Stull et al v. The state of Pennsylvania Bureau of Professional & occupational affairs

Filing 22

ORDER ADOPTING REPORT of Magistrate Judge Schwab 20 , GRANTING defts' MTD [9 & DISMISSING pltf's complaint w/out prejudice, & directing Clrk of Ct to CLOSE case. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 2/17/15. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN E. STULL,
Plaintiff
v.
THE COMMONWEALTH OF
PENNSYLVANIA and THE
DEPARTMENT OF STATE,
BUREAU OF PROFESSIONAL
AND OCCUPATIONAL AFFAIRS,
Defendants

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CIVIL ACTION NO. 1:14-CV-1469
(Chief Judge Conner)

ORDER
AND NOW, this 17th day of February, 2015, upon consideration of the report
(Doc. 20) of Magistrate Judge Susan E. Schwab, recommending the court grant the
defendants’ motion (Doc. 9) to dismiss, wherein Judge Schwab specifically finds
that defendants are entitled to Eleventh Amendment immunity and recommends
dismissal of plaintiff’s pro se complaint, and following an independent review of the
record, and it appearing that plaintiff neither objected to the report nor opposed
defendants’ underlying motion to dismiss,1 and that there is no clear error on the

1

Any party who fails to file an opposition brief within the time period allotted
by the Local Rules “shall be deemed not to oppose such motion.” LOCAL RULE OF
COURT 7.6. Despite generous extensions of time and an admonition regarding the
effect of Local Rule 7.6, plaintiff failed to oppose defendants’ motion.

face of the record,2 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:
1.

The report (Doc. 20) of Magistrate Judge Schwab is ADOPTED.

2.

Defendants’ motion (Doc. 9) is GRANTED and plaintiffs’ complaint
(Doc. 1) is DISMISSED without prejudice.

3.

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

2

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. See 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
directive.