McMillian v. Walsh et al

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATION of Magistrate Judge Carlson 31 , DISMISSING pltf's complaint w/ prejudice w/ re: the following claims & parties... (see Paras 2a-d for specifics), directing Clrk of Ct to provide service copies of compla int 1 on USM for svc on all remaining defts, DISMISSING pltf's motion for clarification 30 as MOOT, & REMANDING case to MJ Carlson for further proceedings. (See order for complete details.)Signed by Honorable Christopher C. Conner on 6/10/13. (ki)

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

CORLIVEETHO McMILLAN,
Plaintiff
v.
JEROME WALSH, et al.,
Defendants

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CIVIL ACTION NO. 1:12-CV-1707
(Judge Conner)

ORDER
AND NOW, this 10th day of June, 2013, upon consideration of the Report and
Recommendation of United States Magistrate Judge Martin C. Carlson (Doc. 31),
recommending that plaintiff’s complaint (Doc. 1) be dismissed with prejudice with
respect to (1) claims against defendants Walsh, Brittin, Moiser, Demming, Tera, Keller,
Buck, Detrett, Josewicz, Dingler, Judge, Wenerowicz, Hoover and Papalinous, (2) all
claims based solely upon allegations of verbal abuse, (3) all claims arising out of events
which are alleged to have occurred prior to August 27, 2010, and (4) all claims and parties
involving conduct at SCI Graterford, including all claims against defendants
Wenerowicz, Drissel and Van Cliff, 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. 31) are
ADOPTED.

2.

Plaintiff’s complaint is DISMISSED with prejudice with respect to the
following claims and parties:
a.

Claims against Defendants Walsh, Brittin, Moiser, Demming, Tera,
Keller, Buck, Detrett, Josewicz, Dingler, Judge, Wenerowicz, Hoover
and Papalinous;

b.

All claims based solely upon allegations of verbal abuse.

c.

All claims arising out of events which are alleged to have occurred
prior to August 27, 2010.

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

d.

All claims and parties involving conduct at SCI Graterford, which is
located within the venue of the United States District Court for the
Eastern District of Pennsylvania, including all claims against
Defendants Wenerowicz, Drissel and Van Cliff.

3.

The Clerk of Court is DIRECTED to provide service copies of the complaint
(Doc. 1) to the United States Marshal for service on all remaining
defendants.

4.

Plaintiff’s motion for clarification (Doc. 30), is DISMISSED as moot.

5.

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

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