CUNNINGHAM v. ZUBSIC et al

Filing 38

ORDER indicating that Plaintiff's Objections 36 are overruled; the Court adopts the Report and Recommendation 35 as the Opinion of the Court; Defendant Ferdarko's Motion to Dismiss 19 is granted and the claim asserted against him is dismissed, with prejudice; and, Plaintiff's Motion for Case to be Continued 27 is denied, as moot (details more fully stated in said Order). Signed by Judge Nora Barry Fischer on 8/17/2017. (bdk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DONALD K. CUNNINGHAM,
Plaintiff,
v.
LISA ZUBSIC, et al.,
Defendants.

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Civil Action No. 1:16-127
District Judge Nora Barry Fischer
Magistrate Judge Susan Paradise Baxter

MEMORANDUM ORDER
This prisoner civil rights action filed by state inmate Donald K. Cunningham against
Defendants Lisa Zubsic, Heather McKeel, NP-C, Jamie Ferdarko, RNS and Barry Eisenberg was
referred to United States Magistrate Judge Susan Paradise Baxter for a report and
recommendation in accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Local Rules for
Magistrate Judges. Service has not yet been made on Defendants Zubsic, McKeel or Eisenberg.
Plaintiff’s Complaint was received by Jamie Ferdarko, he waived service and counsel entered an
appearance on his behalf. (Docket No. 18). Ferdarko filed a Motion to Dismiss the claim
asserted against him, (Docket Nos. 19, 20), and Plaintiff responded with a “Motion for Case to
be Continued,” (Docket No. 27), which is properly construed as a brief in opposition to the
motion. On July 28, 2017, Magistrate Judge Baxter issued a Report and Recommendation
(“R&R”) (Docket No. 35), in which she recommended that Ferdarko’s Motion to Dismiss be
granted and that Plaintiff's claim against him be dismissed, with prejudice, as Plaintiff failed to
state a claim that Ferdarko violated his Eighth Amendment rights by showing deliberate
indifference to his serious medical needs. On August 14, 2017, Plaintiff filed Objections to the
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R&R, to which he attaches the grievance he submitted concerning his medical condition on
January 25, 2016 and Ferdarko’s response denying the grievance on February 8, 2016. (Docket
No. 36).
Where, as here, objections have been filed, the Court is required to make a de novo
determination as to those portions of the R&R to which objections were made. See 28 U.S.C.
§ 636(b)(1). Accordingly, this Court has carefully examined de novo all claims raised by
Plaintiff in his Objections, including his grievance and Ferdarko’s response thereto and agrees
with the Magistrate Judge that Ferdarko’s motion to dismiss should be granted and that the claim
against him should be dismissed, with prejudice. To this end, the Court concurs with the
Magistrate Judge’s analysis that Plaintiff failed to state a viable § 1983 claim asserting Eighth
Amendment violations against Ferdarko, and otherwise adds that Plaintiff has not alleged that
Ferdarko had any personal involvement with the events he claims took place in his Complaint,
aside from denying the grievance on February 8, 2016. See Valdez v. Danberg, 576 F. App’x.
97, 100 (3d Cir. 2014) (“It is well—established that an individual government defendant in an
action under § 1983 must have had some personal involvement in the alleged wrongdoing to be
held liable.”) (citing Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005)).
For these reasons,
IT IS HEREBY ORDERED that Plaintiff’s Objections [36] are OVERRULED;
IT IS FURTHER ORDERED that the Court adopts the R&R [35] as the Opinion of this
Court;
IT IS FURTHER ORDERED that Ferdarko’s Motion to Dismiss [19] is GRANTED and
the claim asserted against him is DISMISSED, with prejudice; and,

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FINALLY, IT IS ORDERED that Plaintiff’s “Motion for Case to be Continued,” (Docket
No. 27), is DENIED, as moot.
s/Nora Barry Fischer
Nora Barry Fischer
United States District Court Judge
cc/ecf:

All counsel of record.
Magistrate Judge Susan P. Baxter
DONALD K. CUNNINGHAM, JR.
GM-9278
SCI FOREST
PO BOX 945
MARIENVILLE, PA 16239
(via first class mail)

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