Collins v. Bates et al

Filing 33

ORDER ADOPTING REPORT 27 of Chief Magistrate Judge Carlson, DISMISSING pltf's 2nd amended complaint 19 w/ prejudice, DENYING as MOOT pltf's motion for leave to proceed IFP 28 , directing Clrk of Ct to CLOSE case, & noting any appeal from this order deemed to be frivolous & not taken in good faith. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 1/23/15. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TYRRELL COLLINS,
Plaintiff
v.
DARREN BATES, et al.,
Defendants

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CIVIL ACTION NO. 1:14-CV-1486
(Chief Judge Conner)

ORDER
AND NOW, this 23rd day of January, 2015, upon consideration of the report
(Doc. 27) of Chief Magistrate Judge Martin C. Carlson, recommending the court
grant defendants’ motion (Doc. 24) pursuant to Federal Rules of Civil Procedure
12(b)(6) and 12(e) and dismiss plaintiff’s second amended complaint (Doc. 19) with
prejudice for failure to prosecute, 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”) and failure to oppose the motion, see LOCAL RULE OF COURT 7.6 (“Any
party who fails [to timely file a brief in opposition] shall be deemed not to oppose
such motion.”), and also on the merits, and, following an independent review of the
record, the court being in agreement with the magistrate judge that the pro se
plaintiff’s claims are subject to dismissal, and also agreeing that amendment could
not cure the deficiencies identified in the report, see Fletcher-Hardee Corp. v. Pote
Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007) (observing that leave to
amend should ordinarily be granted unless amendment would be futile or result in

undue delay), and noting that plaintiff filed an objection1 (Doc. 30) to the report, and
the court finding his objection to be without merit and squarely addressed by Judge
Carlson’s report, it is hereby ORDERED that:
1.

The report (Doc. 27) of Chief Magistrate Judge Carlson is ADOPTED.

2.

Plaintiff’s second amended complaint (Doc. 19) is DISMISSED with
prejudice.

3.

Plaintiff’s motion (Doc. 28) for leave to proceed in forma pauperis and
for appointment of counsel is DENIED as moot.

4.

The Clerk of Court is directed to CLOSE this case.

5.

Any appeal from this order is deemed to be frivolous and not taken in
good faith. See 28 U.S.C. § 1915(a)(3).

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

When a party objects to a magistrate judge’s report and recommendation,
the district court performs a de novo review of the contested portions of the report.
See Behar v. Pa. Dep’t of Trans., 791 F. Supp. 2d 383, 389 (M.D. Pa. 2011) (citing
Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989); 28 U.S.C. § 636(b)(1)(c)). In
this regard, Local Rule of Court 72.3 requires written objections to “specifically
identify the portions of the proposed findings, recommendations or report to which
objection is made and the basis for those objections.” LOCAL RULE OF COURT 72.3;
also Behar, 791 F. Supp. 2d at 389 (citing Shields v. Astrue, Civ. No. 07-417, 2008
U.S. Dist. LEXIS 74519, at *6 (M.D. Pa. Sept. 8, 2008)).
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