Summary
declining to dismiss plaintiff's failure to intervene claim after finding that the plaintiff's allegations were sufficient to state a plausible claim of excessive force
Summary of this case from Torres v. Allentown Police Dep'tOpinion
2:12cv984
03-28-2014
MELVIN KNIGHT, Plaintiff, v. JOHN R. WALTON, et al., Defendants.
Electronic Filing
District Judge David S. Cercone
Chief Magistrate Judge Lisa Pupo Lenihan
MEMORANDUM ORDER
AND NOW, this 28th day of March, 2014, after the Plaintiff, Melvin Knight, filed an action in the above-captioned case, and after a Report and Recommendation (ECF No. 66) was filed by the United States Magistrate Judge giving the parties until March 10, 2014, to file written objections thereto, and granting an extension until March 27, 2010, for objections to be received by the Court, and no objections having been filed or received, and upon independent review of the record, and upon consideration of the Magistrate Judge's Report and Recommendation, which is adopted as the opinion of this Court,
Plaintiff filed a Motion for Leave to Withdraw Proposed Objections (ECF No. 68) on March 27, 2010. In his motion, he states that he will not be filing any objections to the Magistrate's Report and Recommendation.
IT IS HEREBY ORDERED that for the reasons set forth in that Report and Recommendation, the Motion to Dismiss filed by the Nurse Defendants (ECF No. 47) is GRANTED as to Count XVIII against Nurse Harr and DENIED as to Count XIX against Nurse Kincaid.
IT IS FURTHER ORDERED that for the reasons set forth in the Report and Recommendation, the County Defendants' Motion to Dismiss (ECF No. 50) is GRANTED as to Counts I and XV (access to courts); Count XVI (excessive force); Counts II and IV (failure to intervene); Counts V, X, XI, XIV (retaliation); Counts III and XVII (due process); Count XX (failure to train subordinates); Counts XXI and XXII (conspiracy); and Count XXIII (preclusion to exhaust administrative remedies). The Motion to Dismiss is DENIED as to Counts VI, VIII, XII (excessive force); Counts VII, IX, XIII (failure to intervene); and Count XIX (deliberate indifference to physiological needs). The Motion to Dismiss is DENIED WITHOUT PREJUDICE as to Count XXIV (mental and emotional injury).
IT IS FURTHER ORDERED that Defendant J. Williams is DISMISSED WITHOUT PREJUDICE for the Plaintiff's failure to prosecute.
IT IS FURTHER ORDERED that Amendment of the Complaint as to the Counts where the Plaintiff has failed to state a claim is futile and such relief is not granted.
AND IT IS FURTHER ORDERED that this case is remanded back to the Magistrate Judge for all further pre-trial proceedings.
__________
David Stewart Cercone
United States District Judge
cc: Honorable Lisa Pupo Lenihan
Chief United States Magistrate Judge
Melvin Knight
KR 9608
SCI Greene
175 Progress Drive
Waynesburg, PA 15370
(Via First Class Mail)
Thomas P. Pellis, Esquire
Jennifer M. Kirschler, Esquire
George P. Kachulis, Esquire
(Via CM/ECFE lectronic Mail)