Flores v. Clerk of Court of Lehigh County et al

Filing 14

ORDER ADOPTING REPORT of Magistrate Judge Blewitt 10 , DISMISSING pltf's complaint 1 w/out prejudice, granting pltf leave to amend pleading w/ in 20 days of date of this order, setting forth instructions re: content & filing of said amended p leading, noting any appeal from this order is deemed frivolous & not taken in good faith, & directing Clrk of Ct to TRANSFER above-captioned action to USDC for EDPA. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 3/23/15. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JESUS FLORES,
Plaintiff
v.
CLERK OF COURT OF LEHIGH
COUNTY, et al.,
Defendants

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CIVIL ACTION NO. 1:14-CV-2108
(Chief Judge Conner)

ORDER
AND NOW, this 23rd day of March, 2015, upon consideration of the report
(Doc. 10) of Magistrate Judge Thomas M. Blewitt, recommending the court dismiss
pro se plaintiff’s complaint with leave to amend, transfer the matter to the United
States District Court for the Eastern District of Pennsylvania, and defer resolution
of plaintiff’s motion (Doc. 7) to proceed in forma pauperis to the Eastern District,
and, following an independent review of the record, the court being in agreement
with the magistrate judge that plaintiff’s complaint must be dismissed for failure to
state a cognizable constitutional claim, and that such dismissal should be without
prejudice to plaintiff’s ability to file an amended pleading attempting to cure the
deficiencies identified in the report, and the court also in agreement with the
recommendation to transfer the matter to the Eastern District of Pennsylvania,
where the claim asserted by plaintiff arose, and the court noting that plaintiff filed

an objection1 (Doc. 13) to the report, and finding his objection to be without merit
and squarely addressed by Judge Blewitt’s report, it is hereby ORDERED that:
1.

The report (Doc. 10) of Magistrate Judge Blewitt is ADOPTED.

2.

Plaintiff’s complaint (Doc. 1) is DISMISSED without prejudice.

3.

Plaintiff is granted leave to amend his pleading within twenty (20) days
of the date of this order.

4.

Any amended pleading filed pursuant to paragraph 3 shall be filed to
the same docket number as the instant action, shall be entitled “First
Amended Complaint,” and shall be complete in all respects. It shall be
a new pleading which stands by itself as an adequate complaint under
the Federal Rules of Civil Procedure, without reference to the
complaint (Doc. 1) hereinabove dismissed.

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).

6.

The Clerk of Court is directed to TRANSFER the above-captioned
action to the United States District Court for the Eastern District of
Pennsylvania.

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

1

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)).