SIMMONS v. GIMORE et al

Filing 45

ORDER that Defendants partial motion to dismiss 21 is GRANTED, as follows:1. The First Amendment retaliation claim and the RLUIPA claim atCount II are DISMISSED, without prejudice, against Defendants Albonde, Zaken, and Gilmore. Plaintiff is allowe d to amend his complaint to more clearly define such claims by April 15, 2019; 2. Count IV is DISMISSED, with prejudice, against Defendants Zaken, Leggett, Longstreth, Gilmore, Shawley, and Smith;3. Count V is DISMISSED, with prejudice, against Defen dants Benner, Himes, and Dupont; 4. Count VI is DISMISSED, with prejudice, against DefendantsGilmore, Zaken, Leggett, Smith, Shrader, Kennedy, Longstreth, Younkin, Varner, Dupont, Shawley, and Benner; and 5. The Eighth Amendment sexual harassment cla im at Count VII against Defendants Carter and Imhof is DISMISSED, with prejudice. The report and recommendation of Magistrate Judge Lanzillo, issued October 31, 2018 40 , is adopted as the opinion of the court. Signed by Judge Susan Paradise Baxter on 3/26/19. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
AUGUSTUS SIMMONS,
Plaintiff,
v.
ROBERT GILMORE, et al.,
Defendants.

)
)
)
)
)
)
)
)

C.A. No. 17-996 Pittsburgh
District Judge Susan Paradise Baxter
Magistrate Judge Richard A. Lanzillo

MEMORANDUM ORDER
This prisoner civil rights action was received by the Clerk of Court on August 2, 2017
and was referred to the undersigned, then a United States Magistrate Judge, for report and
recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules
72.1.3 and 72.1.4 of the Local Rules for Magistrates. On January 18, 2018, Defendants filed a
partial motion to dismiss complaint for failure to state a claim [ECF Nos. 21], to which Plaintiff
filed a response and brief in opposition on April 19, 2018 [ECF Nos. 29, 30].
On September 14, 2018, the undersigned was sworn in as a United States District Judge.
This action was reassigned to the undersigned, as presiding judge, on September 17, 2018, and
was subsequently referred to United States Magistrate Judge Richard A. Lanzillo for all pretrial
proceedings on September 27, 2018.
On October 31, 2018, Judge Lanzillo issued a Magistrate Judge’s Report and
Recommendation (“R&R”) recommending that Defendants’ partial motion to dismiss be granted.
[ECF No. 40]. On November 23, 2018, Plaintiff filed Objections to the R&R [ECF No. 44], in
which he essentially reiterates, and expands upon, the same arguments raised in his brief in

opposition to Defendants’ motions to dismiss. Plaintiff attached several pages of exhibits to his
Objections, some of which had not previously been before the Court. See ECF Nos. 44-1 – 44-3,
44-7 – 44-9, and 44-11 – 44-12. It is procedurally inappropriate to introduce new evidence in
support of Objections because these materials were not before the Magistrate Judge making the
recommendation. For this reason, these exhibits will not be considered.
After de novo review of the complaint and documents in the case, together with the report
and recommendation and objections thereto, the following order is entered:
AND NOW, this 26th day of March, 2019;
IT IS HEREBY ORDERED that Defendants’ partial motion to dismiss [ECF No. 21] is
GRANTED, as follows:
1.

The First Amendment retaliation claim and the RLUIPA claim at
Count II are DISMISSED, without prejudice, against Defendants
Albonde, Zaken, and Gilmore. Plaintiff is allowed to amend his
complaint to more clearly define such claims by April 15,
2019;

2.

Count IV is DISMISSED, with prejudice, against Defendants
Zaken, Leggett, Longstreth, Gilmore, Shawley, and Smith;

3.

Count V is DISMISSED, with prejudice, against Defendants
Benner, Himes, and Dupont;

4.

Count VI is DISMISSED, with prejudice, against Defendants
Gilmore, Zaken, Leggett, Smith, Shrader, Kennedy, Longstreth,
Younkin, Varner, Dupont, Shawley, and Benner; and

5.

The Eighth Amendment sexual harassment claim at Count VII
against Defendants Carter and Imhof is DISMISSED, with
prejudice.

The report and recommendation of Magistrate Judge Lanzillo, issued October 31, 2018
[ECF No. 40], is adopted as the opinion of the court.

________________________________
SUSAN PARADISE BAXTER
United States District Judge
cc:

The Honorable Richard A. Lanzillo
U.S. Magistrate Judge