WESLEY v. BEARD et al
MEMORANDUM ORDER denying as moot 73 Motion for Summary Judgment; granting 75 Motion for Sanctions; denying as moot 83 Motion for Judgment on the Pleadings; denying as moot 88 Motion for Sanctions; denying 91 Motion for Preliminary Injunctio n; adopting 99 Report and Recommendation; adopting 100 Report and Recommendation as the Opinions of the Court. It is further Ordered that the Complaint is Dismissed with prejudice against the remaining Defendants. It is further Ordered that the Clerk of Court mark this case Closed. And it is further Ordered that pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, Plaintiff has thirty (30) days to file a notice of appeal as provided by Rule 3 of the Federal Rules of Appellate Procedure, and as more fully stated in said Memorandum Order. Signed by Judge Kim R. Gibson on 11/23/2011. (dlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
District Judge Kim R. Gibson
NICHOLAS SCHARFF, Medical Director, Bureau
of Health Care Services; ALLEN B. FOGEL,
Director, Bureau of Health Care Services;
EUGENE GINCHEREON, Assistant Medical
Director, Bureau of Health Care Services; JOHN
Administrator, Medical Staff, DENNIS THOMAS,
Acting Correctional Health
Civil Action No. 09 - 285J
On November 9, 201 0, Plaintiff, Daniel Wesley, an inmate presently incarcerated at the State
Correctional Institution at Coal Township, Pennsylvania, commenced this civil action against various
individuals and/or agents employed with the Pennsylvania Department of Corrections (DOC)
claiming that Defendants denied him acc·ess to a colostomy reversal and, therefore, are liable
pursuant to the Civil Rights Act of 1871,42 U.S.C. § 1983. The matter was referred to a United
States magistrate judge for pretrial proceedings in accordance with the Magistrate Judges Act, 28
U.S.C. § 636(b)(l), and the Local Rules for Magistrate Judges.
On August 10, 20 I 0, Defendants filed a Motion to Dismiss the Complaint (ECF No. 24). On
February 22,2011, the Court granted Defendants' Motion to Dismiss (ECF No. 24) as to Defendants
Beard, Varner, Rozum, Sroka, Gibson, Glunt, and Joseph, and denied it as to Defendants Scharff,
Fogel, Ginchereau, Visinsky, and Thomas. On April15, 2011, Plaintiff filed a Motion for Partial
Summary Judgment and a Brief in Support of that Motion (ECF Nos. 73, 74). Attached to the Brief
are two documents wherein Plaintiff forged the signatures of one of the Defendants and counsel for
the Defendants in this matter. Also, in typewritten font, he forged the names of the former Attorney
General of the Commonwealth of Pennsylvania and the Chief of the Litigation Section of the
Attorney General's office, as alleged witnesses to these forged signatures. The document at ECF No.
74-1 purports to be a settlement agreement between Plaintiff and Defendant Thomas, witnessed by
then Attorney General Thomas Corbett and counsel, agreeing to payment of $875,000.00 in
settlement of Plaintiffs claims.
In response to this Motion, on April 15, 2011, Defendants filed a Motion for Sanctions
pursuant to Fed. R. Civ. Proc. 11 (ECF No. 75) and Exhibits in Support (ECF. No. 80). The Exhibits
contain declarations from Defendant Denise Thomas and Defendants' counsel Douglas Barbour
attesting to the fact that neither individual signed the document that was submitted by Plaintiff in
support of his case. The declarations further provide that the date of the alleged signatures was a
federal and state holiday and neither individual was at work on that date.
On July 13,2011, Plaintiff filed a Motion for Preliminary Injunction basically restating his
allegations and requesting that DOC send him to an outside hospital for a serious operation (ECF No.
As a result of the pending motions, on September 23, 2011, the magistrate judge filed a
Report and Recommendation recommending that Plaintiffs Motion for Preliminary Injunction be
denied (ECF No. 99).
On September 26, 2011, the magistrate judge filed a Report and
Recommendation recommending that Defendants' Motion for Sanctions (ECF No. 75) be granted,
that the Complaint be dismissed with prejudice against all Defendants, and that Plaintiffs Motion for
Partial Summary Judgment (ECF No. 73), Plaintiffs Motion for Sanctions (ECF No. 88), and
Defendants' Motion for Judgment on the Pleadings (ECF No. 83) all be denied as moot (ECF No.
I 00). Plaintiff filed several objections to the report and recommendations (ECF Nos. I 04, I 05, I 08
and 109). Plaintiffs Objections do not undermine the recommendations of the magistrate judge.
After de novo review of the pleadings and documents in the case, together with the Report
and Recommendations, and the Objections thereto, the following order is entered:
AND NOW, this 23('ty ofNovember, 20II;
IT IS HEREBY ORDERED that Plaintiffs Motion for Preliminary Injunction (ECF No.
9I) is DENIED.
IT IS FURTHER ORDERED that Defendants' Motion for Sanctions (ECF No. 75) is
IT IS FURTHER ORDERED that the Complaint is DISMISSED with prejudice against
the remaining Defendants.
IT IS FURTHER ORDERED that Plaintiffs Motion for Partial Summary Judgment (ECF
No. 73), Defendants' Motion for Judgment on the Pleadings (ECFNo. 83), and Plaintiffs Motion for
Sanctions (ECF No. 88), all are DENIED as moot.
IT IS FURTHER ORDERED that the Report and Recommendations dated September 23,
20II (ECF no. 99), and September 26, 20II (ECF No. 100) respectively are ADOPTED as the
Opinions of the Court.
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(l) of the Federal Rules of
Appellate Procedure, Plaintiff has thirty (30) days to file a notice of appeal as provided by Rule 3 of
the Federal Rules of Appellate Procedure.
Kim R. Gibson
United States District Judge
1600 Walters Mill Road
Somerset, PA 15510
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