Kelly v. Merrell et al

Filing 75

ORDER ADOPTING REPORT 68 of Chief Magistrate Judge Carlson, GRANTING defts' MTD 55 , DISMISSING pltf's complaint 1 & directing Clrk of Ct to CLOSE case. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 12/20/16. (ki)

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

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

ORDER
AND NOW, this 20th day of December, 2016, upon consideration of the report
(Doc. 68) of Chief Magistrate Judge Martin C. Carlson, recommending that the court
grant defendants’ motion (Doc. 55) to dismiss the civil rights complaint (Doc. 1) of
pro se plaintiff Allen Kelly (“Kelly”), wherein Judge Carlson determines that Kelly
has failed to comply with orders of court, warranting dismissal under Federal Rule
of Civil Procedure 41(b), and further that Kelly’s claims are procedurally defaulted
for failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a),
and it appearing that, although Kelly filed blanket objections (Doc. 72) to the report,
he never filed the supporting brief that he assured the court was forthcoming and
for which Kelly received a generous 45-day extension of the filing deadline, (Doc.
74), but the court nonetheless mindful of Kelly’s pro se status, and thus reviewing
the report in accordance with the de novo standard of review applied to contested
reports, see Behar v. Pa. Dep’t of Transp., 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
before the court, and finding Kelly’s objections to be without merit, it is hereby
ORDERED that:
1.

The report (Doc. 68) of Chief Magistrate Judge Carlson is ADOPTED.

2.

Defendants’ motion (Doc. 55) to dismiss is GRANTED.

3.

Plaintiff’s complaint (Doc. 1) is DISMISSED.

4.

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