BARGER v. PENNSYLVANIA STATE POLICE et al

Filing 40

MEMORANDUM ORDER granting 26 Motion to Dismiss Amended Complaint without prejudice and adopting 36 Report and Recommendation of Judge Kelly as the opinion of the Court. Further ordered that plaintiff has until 12/16/13 to file second amended complaint; failure to file will result in action being dismissed. Signed by Judge David S. Cercone on 11/14/13. (njt)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROBERT KARL BARGER, JR.,
Plaintiff,
v.

PENNSYLVANIA STATE POLICE,
Troop A; TROOPER MCKENZIE,
Defendants.

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2: 12cv259
Electronic Filing
Judge David Stewart Cercone!
Magistrate Judge Maureen P. Kelly
Re: ECF No. 26

...{ MEMORANDUM ORDER
AND NOW, this

I~

lday of November, 2013, after Plaintiff, Robert Karl Barger, Jr.,

filed an action in the above-captioned case, and after Defendants filed a Motion to Dismiss (ECF
26) and after a Report and Recommendation (ECF 36) was filed by the United States Magistrate
Judge giving the parties until October 28,2013, to file written objections thereto, and upon
consideration of the objections filed by Plaintiff, and upon independent review of the record, and
upon consideration of the Magistrate Judge's Report and Recommendation (ECF 36), which is
adopted as the opinion of this Court,
IT IS HEREBY ORDERED that the Motion to Dismiss submitted on behalf of
Defendants (ECF 26) is GRANTED, and the Amended Complaint is dismissed without
prejudice.
IT IS FURTHER ORDERED that Plaintiff has until December 16,2013, to file a Second
Amended Complaint containing sufficient facts to support his claim that he was prevented from
filing his Complaint in a timely manner and that the statute of limitations for his claim of false
imprisonment against Trooper McKenzie should be equitably tolled. Plaintiff is advised that his

failure to file a Second Amended Complaint curing the cited deficiencies will result in the action
being dismissed.

David Stewart Cercone
United States District Judge

cc:

Honorable Maureen P. Kelly
Robert A. Willig, Esquire

(Via CMlECF Electronic Mail)
Robert Karl Barger, Jr.
KS 6167
SCI Mercer
801 Butler Pike
Mercer, PA 16137

(Via First Class Mail)

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