Opinion
1:19-CV-01941
11-10-2022
DARRYL C. BROWN, Plaintiff, v. PA DEPARTMENT OF CORRECTIONS, et al., Defendants.
Judge Mariani
REPORT AND RECOMMENDATION
Susan E. Schwab United States Magistrate Judge
The plaintiff has filed a motion for the dismissal of Defendants John Wetzel (“Wetzel”), Michael Wenerowitz (“Wenerowitz”), Richard Wenhold (“Wenhold”), and Paul Noel (“Noel”). Doc. 185. The plaintiff and defendants in this case have signed a stipulation to dismiss the remaining count against these same defendants in the plaintiff's third amended complaint. Doc. 183. Accordingly, we recommend that the motion to dismiss Wetzel, Wenerowitz, Wenhold, and Noel be granted.
In various documents, Michael Wenerowitz is identified as both “Wenerowitz” and “Wenerowicz.” For the purposes of this report and recommendation, we follow the spelling as stated in the third amended complaint. Doc. 114.
The plaintiff, Darryl C. Brown (“Brown”), began this action by filing a complaint in this court on November 11, 2019. Doc. 1. Subsequently, on June 21, 2021, Brown filed a third amended complaint alleging claims under 42 U.S.C. § 1983 for deprivation of his rights guaranteed by the First, Eighth, and Fourteenth Amendments. Doc. 114. The third amended complaint identified 18 defendants: (1) Wetzel, (2) Wenerowitz, (3) Noel, (4) Wenhold, (5) Thomas McGinley (“McGinley”), (6) John Doe No. 1, (7) John Doe No. 2, (8) John Doe No. 3, (9) Sergeant Shikes (“Shikes”), (10) John Doe No. 4, (11) Correct Care Solutions and/or Wellpath Inc. (“Correct Care Solutions”), (12) Michael Moclock (“Moclock”), (13) Mary Joy Monsalud (“Monsalud”), (14) Brian Davis (“Davis”), (15) Nicholle Boguslaw (“Boguslaw”), (16) “Nurse Big Red”, (17) John Doe No. 5, and (18) Jane Doe No. 1 (“Jane Doe”). Id. at 2-8.
After extensive motions practice, see docket generally, Wetzel, Wenerowitz, Wenhold, and Noel, filed a Motion for Summary Judgment in response to count two of the third amended complaint (doc. 177) and a brief in support of the motion (doc. 179). On October 3, 2022, Brown filed a document titled “Plaintiff Darryl Brown's Response to the DOC Defendants' MSJ” (doc. 181) in which he stated:
After extensive review and discussion regarding the documents submitted by the DOC Defendants Wetzel, Wenerowitz, Wenhold and Noel, Docs 177, 178, and 180, and with great consternation, Plaintiff's counsel, Attorneys Leticia Concepcion Chavez - Freed and [Bonnie Kift,] agree with the result sought by them. We do not object to their dismissal. This Hon. Court may therefore rule in their favor at Count Two without our objection.... Appropriate Motions for the Discharge of the Defendants . . . will also follow.Id. at 1.
When no motions were filed, we ordered Brown to submit all appropriate motions or a status report on or before November 7, 2022. Doc. 182. On November 7, 2022, Attorney Anthony Bowers filed a notice of voluntary dismissal. Doc. 183. This notice was, in fact, a stipulation signed by counsel for all parties, voluntarily dismissing “Count Two as asserted against Defendants Wetzel, Wenerowitz, Wenhold, and Noel.” Id. Wetzel, Wenerowitz, Wenhold, and Noel, then submitted a document titled “Praecipe to Withdraw Motion, L.R. 56.1 Statement, and Brief as Moot.” Doc. 184. Later on November 7, 2022, Brown filed a “Motion for the Dismissal of the DOC Defendants.” Doc. 185.
Based on the foregoing, we recommend that the court grant the motion for the dismissal of the defendants Wetzel, Wenerowitz, Wenhold, and Noel. Doc. 185. Upon this dismissal, the following claims would remain in this case: (1) Count One against Moclock, Monsalud, Nurse Big Red, Jane Doe, John Doe No. 5, and Shikes; (2) Count Two against Moclock, Monsalud, Davis, Boguslaw, Nurse Big Red, Jane Doe, John Doe No. 5, and Shikes; (3) Count Five against Correct Care Solutions; (4) Count Six against Moclock; (5) Counts Seven and Eight against John Doe No. 1, John Doe No. 2, and John Doe No. 3; and (6) Count Ten against Correct Care Solutions, Moclock, Nurse Big Red, John Doe No. 5, and Jane Doe.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.