UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JAMIE ELLIOTT, :

:

Plaintiff : No. 4:04-CV-2358

:

vs. : (Complaint Filed 10/27/04)

:

LT. GRACE, ET AL., : (Judge Muir)

:

Defendants :

 ORDER

 May 11, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On October 27, 2004, Plaintiff Jamie Elliott, a former

prison inmate, filed a civil rights complaint against several

individuals employed by the Pennsylvania Department of

Corrections. This case was assigned to us but referred to

Magistrate Judge Thomas M. Blewitt for preliminary consideration.

Because Elliott’s original complaint did not specify any conduct,

wrongful or otherwise, of the named Defendants, on November 3,

2004, Magistrate Judge Blewitt directed Elliott to file an amended

complaint. On November 18, 2004, Elliott filed an amended

complaint. After finding the same deficiencies in the amended

complaint, Magistrate Judge Blewitt directed Elliott to file a

second amended complaint.

On December 6, 2004, Elliott filed a second amended

complaint. Elliott alleged that he was subjected to cruel and

unusual punishment in violation of the Eighth Amendment when he

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was assaulted by several prison guards during his incarceration at

the State Correctional Institution at Huntingdon. Elliott also

asserted an Eighth Amendment claim on behalf of his brother Paul. 

On December 13, 2004, after screening the second amended

complaint pursuant to the Prison Litigation Reform Act, Magistrate

Judge Blewitt issued a report recommending that the claims under

the Eighth Amendment against eleven of the Defendants in their

individual capacities proceed. Those Defendants were Lt. Grace,

Sergeant Weaverling and correctional officers Hammer, Morris,

Harmer, Culp, Teller, Polleck, Ross, Cooper and Harper. 

Magistrate Judge Blewitt recommended that the claims against three

(3) “John Doe” Defendants be dismissed. He further recommended

that the claims against correctional officer Couch be dismissed

because Elliott did not allege that Couch was personally involved

in the assault. Magistrate Judge Blewitt also recommended that

the Eighth Amendment claim asserted on behalf of Elliott’s brother

be dismissed because Elliott failed to state any basis for his

standing to raise such a claim. The final recommendation of

Magistrate Blewitt was that all of the claims against the

Defendants in their official capacities be dismissed. 

On January 10, 2005, we issued an order adopting in toto

the report of Magistrate Judge Blewitt and the case was remanded

to Magistrate Judge Blewitt for further proceedings. 

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1. The claims against Teller are not dismissable on the basis of

the 2-year statute of limitations because the statute of

limitations defense is an affirmative defense which a defendant

must assert. See Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002). 

3

 After we remanded the case to Magistrate Judge Blewitt,

10 of the Defendants were served with Elliott’s pleadings. Those

Defendants then filed a motion to dismiss the action based on the

2-year statute of limitations applicable to action brought

pursuant to 42 U.S.C. § 1983. In that motion the Defendants

pointed out that all of Elliot’s claims arose out of an assault

that allegedly occurred in 1989. On May 2, 2005, Magistrate Judge

Blewitt filed a report recommending that Defendants’ motion to

dismiss be granted. Magistrate Judge Blewitt further recommends

that the case against one of the defendants, Correctional Officer

Teller, be dismissed for failure to prosecute. Magistrate Judge

Blewitt points out that Elliott failed to provide the court with

information concerning the address of Defendant Teller so that the

court could direct the United States Marshal to serve Teller.1

On May 9, 2005, Elliot filed a document entitled “Appeal

Report and Recommendation” which we will construe as Elliot’s

objections to the report of Magistrate Judge Blewitt. 

When objections are filed to a report of a magistrate

judge, we make a de novo determination of those portions of the

report or specified proposed findings or recommendations made by

the magistrate judge to which there are objections. United States

vs. Raddatz, 447 U.S. 667 (l980); 28 U.S.C. §636(b)(l); Local Rule

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72.3l. District judges have wide discretion as to how they treat

recommendations of the magistrate judge. Id. Indeed, in

providing for a de novo review determination rather than a de novo

hearing, Congress intended to permit whatever reliance a district

judge, in the exercise of sound discretion, chooses to place on a

magistrate judge's proposed findings and recommendations. Id. 

See also Mathews vs. Weber, 423 U.S. 26l, 275 (l976); Goney vs.

Clark, 749 F.2d 5, 7 (3d Cir. l984).

In Elliott’s objection he fails to explain why the 2-

year statute of limitations is inapplicable to his case. As

Magistrate Judge Blewitt stated in his report “[i]t is abundantly

clear in this case, and readily admitted by the Plaintiff, that

the Plaintiff discovered his cause of action in 1989, at the time

of the alleged assault. Further, the Plaintiff does not assert

any basis to toll the statute of limitations.” Furthermore, in

his objections he does not provide the court with the address of

Defendant Teller.

In an 11-page report Magistrate Judge Blewitt explained

why Elliott’s claims should be dismissed based on the 2-year

statute of limitations and for failure to prosecute. We will not

repeat Magistrate Judge Blewitt’s basis for those recommendations

other than noting that the alleged assault on Elliott is barred by

the statute of limitations because it occurred 15 years before

Elliott filed this action and Elliott is responsible for providing

the court with the necessary information to assist the United

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States Marshal in effectuating service. In this case Elliott has

failed to provide such information with respect to Defendant

Teller.

We find no error in Magistrate Judge Blewitt’s report

and shall adopt it as our own. 

NOW, THEREFORE, IT IS ORDERED THAT:

1. The report of Magistrate Judge Thomas M. Blewitt

filed on May 2, 2005, is adopted in toto.

2. Defendants’ motion to dismiss (Doc. 31) is granted.

3. The claims against Defendant Teller are dismissed

for failure to prosecute.

4. The Clerk of Court shall close this case and send a

copy of this order to Magistrate Judge Blewitt.

5. Any appeal from this order will be deemed frivolous,

without probable cause and not taken in good faith. 

 s/Malcolm Muir 

 

 MUIR

United States District Judge

MM:gs

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