IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CLIFFORD T. NEWMAN, JR., ) ) Plaintiff, ) ) v. ) Civil Action No. 3:23-58 ) Judge Nora Barry Fischer PA DEPARTMENT OF CORRECTIONS, et ) Magistrate Judge Keith Pesto al., ) ) Defendants. )

MEMORANDUM ORDER

AND NOW, this 4th day of December, 2025, upon consideration of the Report and Recommendation filed by United States Magistrate Judge Keith A. Pesto on October 21, 2025, (Docket No. 25), recommending that the Motion to Dismiss filed by Defendants be granted, in part and denied, in part, such that Plaintiff Clifford T. Newman’s official capacity claims against Defendants Barry Smith, Sean Bresnchan and Robert Cleave and the Pa Department of Corrections are barred by Eleventh Amendment immunity, and should be dismissed, with prejudice but that Plaintiff should be granted leave to amend his § 1983 individual capacity claims against Defendants under Farmer v. Brennan,

(1994) for allegedly being deliberately indifferent to his needs to be protected from another inmate, (Docket No. 25), and the Magistrate Judge having further directed that any objections by non-ECF registered users were initially due by November 7, 2025, but subsequently extended the deadline for Plaintiff to file objections to December 6, 2025 or, alternatively, directed him to file an Amended Complaint by the same deadline, (Docket No. 27), no objections having been filed by the parties as of the date of this Order but Plaintiff having filed an Amended Complaint on December 1, 2025, (Docket No. 29), and upon independent review of the record and de novo consideration of the Magistrate Judge’s Report and Recommendation of October 21, 2025, (Docket No. 25), IT IS HEREBY ORDERED that the Report and Recommendation (Docket No. 25) is

adopted as the Opinion of the Court; IT IS FURTHER ORDERED that the Motion to Dismiss filed by Defendants (Docket No. 21) is granted, in part and denied, in part, as stated in the Report and Recommendation; and, IT IS FURTHER ORDERED that, as Plaintiff has filed an Amended Complaint, (Docket No. 29), this matter is referred back to the U.S. Magistrate Judge for further pretrial proceedings.

s/Nora Barry Fischer Nora Barry Fischer Senior U.S. District Judge cc/ecf: Magistrate Judge Keith A. Pesto

cc: Clifford T. Newman, Jr. AT-0783 SCI Houtzdale P.O. Box 1000 Houtzdale, PA 16698-1000 (via first class mail)