DELGADILLO v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al

Filing 26

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 3/22/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JOE DELGADILLO,

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Plaintiff

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:

v.
COMMONWEALTH OF
PENNSYLVANIA DEPARTMENT
OF CORRECTIONS, et al.,
Defendants

CIVIL ACTION NO. 3:16-0041
(MANNION, D.J.)
(MEHALCHICK, M.J.)

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:
:

MEMORANDUM
Pending before the court is the report of Judge Karoline Mehalchick,
(Doc. 23), which recommends that the DOC defendants’ motion to dismiss be
granted in part and denied in part (Doc. 14); and that defendant PA Flatt’s
motion to dismiss be granted. (Doc. 18). Judge Mehalchick also recommends
that the plaintiff be allowed to proceed as to his Eighth Amendment deliberate
indifference claims against John Doe COs Nos. 2-10. No objections have
been filed to Judge Mehalchick’s report.
The plaintiff filed his complaint on December 11, 2015 in the Eastern
District of Pennsylvania, in which he alleges various federal claims pursuant
to 42 U.S.C. §1983, as well as a state law claim. After service of the
complaint, on January 11, 2016, the matter was transferred to this court. On
March 7, 2016, the DOC, SCI-Camp Hill, Superintendent Harry, Bocci, and

John Doe COs 2-10, (the “DOC defendants”), filed a joint motion to dismiss
the plaintiff’s complaint, (Doc. 14), along with a brief in support thereof, (Doc.
15). Defendant Flatt filed a separate motion to dismiss the plaintiff’s complaint
on April 13, 2016, (Doc. 18), followed by a supporting brief on April 14, 2016,
(Doc. 19).
By way of the pending report filed on February 6, 2017, Judge
Mehalchick considered the defendants’ motions to dismiss. Having reviewed
the claims raised in the plaintiff’s complaint, as well as the defendants’
arguments for dismissal of those claims, Judge Mehalchick recommends that
the DOC defendants’ motion to dismiss be granted in part and denied in part
and that defendant PA Flatt’s motion to dismiss be granted. It is specifically
recommended that the plaintiff’s excessive force claim against Sergeant
Bocci, the Monell claim and the state law claim brought directly under the
Pennsylvania Constitution each be dismissed with prejudice for failure to state
a claim; and that the plaintiff’s Eighth Amendment deliberate indifference
claims against PA Flatt, Sergeant Bocci, Superintendent Harry, and John Doe
CO No. 1 each be dismissed without prejudice for failure to state a claim
pursuant to Fed.R.Civ.P. 12(b)(6). Judge Mehalchick also recommends that
the plaintiff be given thirty (30) days in which to file an amended complaint
and re-assert his remaining deliberate indifference claims.
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While Judge Mehalchick’s report was pending, on March 3, 2017, the
plaintiff, through counsel, filed an amended complaint against the John Doe
Cos 2-10, only. (Doc. 24). In light of this memorandum, the court will accept
for filing the plaintiff’s amended complaint.
No objections have been filed to the report and recommendation. As
such, the court should, as a matter of good practice, “satisfy itself that there
is no clear error on the face of the record in order to accept the
recommendation.” Fed. R. Civ. P. 72(b), advisory committee notes; see also
Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.
2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)
(explaining judges should give some review to every report and
recommendation)). Nevertheless, whether timely objections are made or not,
the district court may accept, not accept, 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 72.31.
The court has reviewed the reasons presented by Judge Mehalchick for
the recommendations made in her report. Because the court agrees with the
sound reasoning that led Judge Mehalchick to the conclusions in her report
and finds no clear error on the face of the record, the court will adopt the
report in its entirety. Further, the court will accept for filing the plaintiff’s
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amended complaint and remand the matter to Judge Mehalchick for further
proceedings. An appropriate order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: March 22, 2017
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