Summary
holding that plaintiffs grievance “was not fully exhausted until he received the final grievance review response” even though the IRR he received months earlier upheld the grievance
Summary of this case from Callahan v. ClarkOpinion
Civil Action No. 1:12-168
04-22-2015
Robert Hankins, Plaintiff, v. Wolf, et al. Defendants.
Magistrate Judge Susan Paradise Baxter
MEMORANDUM ORDER
This case is before the Court on the pending Revised Report and Recommendation filed by Magistrate Judge Susan Paradise Baxter on January 9, 2015 (ECF No. 92). In the Report and Recommendation, Judge Baxter recommended that the motion to dismiss the amended complaint filed on behalf of Defendants Wolf, Sobina, Adams, Wetzel, Smeal, Varner, and Rhodes (ECF No. 39) be denied as to Plaintiff's claims against Wolf but granted in all other respects. Further, Judge Baxter recommended that, pursuant to the authority granted by the Prison Litigation Reform Act, Plaintiff's claims against all remaining Defendants be dismissed for his failure to prosecute.
Judge Baxter issued a Revised Report and Recommendation after the United States Court of Appeals for the Third Circuit decided Pearson v. Sec'y Dep't of Corr., 775 F.3d 598 (3d Cir. 2015). This Court previously stayed this litigation pending the outcome of Pearson. To the extent that this Court has not formally lifted the stay, it will do so in this Memorandum Order.
Plaintiff was served with the Revised Report and Recommendation and granted several extensions for filing objections. Plaintiff has since filed objections. (ECF No. 101). Defendants have not filed a response.
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 22nd day of April, 2015:
IT IS HEREBY ORDERED that the Report and Recommendation is ADOPTED as the Opinion of the Court, and Defendants' MOTION TO DISMISS AMENDED COMPLAINT (ECF No. 39) is GRANTED IN PART and DENIED IN PART, and the claims against Defendants Sobina, Adams, Wetzel, Smeal, Varner, and Rhodes are DISMISSED for the reasons set forth in the Report and Recommendation and the claims against unserved Defendants White, Hilinski, Johnson, Kuhn, Meure, Giroux, and unnamed Defendants "John/Jane Doe (mailroom supervisor)," "John/Jane Doe(s) (mailroom staff)," John Doe(s) (L-5 officials & staff)," "John Does (transport officers)," and "John Doe (Lt. at the facility where Plaintiff was hog-tied) are DISMISSED for failure to prosecute.
IT IS FURTHER ORDERED that the caption in this matter is hereby AMENDED as follows: Robert Hankins, Plaintiff,
v. C/O Wolf, Defendant.
Civil Action No. 1:12-168
IT IS FURTHER ORDERED that the stay entered by Order of Court on November 26, 2014 is hereby LIFTED.
By the Court:
s/ Terrence F. McVerry
Senior United States District Judge
cc: ROBERT HANKINS
DT-3209
1100 Pike Street
Huntingdon, PA 16654-1112
(via first-class mail)
Mary Lynch Friedline
Email: mfriedline@attorneygeneral.gov
Scott A. Bradley
Email: sbradley@attorneygeneral.gov