Braget v. United States Bureau of Perison Allenwood et al

Filing 15

ORDER re: REPORT AND RECOMMENDATION 7 of Magistrate Judge Blewitt - It is hereby ORDERED that: 1. Report and Recommendation 7 ADOPTED.; 2. Pltf's claims for damages... asserted against any indiv employed by BOP @ USP Allenwood... DISMIS SED w/ prejudice.; 3. Pltf's claims for injunctive relief for ct to bar future confinement in any penitentiary DISMISSED w/ prejudice.; 4. Deft BOP Allenwood DISMISSED w/ prejudice from this Bivens action.; 5. Pltf's negligence claims again st unnamed indiv emps of BOP DISMISSED w/ prejudice from this Bivens action & pltf directed to raise negligence claims under FTCA & only vs US after exhausts all tort claims w/ BOP.; 6. Pltf permitted to amend complaint to name as defts... (see order for specific instructions).; 7. Instant action REMANDED to magistrate judge for further proceedings. (See order for complete details.) Signed by Honorable Christopher C. Conner on 04/09/12. (ki)

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

KEVIN JOHN BRAGET,
Plaintiff
v.
UNITED STATES BUREAU OF
PRISONS ALLENWOOD, et al.,
Defendants

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CIVIL ACTION NO. 1:11-CV-2123
(Judge Conner)

ORDER
AND NOW, this 9th day of April, 2012, upon consideration of the Report and
Recommendation of Magistrate Judge Thomas M. Blewitt (Doc. 7) recommending that
(1) certain of plaintiff’s claims for damages and for injunctive relief be dismissed with
prejudice, (2) defendant BOP Allenwood be dismissed with prejudice, (3) plaintiff’s
negligence claims against unnamed employees of the BOP be dismissed with prejudice,
and (4) plaintiff be permitted to amend his complaint, 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 (Doc. 7) of Magistrate Judge Blewitt are
ADOPTED.

2.

Plaintiff’s claim for damages, insofar as it is asserted against any individual
employed by the BOP at USP-Allenwood in his or her official capacity, are
DISMISSED with prejudice.

3.

Plaintiff’s claim for injunctive relief for the Court to bar his “future
confinement in any [penitentiary]” is DISMISSED with prejudice.

4.

Defendant BOP Allenwood is DISMISSED with prejudice from this Bivens
action.

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.

5.

Plaintiff’s negligence claims against the unnamed individual employees of
the BOP are DISMISSED with prejudice from this Bivens action and
plaintiff is directed to raise his negligence claims under the FTCA and only
against the United States after he exhausts all of his tort claims with the
BOP.

6.

Plaintiff is permitted to amend his Complaint to name as defendants the
BOP officials at USP-Allenwood, including the S.I.S staff, who were
personally involved with his Eighth Amendment failure to protect claim.
Plaintiff may file an Amended Complaint to state the names of the medical
staff members and the SHU staff members at USP-Allenwood who allegedly
failed to provide him timely and proper medical care for his stab wounds.

7.

The instant action is REMANDED to the magistrate judge for further
proceedings.

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