Mitchell v. Sage et al

Filing 26

ORDER (memorandum filed previously as separate docket entry) ADOPTING in PART 12 REPORT AND RECOMMENDATION of Magistrate Judge Blewitt; Pltf is provided 21 days from the date of this order to file an amended complaint consistent with the rulin gs of this order; Failure to timely file will result in the dismissal of the remaning claims /dfts with prejudice. Clerk of Court is directed to REMAND case Magistrate Judge Blewitt for further proceedings. Signed by Honorable James M. Munley on 10/30/14. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH S. MITCHELL,
Plaintiff

:
No. 3:14cv905
:
:
(Judge Munley)
v.
: (Magistrate Judge Blewitt)
:
J. SAGE, Chief Psychologist, USP:
Lewisburg; KEVIN PIGOS, Doctor:
Medical/Clinical Director, USP:
Lewisburg; DOCTOR BROWN;
:
DOCTOR ANDREW EDINGER;
:
S. DEES, NREMT-P;
:
HOLZAPLE, Associate Warden;
:
J.E. THOMAS, Warden;
:
JOHN DOES 1-10;
:
FEDERAL BUREAU OF
:
PRISONS; and UNITED STATES,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 30th day of October 2014, it is hereby
ORDERED as follows:
1) Plaintiff’s Objections to Report and Recommendation (Doc. 16)
are OVERRULED except for the objection with regard to the Bivens
action against Defendant Dees, which is SUSTAINED.
2) The Report and Recommendation of Magistrate Judge Blewitt
dated July 21, 2014 (Doc. 12) is hereby ADOPTED in part as follows;
a) Plaintiff’s request for a specific amount of monetary
damages is STRICKEN from the complaint;
b) Plaintiff’s claims for damages against defendants in their
official capacities are DISMISSED with prejudice;
c) Defendant Holzaple, Thomas, the Federal Bureau of Prisons
(hereinafter “BOP”) and the United States are DISMISSED with
prejudice with regard to the Bivens action;
d) Defendants Brown and Sage are DISMISSED from the
Bivens action without prejudice;
e) Defendant United States is DISMISSED without prejudice
from the Federal Tort Claims Act cause of action;
f) The negligence claims under the FCTA against Defendants
Sage, Pigos, Brown, Edinger, Dees, Holzaple, Thomas, John
Does 1-10 and the BOP are DISMISSED with prejudice;

g)Plaintiff’s constitutional claim against Defendant’s John Does
1-10 are DISMISSED without prejudice;
h) Plaintiff’s Eigth Amendment denial of medical care claim
Bivens claim against Defendants Dees, Pigos and Edinger are
permitted to proceed; and
3) Plaintiff is provided twenty-one (21) days from the date of this
order to file an amended complaint to properly plead causes of action
with regard to the parties that are dismissed without prejudice.
Failure to file a timely amended complaint will result in the dismissal
of those claims/defendants with prejudice.
4) The Clerk of Court is directed to remand this case to Magistrate
Judge Blewitt.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court