Opinion
C. A. 22-284 Erie
02-27-2024
MARIO DWAYNE DOMINICK, Plaintiff, v. CORRECTIONS OFFICER BEVINO, et al., Defendants.
RICHARD LANZILLO, CHIEF MAGISTRATE JUDGE
MEMORANDUM ORDER
SUSAN PARADISE BAXTER, DISTRICT JUDGE
Plaintiff Mario Dwayne Dominick, an inmate incarcerated at the Erie County Prison in Erie, Pennsylvania (“ECP”), initiated this civil rights action on October 3, 2022, by filing a pro se complaint against four corrections officers at ECP: Bevevino (incorrectly identified by Plaintiff as “Bevino”), Rider, Gould, and Slivinski. This matter was referred to United States Magistrate Judge Richard A. Lanzillo 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.
Plaintiff claims that each of the Defendants violated his rights under the eighth amendment to the United States Constitution. In particular, Plaintiff alleges that Defendant Rider failed to intervene to stop another inmate from assaulting him, Defendant Bevevino subjected him to unsafe conditions of confinement by placing him in a cell with a “known homosexual for five days, Defendant Gould encouraged inmates to harass him, and Defendant Slivinski made offensive comments to or about him.
On August 23, 2023, Defendants filed a motion to dismiss Plaintiffs complaint for failure to state a claim [ECF No. 22]. The motion was unopposed by Plaintiff.
On February 8, 2024, Chief Magistrate Judge Lanzillo issued a Report and Recommendation ("R&R") [ECF No. 29] recommending that Defendants' motion be granted as to (1) any claim purporting to assert a private right of action under the Prison Rape Elimination Act ("PREA"), and (2) all claims asserted against Defendants Bevevino, Gould, and Slivinski, and that such claims should be dismissed with prejudice; however, the R&R recommends that Defendants' motion be denied as to Plaintiffs Eighth Amendment claim against Defendant Rider for his alleged failure to intervene. No timely objections to the R&R have been filed.
After de nova review of the complaint and documents in this case, together with the report and recommendation, the following order is entered:
AND NOW, this 27th day of February, 2024;
IT IS HEREBY ORDERED that Defendants' motion to dismiss [ECF No. 22] is granted in part and denied in part, as follows:
1. Defendants' motion is GRANTED as to any claim purporting to assert a private right of action under the PREA, and such claim is DISMISSED, with prejudice;
2. Defendants' motion is GRANTED as to all of Plaintiffs claims against Defendants Bevevino, Gould, and Slivinski, and such claims are DISMISSED, with prejudice; and
3. Defendants' motion is DENIED as to Plaintiffs Eighth Amendment claim against Defendant Rider for his alleged failure to intervene.
By virtue of the foregoing, the Clerk is directed to terminate Defendants Bevevino, Gould, and Slivinski from this case. The report and recommendation of Chief Magistrate Judge Lanzillo, issued February 8, 2024 [ECF No. 29], is adopted as the opinion of the court.