JAMISON v. BEARD et al

Filing 65

MEMORANDUM ORDER granting in part and denying in part 54 Motion to Dismiss for Failure to State a Claim. Plaintiff's complaint is dismissed without leave to amend as to all claims and defendants except for the claim that on June 9, 2009, de fendants Mottin, Crytzer, and Rambean used excessive force; 61 Report and Recommendation is adopted as the opinion of the Court. The matter remains with the Magistrate Judge for pretrial proceedings, and as more fully stated in said Memorandum Order. Signed by Judge Kim R. Gibson on 4/17/2012. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DASHAWN JAMISON,
Plaintiff,
v.
:Case No. 3:11-cv-98-KRG-KAP
JEFFREY A. BEARD, PENNSYLVANIA:
DEPARTMENT OF CORRECTIONS,
et al.,
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 Local
Rule 72 for Magistrate Judges.
The Magistrate Judge filed a Report and Recommendation on March 7, 2012,
docket no. 61, recommending that defendants' motion to dismiss, docket no. 54, be
granted, except for an excessive use of force claim against three defendants.
The parties were notified that, pursuant to 28 U.S.C.§ 636(b)(1), they had
fourteen days to serve and file written objections to the Report and Recommendation.
Plaintiff filed timely objections, docket no. 62 and 63, that are meritless. Under Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009):
Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice. /d., at 555, 127 S.Ct. 1955
(Although for the purposes of a motion to dismiss we must take all of the
factual allegations in the complaint as true, we "are not bound to accept as
true a legal conclusion couched as a factual allegation" (internal quotation
marks omitted)). Rule 8 marks a notable and generous departure from the
hyper-technical, code-pleading regime of a prior era, but it does not unlock
the doors of discovery for a plaintiff armed with nothing more than
conclusions. Second, only a complaint that states a plausible claim for
relief survives a motion to dismiss. /d., at 556, 127 S.Ct. 1955.
Determining whether a complaint states a plausible claim for relief will, as
the Court of Appeals observed, be a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense. 490

F.3d, at 157-158. But where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint has
alleged-but it has not "show[n]"-"that the pleader is entitled to relief." Fed.
Rule Civ. Proc. 8(a)(2).
Plaintiff offers, with the exception of the incident noted by the Magistrate Judge, no
allegations of fact stating a plausible claim for relief.

Further amendment of the

complaint is denied as futile for the reasons previously discussed in the Magistrate
Judge's original Order, Report and Recommendation (Doc. No. 3).
After de novo review of the record, the Report and Recommendation, and the
timely objections thereto, the following order is entered:
AND NOW, this

J7 .fh of April, 2012, it is
day

ORDERED that defendants' motion to dismiss, docket no. 54, is granted in part
and denied in part. Plaintiff's complaint is dismissed without leave to amend as to all
claims and defendants except for the claim that on June 9, 2009, defendants Mottin,
Crytzer, and Rambean used excessive force.

The Report and Recommendation is

adopted as the opinion of the Court. The matter remains with the Magistrate Judge for
pretrial proceedings.

Notice to counsel of record by ECF and by U.S. Mail to:
Dashawn Jamison GW-6262
S.C.I. Camp Hill
P.O. Box 200
Camp Hill, PA 17001-0200

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