Lyons v. Beard et al
ORDER: 1. The report 43 of MJ Carlson is ADOPTED in its entirety.2. Dfts mtn 37 to revoke pltfs ifp status pursuant to 28 U.S.C. § 1915(g) is DENIED without prejudice.3. This case is REMANDED to MJ Carlson for further proceedings.Signed by Chief Judge Christopher C. Conner on 11/10/14. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEFFREY BEARD, et al.,
CIVIL ACTION NO. 1:13-CV-2952
(Chief Judge Conner)
AND NOW, this 10th day of November, 2014, upon consideration of the
report (Doc. 43) of Chief Magistrate Judge Martin C. Carlson, recommending the
court deny defendants’ second motion (Doc. 37) to revoke plaintiff Eric Lyons’
(“Lyons”) in forma pauperis status pursuant to 28 U.S.C. § 1915(g) (the “three
strikes rule”), and, following an independent review of the motion, the court
agreeing with the Magistrate Judge that the record at present does not permit a
finding that Lyons “has, on three or more prior occasions . . . brought an action or
appeal in a court of the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may be granted,” id.,
and it appearing that neither party has objected to the report, 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 the failure to timely object “may result in forfeiture of de novo
review at the district court level”), it is hereby ORDERED that:
The report (Doc. 43) of Chief Magistrate Judge Martin C. Carlson is
ADOPTED in its entirety.
Defendants’ motion (Doc. 37) to revoke plaintiff’s in forma pauperis
status pursuant to 28 U.S.C. § 1915(g) is DENIED without prejudice.
This case is REMANDED to Chief Magistrate Judge Carlson for
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
When parties fail to timely object 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 reviews the Magistrate Judge’s report in according with this Third Circuit
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