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Whitaker v. Springettsbury Township

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


May 7, 2010

RONALD T. WHITAKER, SR., AND DALEA LYNN, CO-ADMINISTRATORS OF THE ESTATE OF RONALD TAYLOR WHITAKER, JR., TAYLOR WHITAKER, BRANDI WHITAKER, AND CHRISTOPHER HAMMERSTONE PLAINTIFFS
v.
SPRINGETTSBURY TOWNSHIP, SPRINGETTSBURY TOWNSHIP POLICE DEPARTMENT, DAVID ESHBACH, AND GARY UTTER DEFENDANTS

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

(Judge Conner)

ORDER

AND NOW, this 7th day of May, 2010, upon consideration of the report (Doc. 90) of the magistrate judge, recommending that defendants' motions (Docs. 49, 52) for summary judgment be granted, and, following an independent review of the record, it appearing that there is no record evidence to suggest that defendant Gary Utter's ("Officer Utter") use of lethal force was unreasonable under the circumstances,*fn1 that defendants Springettsbury Township ("the township"), Springettsbury Township Police Department ("the police department"), and David Eshbach ("Chief Eshbach") cannot be held liable because the underlying act by Officer Utter was not a violation of decedent's rights,*fn2 and that even if Officer Utter were potentially liable the claims against the township, the police department, and Chief Utter would fail based on the absence of any evidence showing that a policy, custom, failure of supervision, or failure of training caused a violation of decedent's rights,*fn3 and it appearing that neither party has objected to the findings of the magistrate judge's report and recommendation, and that there is no clear error on the face of the record,*fn4 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 of the magistrate judge (Doc. 90) is ADOPTED.

2. Defendants' motions for summary judgment (Docs. 49, 52) are GRANTED.

3. The Clerk of Court is directed to enter JUDGMENT in favor of defendants and against plaintiffs on all claims.

4. The Clerk of Court is directed to CLOSE this case.


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