IN THE UNITED STATES DISTRICT COURT 


FOR THE WESTERN DISTRICT OF PENNSYLVANIA 


ANDREW C. BICKEL, 

Plaintiff, 

v. C.A. No. 09~115 ERIE 

JAMES VECHECCO, et aI, 

Defendants. 

MEMORANDUM ORDER 

Plaintiffs complaint was received by the Clerk ofCourt on May 19,2009, 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)(l), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates. 

The magistrate judge's report and recommendation ("R&R"), filed on February 22,2010, 

recommended that the motion to dismiss, or alternatively, for summary judgment, filed by Defendant Graml 

[Document # 14] be granted. It was further recommended that the "motion to dismiss" filed by Defendant 

Vechecco [Document # 20] be granted (R&R at 9), and recommended that the claims against John and Jane 

Doe be dismissed. 

The parties were allowed fourteen (14) days from the date ofservice to file objections. Objections 

were filed by the Plaintiff on March 10,2010. After de novo review ofthe pleadings and documents in the case, 

together with the report and recommendation and objections thereto, we adopt Magistrate Judge Baxter's 

February 22,2010 R&R in part as our opinion, reject it in part, and we will recommit the matter to Magistrate 

Judge Baxter for further consideration. 

Specifically, we adopt Magistrate Judge Baxter's R&R as our opinion with respect to Plaintiff'sclaims 

as to defendants John and Jane doe, on the grounds that they have not been served in violation of Fed. R. Civ. 

P.4(m). 

However, the R&R refers to the pending dispositive motion filed by Defendant Vechecco as a motion 

to dismiss, when in fact, it is a motion for summary judgment. The R&R states, "[d]espite all ofthe allegations 

of Plaintiffs lengthy complaint and briefs in opposition to the pending dispositive motions, Plaintiff has not 

affirmatively alleged any facts supporting the personal involvement of either named Defendant in any of his 

claims ..." (R&R at 7.) The R&R cites the appropriate rule and standards for the pending motions (motions 

for summary judgment under Fed. R. Civ. P. 56 (c) and motions to dismiss under Fed. R. Civ. P. 12(b)(6). But 

it is unclear whether she was recommending a sua sponte dismissal (a standard which is not cited) ofthe claims 

against Defendant Vechecco for failure to adequately plead under Twombly, and Iqbal, or whether she was 

under the impression that Vechecco had filed a motion to dismiss ("[a]ccordingly, both motions to dismiss 

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should be granted ...") (R&R at 8) (emphasis added). Moreover, we note that the R&R does not address 

whether amendment of the complaint would be futile. 

Out ofan abundance of caution, because the arguments put forth by the parties are similar, we will 

also recommit the matter with respect to the claims brought against defendant Graml, and will address those 

claims upon receipt of an overall amended report and recommendation. 

AND NOW, this .:3Q.<fay of March, 2010; 

IT IS HEREBY ORDERED, ADJUDGED and DECREED that said report and 

recommendation is adopted as the opinion ofthe Court with respect to its conclusion that Plaintiff's 

claims against John and Jane Doe are DISMISSED. The Clerk of Courts is directed to terminate defendants 

John and Jane Doe. 

IT IS FURTHER HEREBY ORDERED, ADJUDGED, AND DECREED that said report and 

recommendation is rej ected and recommitted to Magistrate Judge Baxter for further cons ideration ofthe motion 

to dismiss, oraltematively, for summary judgment, filed by Defendant Graml [Document # 14] and the motion 

for summary judgment filed by Defendant Vechecco [Document # 20. 

MAURICE B. COHILL, JR. 

United States District Judge 

cc: Susan Paradise Baxter 

U.S. Magistrate Judge 

all parties of record 

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