Maye v. Pennsylvania Department of Corrections et al

Filing 51

ORDER ADOPTING REPORT AND RECOMMENDATION of Magistrate Judge Schwab 50 in its entirety; Maye's 33 Motion for Partial Summary Judgment is GRANTED; and DENYING the Defendants' Motion for Summary Judgment ; the John Doe Defendants are dismissed from this action; A pretrial conference will be scheduled by further order of Court. Signed by Honorable Julia K Munley on 11/13/23. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
No. 1 :21 cv530

EDWARD ANTHONY MAYE,
Plaintiff

(Judge Munley)
v.
PENNSYLVANIA DEPARTMENT
OF CORRECTIONS, et al.,
Defendants

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AND NOW, to wit, this

RDER

~ day of November 2023, we have before us

for disposition the report and recommendation of United States Magistrate Judge
Susan Schwab (Doc. 50), recommending that the court grant the motion for
partial summary judgment filed by Plaintiff Edward Anthony Maye ("Maye") (Doc.
33) and deny the motion for summary judgment filed by the defendants (Doc.
35). The magistrate judge also recommends that the court dismiss the John Doe
defendants in this case.
No objections to the report and recommendation have been filed and the
time for such filing has passed.
In deciding whether to adopt the report and recommendation when no
timely objection is filed, we must determine if a review of the record evidences
plain error or manifest injustice. FED. R. CIv. P. 72(b), 1983 Advisory Committee
Notes ("When no timely objection is filed, the court need only satisfy itself that

there is no clear error on the face of the record to accept the recommendation");
see also 28 U.S.C. § 636(b)(1); Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir.
1983).
After a careful review, we find neither a clear error on the face of the record
nor a manifest injustice, and therefore, we shall accept the report and
recommendation and adopt it in its entirety. It is hereby ORDERED as follows:
1) The report and recommendation (Doc. 50) is ADOPTED in its entirety.
2) Maye's motion for partial summary judgment (Doc. 33) is GRANTED.
a. As to Count I, that defendants Linkiewicz, Lynch, Beers, Marsico,
Josefowicz, Meyer, Starzynski, Starck, and Amaral are persons and
were acting under the color of state law within the meaning of 42
U.S.C. § 1983.
b. As to Count II, the Pennsylvania Department of Corrections ("DOC")
is a public entity within the meaning of 42 U.S.C. § 12131(1) and
Maye is a qualified individual with a disability under 42 U.S.C. §
13131(2).
c. As to Count Ill, Maye is a qualified individual with a disability under 29
U.S.C. § 705(2); the DOC receives federal assistance; and the
operations of the DOC are programs or activities within the meaning
of 29 U.S.C. § 794(b).
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3) The defendants' motion for summary judgment (Doc. 35) is DENIED.
4) The John Doe defendants are DISMISSED from this action.
5) A pre-trial conference shall be scheduled by further order of court.

OURT:

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