WHALING v. ERIE COUNTY PRISON et al

Filing 54

MEMORANDUM ORDER granting 48 Defendants' [Partial] Motion to Dismiss Plaintiff's Second Amended Complaint; adopting 53 Report and Recommendations. Signed by Judge Sean J. McLaughlin on 06/14/2011. (kas)

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

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Case No. 1:08-cv-210-SJM-SPB

ORDER
Plaintiff’s original 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. On March
27, 2009, Plaintiff filed his First Amended Complaint. Counsel was subsequently
appointed to represent Plaintiff and, on March 22, 2011, Plaintiff filed a Second
Amended Complaint [47]. On April 8, 2011, the Defendants filed a motion to dismiss
Plaintiff’s Second Amended Complaint [48] to the extent the complaint attempts to
resurrect claims previously disposed of by this Court or otherwise appears to contradict
the Amended Memorandum Judgment Order previously entered by this Court on
February 4, 2010 [34].
The Magistrate Judge's Report and Recommendation, filed on May 27, 2011
[53], recommends that the Defendants’ [Partial] Motion to Dismiss Plaintiff’s Second
Amended Complaint [48] be granted. Plaintiff was allowed fourteen (14) days from the
date of service in which to file objections. Service was made electronically on counsel
for all parties. To date, no objections to the Report and Recommendation have been

filed. After de novo review of the complaint and documents in the case, together with
the Report and Recommendation, the following order is entered:

AND NOW, this 14th Day of June, 2011;
IT IS ORDERED that the Defendants’ [Partial] Motion to Dismiss Plaintiff’s
Second Amended Complaint [48] be, and hereby is, GRANTED.
The Report and Recommendation of Magistrate Judge Baxter, filed on May 27,
2011 [53], is adopted as the opinion of this Court.

s/

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

cm:

All counsel of record
U.S. Magistrate Judge Susan Paradise Baxter