Larson v. Garman et al

Filing 63

ORDER ADOPTING REPORT AND RECOMMENDATIONS - IT IS HEREBY ORDERED THAT: 1. The Report and Recommendation (Doc. 61) of Magistrate Judge Schwab is ADOPTED in its entirety. 2. This matter is DISMISSED for Plaintiffs failure to prosecute pursuant to Fed. R. Civ. P. 41(b). 3. The pending Motions for Summary Judgment (Doc. 50 and 55) are DISMISSED. 4. The Clerk of Court is directed to CLOSE the file on this case. See Order for further details.Signed by Honorable John E. Jones, III on 3/12/19. (dmn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN D. LARSON,
Plaintiff,
v.
SUPERINTENDENT GARMAN,
et al.,
Defendants.

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1:16-cv-2064
Hon. John E. Jones III
Hon. Susan E. Schwab

ORDER
March 12, 2019
AND NOW, upon consideration of the Report and Recommendation (Doc.
9) of Chief United States Magistrate Judge Susan E. Schwab recommending that
this matter be dismissed pursuant to Fed. R. Civ. P. 41(b) for the Plaintiff’s failure
to prosecute this action,1 and noting that no parties have filed objections to the
R&R, and further noting that there is no clear error on the record,2 see Nara v.
The copy of the Magistrate Judge’s report that was mailed to Plaintiff was returned to the Clerk
of Court by the United States Post Office as “Undeliverable.” (Doc. 62). Plaintiff has further
failed to respond to the pending motions for summary judgment or the Magistrate Judge’s show
cause order filed on November 16, 2018, which was also returned to the Clerk as
“Undeliverable”. (Docs. 58 and 59).
1

When parties fail to file timely objections 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. 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
2

1

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”) and the Court finding Judge Schwab’s
analysis to be thorough, well-reasoned, and fully supported by the record IT IS
HEREBY ORDERED THAT:
1.

The Report and Recommendation (Doc. 61) of Magistrate

Judge Schwab is ADOPTED in its entirety.
2.

This matter is DISMISSED for Plaintiff’s failure to prosecute

pursuant to Fed. R. Civ. P. 41(b).
3.

The pending Motions for Summary Judgment (Doc. 50 and 55)

are DISMISSED.
4.

The Clerk of Court is directed to CLOSE the file on this case.

s/ John E. Jones III
John E. Jones III
United States District Judge

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 has reviewed
the magistrate judge’s report and recommendation in accordance with this Third Circuit
directive.
2