Summary
finding plaintiff failed to state an Eighth Amendment claim where plaintiff claimed that cell block had one toilet, one shower and two sinks for twenty-two inmates as plaintiff failed to allege that the conditions on the cell block caused him any harm
Summary of this case from Grohs v. SantiagoOpinion
Civil Action No. 13-521
01-13-2014
SHANE LEE SHEPLER, Plaintiff, v. JEFFERSON COUNTY JAIL BROAD MEMBER, et al., Defendants.
District Judge Cathy Bissoon
Magistrate Judge Cynthia Eddy
MEMORANDUM ORDER
On April 11, 2013, this case was referred to United States Magistrate Judge Cynthia Eddy for pretrial proceedings in accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(1)(A) and (B), and Rules 72.C, 72.D and 72.G of the Local Rules for Magistrates. On December 11, 2013, the magistrate judge issued a Report and Recommendation (Doc. 37) recommending that Defendants' Motion to Dismiss (Doc. 27) be granted with prejudice with respect to Plaintiff's failure to protect claim and granted without prejudice with respect to Plaintiff's condition of confinement claim. It was further recommended that Plaintiff be given thirty (30) days to amend his complaint with respect to his condition of confinement claim. Service of the Report and Recommendation was made on the parties and Plaintiff did not filed objections.
On January 10, 2014, Plaintiff filed a Motion for a Hearing (Doc. 39). In his Motion, Plaintiff requests a hearing to "show how the Jefferson County Jail Board and Warden Thomas Elbel violated my constitutional rights[.]" The Court does not construe Plaintiff's Motion as timely filed Objections as Plaintiff does not reference the December 11, 2013 Report and Recommendation in his filing. Instead, Plaintiff moves for a hearing to offer testimony of alleged witnesses.
After a 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 13th day of January, 2014,
IT IS HEREBY ORDERED that the December 11, 2013 Report and Recommendation (Doc. 37) is adopted as the opinion of the Court. Defendants' Motion to Dismiss (Doc. 27) is granted with prejudice with respect to Plaintiff's failure to protect claim and granted without prejudice with respect to Plaintiff's condition of confinement claim. Plaintiff is granted leave until February 14, 2014, to file an amended complaint to plead sufficient facts to state an Eighth Amendment claim with respect to the following two allegations: (i) that he developed a staph infection as a result of using improperly sanitized razors and nail clippers (ii) that he was denied access to water and restroom facilities during mandatory recreation time. In addition, Plaintiff's Motion for a Hearing (Doc. 39) is denied.
_______________
Cathy Bissoon
United States District Judge
cc: All attorneys of record (via CM/ECF e-mail). SHANE LEE SHEPLER
KX 8935
SCI Albion
10745 Route 18
Albion, PA 16475-0002
(via U.S. mail).