BROWN v. BEARD et al

Filing 48

MEMORANDUM ORDER denying 36 Motion to Dismiss of defendants Arias and Prison Health Services, Inc. without prejudice to defendants' right to refile once this case is transferred; granting in part and denying in part 39 Motion to Dismiss of defendants Beard, Day, DiGuglielmo, Hiltner, Knaver, Murray, Myron, Stanishefski, Varner, White and Williamson - motion granted as to transfer of this case and denied in all other respects without prejudice to defendants' right to refile once t his case is transferred; and adopting 41 Report and Recommendation of Judge Lenihan as the opinion of this court. Further ordered that this case be transferred to the U.S. District Court for the Eastern District of Pennsylvania. The Clerk is directed to transfer this case forthwith and to thereafter mark this case CLOSED. Signed by Judge David S. Cercone on 1/22/13. (njt)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ALTON D. BROWN,
Plaintiff,

v.
JEFFREY A. BEARD, et al.,
Defendants.

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2:lOcv1398
Electronic Filing
Judge David Stewart Cercone
Chief Magistrate Judge Lenihan

MEMORANDUM ORDER
This case is before the Court on the Report and Recommendation filed by Chief
Magistrate Judge Lisa Pupo Lenihan on October 5, 2012. (ECF No. 41.) It was recommended
that the Defendants' Motion to Dismiss filed at ECF No. 39 be granted to the extent Defendants
sought transfer of this case to the United States District Court for the Eastern District of
Pennsylvania. In all other respects, it was recommended that the Motion to Dismiss be denied
without prejudice so that Defendants could refile upon transfer. It was also recommended that
the Defendants' Motion to Dismiss at ECF No. 36 be denied without prejudice to Defendants'
right to refile upon transfer.
The parties were served with the Report and Recommendation and informed that they
had until October 22, 2012, to file written objections. After granting Plaintiff two extensions of
time to do so, he filed a Response to Defendants' Motions to Dismiss and the Magistrate Judge's
Report and Recommendation. (ECF No. 44.) The Court hereby construes Plaintiffs response as
Objections to the Report and Recommendation but finds that they do not undermine the
Magistrate Judge's recommendation that this case be transferred and that Defendants be allowed
to refile their Motions to Dismiss upon such transfer. At such time, the Eastern District may

wish to construe Plaintiffs response at ECF No. 44 as a response in opposition to Defendants'
Motions to Dismiss.
After de novo review of the pleadings and documents in the case, together with the
Report and

Recommendation~d

Objections thereto, the following order is entered.

AND NOW, this 'J,. 1,. &y of January, 2013,
IT IS HEREBY ORDERED that the Motion to Dismiss filed by Defendants Beard,
Day, DiGuglielmo, Hiltner, Knaver, Murray, Myron, Stanishefski, Varner, White, and
Williamson (ECF No. 39) is granted to the extent Defendants seek transfer of this case to the
United States District Court for the Eastern District of Pennsylvania. In all other respects, the
Motion to Dismiss is denied without prejudice to Defendants' right to refile once this case has
been transferred.
IT IS FURTHER ORDERED that the Motion to Dismiss filed by Defendants Arias and
Prison Health Services, Inc. (ECF No. 36) is denied without prejudice to Defendants' right to
refile once this case has been transferred.
IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 41) dated
October 5, 2012, is ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that this case be transferred to the United States District
Court for the Eastern District of Pennsylvania.
AND IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED
and TRANSFER forthwith.

David Stewart Cercone
United States District Judge

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cc:

Alton D. Brown

DL-4686

SCI Graterford

Box 246

Graterford, PA 19426-0246

(Via First Class Mail)

Douglas B. Barbour, Esquire
Kathryn M. Kenyon, Esquire
(Via CMlECF Electronic Mail)

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