Quinn v. Tritt et al

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATIONS in its entirety; the plaintiff shall file a second amended complaint that corrects the deficiencies identified in Judge Mehalchicks Report, if he still wishes to pursue this action, no later than February 27, 2019;ORDER REFERRING CASE to Magistrate Judge Karoline Mehalchick. (See order for full details).Signed by Honorable Malachy E Mannion on 1/30/19. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
PHILLIP QUINN
Plaintiff

:

BRENDA L. TRITT, et al.
Defendants

CIVIL ACTION NO. 3:18-632

:

v.

:

(JUDGE MANNION)

:
:
ORDER

Presently before the court is the report and recommendation (“Report”)
of Magistrate Judge Karoline Mehalchick (Doc. 27), which recommends that
two motions to dismiss, (Doc. 2) (Doc. 4) filed in the above-captioned matter,
be granted and the plaintiff’s motion for a preliminary injunction (Doc. 12) be
denied. No party has filed objections to the Report. Upon review of the
Report and related materials, the Report of Judge Mehalchick will be adopted
in its entirety.
Where no objections are made to a report and recommendation, 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 (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); M.D.Pa. Local Rule 72.3.
On July 21, 2017, the plaintiff, who is currently incarcerated, filed a pro
se complaint in the Court of Common Pleas in Schuylkill County,
Pennsylvania alleging that the water at State Correction Institute—Frackville
is contaminated, which resulted in his bacterial infection. On January 26,
2018, the state court sustained the defendants’ preliminary objections and
granted leave to the plaintiff to file an amended complaint. In his amended
complaint, the plaintiff alleges a state law claim of negligence and a claim of
deliberate indifference under the Eighth Amendment of the United States
Constitution.
Thereafter, on March 20, 2018, defendants Kathy Brittain, Brenda Tritt,
Joseph Sankus, and Daniel Rhone (collectively “DOC defendants”) filed a
notice of removal with this court. (Doc. 1). On March 27, 2018, the DOC
defendants filed a motion to dismiss under Federal Rules of Civil Procedure
12(b)(5) and 12(b)(6) or, in the alternative, a motion for summary judgment
under Federal Rule of Civil Procedure 56. (Doc. 2). Then, on April 5, 2018,
defendants Schuylkill County Municipal Water Authority and its Executive
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Director, Pat Caulfield (collectively “SCWA defendants”) filed a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative,
a motion for summary judgment under Federal Rule of Civil Procedure 56.
(Doc. 4). In their brief, the SCWA defendants allege they were never served
with the plaintiff’s amended complaint, but acknowledge they received it with
the DOC defendants’ notice of removal. On June 11, 2018, the plaintiff filed
a motion for preliminary and permanent injunction (Doc. 12) claiming that he
has been harassed, intimidated, and prevented from accessing materials for
this lawsuit.
As it stands currently, the plaintiff has failed to state a claim upon which
relief can be granted. However, in light of the plaintiff’s pro se status, the
court will afford him the opportunity to amend his complaint. In addition, the
plaintiff has failed to demonstrate that he is likely to succeed on the
underlying merits of his case, so his motion for preliminary injunction fails.
The court has reviewed Judge Mehalchick’s assessment of the instant
motions and agrees with the sound reasoning which led her to the
conclusions in her Report. Moreover, the court finds no clear error on the
face of the record. As such, the court adopts the reasoning of Judge
Mehalchick as the opinion of the court.

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NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
(1) the Report of Judge Mehalchick (Doc. 27) is ADOPTED IN ITS
ENTIRETY;
(2) the DOC defendants’ motion to dismiss (Doc. 2) is GRANTED, and
plaintiff’s amended complaint is DISMISSED WITHOUT
PREJUDICE as to the DOC defendants;
(3) the SCWA defendants’ motion to dismiss (Doc. 4) is GRANTED,
and plaintiff’s Eighth Amendment and negligence claims are
DISMISSED WITH PREJUDICE and WITHOUT PREJUDICE,
respectively;
(4) the plaintiff shall file a second amended complaint that corrects the
deficiencies identified in Judge Mehalchick’s Report, if he still
wishes to pursue this action, no later than February 27, 2019;
(5) the plaintiff’s motion for a preliminary injunction (Doc. 12) is
DENIED; and
(6) the above-captioned case will be remanded to Judge Mehalchick
for further proceedings.

s/  Malachy

E. Mannion

MALACHY E. MANNION
United States District Judge
DATE: January 30, 2019
O:\Mannion\shared\ORDERS - DJ\CIVIL ORDERS\2018 ORDERS\18-632-01.docx

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