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Ward v. Knox

March 13, 2009

MYRON WARD, PLAINTIFF,
v.
KNOX, MCLAUGHLIN, GORNALL & SENNETT, ET AL., DEFENDANTS



The opinion of the court was delivered by: Chief Magistrate Judge Susan Paradise Baxter

OPINION AND ORDER*fn1

I. INTRODUCTION

On February 11, 2008, Plaintiff Myron Ward, an inmate incarcerated at the Federal Correctional Institution at Petersburg, Virginia, commenced this legal malpractice action against Defendant Knox, McLaughlin, Gornall & Sennett, P.C. ("Knox"), a law firm located in Erie, Pennsylvania, and four of its legal professionals: Richard A. Lanzillo, Esquire ("Lanzillo"), Neal R. Devlin, Esquire ("Devlin"), Bryan G. Baumann, Esquire ("Baumann"), and Lorie Watson ("Watson"), a paralegal, all residents of Erie County, Pennsylvania. Jurisdiction before this Court is based upon diversity of citizenship.

A. Relevant Procedural and Factual History

On or about January 20, 2004, Plaintiff filed with this Court a pro se civil rights complaint pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), against John J. LaManna, former Warden at FCI-McKean; Marty Sapko, UNICOR/Industry Factory Manager at FCI-McKean; Stephen Housler, Safety Manager at FCI-McKean; and Deborah Forsyth, Chairperson of FCI-McKean's Safety and Health Committee; Correctional Officer Ned Watson (hereinafter collectively referred to as "Bivens defendants"). The case was docketed at Civil Action No. 04-11 Erie (hereinafter referred to as "underlying action").

On November 30, 2005, this Court granted Plaintiff's motion for appointment of counsel in the underlying action, and Defendants were appointed to represent Plaintiff. Defendants subsequently filed a Second Amended Complaint on January 20, 2006, adding the United States of America ("United States") as a Defendant. In the Second Amended Complaint, Plaintiff restated his Eighth Amendment deliberate indifference claim against the individual Defendants, introduced an FTCA claim against the United States of America, and dropped the Fifth Amendment, Equal Protection, and retaliation claims that had previously been asserted by Plaintiff acting pro se.

In response to the Second Amended Complaint, Defendants filed a motion to dismiss, or in the alternative, motion for summary judgment. By Report and Recommendation dated July 24, 2006, this Court recommended that Defendants' motion to dismiss or for summary judgment be granted in part and denied in part, in that the FTCA claim against the United States be dismissed for lack of subject matter jurisdiction*fn2 based on Plaintiff's failure to exhaust his administrative remedies, that the motion regarding Plaintiff's Eighth Amendment claim against the individual Defendants be denied, and that Defendant Watson be dismissed. The Report and Recommendation was adopted as the Opinion of the Court by Order dated August 16, 2002.

Thereafter, the parties engaged in discovery, and, on February 2, 2007, the Bivens Defendants filed a motion for summary judgment in the underlying action, to which Defendants filed a response on Plaintiff's behalf. On February 23, 2007, this Court issued a Report and Recommendation recommending that summary judgment be granted in favor of the Bivens Defendants. This Report and Recommendation was subsequently adopted by District Judge Sean J. McLaughlin by Memorandum Order dated March 14, 2007, and judgment was entered in favor of Defendants in the underlying action.

As a result of the dismissal of the underlying action, Plaintiff initiated this negligence action against Defendants, alleging, in pertinent part, as follows:

32. Defendants had a duty to protect plaintiff's interest by reasonable standards for law firms/attorneys and in conformity with the laws of the Pennsylvania Supreme Court and the Professional Codes of Conduct under the State of Pennsylvania.

33. Defendants filed incomplete and ineffective briefs.

34. Defendants failed to complete discovery.

35. Defendants failed to meet deadlines.

36. Defendants did not have the legal knowledge, skill, thoroughness and preparation reasonably ...


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