ROSA-DIAZ v. OVERMYER et al
Filing
66
MEMORANDUM ORDER - it is hereby Ordered that the motion to dismiss (ECF No. 59 ) is GRANTED in part and DENIED in part, as follows: Granted as to Overmyer, Mongelluzzo, and Varner based on Plaintiff's failure to sufficiently allege their perso nal involvement in any constitutional violation. The Clerk is directed to terminate these three Defendants from the docket; Denied as to the access to courts claim; and Granted as to the due process claim based on the loss of and damage to Plaintiff's personal property. The report and recommendation of Magistrate Judge Baxter, dated 8/14/2018, is adopted as the opinion of the court, and as more fully stated in said Memorandum Order. Signed by Judge Kim R. Gibson on 9/11/2018. (dlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GABRIEL ROSA-DIAZ,
Plaintiff,
V.
M. OVEMYER, et al,
Defendants.
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C.A. No. 16-155 Erie
MEMORANDUM ORDER
This prisoner civil rights action was received by the Clerk of Court on June 21, 2016, 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. ยง 636(b)(l), and Rules
72.1.3 and 72.1.4 of the Local Rules for Magistrates. The magistrate judge's report and
recommendation, filed on August 14, 2018, recommended that the motion to dismiss [ECF No.
59] should be granted in part and denied in part, as follows: Granted as to Overmyer,
Mongelluzzo, and Varner based on Plaintiffs failure to sufficiently allege their personal
involvement in any constitutional violation. The Clerk should be directed to terminate these three
Defendants from the docket; Denied as to the access to courts claim; and Granted as to the due
process claim based on the loss of and damage to Plaintiffs personal property. Service was made
on Plaintiff by mail at SCI Smithfield, where he is incarcerated, and on Defendants. Objections
were filed by the Plaintiff on August 29, 2018.
After de novo review of the petition and
documents in the case, together with the report and recommendation and objections thereto, the
following order is entered:
AND NOW, this
Day of September, 2018;
IT IS HEREBY ORDERED that the motion to dismiss [ECF No. 59] is GRANTED in
part and DENIED in part, as follows: Granted as to Overmyer, Mongelluzzo, and Varner based
on Plaintiffs failure to sufficiently allege their personal involvement in any constitutional
violation. The Clerk is directed to terminate these three Defendants from the docket; Denied as to
the access to courts claim; and Granted as to the due process claim based on the loss of and
damage to Plaintiffs personal property.
The report and recommendation of Magistrate Judge Baxter, dated August 14,
2018, is adopted as the opinion of the court.
KIM R. GIBSON
United States District Judge
cc:
Susan Paradise Baxter
U.S. Magistrate Judge
all parties ofrecord _ _
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