LANE v. ROZUM et al

Filing 148

MEMORANDUM ORDER - it is ORDERED that the motion for summary judgment at ECF no. 125 is granted. Judgment is entered for the Pennsylvania Department of Corrections. The motion for summary judgment at ECF no. 121 is denied without prejudice: I wil l consider the entire motion for summary judgment by Dr. Rashida Mahmud when the discovery ordered by the Magistrate Judge has been completed, together with any supplemental materials filed by the parties in support of their positions on summary jud gment and any supplemental Report and Recommendation by the Magistrate Judge; 142 Report and Recommendation, as relevant, is adopted as the opinion of the Court. The matter remains before the Magistrate Judge for further proceedings, and as more fully stated in said Memorandum Order. Signed by Judge Kim R. Gibson on 9/29/2017. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN L. LANE,
Plaintiff
v.
GERALD ROZUM, SUPERINTENDENT,
S.C.I. SOMERSET, et al.,
Defendants

Case No. 3:13-cv-268-KRG-KAP

Memorandum Order
This matter is before Magistrate Judge Keith A. Pesto for
pretrial proceedings in accordance with the Magistrates Act,

28

U.S.C.§ 636 and Local Civil Rule 72.
The Magistrate Judge filed a Report and Recommendation
on September 12, 2017, ECF no. 142, recommending that the motion
for

summary

Corrections

judgment
at

ECF

by
no.

defendant
125

be

Pennsylvania

granted

as

to

Department
the

of

remaining

negligence claim and the motion for summary judgment by defendant
Dr. Rashida Mahmud at ECF no. 121 be granted as to the deliberate
indifference claim and denied as to the pendent negligence claim.
The parties were notified that, pursuant to 28 U.S.C.§
636(b) (1), they had fourteen days to file written objections to the
Report and Recommendation.

Plaintiff filed timely objections at

ECF no. 143, with a new declaration by plaintiff's medical expert
as an exhibit at ECF no. 144 and a new declaration by plaintiff's
engineer expert at ECF no. 14 6. Defendant Dr. Mahmud replied to the
objections as they applied to the claim against her at ECF no. 145.

I

have reviewed the objections de nova.

I

do not consider the

exhibit at ECF no. 144 or the exhibit at ECF no. 146.
When a district court considers written objections to the
report and recommendations of a magistrate judge in dispositive
matters the court "may also receive further evidence." See Alarmax
Distributors,
12756857

at

Inc.
*2

v.

Honeywell

(W.D.Pa.

Nov.

International
24,

Inc.,

2015) (quoting

28

2015

WL

U.S.C.§

636(b) (1)). The use of the word "may" suggests that in the absence
of good cause shown the court normally does not consider evidence
not presented to the magistrate judge because,

as the Court of

Appeals has pointed out, not considering on appeal evidence that
was not presented to the lower tribunal is a basic feature of the
common law tradition. See Haines v. Liggett Group Inc., 975 F.2d
81,

92-93

( 3d Cir. 1992) .

When evidence

is

not presented to a

magistrate judge and not even generated until after a Report and
Recommendation is filed,

to consider it would reduce the role of

magistrate judges from evaluating dispositive motions to giving the
parties

advice

about

what

they

need

to

file

in

the

"real"

proceeding before the court. That is particularly the case here,
where

the

supplemental

declarations

are

expressly

disputations of the Report and Recommendation.

2

written

as

After
Recommendation,

de

the

novo

review of

objections

the

record,

thereto

and

the

the

Report

reply

to

and
the

objection, the following order is entered:
AND NOW, this

~hday

of September, 2017, it is

ORDERED that the motion for summary judgment at ECF no.
125 is granted. Judgment is entered for the Pennsylvania Department
of Corrections. The motion for summary judgment at ECF no. 121 is
denied without prejudice:

I will consider the entire motion for

summary judgment by Dr. Rashida Mahmud when the discovery ordered
by the Magistrate Judge has been completed,

together with any

supplemental materials filed by the parties in support of their
positions on summary judgment and any supplemental Report and
Recommendation

by

Recommendation,

as

the

Magistrate

relevant,

Judge.

is adopted as

The

Report

and

the opinion of the

Court. The matter remains before the Magistrate Judge for further
proceedings.
BY THE COURT:

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

3