ARNOLD v. GILMORE et al

Filing 48

MEMORANDUM ORDER indicating that the Motion to Dismiss Plaintiff's Amended Complaint filed by Defendants (ECF No. 32 ) is GRANTED IN PART and DENIED IN PART as follows: The motion is GRANTED as to Plaintiff's due process claims which are h ereby dismissed with prejudice; Defendants CO 1 M.R. Johnson, Hearing Examiner L.S. Kerns Barr, and Tracy Shawley, Grievance Coordinator, are dismissed with prejudice; The motion is DENIED as to Plaintiff's failure to protect claims; This claim proceeds against Superintendent R. Gilmore, Lt. E. Grego, and CO 1 Gray; the Report and Recommendation (ECF No. 44 ) dated June 23, 2017, is ADOPTED as the Opinion of the Court; Defendants shall file their Answers in accordance with Federal Rule of Civil Procedure 12(a)(4)(A); The matter is referred back to Magistrate Judge Eddy for all future pretrial matters (details more fully stated in said Memorandum Order). Signed by Judge Nora Barry Fischer on 7/24/2017. (bdk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KENNETH ARNOLD,
Plaintiff,
v.
SUPERINTENDENT R. GILMORE, et
al.,
Defendants.

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Civil Action No. 2: 16-cv-1299
United States District Judge
Nora Barry Fischer

MEMORANDUM ORDER
Plaintiff, Kenneth Arnold, commenced this case on August 26, 2016, 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. On December 27, 2016, Defendants filed a motion to
dismiss. (ECF No. 25.) In response, Plaintiff filed an Amended Complaint on January 20, 2017.
(ECF No. 29.)
On February 7, 2017, Defendants filed a motion to dismiss the Amended Complaint
(ECF No. 32). Plaintiff responded in opposition to the motion. (ECF No. 38, ECF No. 39).
On June 23, 2017 Magistrate Judge Eddy filed a Report and Recommendation (ECF No.
44) recommending that the motion be granted as to Plaintiff’s due process claims, but denied as
to Plaintiff’s failure to protect claims.

The parties were served with the Report and

Recommendation at their listed addresses of record and advised that any written objections by
Plaintiff were due by July 13, 2017, and any written objections by Defendants were due by July
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10, 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 24th day of July, 2017:
1.

The Motion to Dismiss Plaintiff’s Amended Complaint filed by Defendants (ECF

No. 32) is GRANTED IN PART and DENIED IN PART as follows:

The motion is

GRANTED as to Plaintiff’s due process claims which are hereby dismissed with prejudice.
Defendants CO 1 M.R. Johnson, Hearing Examiner L.S. Kerns Barr, and Tracy Shawley,
Grievance Coordinator, are dismissed with prejudice.
The motion is DENIED as to Plaintiff’s failure to protect claims. This claim proceeds
against Superintendent R. Gilmore, Lt. E. Grego, and CO 1 Gray.
3.

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

44) dated June 23, 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.

BY THE COURT:
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge

cc:

KENNETH ARNOLD
GN-7646
SCI Forest
Post Office Box 945
Marienville, PA 16239
(via U.S. First Class Mail)
John P. Senich, Jr.
Office of Attorney General
(via ECF electronic notification)

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