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Frazier v. SCI Medical Dispensary Doctor & 2 Staff Members

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


July 10, 2008

PHILIP FRAZIER, PLAINTIFF
v.
SCI MEDICAL DISPENSARY DOCTOR & 2 STAFF MEMBERS, F. CAMPOPIANO, UNIT MANAGER, R. HEASTER, UNIT MANAGER, J. WHITESEL, CORR, CLASS-P UNIT MANAGER, JOHN A. PALAKOVICH, DEFENDANTS

The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

ORDER

AND NOW, this 10th day of July 2008, upon consideration of the report of the magistrate judge (Doc. 47), to which objections were filed (Doc. 49), recommending that defendants John A. Palakovich ("Palakovich"), the state correctional institution medical dispensary doctor, and two staff members be dismissed from the case (Doc. 30), and, following an independent review of the record, it appearing that pro se plaintiff has failed to comply with the orders of court dated January 31, 2008 and February 28, 2008*fn1 , that plaintiff has failed to assert any personal actions by Palakovich that resulted in plaintiff's injuries or to establish that Palakovich knew of others acting in such a manner,*fn2 see Hodge v. United States, No. 3:06cv1622, 2007 WL 2571938, at *13 (M.D. Pa. Aug. 31, 2007), and it further appearing that the parties have until October 31, 2008 to complete discovery, (see Doc. 48), that plaintiff has filed an outstanding motion to compel discovery of the identity of the fictitiously named defendants, (see Doc. 46), and that therefore dismissal of these defendants at this stage is premature, see Hindes v. F.D.I.C, 137 F.3d 148, 155 (3d Cir. 1998) (citing Scheetz v. Morning Call, Inc., 130 F.R.D. 34, 36-37 (E.D. Pa. 1990) (stating that unnamed defendants are frequently utilized in place of named defendants "until discovery permits the intended defendants to be installed"), it is hereby ORDERED that:

1. The report and recommendation of the magistrate judge (Doc. 47) is ADOPTED in part and REJECTED in part as follows:

a. The report (Doc. 47) is REJECTED as to the recommendation that the fictitiously named defendants be dismissed.

b. The report (Doc. 47) is ADOPTED in all other respects.

2. John A. Palakovich is DISMISSED from the case.

3. The Clerk of Court is instructed to DROP John A. Palakovich as a defendant from this case. See FED. R. CIV. P. 21.

4. The above-captioned case is REMANDED to the magistrate judge for further proceedings.


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