DeLeo v. Spaulding

Filing 13

ORDER ADOPTING REPORT of Magistrate Judge Saporito 12 , DISMISSING amended complaint 8 w/out prejudice for failure to exhaust administrative remedies, denying Deleo's motion for appt of cnsl 8 as MOOT, & directing Clrk of Ct to CLOSE case. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 5/9/16. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RALPH FRANCIS DELEO,
Plaintiff
v.
S. SPAULDING, WARDEN,
Defendant

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CIVIL ACTION NO. 1:15-CV-2321
(Chief Judge Conner)

ORDER
AND NOW, this 9th day of May, 2016, upon consideration of the report
(Doc. 12) of Magistrate Judge Joseph F. Saporito, Jr., recommending the court
dismiss the amended complaint (Doc. 8) of plaintiff Ralph Francis Deleo (“Deleo”)
for failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a),
(see Doc. 12 at 4-11); see also 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915A(b)(1), and
further recommending the court deny Deleo’s motion (Doc. 11) for appointment of
counsel as moot, (see Doc. 12 at 11), and it appearing that Deleo 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 Saporito’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. 12) of Magistrate Judge Saporito is ADOPTED.

2.

The amended complaint (Doc. 8) of plaintiff Ralph Francis Deleo
(“Deleo”) is DISMISSED without prejudice for failure to exhaust
administrative remedies.

3.

Deleo’s motion (Doc. 11) for appointment of counsel is DENIED as
moot.

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