BUXTON v. HILL et al

Filing 44

MEMORANDUM OPINION re 33 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by OFFICER FRED HILL. 27 First MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by OFFICER STEINER and filed by OFFICER BRETT EBBITT. The motions to dismiss will be granted with prejudice. An appropriate order follows. Signed by Chief Judge Joy Flowers Conti on 7/22/2016. (smc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PITTSBURGH
ANDY BUXTON,
Plaintiff,
vs.
OFFICER FRED HILL, OFFICER BRETT
EBBITT, OFFICER STEINER,
INDIVIDUALLY AND IN THEIR
OFFICIAL CAPACITIES;
Defendants,

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2:15-CV-00646-JFC

MEMORANDUM OPINION
CONTI, Chief District Judge
The present action was filed with this court on May 19, 2015. The case was referred to a
United States Magistrate Judge for pretrial proceedings in accordance with the Magistrate Judges
Act, 28 U.S.C. § 636(b)(1) and Local Rules of Court 72.C and 72.D.
Officers Michaels Brett Ebbitt, Michael Steiner and Fred Hill filed motions to dismiss the
complaint filed by plaintiff Andy Buxton (“Plaintiff”) for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). ECF Nos. 27 & 33. The magistrate judge’s Report and
Recommendation filed June 23, 2016, recommended that the motions to dismiss be granted and
Plaintiff’s complaint be dismissed with prejudice. ECF No. 39. Service of the Report and
Recommendation was made on all parties. The parties were informed that in accordance with
the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local Rule of Court 72.D.2
they had until July 5, 2016 to file any objections. Plaintiff filed a Motion for Reconsideration of
the Report and Recommendation on July 5, 2016, which will be deemed to be timely filed
objections to the Report and Recommendation. ECF No. 40. In the objections, plaintiff reargues
what he stated in his brief in opposition to the motion to dismiss (ECF No. 37). Specifically he
argues that he set forth extraordinary circumstances to support tolling of the statute of
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limitations. As the magistrate judge correctly noted Plaintiff’s claims are barred by the statute of
limitations on the face of the complaint. The magistrate judge is also correct that the reasons
Plaintiff set forth do not provide a basis for equitable tolling (ECF No. 39 at 7).

After a review

of the objections the court must conclude that they are without merit and the motions to dismiss
will be granted with prejudice.
An appropriate order follows.

BY THE COURT,
Date: July 22, 2016

cc:

/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Court Judge

The Honorable Cynthia Reed Eddy
United States District Court
Western District of Pennsylvania
ANDY BUXTON
113291 & 3E
Allegheny County Jail
950 Second Avenue
Pittsburgh, PA 15219-3100
Counsel of record via CM-ECF

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