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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARK WHALING, )

)

Plaintiff, )

v. ) C.A. No. 08-210 Erie

)

ERIE COUNTY PRISON, et al., )

 )

Defendants. )

MEMORANDUM JUDGMENT ORDER

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

July 24, 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, filed on November 30, 2009

[29], recommends that: (1) Defendants Hillkirk’s and Patty Doe’s Motion to Dismiss

Plaintiff’s Amended Complaint [22] be granted, (2) the Motion to Dismiss Amended

Complaint filed on behalf of Defendants Erie County Prison, Veshecco, Wilson, Olowin,

Aganello, Ricci, Ames, Owens, Johnson, Yeaney, Kremenik, Danowski, Loftus, Parks,

and Damper (collectively, the “Erie County Prison” Defendants) [25] be granted, and

(3) the case be marked as closed. The parties were allowed ten (10) days from the

date of service in which to file objections. Plaintiff’s objections [32] were filed on

January 20, 2010.

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

with the Report and Recommendation and Plaintiff’s objections thereto, the Court

concludes that it will adopt the Report and Recommendation in part. Specifically, the

Court declines to adopt the Report and Recommendation relative to the Plaintiff’s

retaliation claim against the Erie County Prison Defendants concerning his placement in

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administrative custody, as the Court finds that there are material issues of fact relative

to motivation which render summary judgment inappropriate as to that claim. In

addition, the Court concludes that Plaintiff’s state law claims are barred by the

Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S.A. §§ 8541, et seq.

However, the Court will adopt the Report and Recommendation in all other respects.

Accordingly, the following order is entered: 

AND NOW, this 3 Day of February, 2010, rd

IT IS ORDERED that Defendants Hillkirk and Patty Doe’s Motion to

Dismiss Plaintiff’s Amended Complaint [22] be, and hereby is, GRANTED. Inasmuch

as said motion was previously converted by the Magistrate Judge to a motion for

summary judgment, JUDGMENT is hereby entered in favor of Defendants Hillkirk and

Patty Doe and against Plaintiff Mark Whaling.

IT IS FURTHER ORDERED that the Motion to Dismiss Amended

Complaint filed on behalf of the ECP Defendants [25] be, and hereby is, GRANTED in

part and DENIED in part as follows: 

(1) said motion will be DENIED as to the Plaintiff’s retaliation claim

against the Erie County Prison Defendants concerning his placement in

administrative custody; and

(2) said motion will be GRANTED as to all of Plaintiff’s state law

claims inasmuch as Defendants are entitled to immunity from such claims

under Pennsylvania’s Political Subdivision Tort Claims Act, 42 Pa. C.S.A.

§§ 8541, et seq., and none of the statutory exceptions to immunity apply

to such claims; 

(3) said motion will be GRANTED in all other respects.

Inasmuch as the Magistrate Judge previously converted said motion to a motion for

summary judgment, JUDGMENT is hereby entered in favor of the Erie County Prison

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Defendants and against Plaintiff Mark Whaling as to all claims, save Plaintiff’s

retaliation claim based on his placement in administrative custody.

The Report and Recommendation of Magistrate Judge Baxter dated

November 30, 2009 [29] is adopted, in part, as the opinion of this Court to the extent set

forth herein.

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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