DUNCAN v. BLACK et al

Filing 68

MEMORANDUM ORDER indicating that: 1. The Motion to Dismiss Plaintiff's Amended Complaint filed by Defendants Cercone and Coleman 53 is denied; 2. The Motion to Dismiss Plaintiff's Amended Complaint filed by Defendant Black 55 ; 3. t hat the Report and Recommendation 66 is adopted as the Opinion of the Court; 4. Defendants shall file their Answers in accordance with Federal Rule of Civil Procedure 12(a)(4)(A); 5. The matter is referred back to Magistrate Judge Eddy for all future pretrial matters. Signed by Judge Nora Barry Fischer on 2/8/17. (jg)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA BRANDON DUNCAN, Plaintiff, v. SERGEANT BLACK, C.O. CERCONE, and SUPERINTENDENT COLEMAN, Defendants. ) ) ) ) ) ) ) ) ) ) Civil Action No. 2:15-cv-01347 District Judge Nora Barry Fischer MEMORANDUM ORDER Plaintiff, Brandon Duncan, commenced this case on October 16, 2015, with the filing of a motion for leave to proceed in forma pauperis with attached Civil Rights Complaint. (ECF No. 1.) The case 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. In May of 2016, Defendants filed motions to dismiss. (ECF No. 23, ECF No. 27.) In response, Plaintiff filed an Amended Complaint on August 3, 2016. (ECF No. 50.) On August 15, 2016, Defendants Cercone and Coleman filed a motion to dismiss the Amended Complaint (ECF No. 53) and Sergeant Black filed a separate motion to dismiss. (ECF No. 55.) Plaintiff responded in opposition to both motions. (ECF No. 59, ECF No. 60). Defendant Black filed a Reply Brief (ECF No. 61), to which Plaintiff responded. (ECF No. 62.) On January 19, 2017 Magistrate Judge Eddy filed a Report and Recommendation (ECF No. 66) recommending that both motions be denied. The parties were served with the Report and Recommendation at their listed addresses of record and advised that any written objections 1 by Plaintiff were due by February 6, 2017, and any written objections by Defendants were due by February 2, 2017. To date, no party has filed any objections and no party has sought an extension of time in which to do so. 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 8th day of February, 2017: 1. The Motion to Dismiss Plaintiff’s Amended Complaint filed by Defendants Cercone and Coleman (ECF No. 53) is DENIED; 2. The Motion to Dismiss Plaintiff’s Amended Complaint filed by Defendant Black (ECF No. 55) is DENIED; 3. IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 66) dated January 19, 2017, is ADOPTED as the Opinion of the Court. 4. Defendants shall file their Answers in accordance with Federal Rule of Civil Procedure 12(a)(4)(A). 5. The matter is referred back to Magistrate Judge Eddy for all future pretrial matters. /s/ Nora Barry Fischer Nora Barry Fischer United States District Judge cc: BRANDON DUNCAN ES-1003 S.C.I Greene 175 Progress Drive Waynesburg, PA 15370 (via U.S. First Class Mail) Allen M. Lopus Clark Hill PLC (via ECF electronic notification) Jerri Ann Ryan Clark Hill Thorp Reed (via ECF electronic notification) Timothy Mazzocca Office of Attorney General (via ECF electronic notification) 3

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