Cook v. Floyd et al

Filing 28

ORDER re: Report & Recommendation of the Magistrate Judge 27 - It is hereby ORDERED that: 1. The report & recommendation of the magistrate judge 27 is ADOPTED - the motion to dismiss 8 is GRANTED - all claims against defts are DISMISSED - leave to amend denied as futile.; 2. Pltf's motions for summary judgment 20 and for subpoena of docs 22 are DENIED as MOOT.; 3. Clrk of Ct instructed to CLOSE case. (See order for complete details.) Signed by Honorable Christopher C. Conner on 03/18/10. (ki)

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

JIMMIE L. COOK,

: : Plaintiff : : v. : : HOMER C. FLOYD, LYLE M. WOOD, : RAYMOND CARTWRIGHT, and : PENNSYLVANIA HUMAN : RELATIONS COMMISSION, : : Defendants :

CIVIL ACTION NO. 1:09-CV-0106 (Judge Conner)

ORDER AND NOW, this 18th day of March, 2010, upon consideration of the report (Doc. 27) of the magistrate judge, recommending that defendants' motion (Doc. 8) to dismiss be granted, and, following an independent review of the record, it appearing that plaintiff's official capacity claims are barred by the Eleventh Amendment, see Lombardo v. Pennsylvania, 540 F.3d 190, 194-95 (3d Cir. 2008); (see also Doc. 27 at 7-9), that plaintiff was not deprived of due process when the Pennsylvania Human Relations Commission ("PHRC") denied him an administrative hearing, see Baker v. Pa. Human Relations Comm'n, 489 A.2d 1354, 1358 (Pa. 1985) (explaining that the PHRC retains discretion to grant a full hearing after preliminarily reviewing a complaint); (see also Doc. 27 at 10-14), and that plaintiff's allegations fail to demonstrate differential treatment under the Equal Protection Clause, see Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990); (see also Doc. 27 at 14-15), and it further appearing that plaintiff has not objected to the magistrate judge's

recommendation that the motion to dismiss be granted, and that there is no clear error on the face of the record,1 see Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007) (explaining that "failing to timely object to [a report and recommendation] in a civil proceeding may result in forfeiture of de novo review at the district court level"), it is hereby ORDERED that: 1. The report and recommendation (Doc. 27) of the magistrate judge is ADOPTED. The motion (Doc. 8) to dismiss is GRANTED. All claims against defendants are DISMISSED. Leave to amend is denied as futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Plaintiff's motions for summary judgment (Doc. 20) and for subpoena of documents (Doc. 22) are DENIED as moot.

2.

When parties fail to file timely objections to a magistrate judge's report and recommendation, the Federal Magistrates Act does not require a district court to review the report before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). As a matter of good practice, however, the Third Circuit Court of Appeals expects district courts to "afford some level of review to dispositive legal issues raised by the report." Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987). The advisory committee notes to Rule 72(b) of the Federal Rules of Civil Procedure indicate that "[w]hen no timely objection is filed, the court need only 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 committee's note; see also Henderson, 812 F.2d at 878-79 (stating that "the failure of a party to object to a magistrate's legal conclusions may result in the loss of the right to de novo review in the district court"); Tice v. Wilson, 425 F. Supp. 2d 676, 680 (W.D. Pa. 2006) (holding that when parties do not object to a report and recommendation, the court's review is conducted under the "plain error" standard, pursuant to which "the error must have been `clear' or `obvious' and seriously affect[s] the fairness or integrity of the judicial proceedings"); Cruz v. Chater, 990 F. Supp. 375, 375-78 (M.D. Pa. 1998) (holding that the district court is limited to ascertaining whether there is "clear error on the face of the record"); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998) (holding that the court will review an unobjected-to report for "clear error"). The court has reviewed the magistrate judge's report and recommendation in accordance with this Third Circuit directive.

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3.

The Clerk of Court is instructed to CLOSE this case.

S/ Christopher C. Conner CHRISTOPHER C. CONNER United States District Judge