Lyons v. Beard et al

Filing 8

ORDER adopting report of Chief Magistrate Judge Carlson 7 in its entirety, GRANTING pltf's motion to proceed IFP 2 , DISMISSING pltf's complaint 1 to the limited extent it seeks to state a claim against deft Jeffery Beard, & directing USM to serve pro se pltf's complaint 1 on remaining defts. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 12/19/13. (ki)

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

ERIC LYONS,
Plaintiff,
v.
JEFFREY BEARD, et al.,
Defendants.

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CIVIL ACTION NO. 1:13-CV-2952
(Chief Judge Conner)

ORDER
AND NOW, this 19th day of December, 2013, upon consideration of the report of
Chief Magistrate Judge Martin C. Carlson (Doc. 7), recommending the court grant the
plaintiff’s motion (Doc. 2) for leave to proceed in forma pauperis but dismiss plaintiff’s
complaint as to defendant Jeffery Beard, and, following an independent review of the
record, the court agreeing with the magistrate judge that the claims against defendant
Beard are time barred by the two-year statute of limitations governing Section 1983
claims, see Wilson v. Garcia, 471 U.S. 261, 266-267 (1985) (claims brought pursuant to 42
U.S.C. § 1983 subject to state statute of limitations for personal injury actions); see also
Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 599 (Pennsylvania’s two-year statute
of limitations for personal injury actions applies to Section 1983 claims), and the court
further agreeing that the continuing violations doctrine does not toll the statute of
limitations, and that granting leave to amend would thus be futile, see Alston v. Parker,
363 F.3d 229, 235 (3d Cir. 2004) (acknowledging that leave to amend should be liberally
granted but carving out exception for claims which are clearly futile), and it further
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 “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. 7) recommending dismissal of the
plaintiff’s claims against defendant Jeffery Beard but allowing the plaintiff
to proceed against the remaining defendants is ADOPTED in its entirety.

2.

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

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.

3.

Plaintiff’s complaint (Doc. 1) is DISMISSED to the limited extent it seeks to
state a claim against defendant Jeffery Beard.

4.

The United States Marshals Service is directed to serve the pro se plaintiff’s
complaint (Doc. 1) on the remaining defendants.

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