CARTER v. HARPER et al

Filing 30

MEMORANDUM ORDER adopting Report and Recommendations re 28 Report and Recommendations; granting 8 Motion to Dismiss for Failure to State a Claim and granting 19 Motion to Dismiss for Failure to State a Claim. The Clerk shall mark this case CLOSED. Signed by Judge Terrence F. McVerry on 6/2/2015. (kly)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DEERING CARTER,
Plaintiff,
v.
HARPER, WARDEN; SGT. REUBEL;
JOHN SMITH, and OFFICER ZOLLER,
Defendants.

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Civil Action No. 2:14-cv-01260
Senior United States District Judge
Terrence F. McVerry

MEMORANDUM ORDER
This case was commenced on September 15, 2014, and was referred to United States
Magistrate Judge Cynthia Reed Eddy for pretrial proceedings in accordance with the Magistrate
Judges Act, 28 U.S.C. § 636(b)(1), and the Local Rules of Court for Magistrate Judges.
Defendants each filed a motion to dismiss (ECF Nos. 8 and 19) arguing that the
Complaint should be dismissed for failure to state a claim. Plaintiff did not respond to the
motions. In the absence of any timely response by Plaintiff, the magistrate judge deemed the
motions to dismiss to be ripe for disposition and analyzed the Complaint on the merits. Ray v.
Reed, 240 F. App’x 455, 456 (3d Cir. 2007).
On May 13, 2015, Magistrate Judge Eddy filed a Report and Recommendation (ECF
No. 28) recommending that the motions to dismiss be granted. The Report and Recommendation
was mailed to Plaintiff at his listed address of record, but was returned to the Court marked
“return to sender, vacant, unable to forward.” (ECF No. 29.)1

Plaintiff has not provided the

At the time Plaintiff commenced this lawsuit he was incarcerated at the Allegheny
County Jail. On January 26, 2015, Plaintiff notified the Court that he had been released from the
Allegheny County Jail and provided an address change of 7130 Frankstown Ave., Pittsburgh, PA
15208. (ECF No. 22.)
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Court with a forwarding address and the Court has been unable to find a forwarding address for
Plaintiff.
If and when Plaintiff provides a new address, the Court will send him a copy of the
Report and Recommendation, as well as this Memorandum Order.

Furthermore, in an

abundance of caution, the Court will send this Order to Plaintiff at the only address he has
provided the Court.
The Court has reviewed the matter and concludes that the Report and Recommendation
correctly analyzes the issues and makes a sound recommendation. Accordingly, after de novo
review of the pleadings and documents in the case, together with the Report and
Recommendation, the following order is entered:
AND NOW, this 2nd day of June, 2015:
1.

The Motions to Dismiss filed by Defendant John Smith and the County

Defendants (ECF Nos. 8 and 19, respectively) are GRANTED; and
2.

IT IS FURTHER ORDERED that the Report and Recommendation (ECF No.

28) dated May 13, 2015, is ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules
of Appellate Procedure, Plaintiff has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.
BY THE COURT:
s/Terrence F. McVerry
Senior United States District Judge

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cc:

DEERING CARTER
7130 Frankstown Avenue
Pittsburgh, PA 15208
(via U.S. First Class Mail)
Dennis R. Biondo, Jr.
Allegheny County Law Department
(via ECF electronic notification)
Alan S. Gold
Gold & Ferrante, PC
(via ECF electronic notification)

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