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Dennis Hughes v. Kevin Miskell

March 16, 2012

DENNIS HUGHES, PLAINTIFF,
v.
KEVIN MISKELL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: (judge Caputo)

(MAGISTRATE JUDGE BLEWITT)

MEMORANDUM

Presently before the Court are the Report and Recommendation of Magistrate Judge Blewitt (Doc. 25) to the Corrections Defendants' Motion to Dismiss Plaintiff's Amended Complaint (Doc. 19), the Report and Recommendation of Magistrate Judge Blewitt (Doc.

26) to the Prison Health Services Defendants' Motion to Dismiss Plaintiff's Amended Complaint (Doc. 17), Plaintiff's First Motion to Compel Answer to Plaintiff's Second Amended Complaint (Doc. 28), and Corrections Defendants' Motion to Strike Plaintiff's Second Amended Complaint (Doc. 29.) Because Magistrate Judge Blewitt did not commit clear error in making his recommendations on the Corrections Defendants' Motion to Dismiss or the Prison Health Services Defendants' Motion to Dismiss, the Court will adopt the Magistrate Judge's recommendations (Doc. 25; Doc. 26) in their entirety. Moreover, because Plaintiff prematurely filed his Second Amended Complaint prior to the Court ruling on the Magistrate Judge's recommendations, the Motion to Strike Plaintiff's Second Amended Complaint (Doc. 29) will be granted and Plaintiff's First Motion to Compel Answer to Plaintiff's Second Amended Complaint (Doc. 28) will be denied as moot.

I. Background

A. Factual Background

As set forth in Magistrate Judge Blewitt's December 2010 Report and Recommendation ("December R & R") (Doc. 25) and January 2011 Report and Recommendation ("January R & R") (Doc. 26), Plaintiff, Dennis Hughes, an inmate at the State Correctional Institution at Dallas ("SCI-Dallas"), filed the instant civil rights action pursuant to 42 U.S.C. § 1983 (Doc. 1.) On October 12, 2010, Plaintiff filed an Amended Complaint naming six (6) Defendants: Kevin Miskell, Psychiatry Manager; Thomas Leskowsky, Director of Health Care Services; Prison Health Services; Dr. Stanley Stanish; Richard Ellers, Chief of Clinical Services for the Pennsylvania DOC; and Dr. Stanley Bohinski, Medical Director at SCI-Dallas. (Doc. 14.) Plaintiff's Amended Complaint sues the five individual Defendants in their personal capacity only. Plaintiff's Amended Complaint contains three (3) counts: Count I asserts a claim against all Defendants under § 1983 alleging Defendants violated his rights under the Fifth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution by acting indifferently to Plaintiff's medical needs; Count II asserts a second § 1983 claim against all Defendants for violation of Plaintiff's constitutional rights for refusing to provide Plaintiff with proper medical treatment; and Count III asserts a claim against all Defendants for recklessly, carelessly, negligently, and intentionally refusing Plaintiff proper medical treatment. (Doc. 14.) The Amended Complaint also contains general allegations claiming Defendants disregarded Plaintiff's rights under the Americans with Disabilities Act. (Doc. 14.) The case was assigned to Magistrate Judge Blewitt for all pre-trial matters pursuant to 28 U.S.C. § 636(b)(1).

B. The December Report and Recommendation

On December 28, 2010, Magistrate Judge Blewitt issued the December R & R (Doc. 25) recommending that the motion to dismiss filed by Kevin Miskell, Thomas Leskowsky, and Richard Ellers (collectively "Corrections Defendants") be granted in part and denied in part. Magistrate Judge Blewitt recommends that Plaintiff's Fifth, Ninth, and Fourteenth Amendment claims be dismissed as to Corrections Defendants. (Doc. 25.) The Magistrate Judge also recommends that Plaintiff's Title II ADA claim be dismissed with prejudice as to Corrections Defendants in their individual capacity. However, the Magistrate Judge recommends Plaintiff be given leave to file an amended complaint to sue Corrections Defendants in both their individual and official capacities and to properly assert a prima facie ADA claim against Corrections Defendants. (Doc. 25.) Lastly, Magistrate Judge Blewitt recommends that Corrections Defendants' motion to dismiss be denied as to Plaintiff's Eighth Amendment denial of proper medical care claims. (Doc. 25.)

C. The January Report and Recommendation

On January 10, 2011, Magistrate Judge Blewitt issued the January R & R (Doc. 26) recommending the motion to dismiss filed by Defendants Prison Health Services, Dr. Stanley Stanish, and Dr. Stanley Bohinski (collectively "PHS Defendants") be granted. (Doc. 26.) The Magistrate Judge recommends dismissing Plaintiff's Eighth Amendment claims against PHS Defendants because Plaintiff failed to sufficiently allege PHS Defendants were involved with Plaintiff's medical treatment. (Doc. 26.) Magistrate Judge Blewitt recommends dismissing the Fifth Amendment claims because PHS Defendants are state actors- not federal government employees- and therefore no Fifth Amendment cause of action exists against PHS Defendants. (Doc. 26.) The Magistrate Judge also recommends dismissing the Ninth Amendment claims because the Ninth Amendment does not provide individuals with any constitutional rights for purposes of a § 1983 civil rights action (Doc. 26.) Moreover, the Magistrate Judge recommends dismissing the Fourteenth Amendment claims against PHS Defendant because prisoners do not have a liberty interest in being single-celled and in receiving Z-code status. (Doc. 26.) Finally, Magistrate Judge Blewitt recommends Plaintiff's ADA claim be dismissed as to PHS Defendants. (Doc. 26.) Unlike the recommendation as to Corrections Defendants, however, Magistrate Judge Blewitt does not recommend allowing Plaintiff to file a second amended complaint against PHS Defendants because PHS Defendants were not personally involved in the decision to deny Plaintiff's request for Z-code status. (Doc. 24.)

D. Plaintiff's Second Amended Complaint

Neither Plaintiff, nor any Defendants, filed objections to the December R & R or the January R & R. Instead, on February 3, 2011, Plaintiff, without Defendants' consent or leave of court, filed a Second Amended Complaint. (Doc. 27.) The Second Amended Complaint differs in three material respects from the First Amended Complaint. (Doc. 27.) First, the Corrections Defendants are sued in both their individual and official capacities. (Doc. 27.) Second, the PHS Defendants have been dropped from the action. (Doc. 27.)

Lastly, the Second Amended Complaint contains a new claim, Count IV, against Corrections Defendants for violations of the Americans with Disabilities Act. (Doc. 27.) Essentially, Plaintiff's Second Amended Complaint treats the Magistrate Judge's recommendations as having been adopted by the Court.*fn1 Based on the content of the Second Amended Complaint and Plaintiff's subsequent filings, the ...


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