Opinion
C.A. No. 17-85 Erie
09-23-2019
SAMUEL BROWN, Plaintiff, v. BEVERLY O'ROURKE, et al., Defendants.
Magistrate Judge Richard A. Lanzillo MEMORANDUM ORDER
This prisoner civil rights action was received by the Clerk of Court on April 10, 2017, and was referred to the undersigned, then a United States Magistrate Judge, for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates. The case was subsequently reassigned to (now Chief) District Judge Mark R. Hornak on July 13, 2017, with the undersigned remaining as the referred Magistrate Judge for all pretrial proceedings.
On September 14, 2018, the undersigned was sworn in as a United States District Judge. This action was then reassigned to the undersigned, as presiding judge, on September 18, 2018, and was thereafter referred to United States Magistrate Judge Richard A. Lanzillo for all pretrial proceedings on September 27, 2018.
At the time the undersigned took over as presiding judge, only two of the four named Defendants remained in the case: Heather McKeel and Rhonda Sherbine. However, Defendant Sherbine has never been served in this case, leaving Defendant McKeel as the only Defendant against whom any active claims remain pending.
The other two named Defendants, Kimberly Smith and Beverly O'Rourke, were terminated from this case after Plaintiff's claims against them were dismissed by Order of District Judge Hornak, dated September 18, 2018 [ECF No. 78].
On January 16, 2019, Defendant McKeel filed a motion for summary judgment [ECF No. 87]. Despite Magistrate Judge Lanzillo's allowance of numerous extensions of time for Plaintiff to file a response to Defendant McKeel's motion, Plaintiff failed to respond.
Thus, on August 5, 2019, Judge Lanzillo issued a Magistrate Judge's Report and Recommendation ("R&R") recommending that Defendant McKeel's motion for summary judgment be granted, that Defendant Sherbine be dismissed for Plaintiff's failure to serve her in accordance with Fed.R.Civ.P. 4(m), and that this case be dismissed. [ECF No. 103]. On August 26, 2019, Plaintiff filed Objections to the R&R [ECF No. 104], to which Defendant McKeel filed a response [ECF No. 105].
In his Objections, Plaintiff essentially restates his allegations of improper medical treatment without directly challenging the Magistrate Judge's rationale for recommending dismissal of Plaintiff's claim against Defendant McKeel. In fact, the only direct challenge made by Plaintiff is to the Magistrate Judge's recommendation to dismiss Defendant Sherbine. In this regard, Plaintiff contends that defense counsel "refus[ed] to turn over discovery information Plaintiff requested from them to serve said Defendant, Ms. Rhonda Sherbine..." (ECF No. 104, at p. 2); however, in his response to Plaintiff's Objections, Defendant McKeel's counsel states that he never received any discovery requests from Plaintiff and that, even if he had, he would not have any information as to Defendant Sherbine's whereabouts since she "left the correctional environment to work in the private sector" sometime before September 1, 2014." (ECF No. 105, at p. 2). In light of this fact, counsel notes that any claim against Defendant Sherbine would be barred by the statute of limitations in any event. (Id. at p. 2 n. 2).
Thus, after de novo review of the complaint and documents in the case, together with the report and recommendation and objections thereto, the following order is entered:
AND NOW, this 23rd day of September, 2019;
IT IS HEREBY ORDERED that Defendant McKeel's motion for summary judgment [ECF No. 87] is GRANTED, and judgment is entered in favor of Defendant McKeel and against Plaintiff, accordingly.
It is FURTHER ORDERED that Defendant Sherbine is DISMISSED from this action pursuant to Fed.R.Civ.P. 4(m). The report and recommendation of Magistrate Judge Lanzillo, issued August 5, 2019 [ECF No. 103], is adopted as the opinion of the court.
The Clerk is directed to mark this case closed.
/s/_________
SUSAN PARADISE BAXTER
United States District Judge cc: The Honorable Richard A. Lanzillo
U.S. Magistrate Judge