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Dickerson v. Super. Marilyn Brooks

January 8, 2008

ERIC DICKERSON, PLAINTIFF,
v.
SUPER. MARILYN BROOKS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sean J. Mclaughlin United States District Judge

District Judge McLaughlin

Magistrate Judge Baxter

ORDER

On December 7, 2006, Plaintiff, a state prisoner appearing pro se, filed the instant civil rights action. This matter was assigned to United States District Judge Sean J. McLaughlin and was referred to United States Magistrate Judge Susan Paradise Baxter for report and recommendation in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrate Judges.

On October 31, 2007, Magistrate Judge Baxter issued a Report and Recommendation in which she recommended the following:

- that the motion to dismiss filed by Defendants Baker, Mowry and Telega [Document # 9] be granted based upon Plaintiff's failure to exhaust his administrative remedies. - that the motion to dismiss filed by the Commonwealth Defendants [Document # 32] be granted in part and denied in part. More specifically,

a) that the motion to dismiss be granted as to the dismissal of Defendant "Pennsylvania Department of Corrections SCIAlbion" based upon Eleventh Amendment immunity;

b) that the motion to dismiss be granted as to the dismissal of Defendants Beard and Brooks; and

c) that the motion to dismiss be denied as to Defendants Overton, Wilkes, and Youcklan.

- that the motion to dismiss filed by Defendant Millcreek Hospital [Document # 43] be granted.

Document # 81.

Thereafter, Plaintiff filed Objections to the Report and Recommendation [Document # 85], as well as an "Affidavit of Exhaustion" [Document # 105]. Defendants Baker, Mowry and Telega filed a Brief in Opposition to the Objections. Document # 97.

In the Report and Recommendation, Magistrate Judge Baxter recommended, inter alia, that the motion to dismiss filed by Defendants Baker, Mowry and Telega be granted based upon Plaintiff's failure to exhaust in accordance with the requirements of the PLRA.*fn1

The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. ยง 1997e(a), provides: no action shall be brought with respect to prison conditions under section 1983 of this title ... by a prisoner confined in any jail, prisons, or other correctional facility ...


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