The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DARRYL A. LYONS, : Civil No. 1:21-cv-1892
:
Plaintiff, :
:
v. :
:
JOHN E. WETZEL, et al., :
:
Defendants. : Judge Sylvia H. Rambo
O R D E R
AND NOW, this 28th day of September, 2023, upon consideration of
Defendants’ motions to dismiss (Docs. 29, 42 and 44) Plaintiff Darryl A. Lyons’
amended complaint, and after careful review of the Report and Recommendation of
United States Magistrate Judge Susan Schwab (Doc. 55), and Lyons’ Objections to
the Report and Recommendation (Doc. 56), IT IS HEREBY ORDERED as
follows:
1. The Report and Recommendation of Magistrate Judge Schwab (Doc. 55)
is ADOPTED;
2. Lyons’ Objections to the Report and Recommendation are
OVERRULED;1
1 When objections are timely filed to a magistrate judge’s report and recommendation, the district
court must conduct a de novo review of those portions of the report to which objections are made.
28 U.S.C. § 636(b)(1); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard
is de novo, the extent of review is committed to the sound discretion of the district judge, and the
court may rely on the recommendations of the magistrate judge to the extent it deems proper.
Rieder v. Apfel, 115 F. Supp. 2d 496, 499 (M.D. Pa. 2000) (citing United States v. Raddatz, 447
U.S. 667, 676 (1980)). For those sections of the report and recommendation to which no objection
is made, the court should, as a matter of good practice, “satisfy itself that there is no clear error on
the face of the record in order to accept the recommendation.” FED. R. CIV. P. 72(b), advisory
3. The motions to dismiss filed by Defendants Dr. Weber and Dr. Preston
(Docs. 42, 44) are GRANTED;
4. The motion to dismiss filed by the DOC defendants (Doc. 29) is
GRANTED IN PART and DENIED IN PART as follows:
a. All claims against the DOC defendants are dismissed except the
claims against Defendant Salamon and the vulnerability-to-suicide
claim against Defendants Clark, Olson, and Curtis, ;
5. Lyons’ is GRANTED leave to file a second amended complaint within 60
days;
6. Lyons’ request for appointment of counsel is denied without prejudice to
reconsideration after his filing of the second amended complaint; and
7. This case is remanded to Magistrate Judge Schwab for further proceedings.
s/Sylvia H. Rambo
Sylvia H. Rambo
United States District Judge
committee notes; see also Univac. Dental Co. v. Dentsply, Intern., 702 F. Supp. 2d 465, 469 (M.D.
Pa. 2010) (citations omitted). Regardless of whether objections are made, the district court may
accept, not accept, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge. 28 U.S.C. § 636(b)(1); L.R. 72.31.
Here, Lyons’ objections do not actually take issue with the substance of the Report and
Recommendation. (See Doc. 56.) The court therefore construes the objections as general objections
and limits its review “to ascertaining whether there is ‘clear error’ or ‘manifest injustice’” on the
face of the record. Boomer v. Lewis, No. 3:06-cv-0850, 2009 WL 2900778, at *1 (M.D. Pa. Sept.
9, 2009). Finding no such error or injustice here, the court agrees with the Report and
Recommendation and will adopt it in its entirety.
Finally, to the extent Lyons’ objections seek appointment of counsel, the request is denied for the
same reasons outlined in Magistrate Judge Schwab’s orders dated October 19, 2022 and May 9,
2023 (Doc 22; Doc. 51), which make clear that denial is “without prejudice to the court re-
examining this issue as this litigation progresses.” (Doc. 51 p. 1.) To the extent the filing seeks
leave to file a second amended complaint, the request is granted as outlined above, and Lyons may
file a second amended complaint within 60 days of the date of this order.