Kelly v. Merrell et al

Filing 32

ORDER ADOPTING REPORT of Chief Magistrate Judge Carlson 26 , DISMISSING pltf's complaint 1 with prejudice as to following defts... (see Para 2 for specifics), DISMISSING pltf's complaint 1 without prejudice as to following defts... (s ee Para 3 for specifics), GRANTING pltf leave to amend pleading w/in 20 days of date of this order consistent w/ Paras 2 & 3, and REMANDING matter to Chief Magistrate Judge Carlson for further pretrial management. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 9/8/15. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALLEN KELLY,
Plaintiff
v.
J.T. MERRILL, et al.,
Defendants

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CIVIL ACTION NO. 1:14-CV-2322
(Chief Judge Conner)

ORDER
AND NOW, this 8th day of September, 2015, upon consideration of the
report (Doc. 26) of Chief Magistrate Judge Martin C. Carlson, recommending the
court dismiss plaintiff’s pro se complaint (Doc. 1) for failure to state a viable claim
against a number of defendants, see 28 U.S.C. § 1915(e)(2)(B)(ii) (“[T]he court shall
dismiss the case at any time if the court determines that . . . the action . . . fails to
state a claim on which relief may be granted.”), and following an independent
review of the record, the court in agreement with Judge Carlson that plaintiff’s
complaint (Doc. 1) fails to state supervisory liability claims against defendants Jon
Fisher, Kevin Kauffman, Robin M. Lewis, John E. Wetzel, Shirley Moore-Smeal, S.
Woodring, Dan Caro, Donna Varner, Tracy Williams, and Lisa Hollibaugh, (see Doc.
26 at 10-16); that the doctrines of judicial and quasi-judicial immunity bar plaintiff’s
constitutional claims against Huntingdon County Court of Common Pleas Judges
George N. Zanic and Stewart L. Kurtz, and Huntingdon County Prothonotary Kay
Coons, (see id. at 16-19); and that the doctrine of sovereign immunity bars plaintiff’s
claims against the Pennsylvania Board of Probation and Parole, (see id. at 19-22),

and the court further in agreement that plaintiff’s claims against the judicial
officers, the prothonotary, and the state agency are legally deficient and thus
incurable, but that plaintiff should be granted leave to amend his constitutional
claims against the supervisory defendants, see Fletcher-Hardee Corp. v. Pote
Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007) (directing district courts to
provide leave to amend in civil rights cases “irrespective of whether it is requested
. . . unless doing so would be inequitable or futile”), and it appearing that plaintiff
did not object to the report despite two generous extensions of time in which to do
so, (see Docs. 29, 31), 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

1

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 accordance with this Third Circuit
directive.
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object “may result in forfeiture of de novo review at the district court level”), it is
hereby ORDERED that:
1.

The report (Doc. 26) of Chief Magistrate Judge Carlson is ADOPTED.

2.

Plaintiff’s complaint (Doc. 1) is DISMISSED with prejudice as to the
following defendants:
a.
b.
c.
d.

3.

Plaintiff’s complaint (Doc. 1) is DISMISSED without prejudice as to
the following defendants:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.

4.

Huntingdon County Court of Common Pleas President Judge
George N. Zanic;
Huntingdon County Court of Common Pleas Judge Stewart L.
Kurtz;
Huntingdon County Prothonotary Kay Coons; and
Pennsylvania Board of Probation and Parole.

Jon Fisher;
Kevin Kauffman;
Robin M. Lewis;
John E. Wetzel;
Shirley Moore-Smeal;
S. Woodring;
Dan Caro;
Dorina Varner;
Tracy Williams; and
Lisa Hollibaugh.

Plaintiff is granted leave to amend his pleading within twenty (20) days
of the date of this order, consistent with paragraphs 2 and 3 above.
Any amended pleading filed pursuant to this paragraph 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.

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5.

This matter is REMANDED to Chief Magistrate Judge Carlson for
further pretrial management.

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