Marten v. Barger

Full title: JEFFREY MARTEN, Plaintiff, v. CORRECTIONS OFFICER BARGER, et al.…

Court: United States District Court, W.D. Pennsylvania

Date published: Sep 29, 2010

C.A. No. 09-262 Erie (W.D. Pa. Sep. 29, 2010)

Opinion

C.A. No. 09-262 Erie.

September 29, 2010

MEMORANDUM ORDER

MAURICE COHILL JR., District Judge

Plaintiff's complaint was received by the Clerk of Court on November 16, 2009, 2008, and was referred to United States Magistrate Judge Susan Paradise Baxter 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 magistrate judge's report and recommendation, filed on September 1, 2010, recommended that the "Motion to Dismiss, or in the Alternative, Motion for Summary Judgment" (Doc. 13) filed by Defendants Corrections Officer Barger, E.D. Ray, E.J. Wojcik and Overmyer be granted in part an denied in part as follows:

1. Plaintiffs claims for monetary damages against Defendants in their official capacities should be dismissed based upon Eleventh Amendment immunity;

2. Summary Judgment should be denied Defendant Barger with regard to Plaintiff's excessive use of force claim;

3. Plaintiff's state tort claims of assault and battery against Defendant Barger should be dismissed based on Pennsylvania's sovereign immunity;

4. Summary judgment should be denied Defendant Barger with regard to Plaintiff's retaliation claim against him; and

5. Summary judgment should be granted in favor of Defendants Ray, Wojcik, and Overmyer with regard to Plaintiff's retaliation claim against them.

(Doc. 25 at 15.)

It was further recommended that Defendants Ray, Wojcik, and Overmyer be terminated from this case.

The parties were allowed fourteen (14) days from the date of service to file written objections, and any party opposing the objections was allowed fourteen (14) days from the date of service of objections to respond thereto. Plaintiff's objections were filed on September 13, 2010, and no response was filed thereto.

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 28^th day of September, 2010;

IT IS HEREBY ORDERED that the "Motion to Dismiss, or in the Alternative, Motion for Summary Judgment" (Doc. 13) filed by Defendants Corrections Officer Barger, E.D. Ray, E.J. Wojcik and Overmyer be GRANTED IN PART AND DENIED IN PART consistent with the Magistrate's recommendation.

The report and recommendation of Magistrate Judge Baxter, dated September 1, 2010, is adopted as the opinion of the court.