IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
February 2, 2011
CARLOS ZUNIGA HERNANDEZ,
UNKNOWN OFFICER, OFFICER
ARENAS, LT. SOELLER, DEFENDANTS.
The opinion of the court was delivered by: Christopher C. Conner United States District Judge
Magistrate Judge Mannion
AND NOW, this 2nd day of February, 2011, upon consideration of the report of the magistrate judge (Doc. 33), recommending that the claims of plaintiff Carlos Zuniga Hernandez ("Hernandez") against defendants Officer Luis Arenas and Lieutenant Robert Soeller be dismissed for failure to state a claim, and, upon further consideration of Hernandez's objections (Doc. 34) to the report, and Hernandez's motion (Doc. 35) to amend the complaint pursuant to FED. R. CIV. P. 15(A)(2),*fn1 and, following an independent review of the record, it appearing that the plaintiff has failed to properly allege a failure-to-protect claim asserting a violation of the Eighth Amendment,*fn2 it is hereby ORDERED that:
1. The report and recommendation (Doc. 33) of the magistrate judge is ADOPTED.
2. The defendants' motion to dismiss (Doc. 19) is GRANTED.
3. The motion (Doc. 35) to amend is DENIED, as amendment would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103 (3d Cir. 2002).
4. The above-captioned case is REMANDED to the magistrate judge for further proceedings.