JAMES v. SAUERS et al

Filing 50

MEMORANDUM ORDER denying as moot the 14 Motion to Dismiss for Failure to State a Claim in light of the filing of the Amended Complaint; granting in part and denying in part the 30 Renewed Motion to Dismiss, as set forth therein; and adopting the 44 Report and Recommendation. Signed by Judge Terrence F. McVerry on 01/28/15. (mcp)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PARIS L. JAMES,
Plaintiff,
v.
DEBRA SAUERS, et al.
Defendants.

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Civil Action No. 1:14-69-TFM-SPB

MEMORANDUM ORDER
This prisoner civil rights action was received by the Clerk of Court on March 3, 2014,
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. Magistrate Judge Baxter issued a Report
and Recommendation (ECF No. 44) on December 22, 2014.
More specifically, Magistrate Judge Baxter recommended that the Motion to Dismiss
(ECF No. 30) be granted in part and denied in part as follows: denied as to claims arising before
February 19, 2012, based upon the statute of limitations; denied as to Defendant Heberling based
on Fed. R. Civ. P. 25; granted as to the lack of personal involvement of Smith , who should be
dismissed from this action; denied as to the lack of personal involvement of Sauers, Tice,
Overmyer, Cole, Repco, and Ennis; granted as to the Eighth Amendment claim against Murin,
Fultenberger, and Griffin based upon deprivation of food, but only Defendant Griffin should be
dismissed from this action; denied as to the Eighth Amendment claim based upon the denial of
Z-code status; and denied as to the Eighth Amendment claim based upon delay in treatment in
September or October of 2012. It was further recommended that the Motion to Dismiss (ECF
No. 14) be denied as moot in light of the filing of the Amended Complaint.

Plaintiff was served with the Report and Recommendation by mail at SCI Coal Township
and informed of the timeframe in which he had to file written objections. Defendants were also
served with the Report and Recommendation.
Plaintiff filed written objections on January 12, 2015 (ECF No. 47) with a brief in
support (ECF No. 48). Defendants have not filed a response to those objections.
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 28th day of January, 2015:
IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 14) is DENIED AS
MOOT in light of the filing of the Amended Complaint.
IT IS FURTHER ORDERED that the Renewed Motion to Dismiss (ECF No. 30) the
Amended Complaint is GRANTED IN PART AND DENIED IN PART, as follows: DENIED
as to claims arising before February 19, 2012, based upon the statute of limitations; DENIED as
to Defendant Heberling based on Fed. R. Civ. P. 25; GRANTED as to the lack of personal
involvement of Smith, who is DISMISSED from this action; DENIED as to the lack of personal
involvement of Sauers, Tice, Overmyer, Cole, Repco, and Ennis; GRANTED as to the Eighth
Amendment claim against Murin, Fultenberger, and Griffin based upon deprivation of food, and
Defendant Griffin is DISMISSED from this action; DENIED as to the Eighth Amendment
claim based upon the denial of Z-code status; and DENIED as to the Eighth Amendment claim
based upon delay in treatment in September or October of 2012.
IT IS FURTHER ORDERED that the report and recommendation of Magistrate Judge
Baxter issued on December 22, 2014 is ADOPTED as the opinion of this Court.
IT IS FURTHER ORDERED that Plaintiff may file a (renewed) motion for substitution
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as to Defendant Edward Heberling on or before March 24, 2015—i.e., ninety (90) days after the
December 23, 2014 filing of the suggestion of death. See Fed. R. Civ. P. 25(a)(1).

By the Court:
s/ Terrence F. McVerry
Senior United States District Judge
cc:

PARIS L. JAMES
DB-7294
SCI COAL TOWNSHIP
1 KELLEY DRIVE
COAL TOWNSHIP, PA 17866
(via First-Class Mail)
Yana L. Warshafsky
Email: [e-mail]
(via CM/ECF)

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