1Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388, 91 S.Ct.

1999 (1971). 

2By separate Order, we shall grant Plaintiff‘s Motion for in forma pauperis. (Doc. 2). 

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHNNY CYRUS, : CIVIL ACTION NO. 3:CV-06-1665 

:

Plaintiff : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

KAREN F. HOGSTEN, et al., :

 :

Defendants :

 REPORT AND RECOMMENDATION 

I. Background. 

Plaintiff, Johnny Cyrus, an inmate at the United States Penitentiary at Allenwood, White

Deer, Pennsylvania (“USP-Allenwood”), filed, pro se, the instant civil rights action under Bivens1

pursuant to 28 U.S.C. § 1331 on August 24, 2006. The Plaintiff has also filed an application for

leave to proceed in forma pauperis. (Doc. 2).2 Attached to the Complaint is a Memorandum from

the Bureau of Prisons (“BOP”) dated February 15, 2006, indicating that Plaintiff‘s Administrative

Tort Claim under the Federal Tort Claim Act (“FTCA”) for alleged injuries from the August 15, 2005

assault at issue in the present case was denied. 

Case 4:06-cv-01665-JFM Document 6 Filed 08/31/06 Page 1 of 16
3

In his form Complaint, the Plaintiff indicated that he has fully exhausted the grievance

procedure available at USP-Allenwood. (Doc. 1, p. 1, ¶ II. A.-C.). It is well-settled that the

Plaintiff must exhaust his administrative remedies prior to filing a civil rights suit. In Porter v.

Nussle, 534 U.S. 516, 532 (2002), the Supreme Court reiterated that the exhaustion

requirement under § 1997e(a) applies to all actions regarding prisons conditions, including 

§ 1983 actions or actions brought pursuant to any other federal law. The Porter Court held that

“the PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they

involve general circumstances or particular episodes, and whether they allege excessive force or

some other wrong.” Id. Further, the Defendants have the burden to plead exhaustion as an

affirmative defense. See Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). 

2

Plaintiff’s claim was set forth on a form civil rights complaint which this Court routinely

provides to pro se litigants. See Doc. 1.3 The Complaint alleges that on August 15, 2005,

Defendants Lieutenant Shepard and Correction Officers (“CO”) Ray Alexander and Dorman

assaulted Plaintiff. Specifically, Plaintiff avers that “I was choke (sic) by Officer Alexander in my cell

in special housing unit. While Lieutenant Shepard watch, I was forming (sic) at the mouth. Officer

Alexander let me go.” (Doc. 1, p. 2, ¶ IV. 1.-2.). Plaintiff states that the Defendants made a racially

derogatory remark and said they would be back. Plaintiff then states that the Defendants came

back later and took him to the law library, where he was beaten up again by Defendants Shepard

and Dorman. Plaintiff alleges that Defendants Shepard and Dorman punched him in the stomach,

chest and face, and that they busted his nose and mouth. Plaintiff states that both his nose and

mouth were bleeding. (Id., ¶ IV. 2.-3.). The stated three Defendants are all employed at USPAllenwood. 

 Next, Plaintiff alleges that the three Defendants left, and he saw SIS Lieutenant Feltman of

USP-Allenwood. Plaintiff states that he was “banging on the window like a mad man trying to get

help. The Lieutenant Feltman came, and stated stop banging on the fucking window. I was

Case 4:06-cv-01665-JFM Document 6 Filed 08/31/06 Page 2 of 16
3

assaulted by two of your officers, he seen me bleeding. He stated, you bang on that window again,

I am going to beat your ass.” (Id. & attached handwritten page). 

Plaintiff claims that the medical staff did not check him for injuries and that he was not

interviewed about the assault. However, Plaintiff admits that he was transferred to USMCFP in

Springfield, Missouri, fifteen (15) days after the assault incidents. Plaintiff states that he has been

in a wheelchair for ten years and that when the Defendants beat him up, he was handcuffed. 

Finally, Plaintiff claims that on July 7, 2006, Defendant Alexander threatened him with

bodily harm. Plaintiff avers that he told Defendant Warden Hogsten the same day of the threat and

the Warden told him “I will see if the assault is still on file. She left me in harm way.” (Id.). 

 Thus, Plaintiff claims that Defendants Shepard, Alexander and Dorman at USP-Allenwood

used excessive force on him on August 15, 2005, in both the SHU and law library. Plaintiff avers

that the stated three Defendants assaulted him while he was handcuffed in his wheelchair. The

Complaint asserts that Plaintiff suffered a busted nose and mouth as a result of the August 15, 2005

incidents. 

The Complaint also names as Defendant SIS Lieutenant Feltman of USP-Allenwood prison

staff. Plaintiff simply avers that this Defendant saw him after he was assaulted in the law library and

told him to stop banging on the window. Defendant Feltman is not alleged to have played any role

in the assaults, to have witnessed the assaults, or to have engaged in any conduct amounting to a

violation of Plaintiff‘s Constitutional rights. As to Defendant Warden Hogsten, Plaintiff only avers

that almost one year after the incident, he was threatened by Defendant Alexander and told the

Warden about it. Plaintiff avers that the Warden told him she would check if the assault was still

Case 4:06-cv-01665-JFM Document 6 Filed 08/31/06 Page 3 of 16
4Plaintiff‘s request for a specific amount of monetary damages should be stricken. Since

Plaintiff seeks unliquidated damages, he cannot claim a specific sum of relief. Pursuant to Local

Rule 8.1, M.D. Pa., Plaintiff‘s request for specific monetary damages of $1 million should be

stricken from his Amended Complaint. See Stuckey v. Ross, Civil No. 05-2354, M.D. Pa., 1-9-

06 Order, J. McClure. 

4

on file. Plaintiff fails to allege that Defendant Hogsten violated any of his Constitutional rights. 

 The Complaint does not sufficiently specify any conduct, wrongful or otherwise, of

Defendants Feltman and Hogsten. These Defendants are not alleged to have witnessed Defendants

Alexander, Dorman and Shepard assault Plaintiff in either the SHU or the law library, or to have

played any role in the excessive force used on Plaintiff. Nor are these Defendants alleged to have

been aware at the time of the incident that Defendants Alexander, Dorman and Shepard were

assaulting Plaintiff. Plaintiff alleges only that Defendant Feltman arrived at the law library after the

second assault while Plaintiff was already bleeding and banging on the window, and this Defendant

told him to stop banging on the window. Plaintiff does not aver that he requested Defendant

Feltman to give him medical care and that Feltman denied it. Nor does Plaintiff allege any serious

or permanent injuries. Plaintiff does not state that Defendants Feltman and Hogsten were ever

aware that the other three Defendants were using excessive force on him at any time. 

As relief, Plaintiff seeks compensatory damages in the amount of $1 million. (Id., p. 3, ¶ V.)4

II. PLRA.

We now review the Plaintiff‘s pleading and find that it contains fatal deficiencies, namely

the failure to state an Eighth Amendment deliberate indifference claim and excessive force claim

against Defendants Feltman and Hogsten. We also find that Plaintiff should be allowed to proceed

Case 4:06-cv-01665-JFM Document 6 Filed 08/31/06 Page 4 of 16
5Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996).

6The Plaintiff completed an application to proceed in forma pauperis and authorization

to have funds deducted from his prison accounts. The court then issued an administrative order

directing the warden to commence deduction of the full filing fee due the court from the

Plaintiff’s prison trust fund account. (Docs. 2, 3 and 4). 

5

with respect to his excessive force claims against Defendants Shepard, Alexander and Dorman. 

 As stated, the Plaintiff has filed an application to proceed in forma pauperis pursuant to 

28 U.S.C. § 1915. The Prison Litigation Reform Act of 1995,5 (the “PLRA”), obligates the Court to

engage in a screening process when a prisoner wishes to proceed in forma pauperis pursuant to 

28 U.S.C. § 1915.6 Specifically, Section 1915(e)(2), which was created by § 805(a)(5) of the Act,

provides: 

(2) Notwithstanding any filing fee, or any

portion thereof, that may have been paid, the

court shall dismiss the case at any time if the

court determines that (A) the allegation of

poverty is untrue; or (B) the action or appeal

(i) is frivolous or malicious; (ii) fails to

state a claim on which relief may be granted;

or (iii) seeks monetary relief against a

defendant who is immune from such relief.

In reviewing the Complaint under 28 U.S.C. §1915(e)(2)(B), we have determined that the

Plaintiff is unable to maintain this action as against Defendants Feltman and Hogsten. We find that

Plaintiff states Eighth Amendment claims against Defendants Shepard, Alexander and Dorman. 

III. Section 1331 Standard. 

Under Bivens, the District Court has federal question jurisdiction pursuant to 28 U.S.C. 

§ 1331 to entertain an action brought to redress alleged federal constitutional or statutory violations

Case 4:06-cv-01665-JFM Document 6 Filed 08/31/06 Page 5 of 16
6

by a federal actor under Bivens, supra. Pursuant to Bivens, “a citizen suffering a compensable injury

to a constitutionally protected interest could invoke the general federal question jurisdiction of the

district court to obtain an award of monetary damages against the responsible federal official.” Butz

v. Economou, 438 U.S. 478, 504 (1978). A Bivens-style civil rights claim is the federal equivalent

of an action brought pursuant to 42 U.S.C. § 1983 and the same legal principles have been held

to apply. See, Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975); Veteto v. Miller, 829 F.Supp.

1486, 1492 (M.D. Pa. 1992); Young v. Keohane, 809 F.Supp. 1185, 1200 n. 16 (M.D. Pa. 1992).

In order to state an actionable Bivens claim, a plaintiff must allege that a person has deprived him

of a federal right, and that the person who caused the deprivation acted under color of federal law.

See West v. Atkins, 487 U.S. 42, 48 (1988); Young v. Keohane, 809 F.Supp. 1185, 1199 (M.D. Pa.

1992). 

IV. Motion to Dismiss Standard. 

In considering whether a pleading states an actionable claim, the court must accept all

material allegations of the complaint as true and construe all inferences in the light most favorable

to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A complaint should not be dismissed

for failure to state a claim unless it appears “beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 44-46

(1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). A complaint that sets out facts

which affirmatively demonstrate that the plaintiff has no right to recover is properly dismissed

without leave to amend. Estelle v. Gamble, 429 U.S. 97, 107-108 (1976). 

Case 4:06-cv-01665-JFM Document 6 Filed 08/31/06 Page 6 of 16
7

V. Discussion. 

In his Complaint, as stated, Plaintiff does not allege any involvement of Defendants Feltman

and Hogsten with respect to the assaults by Defendants Shepard, Alexander and Dorman. As to

Defendant Feltman, Plaintiff only states that he told Plaintiff to stop banging on the window. With

respect to Warden Hogsten, Plaintiff avers that in July 2006, Defendant Alexander threatened him

and he told the Warden. Plaintiff claims that the Warden she stated that she would see if his prior

assault incident was still on file. Plaintiff does not indicate that either of these two stated

supervisory Defendants were aware of the assaults at the time of the incidents or that they played

any role in them. As stated, Plaintiff does not state if he suffered any permanent injuries as a result

of the alleged assaults. Plaintiff’s allegations do not indicate that Defendants Feltman and Hogsten

were deliberately indifferent to any use of excessive force on him by the other Defendants. 

Also, Plaintiff does not claim that Defendants Feltman and Hogsten assaulted him or denied

him required medical care. Plaintiff does not claim that he told Defendants Feltman and Hogsten

he was in pain and that they refused to assist him to stop any excessive force. Plaintiff does not

claim that Defendants Feltman and Hogsten caused him any injuries or that they refused to allow

him to be medically treated after the incident in question. Plaintiff does not claim that these two

Defendants were aware at any time that he was being assaulted or that they had any knowledge

that the other Defendants were using excessive force on him. The allegations in Plaintiff‘s

Complaint do not support Plaintiff‘s present Eighth Amendment claims as against Defendants

Feltman and Hogsten. Further, Plaintiff’s own allegations do not show that the two stated

Defendants denied him necessary medical treatment following the incident or that he suffered any

Case 4:06-cv-01665-JFM Document 6 Filed 08/31/06 Page 7 of 16
8

serious conditions as a result of their conduct to establish an Eighth Amendment claim. 

Finally, the Plaintiff has not properly alleged that Defendants Feltman and Hogsten were

deliberately indifferent to his safety or that they personally used force on him was not needed.

Plaintiff simply avers that almost one year after the alleged assaults he was threatened by Defendant

Alexander, and that after he told Defendant Hogsten about it, she said she would check the file for

the assault incident. Further, Plaintiff does not claim that Defendants Feltman and Hogsten were

aware at the time of the incident that excessive force was used on him by the other Defendants.

Thus, we fail to see how Defendants Feltman and Hogsten can be claimed to have been

deliberately indifferent to Plaintiff‘s condition. Consequently, based on the present pleading,

the Plaintiff has failed to allege an Eighth Amendment violation by Defendants Feltman and

Hogsten. Plaintiff’s Eighth Amendment claims as to Defendants Shepard, Alexander and Dorman

should proceed at this juncture, despite the lack of any allegation of serious permanent injury

caused by them. 

Moreover, Plaintiff does not allege with sufficient specificity the personal involvement of

Defendants Feltman and Hogsten, who admittedly did not participate in the assaults of Plaintiff and

who did not witness them. As discussed, Plaintiff does not adequately state what these two

Defendants did to violate his Eighth Amendment rights. Liability may only be based upon the

Defendant’s personal involvement in conduct amounting to a constitutional violation. Hampton

v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976). “A prison official’s ‘deliberate

indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.”

Farmer v. Brennan, 511 U.S. 825 (1994) citing Helling v. McKinney, 509 U.S. 25 (1993); Wilson v.

Case 4:06-cv-01665-JFM Document 6 Filed 08/31/06 Page 8 of 16
9

Seiter, 501 U.S. 294 (1991); Estelle v. Gamble, 429 U.S. 97 (1976). 

As the Court in Bright v. Gillis, 89 Fed. Appx. 802, 805 (3d Cir. 2004) stated: 

A plaintiff is required to give fair notice of a claim and cite the grounds upon

which it rests. Fed.R.Civ.P. 8(a)(2); Swierkiewicz v. Sorema N.A., 534 U.S. 506,

514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); see also Menkowitz v. Pottstown Mem'l

Med. Ctr., 154 F.3d 113, 124 (3d Cir.1998) (explaining that plaintiff must plead

inter alia "the material points necessary to sustain recovery"). [Plaintiff] Bright gave

no fair notice that any defendant other than Kessling, Cerelli, and Fujimoto

participated in the alleged beating. 

The Bright Court also stated the factors in establishing an Eighth Amendment excessive

force claim against prison staff: 

 a number of factors bear on an excessive force determination, including: "(1) the

need for the application of force; (2) the relationship between the need and the

amount of force that was used; (3) the extent of the injury inflicted; (4) the extent

of the threat to the safety of staff and inmates, as reasonably perceived by

responsible officials on the basis of facts known to them; and (5) any efforts made

to temper the severity of the forceful response." Brooks v. Kyler, 204 F.3d 102,

106 (3d Cir.2000) (citing Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 89

L.Ed.2d 251 (1986)).

 Id.

The Court in Wesley v. Dombrowski, 2004 WL 1465650 *6 (E.D. Pa.), stated:

“The core inquiry in claims of excessive force is ‘whether force was applied in a

good-faith effort to maintain or restore discipline, or maliciously and sadistically to

cause harm’." (Citing Hudson v. McMillian, 503 U.S. 1, 7 (1992)).

The Wesley Court also stated:

While the Eighth Amendment's proscription against cruel and unusual 

punishment excludes from constitutional recognition de minimis uses of 

physical force if the use of force is not of a sort "repugnant to the conscience of

mankind," to state a claim, the plaintiff need only allege that force was 

maliciously applied to cause harm.” Id. (Citation omitted). 

Id. 

Case 4:06-cv-01665-JFM Document 6 Filed 08/31/06 Page 9 of 16
10

The Court in Eppers v. Dragovich, 1996 WL 420830 (E.D. Pa.), stated:

“In Hudson, the Supreme Court held that an inmate need not suffer 

a serious injury in order for the excessive use of force to violate the Eighth

Amendment. However, the Court also recognized that not "every malevolent

touch by a prison guard gives rise to a federal cause of action," and reaffirmed

that the Eighth Amendment's prohibition of cruel and unusual punishment

"necessarily excludes from constitutional recognition de minimis uses 

of physical force, provided that the use of force is not of a sort 

'repugnant to the conscience of mankind.' " (citing Hudson, supra at 9). 

With respect to Plaintiff‘s claims against Defendants Feltman and Hogsten, who did not 

allegedly fail to intervene to stop a known situation in which excessive force was being used on

Plaintiff by the other Defendants, the Plaintiff has not alleged their deliberate indifference. 

With respect to Defendants Feltman and Hogsten, Plaintiff has not alleged conduct that was

repugnant to the conscience of mankind. 

The Court in Moon v. Dragovich, 1997 WL 180333 *4 (E.D. Pa.), stated the standard as

follows:

The Supreme Court has differentiated between excessive force 

cases and cases in which prison officials fail to prevent harm in 

determining the proof required to meet the two prongs of an 

Eighth amendment violation. Compare Farmer, 114 S.Ct. at 1977 

("For a claim ... based on a failure to prevent harm, the inmate must show 

that he is incarcerated under conditions posing a substantial risk of serious

harm."); id. at 1979 (prison official must be deliberately indifferent to 

substantial risk of harm); with Hudson v. McMillian, 503 U.S. 1, 6-7, 

112 S.Ct. 995, 117 L.Ed.2d 156 (1992) ("[W]henever prison officials 

stand accused of using excessive physical force in violation of the 

Cruel and Unusual Punishment Clause, the core judicial standard is ... 

whether force was applied in a good-faith effort to maintain or 

restore discipline, or maliciously and sadistically to cause harm."); id. at 9

(objective prong can be established even if excessive force does not 

cause serious harm). Whether the court judges Thomas' conduct 

under the failure to prevent harm rubric or the excessive force rubric, [FN3]

Case 4:06-cv-01665-JFM Document 6 Filed 08/31/06 Page 10 of 16
11

Moon must show that he has suffered more than de minimis harm:

Not ... every malevolent touch by a prison guard gives rise to a federal 

cause of action. The Eighth Amendment's prohibition of "cruel and 

unusual" punishments necessarily excludes from constitutional 

recognition de minimis uses of physical force, provided that the use of 

force is not of a sort " 'repugnant to the conscience of mankind.' " 

Hudson, 503 U.S. at 9; see also Farmer, 114 S.Ct. at 1977 (requiring risk of serious harm).

FN3. Most cases that have considered the application of the Eighth Amendment to a prison

guard's failure to intervene to protect an inmate from injury inflicted by other prison guards have

concluded that such conduct must be judged under Farmer's deliberate indifference standard.

See Burgess v. Moore, 39 F.3d 216, 218 (8th Cir.1994) (deliberate indifference standard applies

when guards fail to intervene in attacks by other guards); Buckner v. Hollins, 983 F.2d 119, 122-

23 (8th Cir.1993) (same); cf. Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 456 (3d

Cir.1996) (noting that deliberate indifference standard should apply to claims that prison

officials failed to protect inmate from violent attack whether or not the attack comes from

another inmate). 

The Eighth Amendment requires that the official must know of and disregard an

excessive risk to inmate health or safety. Farmer, 511 U.S. at 837. “[T]he official must both be

aware of facts from which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.” Id. “The question...is whether prison officials,

acting with deliberate indifference, exposed a prisoner to a sufficiently substantial ‘risk of serious

damage to his future health.’” Farmer, 511 U.S. at 843. 

Here, Plaintiff does not allege to have suffered any injury from the actions of Defendants

Feltman and Hogsten. Plaintiff does not allege that the stated two Defendants failed to

intervene to protect him. Thus, the alleged conduct of these two Defendants does not amount

to deliberate indifference and is not sufficient to constitute an Eighth Amendment violation. 

Case 4:06-cv-01665-JFM Document 6 Filed 08/31/06 Page 11 of 16
7

In Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163 (1993), the United States

Supreme Court held that it was improper to apply heightened pleading standards to § 1983 civil

rights actions. The Court noted that a civil rights complaint need only comply “with the liberal

system of ‘notice pleading’ set up by the Federal Rules.” Id at 167.

12

Pro se parties are accorded substantial deference and liberality in federal court. Haines

v. Kerner, 404 U.S. 519, 520 (1972); Hughes v. Rowe, 449 U.S. 5, 9 (1980). They are not,

however, free to ignore the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure

8(a) requires that a complaint contain a short and plain statement setting forth (1) the grounds

upon which the court’s jurisdiction rests; (2) the claim showing that the pleader is entitled to

relief; and (3) a demand for judgment for the relief sought by the pleader. 

Although there is not a heightened pleading standard in civil rights cases,7 a civil rights

complaint in order to comply with Rule 8 must contain at least a modicum of factual specificity,

identifying the particular conduct of the defendant that is alleged to have harmed the plaintiff,

so that the court can determine that the compliant is not frivolous and a defendant has

adequate notice to frame an answer. Frazier v. Southeastern Pennsylvania Transp. Auth., 785

F.2d 65, 68 (3d Cir. 1986). A civil rights complaint complies with this standard if it alleges the

conduct violating the plaintiff’s rights, the time and the place of that conduct, and the identity of

the responsible officials. 

Under even the most liberal construction, we find that Plaintiff’s Complaint fails to allege

an Eighth Amendment violation by Defendants Feltman and Hogsten. Even taking into account

the fact that Plaintiff is proceeding pro se, his Complaint fails to allege sufficient personal

involvement of the stated two Defendants in any Eighth Amendment violation. 

Case 4:06-cv-01665-JFM Document 6 Filed 08/31/06 Page 12 of 16
8Notwithstanding the Plaintiff’s pro se status and our finding that his § 1331 claim is

insufficient as to Defendants Feltman and Hogsten, we do not recommend that he be permitted

to amend his Complaint to include more specific facts against these Defendants, since we find

that the Plaintiff‘s claim against the stated Defendants fails to state a constitutional violation

under the Eighth Amendment. Thus, we find futility of any amendment of this claim as to

Defendants Feltman and Hogsten, and we shall not recommend Plaintiff be granted leave to

amend his pleading. See Forman v. Davis, 371 U.S. 178, 182 (1982); Shane v. Fauver, 213 F.3d

113, 115 (3d Cir. 2000) (The futility exception means that a complaint, as amended, would fail

to state a claim upon which relief can be granted). 

13

Plaintiff fails to make a claim showing that Defendants Feltman and Hogsten’s alleged

conduct violates the Eighth Amendment based on the standards discussed above. Accordingly,

we shall recommend that this case be dismissed as to Defendants Feltman and Hogsten, and

that it proceed with respect to the Eighth Amendment excessive force claims against Defendants

Shepard, Alexander and Dorman.8 

VI. Recommendation. 

Based on the above, it is respectfully recommended that this case be dismissed as to

Defendants Feltman and Hogsten, as the Plaintiff has failed to state a claim under the Eighth

Amendment against these Defendants. It is recommended that this case proceed as to the

Case 4:06-cv-01665-JFM Document 6 Filed 08/31/06 Page 13 of 16
14

Plaintiff‘s Eighth Amendment excessive force claims against Defendants Shepard, Alexander and

Dorman. It is further recommended that this case be remanded to the undersigned for further

proceedings. 

 

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT

United States Magistrate Judge

Dated: August 31, 2006 

Case 4:06-cv-01665-JFM Document 6 Filed 08/31/06 Page 14 of 16
15

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHNNY CYRUS, : CIVIL ACTION NO. 3:CV-06-1665 

:

Plaintiff : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

KAREN F. HOGSTEN, et al., :

 :

Defendants :

 NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing

Report and Recommendation dated August 31, 2006. 

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 ten (10)

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

Case 4:06-cv-01665-JFM Document 6 Filed 08/31/06 Page 15 of 16
16

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.

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT 

United States Magistrate Judge 

Dated: August 31, 2006 

Case 4:06-cv-01665-JFM Document 6 Filed 08/31/06 Page 16 of 16