Smith v. Donate et al

Filing 148

MEMORANDUM AND ORDER: 1) The court adopts the r and r of MJ Carlson 144 .2) Dft Edward J. Zalogas mtn for summary judgment 106 is GRANTED.3) The Clerk of Court shall defer the entry of this judgment until theconclusion of this case.4) This case is remanded to MJ Carlson for further proceedings.Signed by Honorable Sylvia H. Rambo on 05/24/12 (ma, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALAN SMITH,
Plaintiff
v.
JANINE DONATE, et al.,
Defendants

:
:
:
:
:
:
:
:
:

CIVIL NO. 4:10-2133
(Judge Rambo)
(Magistrate Judge Carlson)

MEMORANDUM
Before the court is an April 5, 2012, report of the magistrate judge (Doc.
144) to whom this matter is referred in which he recommends that the motion for
summary judgment filed by Defendant Dr. Edward J. Zaloga be granted. Dr. Zaloga
is one of many defendants in this case. The causes of action alleged against Dr.
Zaloga is a complaint based upon an alleged violation of the Eighth Amendment by
failing to take action to stop the physical beating and abuse by fellow staff against
Plaintiff.
The magistrate judge found that Zaloga was not a law enforcement
officer nor a corrections officer. He was a private contractor who provides medical
services to inmates. To the extent that it can be found that there is an allegation of a
claim of medical negligence, the magistrate judge found that Plaintiff is barred from
pursuing a state law medical negligence claim by his failure to comply with
Pennsylvania Rule of Civil Procedure 1042.3, which requires the filing of a valid
certificate of merit along with his malpractice claim.
Plaintiff has filed objections to the report and recommendation to which
Defendant Zaloga has filed a response. The matter is ripe for disposition.

As Defendant notes in his response to Plaintiff’s objections, Plaintiff has
not made specific objections to the report and recommendation nor has he stated the
basis for the objections. Plaintiff does not dispute the magistrate judge’s finding that
the doctor is not a police officer or prison correctional officer and has no duty to
intervene. Nor does Plaintiff argue with the finding that a certificate of merit is
required in a medical malpractice claim. Plaintiff’s argument is one of persistence in
his arguments from prior pleadings.
The report and recommendation of the magistrate judge will be adopted.
An appropriate order will be issued.

s/Sylvia H. Rambo
United States District Judge
Dated: May 24, 2012.

2

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALAN SMITH,
Plaintiff
v.
JANINE DONATE, et al.,
Defendants

:
:
:
:
:
:
:
:
:

CIVIL NO. 4:10-2133
(Judge Rambo)
(Magistrate Judge Carlson)

ORDER
In accordance with the accompanying memorandum, IT IS HEREBY
ORDERED THAT:
1) The court adopts the report and recommendation of Magistrate Judge
Carlson (Doc. 144).
2) Defendant Edward J. Zaloga’s motion for summary judgment (doc.
106) is GRANTED.
3) The Clerk of Court shall defer the entry of this judgment until the
conclusion of this case.
4) This case is remanded to Magistrate Judge Carlson for further
proceedings.
s/Sylvia H. Rambo
United States District Judge
Dated: May 24, 2012.