HOUSER v. WIDENOUR et al

Filing 109

MEMORANDUM ORDER adopting #92 Report and Recommendations, GRANTING #65 Defendant America Service Group, Inc.'s Motion to Dismiss; GRANTING #67 Defendant Diamond Pharmacy Service's Motion to Dismiss; and GRANTING #69 Defendant Allegheny General Hospital's Motion to Dismiss. These Defendants shall be dismissed from this action. Signed by Judge Arthur J. Schwab on 06/22/2017. (eet)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DARIEN HOUSER,
Plaintiff,
v.
WETZEL, et al.,
Defendants.

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16-cv-1039
ELECTRONICALLY FILED

MEMORANDUM ORDER ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION (DOC. NO. 92)
This prisoner civil rights suit was commenced on July 14, 2016 with the submission of a
complaint and a petition to proceed in forma pauperis 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 Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrate
Judges. The case was administratively closed pending payment of the initial partial filing fee.
Payment of the partial filing fee was received on November 8, 2016, and the case was reopened.
(Doc. No. 20). A delay ensued again during which time the U.S. Marshal was effectuating
service on the approximately twenty-five (25) named defendants.
In January of 2017, Defendants Diamond Pharmacy and Allegheny General filed motions
to dismiss and the DOC Defendants filed a motion for more definite statement. By Order of
February 1, 2017, the Magistrate Judge granted the motion for more definite statement and
ordered Plaintiff to file an amended complaint which complies with Federal Rules of Civil
Procedure 8, 11, and 20 by March 7, 2017. The motions to dismiss were denied without
prejudice.

On March 8, 2017, Plaintiff’s Amended Complaint was filed.1 (Doc. No. 56). On March
28, 2017, America Service Group, Diamond Pharmacy, and Allegheny General filed Motions to
Dismiss. (Doc. Nos. 65, 67, and 69). On May 2, 2017, Plaintiff filed an Omnibus Response to
these motions (Doc. No. 80).
Upon the completion of briefing, the magistrate judge filed a Report and
Recommendation (“R&R”) recommending that the three motions to dismiss be granted and
Plaintiff not be granted leave to amend as it would be futile. (Doc. No. 92). Plaintiff filed timely
objections to the report and recommendation (Doc. No. 95), to which Defendant America
Service Group filed a Reply Brief. (Doc. No. 106).
Where, as here, objections have been filed, the court is required to make a de novo
determination about those portions of the R&R to which objections were made. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b). The district court may accept, reject, or modify the recommended
disposition, as well as receive further evidence or return the matter to the magistrate judge with
instructions.
The Court finds that Plaintiff’s objections to not undermine the recommendation of the
Magistrate Judge. Plaintiff raises several objections, none of which require additional comment.
Plaintiff’s objections are nothing more than a restatement of his “legal” conclusions, which were
discussed and soundly rejected in the R&R. The Magistrate Judge thoroughly analyzed each of
Plaintiff’s claims against these three Defendants and explained in detail why Plaintiff’s claims
could not survive the motions to dismiss.

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In the Amended Complaint, Plaintiff added five additional defendants: Manufacturer of
Lubrisoft Lotion / Major Pharmaceuticals; Manufacturer of Rugby Anti Dandruff Shampoo /
Rugby Laboratories; DOC Chief Medical Director, Mr. Hice, and Mail Room Supervisor D.
Geehring.
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After de novo review of the pleadings and documents in this case, together with the report
and recommendation, and the Objections thereto, the Court finds that the report and
recommendation should be adopted as the opinion the Court. Accordingly, it is ORDERED as
follows:
1.

The Motion to Dismiss, Or In The Alternative, Motion for More Definite

Statement Pursuant to Rule 12(e) filed by Defendant America Service Group, Inc. (ECF No. 65)
is GRANTED. Defendant America Service Group, Inc. is hereby dismissed with prejudice.
2.

The Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6) filed by Defendant

Diamond Pharmacy Services (Doc. No. 67) is GRANTED. Defendant Diamond Pharmacy
Services is hereby dismissed with prejudice.
3.

The Motion to Dismiss Plaintiff’s Amended Complaint filed by Allegheny

General Hospital (Doc. No. 69) is GRANTED. Defendant Allegheny General Hospital is
hereby dismissed with prejudice.
It is further ORDERED that the Report and Recommendation (Doc. No. 92) is
ADOPTED as the Opinion of the Court.
This matter is referred back to Magistrate Judge Eddy for all further pretrial proceedings.
SO ORDERED this 22nd day of June, 2017.
s/Arthur J. Schwab
Arthur J. Schwab
United States District Judge
cc:

DARIEN HOUSER
GL-7509
SCI Greene
175 Progress Drive
Waynesburg, PA 15370
(via U.S. First Class Mail)
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all counsel of record
(via ECF electronic notification)

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