BROSKY v. MILLER et al, No. 2:2014cv00089 - Document 21 (W.D. Pa. 2015)

Court Description: MEMORANDUM OPINION & ORDER re 20 REPORT AND RECOMMENDATION re 16 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by CARLISSIMO, MIKE ZAVATTA, BRIAN MILLER, JACK HENECKS, JR. It is hereby ordered that the Report and Recommendation of Magistrate Judge Kelly is adopted as the Opinion of the Court. It is further ordered that the Defendants' Motion to Dismiss is GRANTED. The Clerk shall mark this case as CLOSED. Signed by Judge Maurice B. Cohill on 2/26/2015. (cag)

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BROSKY v. MILLER et al Doc. 21 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA JACOB BROSKY, Plaintiff, v. BRIAN MILLER, Warden; MIKE ZAVATTA, Dep. Warden; JACK HENECKS, JR.; COUNTY DCT. CARLISSIMO, Defendants. ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 14-89 Senior District Judge Maurice B. Cohill Magistrate Judge Maureen P. Kelly MEMORANDUM ORDER Jacob Brosky ("Brosky"), filed a Complaint on April 3, 2014 against Defendants Brian Miller, Warden ("Miller"), Mike Zavada, Dep. Warden ("Zavada"), Jack Henecks, Jr., a Fayette County District Attorney ("Henecks"), and Fayette County Detective Carlissimo ("Carlissimo")(collectively "Defendants") [ECF No.5]. In the Complaint Brosky alleges that Miller and Zavada violated his Eighth Amendment Rights when they failed to protect him from being assaulted by other inmates in the prison facility. Brosky also alleges that Henecks and Carlissimo discriminated against him by not criminally charging the inmates who assaulted him. On July 7, 2014 Defendants filed a Motion to Dismiss for Failure to State a Claim [ECF No. 16]. Brosky filed a Response to the Motion on August 20,2014 [ECF No. 19]. Magistrate Judge Maureen P. Kelly issued a Report and Recommendation ("R&R") regarding the Motion to Dismiss on February 3, 2015 [ECF No. 20]. Brosky was given an opportunity to file objections on or before February 20, 2015 and to date has not done so. 1 Dockets.Justia.com In her R&R, Judge Kelly found that Brosky did not have standing to bring a claim against Henecks or Carlissimo and that any amendment to the Complaint would be futile in this regard. Therefore, Judge Kelly recommends dismissal of this claim with prejudice. On the other hand, with regard to the claim against Miller and Zavada, Judge Kelly recommends dismissal without prejudice to allow Brosky to amend his complaint. After de novo review of the case, together with the Report and Recommendation, we agree with Magistrate Judge Kelly's disposition of the case. Therefore, the following Order is entered: _a;; And now to-wit, this?-.? day of February 2015, it is hereby ORDERED, ADJUDGED, and DECREED that the Petitioner's Complaint [ECF No.5] is DISMISSED. With regard to the discrimination claim against Henecks and Carlissimo the Complaint is dismissed with prejudice. With regard to the claim against Miller and Zavada the Complaint is dismissed without prejudice. Brosky may file an amended complaint solely with respect to the Eighth Amendment claim for failure to protect which can better withstand the scrutiny under the standards of review for a plausible claim if the facts of the case allow for that. The Report the Report and Recommendation of Magistrate Judge Kelly dated February 3, 2015 [ECF No. 20] is adopted as the Opinion ofthe Court. The Clerk shall mark this case CLOSED. '74tcw~ d ~ f1.Rt;. }y, Maurice B. Cohill Senior United States District Court Judge Western District of Pennsylvania 2

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