McMillian v. Walsh et al

Filing 99

ORDER overruling pltf's objections 95 to R&R, DENYING pltf's motion 96 for appt of cnsl as MOOT, & directing that case remains closed. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 2/24/14. (ki)

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

:
:
:
:
:
:
:
:
:

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

ORDER
AND NOW, this 24th day of February, 2014, upon consideration of the court’s
order (Doc. 90) adopting the report and recommendation of Chief Magistrate Judge
Martin C. Carlson (Doc. 83), granting defendants’ unopposed motion (Doc. 58) for
summary judgment, and dismissing 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”), failure to oppose the motion, see LOCAL RULE OF COURT 7.6 (“Any party
who fails [to timely file a brief in opposition to the movant’s motion] shall be deemed not
to oppose such motion.”), and on the merits, and further upon consideration of the latefiled objections (Doc. 95) and the motion (Doc. 96) for appointment of counsel filed by
plaintiff on today’s date, and the court observing that nothing articulated in either
document alters the court’s conclusion that plaintiff has failed to exhaust his

administrative remedies subjecting his claims to dismissal,1 see 42 U.S.C. § 1997e(a) (“No
action shall be brought with respect to prison conditions under . . . [42 U.S.C. § 1983], or
any other Federal law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted.”), and the
court thus concluding that the late-filed objections (Doc. 95) are meritless and affirming
its order (Doc. 90) of January 28, 2014, it is hereby ORDERED that:
1.

Plaintiff’s objections (Doc. 95) to the report and recommendation are
overruled.

2.

Plaintiff’s motion (Doc. 96) for appointment of counsel is DENIED as moot.

3.

This case remains CLOSED.

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

1

The court notes that the pro se plaintiff has also filed several exhibits in
support of his request that the court set aside its earlier judgment. The exhibits
include a copy of A Jailhouse Lawyer’s Manual: Chapter 14: The Prison Litigation
Reform Act, a guide to prisoner litigation; a copy of the Pennsylvania Department
of Corrections’ Inmate Grievance System Policy; a February 5, 2013 letter authored
by plaintiff which informally raises several concerns regarding prison staff; and a
copy of the final administrative decision with respect to the only grievance that
plaintiff grieved to conclusion. (Doc. 98). The court has already found that all of
plaintiff’s grievances, including the sole grievance to reach a final administrative
review, were procedurally flawed, (see Doc. 83 at 17-19; Doc. 90 at 1-2), and none of
the other documents filed by plaintiff refute the conclusions reached by the
magistrate judge and adopted by the undersigned.