Caesar v. Pennsylvania Department of Corrections et al

Filing 83

ORDER re: REPORT AND RECOMMENDATION 74 of Magistrate Judge J. Andrew Smyser - It is hereby ORDERED that: 1. Report ADOPTED to extent it recs that pltf's motion for prelimin inj 63 be denied & said motion DENIED.; 2. Pursuant to 1/18/12 order 81 granting deft Shiptoski's motion for ext of time to file dispositive motions until 2/13/12 the rec that case be scheduled for trial is REJECTED.; 3. Case REMANDED to Magistrate Judge Smyser for futher proceedings inc review of any dispositive motions filed by 2/13/12. (See order for complete details.) Signed by Honorable Christopher C. Conner on 01/19/12. (ki)

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

FLORENCE CAESAR,

:
Plaintiff
:
:
v.
:
:
PENNSYLVANIA DEPARTMENT OF :
CORRECTIONS, et al.,
:
Defendants
:

CIVIL ACTION NO. 1:10-CV-202
(Judge Conner)

ORDER
AND NOW, this 19th day of January, 2012, upon consideration of the Report
and Recommendation of the Honorable J. Andrew Smyser (Doc. 74),
recommending that plaintiff’s motion for preliminary injunction (Doc. 63) be denied
and that the case be scheduled for trial on the remaining Eighth Amendment claim,
and, following an independent review of the record, it appearing that neither party
has objected to the magistrate judge’s report and recommendation, and that there
is no clear error on the face of the record,1 see Nara v. Frank, 488 F.3d 187, 194 (3d
1

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 expects 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 notes; 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 the court’s review is conducted under the
“plain error” standard); Cruz v. Chater, 990 F. Supp. 375-78 (M.D. Pa. 1998) (holding
that the court’s review 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 the report and recommendation for “clear error”). The
court has reviewed the magistrate judge’s report and recommendation in
accordance with this Third Circuit directive.

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 the Report of Magistrate
Judge Smyser (Doc. 74) is ADOPTED in part and DENIED in part as follows:
1.

The Report is ADOPTED to the extent that it recommends that
plaintiff’s motion for preliminary injunction (Doc. 63) be denied and
said motion is hereby DENIED.

2.

Pursuant to the order dated January 18, 2012 (Doc. 81), granting
Defendant Shiptoski’s motion for extension of time to file dispositive
motions until February 13, 2012, the recommendation that this case be
scheduled for trial is REJECTED.

3.

The above-captioned case is REMANDED to Magistrate Judge Smyser
for further proceedings, including review of any dispositive motions
filed on or before February 13, 2012.

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