MOSER v. JIN et al

Filing 51

MEMORANDUM AND ORDER. Defendants Robert D. Gilmore, Christopher H. Oppman, Irma Vihlida and John E. Wetzel's Motion to Dismiss Plaintiff's Complaint (Doc. 18 ) is GRANTED IN PART AND DENIED IN PART. Specifically, the Corrections Defendan ts' Motion to Dismiss is GRANTED on the ground that Plaintiff has failed to allege sufficient personal involvement on the part of Defendants Wetzel and Oppman, and the Complaint in its entirety hereby is DISMISSED WITH PREJUDICE against Defendan ts Wetzel and Oppman. IT IS FURTHER ORDERED that the Corrections Defendants' Motion to Dismiss is DENIED as to Defendants Gilmore and Vihlidal. IT IS FURTHER ORDERED that Defendant Jin's Motion to Dismiss (Doc. 29 ) is DENIED. The Magistrate Judge's Report and Recommendation (Doc. 42 ), dated October 27, 2016, hereby is adopted as the Opinion of the District Court. Signed by Judge Cathy Bissoon on 12/29/16. (jwr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DUSTIN MOSER,
Plaintiff,
v.
BYUNGHAK JIN, M.D., et al.,
Defendants.

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Civil Action No. 15-1516
Judge Cathy Bissoon
Magistrate Judge Cynthia Reed Eddy

MEMORANDUM AND ORDER
This case was referred to United States Magistrate Cynthia Reed Eddy for pretrial
proceedings in accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(l)(A) and (B), and
Local Rule of Civil Procedure 72.
On April 22, 2016, Defendants Robert D. Gilmore, Christopher H. Oppman, Irma Vihlida
and John E. Wetzel (“the Corrections Defendants”) filed a Motion to Dismiss of Plaintiff’s
Complaint. On June 17, 2016, Defendant Dr. Byunghak Jin filed a separate Motion to Dismiss
Plaintiff’s Complaint. On October 27, 2016, the Magistrate Judge issued a Report (Doc. 42)
recommending that the Corrections Defendants’ Motion to Dismiss be Granted in Part and
Denied in Part and that Dr. Jin’s Motion to Dismiss be Denied. Service of the Report and
Recommendation was made.
On December 1, 2016, Defendant Jin filed objections to the Report and
Recommendation. No response to Defendant Jin’s objections has been filed. .
After a de novo review of the pleadings and documents in the case, together with the
Report and Recommendation and the Objections thereto, the following Order is entered:

Defendants Robert D. Gilmore, Christopher H. Oppman, Irma Vihlida and John E.
Wetzel’s Motion to Dismiss Plaintiff’s Complaint (Doc. 18) is GRANTED IN PART AND
DENIED IN PART. Specifically, the Corrections Defendants’ Motion to Dismiss is
GRANTED on the ground that Plaintiff has failed to allege sufficient personal involvement on
the part of Defendants Wetzel and Oppman, and the Complaint in its entirety hereby is
DISMISSED WITH PREJUDICE against Defendants Wetzel and Oppman 1. IT IS FURTHER
ORDERED that the Corrections Defendants’ Motion to Dismiss is DENIED as to Defendants
Gilmore and Vihlidal. IT IS FURTHER ORDERED that Defendant Jin’s Motion to Dismiss
(Doc. 29) is DENIED. The Magistrate Judge’s Report and Recommendation (Doc. 42), dated
October 27, 2016, hereby is adopted as the Opinion of the District Court.
IT IS SO ORDERED.

December 29, 2016

s/Cathy Bissoon
Cathy Bissoon
United States District Judge

cc (via ECF email notification):
All counsel of record
cc (via First-Class U.S. Mail):
DUSTIN MOSER
GJ-3837
S.C.I. Greene
175 Progress Drive
Waynesburg, PA 15370
1

The Court will dismiss the Complaint with prejudice as to Defendants Wetzel and Oppman as
an amendment would be futile. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (holding
that district courts must permit a curative amendment within a set period of time unless such an
amendment would be inequitable or futile).
2