WHALING v. ERIE COUNTY PRISON et al

Filing 33

MEMORANDUM JUDGMENT ORDER: AND NOW, this 3rd Day of February, 2010, IT IS ORDERED that Defendants Hillkirk and Patty Doe's Motion to Dismiss Plaintiff's Amended Complaint 22 be, and hereby is, GRANTED. Inasmuch as said motion was previou sly converted by the Magistrate Judge to a motion for summary judgment, JUDGMENT is hereby entered in favor of Defendants Hillkirk and Patty Doe and against Plaintiff Mark Whaling. IT IS FURTHER ORDERED that the Motion to Dismiss Amended Complaint f iled on behalf of the ECP Defendants 25 be, and hereby is, GRANTED in part and DENIED in part as follows: (1) said motion will be DENIED as to the Plaintiff's retaliation claim against the Erie County Prison Defendants concerning his placement in administrative custody; and 2) said motion will be GRANTED as to all of Plaintiff's state law claims inasmuch as Defendants are entitled to immunity from such claims under Pennsylvania's Political Subdivision Tort Claims Act, 42 Pa. C.S .A. §§ 8541, et seq., and none of the statutory exceptions to immunity apply to such claims; (3) said motion will be GRANTED in all other respects. Inasmuch as the Magistrate Judge previously converted said motion to a motion for summary ju dgment, JUDGMENT is hereby entered in favor of the Erie County Prison Defendants and against Plaintiff Mark Whaling as to all claims, save Plaintiff's retaliation claim based on his placement in administrative custody.The Report and Recommendation of Magistrate Judge Baxter dated November 30, 2009 29 is adopted, in part, as the opinion of this Court to the extent set forth herein. Signed by Judge Sean J. McLaughlin on 02/03/2010. (kas)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA MARK WHALING, Plaintiff, v. ERIE COUNTY PRISON, et al., Defendants. ) ) ) ) ) ) ) )

C.A. No. 08-210 Erie

MEMORANDUM JUDGMENT ORDER Plaintiff's civil rights complaint was received by the Clerk of Court on July 24, 2008 and was referred to United States Magistrate Judge Susan Paradise Baxter for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates. The Magistrate Judge's report and recommendation, filed on November 30, 2009 [29], recommends that: (1) Defendants Hillkirk's and Patty Doe's Motion to Dismiss Plaintiff's Amended Complaint [22] be granted, (2) the Motion to Dismiss Amended Complaint filed on behalf of Defendants Erie County Prison, Veshecco, Wilson, Olowin, Aganello, Ricci, Ames, Owens, Johnson, Yeaney, Kremenik, Danowski, Loftus, Parks, and Damper (collectively, the "Erie County Prison" Defendants) [25] be granted, and (3) the case be marked as closed. The parties were allowed ten (10) days from the date of service in which to file objections. Plaintiff's objections [32] were filed on January 20, 2010. After de novo review of the Complaint and the documents in the case, together with the Report and Recommendation and Plaintiff's objections thereto, the Court concludes that it will adopt the Report and Recommendation in part. Specifically, the Court declines to adopt the Report and Recommendation relative to the Plaintiff's retaliation claim against the Erie County Prison Defendants concerning his placement in Page 1 of 3

administrative custody, as the Court finds that there are material issues of fact relative to motivation which render summary judgment inappropriate as to that claim. In addition, the Court concludes that Plaintiff's state law claims are barred by the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S.A. §§ 8541, et seq. However, the Court will adopt the Report and Recommendation in all other respects. Accordingly, the following order is entered:

AND NOW, this 3rd Day of February, 2010, IT IS ORDERED that Defendants Hillkirk and Patty Doe's Motion to Dismiss Plaintiff's Amended Complaint [22] be, and hereby is, GRANTED. Inasmuch as said motion was previously converted by the Magistrate Judge to a motion for summary judgment, JUDGMENT is hereby entered in favor of Defendants Hillkirk and Patty Doe and against Plaintiff Mark Whaling. IT IS FURTHER ORDERED that the Motion to Dismiss Amended Complaint filed on behalf of the ECP Defendants [25] be, and hereby is, GRANTED in part and DENIED in part as follows: (1) said motion will be DENIED as to the Plaintiff's retaliation claim against the Erie County Prison Defendants concerning his placement in administrative custody; and (2) said motion will be GRANTED as to all of Plaintiff's state law claims inasmuch as Defendants are entitled to immunity from such claims under Pennsylvania's Political Subdivision Tort Claims Act, 42 Pa. C.S.A. §§ 8541, et seq., and none of the statutory exceptions to immunity apply to such claims; (3) said motion will be GRANTED in all other respects. Inasmuch as the Magistrate Judge previously converted said motion to a motion for summary judgment, JUDGMENT is hereby entered in favor of the Erie County Prison

Page 2 of 3

Defendants and against Plaintiff Mark Whaling as to all claims, save Plaintiff's retaliation claim based on his placement in administrative custody. The Report and Recommendation of Magistrate Judge Baxter dated November 30, 2009 [29] is adopted, in part, as the opinion of this Court to the extent set forth herein.

s/ Sean J. McLaughlin SEAN J. McLAUGHLIN United States District Judge

cm:

all parties of record. U.S. Magistrate Judge Susan Paradise Baxter

Page 3 of 3