BRACEY v. RENDELL et al

Filing 39

MEMORANDUM ORDER: IT IS HEREBY ORDERED that 21 Motion to Dismiss is GRANTED in part and DENIED in part; the Court adopts the Report and Recommendation 37 of Magistrate Judge Kelly, filed on November 8, 2012 as the opinion of the Court, with the exception of the Magistrate Judges dismissal of the Fourth and Eighth Amendment claims brought against Defendants Legget, Berrier, and Walker that relate to Plaintiffs allegations that he was subjected to inhumane conditions when he was housed in an observation cell. At this point in the proceedings, it is unclear whether this claim is duplicative of the claim asserted against Defendant Legget in Bracey v. Price, C.A. 09-1662, ECF No. 35, 60, 90, or relates to a different time frame as claimed by the Plaintiff in his objections. This claim can be revisited on a more fully developed record under Rule 56 of the Federal Rules of Civil Procedure. Signed by Judge Sean J. McLaughlin on 12/10/2012. (rlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
COREY BRACEY,
Plaintiff,
v.
GOVENOR RENDELL, et al.,
Defendants.

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Civil Action No. 11-217 Erie

MEMORANDUM ORDER
This civil rights action was received by the Clerk of Court on September 22, 2011
and was referred to United States Magistrate Judge Maureen P. Kelly 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 [ECF No. 37], filed on
November 8, 2012, recommended that the Motion to Dismiss filed by Defendants
Fonder, Saavedra and MHM [ECF No. 21] be granted in part and denied in part.
Specifically, it was recommended that the Motion to Dismiss be granted with respect to
Plaintiff’s Fourth, Eighth, and Fourteenth Amendment claims brought against
Defendants Legget, Berrier, Walker, Collins and Hancock, and his Eighth Amendment
claims that he was denied access to the law library, given a false misconduct and
subjected to excessive force while incarcerated at SCI Fayette, as they are improperly
joined under Rule 20 of the Federal Rules of Civil Procedure. To the extent the
Defendants are asking that the entire case be dismissed with respect to these claims
however, it was recommended that the Motion be denied.
It was further recommended that the Motion be denied with respect to Plaintiff’s
Eighth and/or Fourteenth Amendment claims brought against Defendants Beard,
Meintel, Ellers, Gnall, Johnson, Coleman, Gates, Arnell, Zaken, Walker, Bustass,
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Saavedra, Gallucci, Fonder, MHM, Bryant, Hall, Woods, Hannah, Biser, Whietsel, and
Fisher, revolving around his alleged illegal confinement in the SMU at SCI Fayette, and
improper RRL designation at SCI Fayette, SCI Albion and SCI Smithfield. As such, it
was noted that Plaintiff’s Eighth and/or Fourteenth Amendment claims asserted against
Defendants Fonder, Saavedra, and MHM remained viable.
The parties were allowed fourteen (14) days from the date of service to file
objections and Plaintiff filed objections on November 28, 2012. [ECF No. 38]. After de
novo review of the documents in the case, together with the Report and
Recommendation and objections thereto, the following order is entered:
AND NOW, this 10th day of December, 2012, the Court adopts the Report and
Recommendation [ECF No. 37] of Magistrate Judge Kelly, filed on November 8, 2012
as the opinion of the Court, with the exception of the Magistrate Judge’s dismissal of the
Fourth and Eighth Amendment claims brought against Defendants Legget, Berrier, and
Walker that relate to Plaintiff’s allegations that he was subjected to inhumane conditions
when he was housed in an observation cell. At this point in the proceedings, it is
unclear whether this claim is duplicative of the claim asserted against Defendant Legget
in Bracey v. Price, C.A. 09-1662, ECF No. 35, ¶¶ 60, 90, or relates to a different time
frame as claimed by the Plaintiff in his objections. This claim can be revisited on a more
fully developed record under Rule 56 of the Federal Rules of Civil Procedure.
s/

cm:

Sean J. McLaughlin
United States District Judge

All parties of record
Maureen P. Kelly, U.S. Magistrate Judge

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