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Ashford v. Brady

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


May 5, 2010

KENNETH WINSTON ASHFORD, PLAINTIFF
v.
SHERIFF SHAWN BRADY, SHERIFF JOHN D. BRENNEMAN, DEPUTY SHERIFF LEAS, DEPUTY RODGER JOHNSON, DEPUTY CPL. MCCUNE, JOHN DOES, AND SHERIFF CYPRIAN IGWE, DEFENDANTS

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

ORDER

AND NOW, this 5th day of May, 2010, upon consideration of the report of the magistrate judge (Doc. 12), recommending that the Fourth Amendment excessive force claim levied by plaintiff Kenneth Winston Ashford ("Ashford") be allowed to proceed, but that Ashford's failure to intervene, malicious prosecution, and false arrest claims be dismissed, and, following an independent review of the record, it appearing that Ashford's complaint alleges that he was arrested and beaten by defendant Shawn Brady, and that he was struck in the chest and choked by defendant Deputy Sheriff Leas, (see id. at 2-3), but that the other defendants simply observed these events and did not intervene, (see id. at 5-6); see also Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) ("A[n individual government] defendant in a civil rights action must have personal involvement in the alleged wrongdoing."), and it further appearing that, by virtue of his criminal conviction, Ashford's malicious prosecution claim is barred by the favorable termination rule, see Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), and that Ashford's complaint does not state a separate claim for false arrest or false imprisonment, (see Doc. 12 at 7-9), and recognizing that Ashford was permitted leave to amend those claims found to be deficiently pled, but that he elected not to do so, and further recognizing that plaintiff has not filed objections to the magistrate judge's report and recommendation, and the court concluding that there is no clear error on the face of the record,*fn1 see Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007) (explaining that "failing to timely object to [a report and recommendation] in a civil proceeding may result in forfeiture of de novo review at the district court level"), it is hereby

ORDERED that:

1. The report and recommendation (Doc. 12) of the magistrate judge is ADOPTED. The Fourth Amendment excessive force claims levied against defendants Shawn Brady and Sheriff Leas may PROCEED. The claims alleging (1) failure to intervene, (2) malicious prosecution, and (3) false arrest or false imprisonment are DISMISSED. The Clerk of Court is instructed to TERMINATE defendants John Brenneman, Rodger Johnson, Deputy McCune, John Does, and Cyprian Igwe as parties in the above-captioned matter.

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

CHRISTOPHER C. CONNER United States District Judge


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