Opinion
1:13-cv-1139
03-17-2014
RICHARD MERCALDO, Plaintiff, v. J. WETZEL, et al., Defendants.
Hon. John E. Jones III
Hon. Martin C. Carlson
ORDER
AND NOW, upon consideration of the Report and Recommendation of United States Magistrate Chief United States Magistrate Judge Martin C. Carlson (Doc. 21), recommending that several Defendants be dismissed from this matter and that Plaintiff's ADA claim be dismissed, but that the amended complaint (Doc. 18) be served as to the remainder of the Defendants, and, after an independent review of the record, and noting that Plaintiff filed objections (Doc. 26) to the report on March 12, 2014, which the Court shall partially sustain to the extent reflected hereinbelow, IT IS HEREBY ORDERED THAT:
Where objections to a magistrate judge's report and recommendation are filed, the court must perform a de novo review of the contested portions of the report. Supinksi v. United Parcel Serv., Civ. A. No. 06-0793, 2009 WL 113796, at *3 (M.D. Pa. Jan. 16, 2009) (citing Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir. 1989); 28 U.S.C. § 636(b)(1)(c)). "In this regard, Local Rule of Court 72.3 requires 'written objections which . . . specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for those objections.'" Id. (citing Shields v. Astrue, Civ. A. No. 07-417, 2008 WL 4186951, at *6 (M.D. Pa. Sept. 8, 2008).
1. The Report and Recommendation of Magistrate Judge Carlson (Doc. 21) is ADOPTED in part and REJECTED in part:
a. This action is dismissed as against Defendants Lear, Long, Merrill, Harris, Schroeder and Terwilliger. The Clerk shall TERMINATE these individuals as parties on the docket.2. This matter is REMANDED to Magistrate Judge Carlson for all further pre-trial management, including the direction of service of the amended complaint.
b. The Magistrate Judge's recommendation that the Plaintiff's claims be dismissed as against Defendants Fisher, Hollibaugh, Driebelis and Diehl is REJECTED. We find that the Plaintiff has sufficiently pled personal involvement of these individuals to proceed on his claims against them.
c. Plaintiff's Americans with Disabilities Act Claim is DISMISSED, however, the factual allegations contained within that portion of the amended complaint shall be responded to by the Defendants, inasmuch as they may be construed to support Plaintiff's civil rights claims.
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John E. Jones III
United States District Judge