Foster v. Mills et al

Filing 6

ORDER ADOPTING REPORT 5 of Chief Magistrate Judge Carlson, DISMISSING pltf's complaint 1 w/out prejudice, GRANTING pltf 14 days to amend her pleading w/ failure to do so to result in Clrk of Ct closing case, setting forth instructions re: construction & content of amended pleading, & 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
LA-NANE LEE BANKS WOODS
FOSTER,
Plaintiff
v.
ATTORNEY GREG MILLS, et al.,
Defendants

:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO. 1:14-CV-2373
(Chief Judge Conner)

ORDER
AND NOW, this 23rd day of January, 2015, upon consideration of the report
(Doc. 5) of Chief Magistrate Judge Martin C. Carlson, wherein the magistrate judge
recommends the court dismiss plaintiff’s pro se complaint (Doc. 1) without prejudice
pursuant to 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 or appeal . . . fails to state a claim on
which relief may be granted.”), and it appearing that neither party has objected to

the report, 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 “failing to timely object to [a
report and recommendation] in a civil proceeding may result in forfeiture of de novo
review at the district court level”), it is hereby ORDERED that:
1.

The report (Doc. 5) of Chief Magistrate Judge Carlson is ADOPTED.

2.

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

3.

Plaintiff is GRANTED leave to amend her pleading within fourteen
(14) days. If plaintiff fails to file a curative amended pleading within
fourteen (14) days of the date of this order, the Clerk of Court shall
close this case.

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.

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
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).

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