PEARSON v. PRISON HEALTH SERVICE et al

Filing 121

MEMORANDUM ORDER - After de novo review of the amended complaint, docket no. 35 , the Reports and Recommendations, and the plaintiff's timely objections at docket no. 118 to the Reports and Recommendations, the amended complaint is dismissed as to all defendants except defendants McGrath, Kline, Rhodes, Papuga, and Thomas. The Reports and Recommendations, as supplemented by this Memorandum Order, are adopted as the opinion of the court. Pearson has failed, despite repeated extensions of time, to state any federal claims against any other defendant and there is no reason to exercise supplementary jurisdiction under 28 U.S.C.§ 1367 over any further attempts by Pearson to allege state law claims against any defendant. No further a mendment of the complaint is allowed. The motion at docket no. 120 is denied. The matter remains with the Magistrate Judge for pretrial proceedings, including the setting of the final pretrial schedule, and as more fully stated in said Memorandum Order. Signed by Judge Kim R. Gibson on 6/23/2014. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANTONIO PEARSON,
Plaintiff

v.

:Case No. 3:09-cv-97-KRG-KAP

PRISON HEALTH SERVICE, et al.,
Defendants
Memorandum Order
This matter is before Magistrate Judge Keith A. Pesto for
pretrial proceedings.

Appointed counsel

for

plaintiff Pearson

filed a Motion for Allocation of Funds at docket no.
Magistrate

Judge

denied

that

motion

at

docket

115.

no.

117,

The
and

plaintiff filed a timely appeal at docket no. 118.
At docket no. 117, the Magistrate Judge also recommended
that

with

the

exception of

defendants

McGrath,

Kline,

Rhodes,

Papuga, and Thomas the complaint be dismissed for failure to state
any federal claim.

Pearson filed objections at docket no. 118.

The objections make two procedural arguments:
been no

"Proper 28

U.S.C.§

1915(e) (2) (B)

1)

that there has

Review;"

and 2)

that

Pearson should be allowed to amend his complaint yet again "as he
could likely present meritorious deliberate indifference or medical
negligence

claims

against

the

twenty-five

Defendants

that

the

Magistrate Judge recommends be dismissed," and one substantive
argument: 3) that as to defendant Visinsky the amended complaint
states a claim for deliberate indifference.
The appeal from the denial of proposed court funding of
an expert witness for plaintiff Pearson is denied.

The Magistrate

Judge's order is neither clearly erroneous nor contrary to law.
See Fed.R.Civ.P. 72(a)

and 28 U.S.C.§ 636(b) (1).

As for the recommendation that the amended complaint be
dismissed in part, the assertion that there has not been a proper
review

of

the

amended

complaint

Recommendation at docket no.
Recommendation

is

wrong.

The

Report

and

117 referred back to the Report and

(although it did not cite it by number)

no. 36, filed three years earlier.

at docket

That Report and Recommendation

contained an extensive review of the amended complaint, and Pearson
even filed objections to it

(albeit untimely ones)

at docket no.

47.
Even if there had been no analysis by a lower court or
Magistrate Judge it would be wrong for a plaintiff to claim to a
reviewing court that a lower court's ruling or a Magistrate Judge's
recommendation that

a

complaint

is

inadequate

should simply be

disregarded because it is "likely" that yet another opportunity to
amend would cure the inadequacy.

That is especially true when

plaintiff did not even submit a proposed amended complaint.
It is also improper to argue, as Pearson does at docket
no. 117, that the allegations against one defendant are a basis for
claiming that a Report and Recommendation erred in its analysis of
claims attempted against two score other defendants.

That is a

textbook example of a waiver of any argument that the Reports and

2

Recommendations

erred

in

their

analysis

of

claims

against

any

defendant other than Visinsky.
As for the claim against defendant Visinsky, the amended
complaint is the sort of threadbare recital of the elements of a
cause of action supported by conclusory statements that the Supreme
Court said was inadequate in Ashcroft v. Iqbal, 556 U.S. 662, 67879 (2009).

The amended complaint asserts that defendant Visinsky

is an administrator ("CHCA"), not a treating physician.

Because

of the lack of allegations of fact that permit the inference that
Visinsky knew and was deliberately indifferent to the inadequacy
of treatment being provided by the health care personnel under his
direction, plaintiff is doubly removed from alleging that Visinsky
had the mental

state necessary for

liability.

See Spruill v.

Gillis, 372 F.3d 218, 236 (3d Cir.2004).
After

de

novo

review

of

the

amended

complaint,

the

Reports and Recommendations, and the plaintiff's timely objections
at docket no. 118 to the Reports and Recommendations, the amended
complaint
McGrath,

is

dismissed

Kline,

Recommendations,

as

all

defendants

supplemented by this Memorandum Order,

are

and

repeated extensions of time,
other

defendant

and

Thomas.

The

defendants
and

Papuga,

adopted as the opinion of the court.

any

except

Reports

Rhodes,
as

to

Pearson has failed, despite

to state any federal claims against
there

is

no

reason

to

exercise

supplementary jurisdiction under 28 U.S.C.§ 1367 over any further

3

attempts
defendant.

by

Pearson

to

allege

state

law

claims

against

any

No further amendment of the complaint is allowed.

The

motion at docket no. 120 is denied.
The matter remains with the Magistrate Judge for pretrial
proceedings, including the setting of the final pretrial schedule.

BY THE COURT:

DATE:TuNe

~1:.

23 2.0/tj

KIM R. GIBSON,
UNITED STATES DISTRICT JUDGE
Notice to counsel of record by ECF

4