Kelly et al v. Lebanon County Commissioners et al
Filing
13
ORDER ADOPTING REPORT AND RECOMMENDATION of Magistrate Judge Carlsonr 12 , GRANTING pltf's motion for leave to proceed IFP, DISMISSING prayers for injunctive relief set forth in pltf's complaint as MOOT, & REMANDING matter to Honorable Martin C. Carlson for pretrial proceedings & trial upon consent therefor. (See order for complete details.) Signed by Honorable Christopher C. Conner on 09/15/11. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALLEN KELLY,
:
Plaintiff
:
:
v.
:
:
LEBANON COUNTY COMMISSIONERS, :
et al.,
:
Defendants
:
CIVIL ACTION NO. 1:11-CV-1294
(Judge Conner)
ORDER
AND NOW, this 15th day of September, 2011, upon consideration of the report and
recommendation of United States Magistrate Judge Martin C. Carlson (Doc. 12),
recommending that plaintiff’s motion for leave to proceed in forma pauperis be granted,
but that the prayers for injunctive relief be dismissed, 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 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 of Magistrate Judge Carlson (Doc. 12) are
ADOPTED.
2.
Plaintiff’s motion for leave to proceed in forma pauperis is GRANTED.
3.
The prayers for injunctive relief set forth in plaintiff’s complaint are
DISMISSED as moot.
4.
This matter is REMANDED to the Honorable Martin C. Carlson for pretrial
proceedings and trial upon consent therefor.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
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.
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