DAVILA v. KOZAK

Filing 23

MEMORANDUM ORDER granting in part and denying in part 14 Motion to Dismiss. The Motion is denied with respect to Plaintiff's deliberate indifference claim and granted with respect to Plaintiff's simple negligence claim. It is further Or dered that this case is DISMISSED for Plaintiff's failure to prosecute because he has failed to keep the Court apprised of his current address and his whereabouts are unknown. It is further Ordered that the Report and Recommendation (ECF No. [2 2]) is ADOPTED as the opinion 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)(1) of the Federal Rules of Appellate Procedure, Petitioner 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 3/4/2014. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RAFAEL DAVILA,
Plaintiff,
V.

KARL KOZAK,
Defendant.

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Civil Action No. 13- 67J
District Judge Kim R. Gibson
Chief Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM ORDER

This matter is before the Court on Defendant Kozak's Motion to Dismiss (ECF No. 14)
and the magistrate judge's Report and Recommendation dated February 4, 2014 (ECF No. 22)
wherein she recommended that the Motion to Dismiss be denied in part and granted in part but
that this action be dismissed for Plaintiff's failure to prosecute.
The parties were served with the Report and Recommendation and informed that they
had until February 21, 2014 to file written Objections.

Even though the Department of

Corrections confirmed that Plaintiff is no longer incarcerated, Plaintiff was served with the
Report and Recommendation at SCI-Greene because that is his last known address of record. No
objections were ever filed.
Therefore, after de novo review of the pleadings and documents in the case, together with
the Report and Recommendation, the following order is entered.
AND NOW, this

tjf~ay of March, 2014,

IT IS HEREBY ORDERED that Defendant Kozak's Motion to Dismiss (ECF No. 14)

is DENIED in part and GRANTED in part. The Motion is denied with respect to Plaintiffs
deliberate indifference claim and granted with respect to Plaintiffs simple negligence claim.
IT IS FURTHER ORDERED that this case is DISMISSED for Plaintiffs failure to

prosecute because he has failed to keep the Court apprised of his current address and his
whereabouts are unknown.
IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 22) is
ADOPTED as the opinion 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)(1) of the Federal Rules

of Appellate Procedure, Petitioner 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

cc: Rafael Davila
179 Progress Drive
Waynesburg, PA 15370
(Via First Class Mail)
Counsel of Record
(Via ECF Electronic Mail)

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