Soriano v. Capital Blue Cross

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATION of Magistrate Judge Schwab 5 , GRANTING pltf's motion to proceed IFP 2 , DISMISSING pltf's complaint w/out prejudice & granting pltf leave to file 2nd amended complaint w/in 20 days of date of thi s order.... w/ failure to timely file resulting in amended complaint 6 subject to MJ Schwab review, & REMANDING case to Magistrate Judge Schwab for further proceedings. (See order for complete details.)Signed by Honorable Christopher C. Conner on 7/11/13. (ki)

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

CARLOS J. SORIANO,
Plaintiff
v.
CAPITAL BLUE CROSS,
Defendant

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CIVIL ACTION NO. 1:13-CV-1333
(Judge Conner)

ORDER
AND NOW, this 11th day of July, 2013, upon consideration of the Report and
Recommendation of United States Magistrate Judge Susan E. Schwab (Doc. 5),
recommending that plaintiff’s motion to proceed in forma pauperis be granted and that
plaintiff’s complaint be dismissed, with leave to amend, 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 it further appearing that
plaintiff has filed an amended complaint (Doc. 6), it is hereby ORDERED that:
1.

The Report and Recommendation of Magistrate Judge Schwab (Doc. 5) are
ADOPTED.

2.

Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2) is
GRANTED.

3.

Plaintiff’s complaint is DISMISSED without prejudice. Plaintiff is granted
leave to file a second amended complaint within twenty (20) days of the date
of this order, which shall address the deficiencies set forth in Magistrate
Judge Schwab’s Report and Recommendation. If plaintiff fails to file a
second amended complaint within twenty (20) days, plaintiff’s amended
complaint (Doc. 6) shall be subject to further review by Judge Schwab for
compliance with Rule 8 and standard pleading requirements.

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

4.

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

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