Njos v. Kane et al

Filing 120

ORDER ADOPTING REPORT AND RECOMMENDATION of Magistrate Judge Martin C. Carlson filed on September 1, 2015 (Doc. 107 ); Plaintiff's Motion for Summary Judgment (Doc. 89 ) is DENIED. Signed by Honorable Edwin M. Kosik on 9/28/2015. (emksec, )

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
_________________________________
SCOTT NJOS,
:
Plaintiff,
:
:
CIVIL ACTION NO. 3:12-CV-1252
v.
:
:
(Judge Kosik)
UNITED STATES OF AMERICA,
:
Defendant.
:
_________________________________
ORDER
AND NOW, THIS 28th DAY OF SEPTEMBER, 2015, IT APPEARING TO THE
COURT THAT:
(1) Plaintiff, Scott Njos, an inmate confined at the United States Penitentiary
Lewisburg, Pennsylvania, filed the instant action against the United States pursuant
to the Federal Tort Claims Act, 28 U.S.C. § 1346 and §§ 2671-2680. The action
proceeds on an Amended Complaint filed on April 29, 2013 (Doc. 18);
(2) The basis of Plaintiff’s action is the alleged negligence of the United States
in the maintenance of his cell and medical negligence;
(3) On May 7, 2015, Plaintiff filed a Motion for Summary Judgment (Doc. 89)
with supporting documents;
(4) The United States filed an Opposition Brief on May 21, 2015 (Doc. 91);
(5) Plaintiff filed a Reply Brief on June 5, 2015 (Doc. 95);
(6) On September 1, 2015, Magistrate Judge Martin C. Carlson filed Report
and Recommendation (Doc. 107), recommending that the Plaintiff’s Motion for
Summary Judgment be denied;
(7) Plaintiff filed Objections (Doc. 115) to the Report and Recommendation on
September 16, 2015;
(8) The United States filed a Response to the Objections on September 21,
2015 (Doc. 116);

AND, IT FURTHER APPEARING THAT:
(9) When objections are filed to a Report and Recommendation of a
Magistrate Judge, we must make a de novo determination of those portions of the
Report to which objections are made. 28 U.S.C. §636(b)(1)(C); see Sample v.
Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). In doing so, we may accept, reject
or modify, in whole or in part, the findings or recommendations made by the
Magistrate Judge. 28 U.S.C. §636(b)(1); Local Rule 72.3. Although our review is de
novo, we are permitted by statute to rely upon the Magistrate Judge’s proposed
recommendations to the extent we, in the exercise of sound discretion, deem proper.
United States v. Raddatz, 447 U.S. 667, 676 (1980); Goney v. Clark, 749 F.2d 5, 7
(3d Cir. 1984);
(10) We have reviewed the Report and Recommendation of the Magistrate
Judge in light of Plaintiff’s Objections and the Government’s Response and we agree
with the Magistrate Judge that genuine issues of material fact exist as to the
questions of negligence and contributory negligence;
ACCORDINGLY, IT IS HEREBY ORDERED THAT:
(1) The Report and Recommendation of Magistrate Judge Martin C. Carlson
filed on September 1, 2015 (Doc. 107) is ADOPTED; and,
(2) Plaintiff's Motion for Summary Judgment (Doc. 89) is DENIED.1

s/Edwin M. Kosik
Edwin M. Kosik
United States District Judge

1

The Magistrate Judge directed the parties to file Status Reports in this case. Both parties have
complied and agree that the matter should be scheduled for trial (Docs. 112 and 114). A pretrial
conference will be set at the convenience of the court.