DeLeo v. Spaulding

Filing 17

ORDER - It is hereby ORDERED that: 1. DeLeo's late-filed obj 16 to ct's adoption of report of Magistrate Judge Saporito 12 OVERRULED.; 2. Case shall remain closed. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 6/3/16. (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 3rd day of June, 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 pro se plaintiff Ralph Francis DeLeo
(“DeLeo”) for failure to exhaust administrative remedies, (Doc. 12 at 4-11), and
deny DeLeo’s motion (Doc. 11) for appointment of counsel as moot, (Doc. 12 at 11),
as well as the court’s order (Doc. 13) adopting Judge Saporito’s report in full, and
further upon consideration of DeLeo’s late-filed objection (Doc. 16) to Judge
Saporito’s report, see FED. R. CIV. P. 72(b)(2), wherein DeLeo contends that he
exhausted his administrative remedies while the instant action was pending, (see
Doc. 14 at 1), and, following a de novo review of the contested portions of the
report, 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 Saporito’s analysis to be thorough, well-reasoned, and fully supported by the
record, and finding DeLeo’s objection (Doc. 16) to be without merit and squarely
addressed by the report, which correctly observes that a prisoner’s exhaustion of
administrative remedies “must occur prior to filing suit, not while the suit is
pending,” (Doc. 12 at 9 (quoting Millbrook v. United States, 8 F. Supp. 3d 601, 611
(M.D. Pa. 2014))), it is hereby ORDERED that:
1.

DeLeo’s late-filed objection (Doc. 16) to the court’s adoption of the
report (Doc. 12) of Magistrate Judge Saporito is OVERRULED.

2.

This case shall remain closed.

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