Kelly v. Merrell et al

Filing 39

ORDER ADOPTING REPORT 35 of Chief Magistrate Judge Carlson, DISMISSING pltf's complaint 1 w/ prejudice agains defts J. Fisher, K. Kauffmen, R. Lewis, J. Wetzel, S. Moore-Smeal, S. Woodring, D. Caro, D. Varner, T. Williams & L. Hollibaugh, & REMANDING matter to Chief Magistrate Judge Martin C. Carlson for further pretrial management. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 1/14/16. (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 14th day of January, 2016, upon consideration of the report
(Doc. 35) of Chief Magistrate Judge Martin C. Carlson, recommending that the court
dismiss the complaint (Doc. 1) of pro se plaintiff Allen Kelly (“Kelly”) with prejudice
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 in light of plaintiff’s failure to amend his pleading in response to
Judge Carlson’s antecedent report (Doc. 26), and, following an independent review
of the record, the court being in agreement with the magistrate judge that Kelly
has forfeited the opportunity to amend his pleading through inaction, (see Doc. 35
at 3-4), and the court noting that Kelly has filed an objection (Doc. 37) to the instant
report, see FED. R. CIV. P. 72(b)(2), wherein Kelly requests an additional extension
of time in which to amend his pleading, and contends that the magistrate judge did
not permit him a “reasonable amount of time to amend his complaint” relative to
his inmate status and attendant limitations, and following 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 28 U.S.C. § 636(b)(1)(C); Sample v. Diecks, 885 F.2d
1099, 1106 n.3 (3d Cir. 1989)), and applying a clear error standard of review to the
uncontested portions, see Cruz v. Chater, 990 F. Supp. 375, 376-78 (M.D. Pa. 1999),
the court finding Judge Carlson’s analysis to be thorough, well-reasoned, and fully
supported by the record, and further finding Kelly’s objection to be without merit,
specifically noting that Kelly has had more than four (4) months to file an amended
pleading but has failed to do so, it is hereby ORDERED that:
1.

The report (Doc. 35) of Chief Magistrate Judge Carlson is ADOPTED.

2.

Plaintiff’s complaint (Doc. 1) is DISMISSED with prejudice against
defendants Jon Fisher, Kevin Kauffman, Robin M. Lewis, John E.
Wetzel, Shirley Moore-Smeal, S. Woodring, Dan Caro, Dorina Varner,
Tracy Williams, and Lisa Hollibaugh.

3.

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