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Accolla v. United States

October 29, 2009


The opinion of the court was delivered by: Hon. John E. Jones III

Hon. Thomas M. Blewitt



This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge Thomas M. Blewitt (Doc. 63), filed on July 8, 2009, which recommends that we grant the Defendants Motion for Summary Judgment. Plaintiff Raymond W. Acccolla ("Plaintiff" or "Accolla") filed objections to the report (Doc. 67) on September 3, 2009. The Defendants filed an opposition to the Plaintiff's objections (Doc. 68) on September 15, 2009. Plaintiff filed a response to the Defendant's opposition (Doc. 69) on September 25, 2009. Accordingly, this matter is ripe for disposition. For the reasons set forth below, the Court will adopt the Magistrate Judge's , grant the Defendants' Motion for Summary Judgment, and close this case.


When objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).


On May 6, 2008, Plaintiff, formerly an inmate at the Federal Correctional Institution at Schuylkill, Minersville, Pennsylvania ("FCI-Schuylkill"), filed this pro se Bivens*fn1 civil rights action pursuant to 28 U.S.C. § 1331. (Doc. 1, p. 1). Plaintiff also jointly filed with his civil rights action a tort claim against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680. (Doc. 1, p. 1).

On June 5, 2008, Magistrate Judge Blewitt screened the Plaintiff's Complaint pursuant to the Prison Litigation Reform Act ("PLRA"), and issued a R&R (Doc. 10) wherein it was recommended that all of the Defendants, with the exception of Dr. Hendershot and P.A. Hubble, be dismissed with respect to Plaintiff's Eighth Amendment claims for denial of proper medical care. It was also recommended that Plaintiff's Eighth Amendment claims against Defendants Dr. Hendershot and P.A. Hubble be allowed to proceed and that Plaintiff's tort claim under the FTCA be allowed to proceed against Defendant United States only with respect to his negligent medical care claims which arose at FCI-Scuylkill. On December 12, 2008, we adopted the R&R in full. (Doc. 18).

On December 8, 2008, Plaintiff filed a Motion for Default Judgment, pursuant to Fed. R. Civ. P. 55, as against the three remaining Defendants, Dr. Hendershot, P.A. Hubble and the United States. (Doc. 17). On December 17, 2008, Magistrate Judge Blewitt issued a R&R recommending that the Plaintiff's Motion for a default Judgment be denied as premature. (Doc. 20). We adopted the R&R in its entirety on April 28, 2009. (Doc. 51).

On March 16, 2009, Defendants Dr. Hendershot, P.A. Hubble and the United States filed a Motion to Dismiss, or in the alternative, Motion for Summary Judgment, with a Brief in Support and a Statement of Material Facts ("SMF"). (Docs. 26, 30, and 31). Plaintiff filed an Opposition Brief on March 30, 2009. (Doc. 37). Defendants then filed a Reply brief on April 10, 2009. (Doc. 41). On April 23, 2009, without leave of Court, Plaintiff filed a second Opposition Brief and a Response. (Docs. 46-47).

On July 8, 2009, Magistrate Judge Blewitt issued the instant R&R for our consideration today. (Doc. 63). Within this R&R, Magistrate Judge Blewitt considered Defendant's Motion to Dismiss or for Summary Judgment as well as Defendant's Motion for a Protective Order (Doc. 48), Plaintiff's Motion for Final Decision on Exhaustion (Doc. 35), Motion to Compel Subpoena (Doc. 32), Motion to Compel Discovery (Doc. 43) and Motion to Subpoena Deponents. (Doc. 44). As noted supra, Magistrate Judge Blewitt, construing the Defendant's Motion as one for Summary Judgment, recommended the Motion be granted and all other pending motions be denied as moot.


Within the June 5, 2008 R&R (Doc. 10) and July 8, 2009 R&R (Doc. 63) issued by Magistrate Judge Blewitt, there is a full exposition of the facts alleged by Plaintiff in this case. We have reviewed the Plaintiff's allegations and are fully familiar with their content. Accordingly, we shall not endeavor to recite them here, and shall attach a copy ...

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