Joseph v. Naji, et al
Filing
45
ORDER ADOPTING REPORT AND RECOMMENDATIONS - IT IS ORDERED THAT:1. The Court ADOPTS the Report and Recommendation 43 of Magistrate Judge Schwab; 2. The Commonwealth Defendants motion 15 to dismiss is GRANTED IN PART and DENIED IN PART, as follows: a. Defendants motion to dismiss Plaintiffs Eighth Amendment claim against Defendant Varner is GRANTED; b. Defendants motion to dismiss Plaintiffs Eighth Amendment claim against Defendants Pearson, Noel, and Ginchereau is DENIED; c. Defendants motion to dismiss Plaintiffs conspiracy claim against the Commonwealth Defendants is GRANTED; 3. Plaintiffs Eighth Amendment claim against Defendant Varner is DISMISSED WITH PREJUDICE; 4. Plaintiffs conspiracy claim against the Commonwealth Defendants is D ISMISSED WITHOUT PREJUDICE;5. Plaintiff is directed to file an amended complaint within thirty (30) days from the date of this Order that corrects the pleading deficiencies identified in the Report and Recommendation; and 6. The above-captioned action is recommitted to Magistrate Judge Schwab for further pretrial management. Sigbned by Honorable Yvette Kane on 5/31/17. (rw)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GEORGE JOSEPH,
Plaintiff
v.
DR. M. NAJI, et al.,
Defendants
:
:
:
:
:
:
:
No. 1:16-cv-01870
(Judge Kane)
(Chief Magistrate Judge Schwab)
ORDER
Before the Court is the May 16, 2017 Report and Recommendation of Magistrate Judge
Schwab. (Doc. No. 43.) No timely objections have been filed.1 Accordingly, on this 31st day of
May 2017, upon independent review of the record and the applicable law, IT IS ORDERED
THAT:
1. The Court ADOPTS the Report and Recommendation of Magistrate Judge
Schwab (Doc. No. 43);
2. The Commonwealth Defendants’ motion to dismiss (Doc. No. 15), is
GRANTED IN PART and DENIED IN PART, as follows:
a. Defendants’ motion to dismiss Plaintiff’s Eighth Amendment claim
against Defendant Varner is GRANTED;
b. Defendants’ motion to dismiss Plaintiff’s Eighth Amendment claim
against Defendants Pearson, Noel, and Ginchereau is DENIED;
c. Defendants’ motion to dismiss Plaintiff’s conspiracy claim against the
Commonwealth Defendants is GRANTED;
3. Plaintiff’s Eighth Amendment claim against Defendant Varner is
DISMISSED WITH PREJUDICE;
4. Plaintiff’s conspiracy claim against the Commonwealth Defendants is
DISMISSED WITHOUT PREJUDICE;
1
The Court notes that, following the issuance of Magistrate Judge Schwab’s Report and
Recommendation, Plaintiff filed a handwritten letter dated May 21, 2017, informing the Court of
his intent to file an amended complaint and requesting clarification as to when the amended
complaint must be filed. (Doc. No. 44.)
1
5. Plaintiff is directed to file an amended complaint within thirty (30) days from
the date of this Order that corrects the pleading deficiencies identified in the
Report and Recommendation;2 and
6. The above-captioned action is recommitted to Magistrate Judge Schwab for
further pretrial management.
s/ Yvette Kane
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania
2
As explained by Magistrate Judge Schwab in her Report and Recommendation, the amended
complaint must be titled as an amended complaint and must contain the docket number of this
case. The amended complaint must be complete in all respects; it must be a new pleading which
stands by itself as an adequate complaint without reference to the complaint already filed. This
means that Plaintiff must reassert his claims against Defendants Naji and Thornley, his Eighth
Amendment claim against Defendants Pearson, Noel, and Ginchereau, his conspiracy claim, and
any pendent state law claims in the new pleading, as the amended complaint will completely
replace the original complaint. If an amended complaint is filed, the original complaint will have
no role in the future litigation of this case. Any amended complaint must also comply with the
pleading requirements of the Federal Rules of Civil Procedure. (Doc. No. 43.)
2
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