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Burke v. Gonzales

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


December 21, 2006

EVELYN BURKE, PLAINTIFF
v.
ALBERTO GONZALES, ET AL., DEFENDANTS

The opinion of the court was delivered by: (Judge Conner)

ORDER

AND NOW, this 21st day of December, 2006, upon consideration of the report of the magistrate judge (Doc. 29), to which no objections were filed, recommending that the motion to dismiss (Doc. 21), filed by defendants Alberto Gonzales and the Bureau of Immigration and Customs Enforcement, be granted, and, following an independent review of the record, it is hereby ORDERED that:

1. The report and recommendation of the magistrate judge (Doc. 29) is ADOPTED.

2. The motion to dismiss (Doc. 21) is GRANTED as follows:

a. Plaintiff's claims under Bivens*fn1 and the Federal Tort Claims Act against defendants Alberto Gonzalez and the Bureau of Immigration and Customs Enforcement are DISMISSED.

b. The United States is SUBSTITUTED as the proper defendant with respect to plaintiff's claim under the Federal Tort Claims Act.

c. Plaintiff's claim under the Federal Tort Claims Act against the United States is DISMISSED without prejudice for lack of jurisdiction.

3. The above-captioned case is REMANDED to the magistrate judge for further proceedings on plaintiff's remaining claims against defendant Thomas Hogan, Warden of York County Prison, pursuant to 42 U.S.C. § 1983.

CHRISTOPHER C. CONNER United States District Judge


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