McMillian v. Walsh et al

Filing 90

ORDER adopting report of Chief Magistrate Judge Carlson 83 , GRANTING defts' MSJ 58 , entering jdgmt in favor of defts & DISMISSING pltf's complaint 1 , DENYING pltf's motion for prelim injunction 88 as MOOT & directing Clrk of Ct to CLOSE case. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 1/28/14. (ki) (Main Document 90 replaced on 1/28/2014) (ki).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CORLIVEETHO MCMILLIAN,
Plaintiff,
v.
WARDEN JEROME WALSH, et al.,
Defendants.

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

ORDER
AND NOW, this 28th day of January, 2014, upon consideration of the report and
recommendation of Chief Magistrate Judge Martin C. Carlson (Doc. 83), recommending
the court grant the defendants’ motion (Doc. 58) for summary judgment and dismiss the
pro se plaintiff’s complaint (Doc. 1) for failure to prosecute pursuant to Federal Rule of
Civil Procedure 41, see FED. R. CIV. P. 41(b) (permitting court to dismiss lawsuit if “the
plaintiff fails to prosecute or to comply with these rules or a court order”) and failure to
oppose the motion, see LOCAL RULE OF COURT 7.6 (“Any party who fails [to timely file a
brief in opposition] shall be deemed not to oppose such motion.”), and also on the merits,
and, following an independent review of the record, the court being in agreement with
the magistrate judge that the pro se plaintiff’s claims against nineteen of his jailers are
subject to dismissal for failure to exhaust administrative remedies, a result compelled by
the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), and it further appearing that the
plaintiff has also failed to object to the report despite a generous extension of time in

which to do so, (see Doc. 85), 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 of the magistrate judge (Doc. 83) is ADOPTED in its entirety.

2.

The defendants’ motion (Doc. 58) for summary judgment is GRANTED in
its entirety.

3.

Judgment is ENTERED in favor of the defendants and plaintiff’s complaint
(Doc. 1) is DISMISSED.

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.

4.

Plaintiff’s motion (Doc. 88) for a preliminary injunction filed January 27,
2014, is DENIED as moot.

5.

The Clerk of Court is directed to CLOSE this case.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania