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granting summary judgment in favor of the defendant on the plaintiff's use of excessive force claim because the defendant perceived the plaintiff to be a threat as he was yelling, thrashing his hands around, disobeying orders, and physically resisting; because the situation could have easily escalated into something much more serious; and because the other officers tried to temper the severity of their response by giving repeated verbal commands that the plaintiff ignored
Summary of this case from Busey v. SmithOpinion
Civil Action No. 10 - 786
06-19-2012
BRIAN YOUNG, Plaintiff, v. BRIAN COLEMAN, et al, Defendants.
District Judge Nora Barry Fischer
Chief Magistrate Judge Lisa Pupo Lenihan
ECF Nos. 40, 45
MEMORANDUM ORDER
This suit commenced with the receipt of Plaintiff's motion to proceed in forma pauperis on June 9, 2010. (ECF No. 1.) The motion was granted and Plaintiff's Complaint was filed with the Court that same day. (ECF No. 3.) The case was referred to Magistrate Judge Lisa Pupo Lenihan for all pretrial proceedings in accordance with the Magistrate Judge's Act, 28 U.S.C. § 636(b)(1), and Local Rules of Court for Magistrate Judges.
Defendant Meyer filed a Motion for Summary Judgment (ECF No. 40) on September 30, 2011, and Defendants Coleman, Mazcko, Rymarowiz, Gunsallus, and Tretinik filed a Motion for Summary Judgment (ECF No. 45) on November 7, 2011.
On April 16, 2012, the Magistrate Judge entered a Report and Recommendation (ECF No. 59) recommending that both motions be granted. She further recommended that the John Doe Defendants be dismissed from this action. Plaintiff was advised that he had until May 3, 2012, to file written objections to the Report and Recommendation, and was subsequently given an extension to June 4, 2012, for which to file objections. As of the date of this Order, no objections have been 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 19th day of June, 2012,
IT IS HEREBY ORDERED that the Motions for Summary Judgment filed by Defendant Meyer (ECF No. 40) and Defendants Coleman, Mazcko, Rymarowitz, Gunsallus, and Tretnik (ECF No. 45) are GRANTED.
IT IS FURTHER ORDERED that the John Doe Defendants are dismissed from this action for Plaintiff's failure to identify and serve them despite having ample opportunity to do so. IT IS FURTHER ORDERED that the Report and Recommendation dated April 16, 2012 (ECF No. 59) is ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that the Clerk of Court is to mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, Plaintiff has thirty (30) days to file a notice of appeal as provided by Rule 3 of the Federal Rules of Appellate Procedure.
By the Court:
___________
Nora Barry Fischer
United States District Judge
cc: Brian Young
DL 3506
S.C.I. at Forest
Marienville, PA 16239
Counsel of Record