DARST v. ALTOONA REGIONAL HOSPITAL et al

Filing 11

MEMORANDUM ORDER - it is Ordered that 8 amended complaint is dismissed for failure to state a federal claim, without prejudice to proceeding in the appropriate state court on any state law negligence claim only. See 42 Pa.C.S.§ 5103. No further leave to amend is granted; 9 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 1/7/2015. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DUANE CARNELL DARST,
Plaintiff,
v.
ALTOONA REGIONAL HOSPITAL,
et al.,
Defendants

Case No. 3:14-cv-264-KRG-KAP

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, and Local Civil Rule 72 for Magistrate Judges.
The Magistrate Judge filed a Report and Recommendation
on December 30, 2014, docket no. 9, recommending that plaintiff's
amended

complaint

be

dismissed

for

failure

to

state

a

claim,

without leave to further amend.
The plaintiff was notified that pursuant to 28 U.S.C.§
636 (b) ( 1) ,

he had fourteen days to file

filed timely objections at docket no.
jurisdiction

over

claims

that

objections.

10.

prison

Plaintiff

Federal courts have
officials

have

deliberately indifferent to their serious medical needs.
v.

Gamble,

429

U.S.

97,

106

(1976).

A claim

of

been

Estelle

deliberate

indifference requires facts allowing the inference that a named
defendant was aware of facts that showed a risk of serious harm to
plaintiff, in fact drew the conclusion that plaintiff was at risk
of serious harm, and then disregarded that conclusion.
v. Brennan, 511 U.S. 825, 837 (1994).

See Farmer

The amended complaint fails

to allege even negligence as to any defendant, much less deliberate

indifference.

It is possible that plaintiff might allege facts

sufficient to state a negligence claim against some defendant, but
that would be a state law claim redressable in state court and
would present no issue supporting retention of federal jurisdiction
under 28 U.S.C.§ 1367.
Upon de novo review of the record of this matter,

the

Report and Recommendation and the timely objections thereto, the
following order is entere~h
AND NOW, this
ORDERED

that

/ •
the

day of January, 2015, it is
amended

complaint

is

dismissed

for

failure to state a federal claim, without prejudice to proceeding
in the appropriate state court on any state law negligence claim
only.

See 42 Pa.C.S.§ 5103.

No further leave to amend is granted.

The Report and Recommendation is adopted as the opinion of the
Court.

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

~~

KIM R. GIBSON,
UNITED STATES DISTRICT JUDGE
Notice by U.S. Mail to:
Duane C. Darst KB-7848
S.C.I. Houtzdale
P.O. Box 1000
Houtzdale, PA 16698-1000

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