Blackwell v. Middletown Police Department et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION of Magistrate Judge Carlson 17 , granting pltf's motion for leave to file amended complaint 15 , directing Clrk of Ct to file pltf's amended complaint 15 Ex 1 as new doc, dismissing Middletow n Borough Police Dept from action w/ leave to amend denied as futile w/ re: police dept, directing Clrk of Ct to provide USM w/ service packs for certain defts & directing USM to serve same, & remanding case to Magistrate Judge Carlson for further proceedings. (See order for complete details.) Signed by Honorable Christopher C. Conner on 11/30/12. (ki)

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

WILLIAM BLACKWELL,
Plaintiff
v.
MIDDLETOWN BOROUGH POLICE
DEPARTMENT, et al..,
Defendants

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CIVIL ACTION NO. 1:12-CV-825
(Judge Conner)

ORDER
AND NOW, this 30th day of November, 2012, upon consideration of the Report
and Recommendation of United States Magistrate Judge Martin C. Carlson (Doc. 17),
recommending that plaintiff be granted leave to amend his complaint (Doc. 1), that the
complaint be served upon the individual officers, and that Middletown Borough Police
Department 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”), and the court noting that plaintiff filed an amended
complaint on June 15, 2012 (Doc. 8), which does not address the deficiencies set forth in
Judge Carlson’s Report and Recommendation, it is hereby ORDERED that:
1.

Plaintiff’s motion for leave to file an amended complaint (Doc. 15) is
GRANTED and the Clerk of Court is directed to file plaintiff’s amended
complaint (Doc. 15, Exh. 1) as a new document.

2.

The allegations set forth in the amended complaint against the institutional
defendant fail to state a claim upon which relief can be granted and
Middletown Borough Police Department is hereby DISMISSED from this
action. Further, leave to amend is DENIED as futile with respect to the
police department. (See Doc. 17, p. 14).

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.
2

3.

The Clerk of Court is directed to provide all necessary documentation,
including copies of the amended complaint, to the U.S. Marshals Office for
service upon the individual officer defendants, Police Officer Andrew
Crone, Police Officer Fure, and Police Sergeant Hiester, and the U.S.
Marshals Office is hereby ORDERED to effect service.

4.

The above-captioned case is REMANDED to Magistrate Judge Carlson for
further proceedings.

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