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Todd Darrell Ballard v. Co 1 Williams

October 25, 2011

TODD DARRELL BALLARD, PLAINTIFF,
v.
CO 1 WILLIAMS, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

MAGISTRATE JUDGE CARLSON

MEMORANDUM

Presently before the Court is the Report and Recommendation of Magistrate Judge Martin C. Carlson. (Doc. 38). The Report recommends that the Defendants' Motion to Dismiss the Complaint (Docs. 25, 28) be granted, in part, and denied, in part. The Court will adopt the Report and Recommendation in full and will recommit the matter to the Magistrate Judge for further proceedings.

I. Background

Plaintiff, a former inmate of the State Correctional Institution at Camp Hill proceeding pro se, initiated this action on June 28, 2010, alleging various Constitutional violations and a state-law tort claim stemming from a prison cell altercation on March 30, 2008.

Specifically, Plaintiff alleges that Corrections Officer Defendants Williams, Martin, and Fulton used excessive force in intervening in the altercation, causing the Plaintiff to be assaulted and suffer injuries, including a burn on his head from a hot radiator and a fractured right hand. (Am. Compl. ¶¶ 1-3, Doc, 19). Sergeant Stockholm is also named as a Defendant for, after having been called to the scene, failing to intervene in the incident. (Id. at ¶ 4). Furthermore, Ballard claims that corrections staff stole some of his personal property, and he alleges that Defendants Zobitne and Palakovich failed to adequately investigate his complaints about the alleged assault and stolen property after he filed a grievance regarding the March 30, 2008 incident. These Defendants are collectively known as the "Corrections Defendants."*fn1

Additionally, Ballard alleges inadequate medical treatment on the part of four of the Prison's physicians assistants, Linda Diebert, Kristin Barbacci, Colleen Newfield, and a "Jane Doe" Defendant, whom Ballard claims is "a medical staff employee at SCI-Camp Hill," whom Ballard claims took pictures of his injuries following the March 30, 2008 incident, but otherwise failed to provide any medical treatment for the injuries. (Am. Compl. ¶ 5, Doc. 19). Collectively, these four Defendants are known as the "Medical Defendants."

The Corrections Defendants have made a Motion to Dismiss alleging that the Plaintiff's Action falls outside of the two-year statute of limitations provided by 42 U.S.C. § 1983 under Pennsylvania's personal injury statute. (Doc. 25). Additionally, they have also moved to dismiss the claims against Defendants Palakovich and Zobitne on the grounds that Plaintiff has failed to state a cognizable claim against them upon which relief can be granted. Separately, the Medical Defendants have also moved to dismiss Plaintiff's claims. (Doc. 28). They argue that the Plaintiff's Eighth Amendment claims of deliberate indifference to his medical needs are time-barred or inappropriate as failing to exhaust all available administrative remedies. Furthermore, to the extent that Plaintiff is bringing medical malpractice claims against them, the Medical Defendants assert that these claims must be dismissed because Plaintiff has failed to file a timely certificate of merit as required by Rule 1042.3 of the Pennsylvania Rules of Civil Procedure.

The Magistrate Judge recommended the Corrections Defendants' Motion be denied in respect to their contention that Plaintiff's claims against them was time-barred. The Magistrate Judge further recommended that Plaintiff's claims against Defendants Palakovich and Zobitne be dismissed, though would allow Ballard an opportunity to amend his claims against those two Defendants. Further, the Magistrate Judge recommended that Plaintiff's claims for medical malpractice against the Medical Defendants be dismissed without prejudice for failure to comply with Pa. R. Civ. P. 1042.3. However, the Magistrate Judge recommended that the Medical Defendants' Motions be denied in all other respects.

Plaintiff has filed an Objection to the Report and Recommendation (Doc. 44), and both sets of Defendants have filed briefs in opposition to that Objection (Docs. 47 and 48). For the reasons below, the Court will adopt the Report and Recommendation in full and will recommit the matter to the Magistrate Judge for further proceedings.

II. Discussion

A. Legal Standard for Reviewing a Report and Recommendation

Where objections to the Magistrate Judge's report are filed, the court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6--7 (3d Cir. 1984). In making its de novo review, the court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675--76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376--77 (M.D. Pa. 1998).

Here, the Court reviews the portions of the Report and Recommendation which the Plaintiff objects to de novo. The remainder of the Report and Recommendation is reviewed for clear error.

B. Legal Standard for a Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of their claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of ...


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