Escalera v. Harry et al

Filing 77

ORDER ADOPTING REPORT of Magistrate Judge Schwab 68 & denying defts' MTD 54 without prejudice to defts' right to reassert the adminstrative exhaustion defense on a more developed record. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 11/7/16. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DOMINIC ESCALERA,
Plaintiff
v.
WARDEN LAUREL HARRY, et al.,
Defendants

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CIVIL ACTION NO. 1:15-CV-2132
(Chief Judge Conner)

ORDER
AND NOW, this 7th day of November, 2016, upon consideration of the
report (Doc. 68) of Magistrate Judge Susan E. Schwab, recommending the court
deny defendants’ motion (Doc. 54) to dismiss, wherein Judge Schwab opines that
the administrative exhaustion defense raised by defendants is not properly before
the court at this juncture, and it appearing that defendants did not object to the
report, see FED. R. CIV. P. 72(b)(2), and the court noting that failure of a party to
timely object to a magistrate judge’s conclusions “may result in forfeiture of de novo
review at the district court level,” Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007)
(citing Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987)), but that, as a
matter of good practice, a district court should “afford some level of review to
dispositive legal issues raised by the report,” Henderson, 812 F.2d at 878; see also
Taylor v. Comm’r of Soc. Sec., 83 F. Supp. 3d 625, 626 (M.D. Pa. 2015) (citing Univac
Dental Co. v. Dentsply Int’l, Inc., 702 F. Supp. 2d 465, 469 (M.D. Pa. 2010)), in order
to “satisfy itself that there is no clear error on the face of the record,” FED. R. CIV. P.

72(b), advisory committee notes, and, following an independent review of the
record, the court in agreement with Judge Schwab’s recommendation, and
concluding that there is no clear error on the face of the record, it is hereby
ORDERED that:
1.

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

2.

Defendants’ motion (Doc. 54) to dismiss is DENIED without prejudice
to defendants’ right to reassert the administrative exhaustion defense
on a more developed record.

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