The Court finds that the record in this case differs materially from that in Ellis v. 1

United States of America, No. 08-160 (W.D.Pa. Sept. 28, 2009), such that this Court’s

Memorandum Order of September 28, 2009 adopting in part and rejecting in part the

Magistrate Judge’s Report and Recommendation is not controlling here with respect to

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANTWON ROGERS, et al., )

)

Plaintiffs, )

) Civil Action No. 08-149 Erie

v. )

)

UNITED STATES OF AMERICA, et al., )

)

Defendants. )

MEMORANDUM ORDER

This civil rights action was received by the Clerk of Court on May 15, 2008, and

was referred to United States Magistrate Judge Susan Paradise Baxter for report and

recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and

Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates. 

The Magistrate Judge's Report and Recommendation [Doc. No. 57], filed on

February 9, 2010, recommended that Defendants’ motion to dismiss or, alternatively,

for summary judgment [Doc. No. 52] be granted in part and denied in part. Specifically,

the Magistrate Judge recommended that the motion be:

1. granted as to the Bivens and RFRA/RLUIPA claims of

all Plaintiffs regarding prayer oils due to their failure to

exhaust in accord with the PLRA; 

2. granted as to all the Bivens and RFRA/RLUIPA

claims relating to the Eid meal in January of 2006 by

Plaintiff Campbell as he has failed to exhaust in

accord with the PLRA;

3. granted as to the RLUIPA claims of all Plaintiffs; 

4. granted as to the RFRA claims of all Plaintiffs; 

5. denied as to the respondeat superior argument as to

Defendants Sherman and Robare; 

6. denied as to the First Amendment free exercise

claim;1

Case 1:08-cv-00149-SJM-SPB Document 58 Filed 03/10/10 Page 1 of 3
Rogers’ First Amendment claim. 

2

7. denied as to the Fifth Amendment equal protection

claim;

8. granted as to the substantive due process claim

under the Fifth Amendment;

9. granted as to the procedural due process claim under

the Fifth Amendment;

10. denied as to the qualified immunity defense of all

individual Defendants; 

11. granted as to the dismissal of the FTCA claims

against the individual Defendants; and

12. granted as to the FTCA claim against the United

States.

It was further recommended that the Clerk of Courts be directed to terminate

Plaintiff Campbell from this action due to his failure to exhaust his Bivens and

RLUIPA/RFRA claims and because the FTCA claims are without merit; and that Clerk

of Courts terminate the United States of America as a party to this action. 

The parties were allowed ten (10) days from the date of service to file objections. 

Service was made on Plaintiffs by certified mail and on Defendants. No objections

were filed. After de novo review of the motion and documents in the case, together with

the Report and Recommendation, the following order is entered:

AND NOW, this 10 day of March, 2010; th

IT IS HEREBY ORDERED that the motion is:

1. GRANTED as to the Bivens and RFRA/RLUIPA

claims of all Plaintiffs regarding prayer oils due to

their failure to exhaust in accord with the PLRA; 

2. GRANTED as to all the Bivens and RFRA/RLUIPA

claims relating to the Eid meal in January of 2006 by

Plaintiff Campbell as he has failed to exhaust in

accord with the PLRA;

3. GRANTED as to the RLUIPA claims of all Plaintiffs; 

4. GRANTED as to the RFRA claims of all Plaintiffs; 

Case 1:08-cv-00149-SJM-SPB Document 58 Filed 03/10/10 Page 2 of 3
The retaliation claims of Plaintiffs Singh and Rogers remain pending as 2

Defendants have not moved for summary judgment on those claims.

The Court does not adopt, however, the “opinion” expressed by the Magistrate 3

Judge in her Report and Recommendation at page 26, footnote 20, because it is

unnecessary to a disposition of the Defendants’ motion. 

3

5. DENIED as to the respondeat superior argument as

to Defendants Sherman and Robare; 

6. DENIED as to the First Amendment free exercise

claim;

7. DENIED as to the Fifth Amendment equal protection

claim;

8. GRANTED as to the substantive due process claim

under the Fifth Amendment;

9. GRANTED as to the procedural due process claim

under the Fifth Amendment;

10. DENIED as to the qualified immunity defense of all

individual Defendants; 

11. GRANTED as to the dismissal of the FTCA claims

against the individual Defendants; and

12. GRANTED as to the FTCA claim against the United

States.

IT IS FURTHER ORDERED that the Clerk of Courts terminate Plaintiff Campbell

from this action due to his failure to exhaust his Bivens and RLUIPA/RFRA claims and

because the FTCA claims are without merit; and terminate the United States of America

as a party to this action.2

The Report and Recommendation [Doc. No. 57] of Magistrate Judge Baxter, filed

on February 9, 2010, is adopted as the opinion of the Court.

3

 s/ Sean J. McLaughlin

United States District Judge

cm: All parties of record

Susan Paradise Baxter, U.S. Magistrate Judge

Case 1:08-cv-00149-SJM-SPB Document 58 Filed 03/10/10 Page 3 of 3