BEALE v. WETZEL et al
MEMORANDUM ORDER adopting Report and Recommendations re 79 Corrections Defendants' Motion to Dismiss 67 . Signed by Judge Terrence F. McVerry on 5/21/2015. (rjw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
John E. Wetzel, et al.
District Judge Terrence F. McVerry
Magistrate Judge Susan Paradise Baxter
This prisoner civil rights action was referred to United States Magistrate Judge Susan
Paradise Baxter for a Report and Recommendation (“R&R”) in accordance with the Magistrates
Act, 28 U.S.C. ' 636(b)(1), and Local Rules 72.1.3 and 72.1.4.
Now pending is the motion to dismiss filed by John Wetzel, the Secretary of Corrections
for the Pennsylvania Department of Corrections (“DOC”); Jeffrey Witherite, Staff Assistant of
the Western Region of the Pennsylvania DOC; Michael W. Harlow, Superintendent; Richard M.
Hall, Deputy Superintendent; Ronald Bryant, Deputy Superintendent; William J. Woods,
Corrections Classification Program Manager; Robert Gilmore, Corrections Officer (“CO”);
Randy Irwin, CO; Szelewski, CO; Lewis Johnson, CO; Hendricks, CO; Bryan Flinchbaugh, Unit
Manager; Michelle Wagner, Unit Manager; Laura Giles, Inmate Employment Supervisor; J.
Beddick, CO; H.W. Hodge, CO;W. Christopher, CO; J.S. Ceremuga, CO; R.S. Pangborn, CO;
E.F. Lindey, CO; W.M. Maloney, CO; Mark Cimperman, CO; S.K. Hong, CO; G.L. Ferraro,
CO; S.L. McDonald, CO; J.K. Knight, CO; F.L. Jones, CO; B. Sullivan, CO; T. Lindsey, CO; M.
Rodriguez, CO; A. Pierce, CO; S. Williamson, CO; M.A. McLaurin, CO; Silloway, CO; Brian
Murry, Maintenance Manager; Don Lindsey, Central Plant Supervisor; Dean Campbell, H-VAC
Supervisor; Dan Henry, Mailroom Supervisor; Pauline Blood, Commissary Manager; Maxine
Overton, Health Care Administrator; Brenda Weaver, Librarian; Douglas Petroff, Librarian; and
Stephen Smith, Safety Manager (collectively, the “Corrections Defendants”). (This Court fully
agrees with the persuasive and well-reasoned analysis of Magistrate Judge Eddy.). On February
12, 2015, Magistrate Judge Baxter issued an R&R, which recommended that the motion to
dismiss be GRANTED IN PART and DENIED IN PART. Specifically, she recommended the
dismissal of (1) all claims against all Defendants in their official capacities on the basis of
Eleventh Amendment immunity; and (2) all claims against Defendants Bryant, Blood,
Christopher, Irwin, Knight, Lindey, McDonald, McLaurin, Pangborn, Rodriguez, Woods,
Campbell, Giles, Hendricks, D. Lindsey, Silloway, Szelewski, Weaver, Ceremuga, Cimperman,
Hong, Henry, Petroff, Smith, Lewis, Wetzel, Witherite, Hall, Gilmore, Johnson, Flinchbaugh,
Beddick, Murry and Overton in light of Plaintiff’s failure to allege that they were personally
involved in any misconduct. She further recommended that Plaintiff’s allegations of inadequate
medical treatment and failure to supervise failed to state a claim upon which relief could be
granted and thus should also be dismissed. On the other hand, however, Magistrate Judge Baxter
recommended that the Corrections Defendants’ motion to dismiss be denied as to Plaintiff’s
Eighth Amendment claim based on exposure to ETS with respect to Defendants Harlow, Hodge,
Jones, Ferraro, Maloney, and Wagner. Likewise, she recommended that the Corrections
Defendants’ motion to dismiss be denied as to Plaintiff’s First Amendment retaliation claim with
respect to Defendants Sullivan, T. Lindsey, Williamson, Pierce, and Wagner.1
In addition to the Corrections Defendants, Plaintiff also named two non-DOC personnel
as Defendants: Daniel Telega, Physician Assistant, and Julianna Lewis, Registered Nurse.
Although these Defendants did not join in the Corrections Defendants’ motion to dismiss,
Magistrate Judge Baxter dismissed them as Defendants because (1) they were not served, and (2)
there are no allegations in the Amended Complaint leveled against these Defendants. The Court
agrees that dismissal was proper.
Plaintiff timely filed objections to the certain portions of the R&R. (ECF No. 81). The
Corrections Defendants’ have not responded to Plaintiff’s objections.
After de novo review of the pleadings and documents in the case, together with the
thorough and well-reasoned R&R of Magistrate Judge Baxter, the following Order is entered:
AND NOW, this 21st day of May, 2015:
IT IS HEREBY ORDERED that the R&R is ADOPTED as the Opinion of the Court,
and the Corrections Defendants’ motion to dismiss (ECF No. 67) is GRANTED IN PART and
DENIED IN PART. Accordingly, all claims against all Defendants in their official capacities;
all claims against Defendants Bryant, Blood, Christopher, Irwin, Knight, Lindey, McDonald,
McLaurin, Pangborn, Rodriguez, Woods, Campbell, Giles, Hendricks, D. Lindsey, Silloway,
Szelewski, Weaver, Ceremuga, Cimperman, Hong, Henry, Petroff, Smith, Lewis, Wetzel,
Witherite, Hall, Gilmore, Johnson, Flinchbaugh, Beddick, Murry, Overton; all claims based on
inadequate medical treatment and failure to supervise; and all claims against Defendants Telega
and Lewis are DISMISSED for the reasons set forth in the R&R. The Clerk of Court is directed
to terminate the following Defendants from the docket: Bryant, Blood, Christopher, Irwin,
Knight, Lindey, McDonald, McLaurin, Pangborn, Rodriguez, Woods, Campbell, Giles,
Hendricks, D. Lindsey, Silloway, Szelewski, Weaver, Ceremuga, Cimperman, Hong, Henry,
Petroff, Smith, Lewis, Wetzel, Witherite, Hall, Gilmore, Johnson, Flinchbaugh, Beddick, Murry,
Telega and Overton.
IT IS FURTHER ORDERED that the caption in this matter is hereby AMENDED as
MICHAEL HARLOW, H.W.
HODGE, F.L. JONES, G.L.
FERRARO, W.M. MALONEY,
MICHELLE WAGNER, B.
SULLIVAN, T. LINDSEY, S.
WILLIAMSON, and A. PIERCE,
By the Court:
s/ Terrence F. McVerry
Senior United States District Judge
Thomas Beale, pro se
500 E. Fourth St.
Chester, PA 19013
(via First Class U.S. Mail)
Scott A. Bradley, Esq.
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