Kemper v. Steinhart et al

Filing 54

ORDER ADOPTING initial & supp'l REPORTS 37 & 53 of Magistrate Judge Saporito; DENYING pltf's motion 16 for prelim injunction as MOOT; GRANTING Rodgers' MTD/alt for summ jdgmt 23 as follows... (see Paras 3a-b for specifics); GRANTING Steinhart & Minarchick's MTD 28 to extent it seeks dismissal of pltf's claims against them for failure to stat claim for which relief may be granted; DIRECTING Clrk of Ct to enter partial jdgmt in favor of Rodgers & against pltf in acc w/ Para 3(a); DISMISSING balance of complaint w/out prejudice; GRANTING pltf leave to amend claims dismissed in Para 6 w/in 20 days of date of this order; setting forth instructions re: form, content & filing of amended complaint noting Clrk of Ct will be directed to close case in absence of timely-filed amended complaint; & REMANDING matter to Magistrate Judge Saporito for further proceedings. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 3/4/19. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DOUGLAS KEMPER,
Plaintiff
v.
JOHN STEINHART, Corrections
Health Care Administrator, et al.,
Defendants

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CIVIL ACTION NO. 1:17-CV-1833
(Chief Judge Conner)

ORDER
AND NOW, this 4th day of March, 2019, upon consideration of the initial
report (Doc. 37) and supplemental report (Doc. 37)1 of Magistrate Judge Joseph F.
Saporito, Jr., recommending the court: (1) deny the motion (Doc. 16) for preliminary
injunction by pro se plaintiff Douglas Kemper (“Kemper”) as moot; (2) find that
Kemper failed to exhaust administrative remedies as to his claim against defendant
Courtney Rodgers, D.O. (“Rodgers”), for deliberate indifference related to medical
treatment of Kemper’s toes and grant summary judgment to Rodgers to that extent;
(3) dismiss Kemper’s remaining deliberate indifference claims against Rodgers and
defendants John Steinhart (“Steinhart”) and Kimberly Minarchick (“Minarchick”)
for failure to state a claim for which relief may be granted; (4) grant Kemper leave
1

The court declined to adopt the initial report (Doc. 37) to the extent it
recommended entry of judgment on exhaustion grounds, in view of the Third
Circuit’s recent decision in Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018), which
requires a court to provide the plaintiff with notice and an opportunity to respond
before resolving a factual dispute concerning administrative exhaustion. (See Doc.
39). Judge Saporito has provided the plaintiff with the requisite notice and ample
opportunity to respond to the exhaustion arguments and evidence of record. (See
Docs. 40, 48, 50). The balance of the initial report remains pending.

to amend; and (5) remand the matter for further proceedings, and it appearing that
neither Kemper nor any defendant has objected to the report, see FED. R. CIV. P.
72(b)(2), and the court noting that failure of a party to timely object to a magistrate
judge’s conclusions “may result in forfeiture of de novo review at the district court
level,” Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007) (citing Henderson v. Carlson,
812 F.2d 874, 878-79 (3d Cir. 1987)), but that, as a matter of good practice, a district
court should afford “reasoned consideration” to the uncontested portions of the
report, E.E.O.C. v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (quoting
Henderson, 812 F.2d at 879), in order to “satisfy itself that there is no clear error on
the face of the record,” FED. R. CIV. P. 72(b), advisory committee notes, and,
following an independent review of the record, the court being in agreement with
Judge Saporito’s recommendation, and concluding that there is no clear error on
the face of the record, it is hereby ORDERED that:
1.

The initial report (Doc. 37) and supplemental report (Doc. 53) of Judge
Saporito, including the proposed findings of fact and conclusions of
law set forth in the supplemental report, are ADOPTED in full.

2.

Kemper’s motion (Doc. 16) for preliminary injunction is DENIED as
moot.

3.

Rodgers’ motion (Doc. 23) to dismiss or in the alternative for summary
judgment is GRANTED as follows:
a.

The motion (Doc. 23) is GRANTED to the extent it seeks
summary judgment on the issue of exhaustion of administrative
remedies with respect to Kemper’s toe-related claims of medical
deliberate indifference.

b.

The motion (Doc. 23) is further GRANTED to the extent it seeks
dismissal of the balance of Kemper’s claims against Rodgers for
failure to state a claim for which relief may be granted.

2

4.

Steinhart and Minarchick’s motion (Doc. 28) to dismiss is GRANTED
to the extent it seeks dismissal of Kemper’s claims against Steinhart
and Minarchick for failure to state a claim for which relief may be
granted.

5.

The Clerk of Court is DIRECTED to enter partial judgment in favor of
Rodgers and against Kemper in accordance with paragraph 3(a) above.

6.

The balance of Kemper’s complaint (Doc. 1) is DISMISSED without
prejudice.

7.

Kemper is GRANTED leave to amend the claims dismissed in
paragraph 6 above within twenty (20) days of the date of this order.

8.

Any amended pleading filed pursuant to paragraph 7 shall be filed to
the same docket number as the instant action, shall be entitled “First
Amended Complaint,” and shall be complete in all respects. It shall
be a new pleading which stands by itself as an adequate complaint
under the Federal Rules of Civil Procedure, without reference to the
complaint (Doc. 1) hereinabove dismissed. In the absence of a timelyfiled amended complaint, the Clerk of Court will be directed to close
this case.

9.

This matter is REMANDED to Magistrate Judge Saporito for further
proceedings.

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