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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

NICHOLE HAWKINS, )

)

Plaintiff, )

v. ) Civil Action No. 09-98 Erie

)

MARILYN BROOKS, et al., )

 )

Defendants. )

MEMORANDUM ORDER

Plaintiff’s civil rights complaint was received by the Clerk of Court on 

May 1, 2009 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, entered on February 19,

2010 [89], recommends that the Defendants’ motions to dismiss [40] and supplemental

motion to dismiss [86] be granted in part and denied in part. Plaintiff was allowed ten

(10) days in which to file objections. On February 24, 2010, Plaintiff filed a document

styled as a “motion not to dismiss in part/ vac[ate]” [92], which this Court construes to

be in the nature of objections to the Report and Recommendation. On March 3, 2010,

Plaintiff filed documents styled as “Response to Defendants[‘] Objection Plaintiff[‘]s

Motion to Strike/ And Or Deny as Interrogatories are Pending Response of Judge[‘]s

Order 3/8/2010" [98] and “concerns to this honorable judge regarding [M]arch 31, 2010

closing of discovery” [97]. 

After de novo review of the Complaint and the documents in the case, together

with the Report and Recommendation and Plaintiff’s responses and/or objections

thereto, the following order is entered:

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AND NOW, this 9 day of March, 2010; th

IT IS ORDERED that the Defendants’ motion to dismiss [40] and supplemental

motion to dismiss [86] be, and hereby are, GRANTED in part and DENIED in part as

follows:

1. Plaintiff’s Eighth Amendment claims against Defendants Cerami and

Dewitt, based upon verbal threats and harassment, shall be, and hereby

are, DISMISSED;

2. Plaintiff’s retaliation claims against Defendant Dewitt shall be, and hereby

are, DISMISSED;

3. Plaintiff’s due process claims against Defendants Brooks and Beard for

refusing to transfer her to an out-of-state facility shall be, and hereby are,

DISMISSED;

4. Plaintiff’s claim against Defendant Senz based on reports which Senz

allegedly made to the DOC Office of Professional Responsibility shall be,

and hereby is, DISMISSED and Defendant Senz shall be terminated from

this case;

5. Plaintiff’s mental anguish and defamation claims shall be, and hereby are,

DISMISSED to the extent Plaintiff seeks monetary damages based upon

Defendants’ Eleventh Amendment and/or sovereign immunity;

6. Plaintiff’s retaliation claims against Defendants Cerami and Rogers shall

be allowed to proceed;

7. Defendants’ motion to dismiss Plaintiff’s claims against Defendants

Winstead, Brooks, and Beard, based upon their alleged lack of personal

involvement, shall be, and hereby is, DENIED; and

8. Plaintiff’s mental anguish and defamation claims against Defendants

Winstead, Brooks, Beard, Cerami, Rogers, and Dewitt shall be allowed to

proceed only to the extent Plaintiff seeks injunctive relief. 

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The Report and Recommendation of Magistrate Judge Baxter entered on

February 19, 2010 [89] is adopted as the opinion of this Court.

s/ Sean J. McLaughlin 

SEAN J. McLAUGHLIN

United States District Judge

cm: all parties of record. 

U.S. Magistrate Judge Susan Paradise Baxter

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