KENNEDY v. ONORATO et al

Filing 41

IT IS HEREBY ORDERED that Defendants Onorato and Allegheny County Prison's 18 Motion to Dismiss is GRANTED. IT IS FURTHER ORDERED that Defendants Sergeant Randy and Pesio are DISMISSED, without prejudice, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that the magistrate judge's 35 report and recommendation is adopted as the opinion of this Court. As more fully stated in the order. Signed by Judge Cathy Bissoon on 6/12/2013. A copy of this order was mailed to Plaintiff at his address of record. (dad)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
WILLIAM J. KENEDY,
Plaintiff,
v.
DAN ONORATO, et. al.,
Defendants.

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Civil Action No. 12-113
Judge Cathy Bissoon
Chief Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM ORDER
William J. Kennedy (“Plaintiff”) is a state prisoner who currently is incarcerated at the
State Correctional Institution at Smithfield, Pennsylvania. Plaintiff brings the instant cause of
action pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, et seq., alleging that
Defendants violated his rights under the Eighth and Fourteenth Amendments to the Constitution
of the United States.
This matter was referred to a United States Magistrate Judge for pretrial proceedings in
accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.C and 72.D of the
Local Rules for Magistrate Judges. On September 7, 2012, Defendants Onorato and Allegheny
County Prison filed a motion to dismiss. (Doc. 18). Plaintiff was granted multiple extensions of
time to respond to the motion, but, as of the date of this writing, he has not done so.
Additionally, the magistrate judge ordered Plaintiff to show good cause why the remaining
Defendants – who were not served the complaint – should not be dismissed for failure to
prosecute. (Doc. 32). Plaintiff also has not responded to that order.
On April 17, 2013, the magistrate judge issued a report and recommendation
recommending that the motion to dismiss be granted, and that the remaining Defendants be
dismissed pursuant to Rules 4(m) and 41. (Doc. 35). Plaintiff responded with objections and a
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motion to appoint counsel on May 7, 2013. (Doc. 37). While the magistrate judge denied the
motion to appoint counsel, (Doc. 38), she ordered counsel for Defendants Onorato and
Allegheny County Prison to file a written response as to whether there were any current or
former employees of Allegheny County Jail matching the names of the remaining Defendants.
Text Order of May 7, 2013. Counsel responded in the negative. (Doc. 39).
After de novo review of the pleadings and documents in the case, together with the report
and recommendation (Doc. 35), and Plaintiff’s objections thereto (Doc. 37), the following
ORDER is entered:
AND NOW, this 12th day of June, 2013,
IT IS HEREBY ORDERED that Defendants Onorato and Allegheny County Prison’s
Motion to Dismiss (Doc. 18) is GRANTED.
IT IS FURTHER ORDERED that Defendants Sergeant Randy and Pesio are
DISMISSED, without prejudice, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that the magistrate judge’s report and recommendation
(Doc. 35) is adopted as the opinion of this Court.
BY THE COURT:
s\Cathy Bissoon
CATHY BISSOON
UNITED STATES DISTRICT JUDGE
cc:
WILLIAM J. KENNEDY
DV-0761
SCI Smithfield
1120 Pike Street
Huntingdon, PA 16652

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