PEARSON v. PRISON HEALTH SERVICE et al

Filing 68

MEMORANDUM ORDER granting 53 Motion for Summary Judgment. It is Ordered that summary judgment is granted to the remaining Defendants; 63 Report and Recommendation is adopted as the opinion of the Court. The Clerk shall mark this matter closed, and as more fully stated in said Memorandum Order. Signed by Judge Kim R. Gibson on 9/16/2011. (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,
Defendants
MEMORANDUM ORDER
This matter was referred to Magistrate Judge Keith A.
Pesto for pretrial proceedings in accordance with the Magistrates
Act, 28 U.S.C.§ 636(b) (1), and subsections 3 and 4 of Local Rule
72.1 for Magistrate Judges.
The Magistrate Judge filed a Report and Recommendation
on August
judgment

18,
be

2011,

granted

docket
to

no.

the

63,

recommending

remaining

defendants

that
for

summary
lack

of

prosecution and additionally granted on the merits as to defendant
McGrath.

On August

3,

2011,

the Magistrate

Judge

had denied

plaintiff's motion for extension of time to respond to the motion
for

summary

judgment

that

was

based on an

alleged

failure

by

defendant McGrath to answer a discovery request, ordering plaintiff
to "immediately" file a motion specifying what material had been
requested but not produced.

docket no.

61

The Magistrate Judge

also observed that plaintiff had never complied with an order
entered in January, docket no. 36, directing plaintiff to provide
directions for service on three other defendants, and also ordered
plaintiff to "immediately" correct that.

aintiff
order.

After

the

did

not

respond

Magistrate

to

Judge

the

Magistrate

recorrunended

Judge's

dismissal

for

failure to prosecute and the parties were notified pursuant to 28
U.S.C.§

636(b) (1)

objections

to

that

the

they had

Report

and

fourteen

days

to

Recorrunendation,

file

written

plaintiff

sent

(without explanation) to the Clerk service copies of his complaint
dated January 2011 and service of process forms dated August 20,
2011.

docket no. 65.

That is eight months late and almost three

weeks after an order to provide them" irrunediately.

fI

See docket no.

61, docket no. 36.
As for the Report and Recorrunendation recorrunending grant
of the motion filed by defendant McGrath on the merits, plaintiff
filed timely objections that, to the extent they address the Report
and

Recorrunendation,

complaint.

docket

reiterate

the

no.

At

66.

allegations
the

surrunary

in

the

judgment

amended
stage,

plaintiff is required to produce, or at least point to, evidence
admissible at trial showing that there is a genuine issue of fact
that defendant McGrath's state of mind in providing Pearson with
medical care was deliberately indifferent.

Plaintiff has produced

nothing to refute defendant McGrath's evidence.
Upon de novo review of the record of this matter,

the

Report and Recorrunendation, and the timely objections thereto, the
following order is entered:

2

AND NOW, this

.fhday

~

of September, 2011, it is

ORDERED that summary judgment is granted to the remaining
defendants.

The

Report

opinion of the Court.

and

Recommendation

is

adopted

as

the

The Clerk shall mark this matter closed.
BY THE COURT:

KIM R. GIBSON,
UNITED STATES DISTRICT JUDGE
Notice to counsel of record by ECF and by U.S. Mail to:
Antonio Pearson BL-0521
S.C.I. Coal Township
1 Kelley Drive
Coal Township, PA 17866-1021

3