IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KEVIN POWELL, :

:

Plaintiff, : No. 4: CV-07-02225

:

v. : (Judge McClure)

:

DR. JOHN SYMONS, : (Magistrate Judge Smyser)

:

:

Defendant. :

ORDER

April 12, 2010

BACKGROUND:

On December 7, 2007, pro se plaintiff Kevin Powell, currently an inmate at

the Medical Center for Federal Prisoners in Springfield, Missouri, filed a civil

rights action under 42 U.S.C. § 1983. (Rec. Doc. No. 1). The single defendant in

the action, Dr. John Symons, filed an answer to Powell’s complaint on September

26, 2008. (Rec. Doc. No. 54). The basis for Powell’s complaint arises from the

time while he was incarcerated at the State Correctional Institution at Rockview

(“SCI-Rockview”). In his complaint, Powell alleges that defendant Symons

“repeatedly ignored the plaintiff’s complaints concerning burning feelings in his

chest, stomach, liver;kidney [sic] areas, and back for quite some time.” Id. at 2. 

Powell claims that Dr. Symons has been deliberately indifferent to Powell’s

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medical needs and that Powell “has sustained further injury as a result of the

defendant’s ‘treatment’.” Id.

PROCEDURAL HISTORY:

The instant matter initially was referred to Magistrate Judge J. Andrew

Smyser. On March 6, 2008, defendant Symons filed a motion to dismiss Powell’s

complaint and a brief in support. (Rec. Doc. Nos. 15 and 16). After being granted

an extension of time in which to file a brief in opposition (Rec. Doc. No. 30),

Powell filed a brief opposing the defendant’s motion to dismiss on July 30, 2008. 

(Rec. Doc. No. 42). On September 18, 2008, Magistrate Judge Smyser issued a

report and recommendation in which he recommended the denial of the

defendant’s motion to dismiss. (Rec. Doc. No. 53). This court adopted the

magistrate judge’s report and recommendation and remanded the case to the

magistrate judge for further proceedings on October 27, 2008. (Rec. Doc. No. 57).

On December 15, 2008, defendant Symons filed a motion for summary

judgment, a brief in support, and a statement of material facts. (Rec. Doc. Nos. 64,

65, and 66). Thereafter, plaintiff requested and received extensions on six

occasions of time in which to file an opposing brief to the defendant’s motion for

summary judgment. (Rec. Doc. Nos. 76, 79, 89, 106, 117, and 123). By order

dated December 7, 2009, Powell was required to file a brief in opposition by

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February 26, 2010. (Rec. Doc. No. 123). The magistrate judge denied a

subsequent request for an extension of time on February 24, 2010, citing the

numerous instances in which an extension was granted and the fact that Powell was

informed that no further extensions would be afforded. (Rec. Doc. No. 142). 

Powell has failed to file a brief opposing the defendant’s motion for summary

judgment.

On March 22, 2010, Magistrate Judge Smyser issued an eleven (11) page

report and recommendation in which he recommended that defendant Symons’

motion for summary judgment (Rec. Doc. No. 64) be granted. (Rec. Doc. No.

148). Powell has not filed any objections to the magistrate judge’s report and

recommendation, and the time for doing so has since passed. Because Powell has

elected not to object to the report and recommendation and because we agree with

Magistrate Judge Smyser’s thorough analysis and recommendation, we will adopt

the report and recommendation in full. Therefore, we will grant the defendant

Symons’ motion for summary judgment (Rec. Doc. No. 64), enter judgment in

favor of defendant Symons, and direct the clerk to close the file.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. United States Magistrate Judge Smyser’s Report and

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Recommendation is ADOPTED IN FULL. (Rec. Doc. No. 148).

2. Defendant’s Motion for Summary Judgment is GRANTED. (Rec.

Doc. No. 64). 

3. Final judgment is entered in favor of defendant Symons and against

plaintiff.

4. The clerk is directed to close the case file.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

 United States District Judge 

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