UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JUSTIN M. HICKOX,

Plaintiff,

v.

TAMMY FERGUSON, et al.,

Defendants.

CIVIL ACTION NO. 4:16-cv-0534

(BRANN, J.)

(MEHALCHICK, M.J.)

REPORT AND RECOMMENDATION

On March 24, 2016, pro se Plaintiff Justin M. Hickox filed the instant prisoner civil rights 

action under 42 U.S.C. § 1983, asserting claims against six employees at SCI-Benner 

Township.1 (Doc. 1). Plaintiff alleges the Defendants: (1) failed to intervene to prevent an 

assault by another inmate, resulting in permanent physical damage; and (2) withheld 

prescription medications to treat a condition unrelated to the assault, causing him further harm 

and constituting deliberate indifference to his medical needs. On March 30, 2016, the Court 

referred the case to the Prison Litigation Settlement Program to facilitate an out-of-court 

resolution. (Doc. 3). In that Order, the Court stayed responsive pleadings, motions, and 

discovery pending settlement discussions. (Doc. 3). Presently before the Court is Plaintiff’s 

motion to dismiss Defendant Leahey due to his inability to effectuate service, filed July 7, 2016.

(Doc. 16).

 

1 These named Defendants are: Superintendent Tammy Ferguson; Security Captain 

Grice; Security Lieutenant Holmberg; Health Care Administrator Lori Sossong; Dr. Xue; and 

Physician’s Assistant Leahey.

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2

Plaintiffs, as masters of their complaint, have control over the subject matter contained 

therein, subject to court approval; including over the parties from whom they seek redress.

Under Rule 41, a plaintiff may voluntarily dismiss an action with a court order, on terms that 

the court considers proper. FED. R. CIV. P. 41(a)(2). This includes voluntary dismissal of 

individual parties, without affecting claims against the remaining defendants. See Guerrero v. 

Bluebeard’s Castle Hotel, Inc. 982 F. Supp. 343, 352 (D.V.I. Oct. 31, 1997). Plaintiff has not 

offered any objectionable terms, as there is no qualification or trade-off he seeks in exchange for 

Defendant Leahey’s dismissal. Accordingly, the Court finds his voluntary dismissal of 

Defendant Leahey acceptable, and without effect on the remaining parties.

Based on the foregoing, the Court recommends that Plaintiff’s motion to dismiss 

Defendant Leahey be granted without prejudice.

Dated: October 7, 2016 s/ Karoline Mehalchick 

KAROLINE MEHALCHICK

United States Magistrate Judge

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JUSTIN M. HICKOX,

Plaintiff,

v.

TAMMY FERGUSON, et al.,

Defendants.

CIVIL ACTION NO. 4:16-cv-00534

(BRANN, J.)

(MEHALCHICK, M.J.)

NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report

and Recommendation dated October 7, 2016.

Any party may obtain a review of the Report and Recommendation pursuant to Rule 

72.3, which provides:

Any party may object to a magistrate judge’s proposed findings, 

recommendations or report addressing a motion or matter described in 28 U.S.C. 

§ 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case 

or a habeas corpus petition within fourteen (14) days after being served with a 

copy thereof. Such party shall file with the clerk of court, and serve on the 

magistrate judge and all parties, written objections which shall specifically 

identify the portions of the proposed findings, recommendations or report to 

which objection is made and the basis for such objections. The briefing 

requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de 

novo determination of those portions of the report or specified proposed findings 

or recommendations to which objection is made and may accept, reject, or 

modify, in whole or in part, the findings or recommendations made by the 

magistrate judge. The judge, however, need conduct a new hearing only in his or 

her discretion or where required by law, and may consider the record developed 

before the magistrate judge, making his or her own determination on the basis of 

that record. The judge may also receive further evidence, recall witnesses or 

recommit the matter to the magistrate judge with instructions.

Dated: October 7, 2016 s/ Karoline Mehalchick 

KAROLINE MEHALCHICK

United States Magistrate Judge

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