2d at 878-79 (stating that “the
failure of a party to object to a magistrate’s legal conclusions may result in the loss
of the right to de novo review in the district court”); Tice v. Wilson, 425 F. Supp. 2d
676, 680 (W.D. Pa. 2006) (holding that the court’s review is conducted under the
“plain error” standard); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998)
(holding that the court will review the report and recommendation for “clear
error”); Cruz v. Chater, 990 F. Supp. 375, 377 (M.D. Pa. 1998) (holding that the
court’s review is limited to ascertaining whether there is “clear error on the face of
the record”). The court reviews the Magistrate Judge’s report in according with
this Third Circuit directive.
2

b.

c.

3.

The motion is GRANTED in part with respect to defendant
Campbell. Plaintiff’s Eighth Amendment and Due Process
Clause claims and plaintiff’s request for punitive damages
against defendant Campbell are DISMISSED.
The motion is DENIED to the extent it seeks dismissal of
plaintiff’s retaliation claim against defendant Campbell.

The above-captioned matter is REMANDED to Magistrate Judge
Schwab for further proceedings.

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