Carricato v. Delgado

Filing 6

ORDER ADOPTING REPORT 5 of Magistrate Judge Mehalchick, DISMISSING complaint w/out prejudice, granting pltf leave to amend pleading w/in 20 days, setting forth instructions re: amended pleading (see Para 4 for details), noting in absence of timely filed amended complaint Clrk of Ct shall close action, & noting any appeal from this order deemeed frivolous & not takein in good faith. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 6/26/17. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS J. CARRICATO, JR.,
Plaintiff
v.
AGENT DELGADO, et al.,
Defendants

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CIVIL ACTION NO. 1:17-CV-436
(Chief Judge Conner)

ORDER
AND NOW, this 26th day of June, 2017, upon consideration of the report (Doc.
5) of Magistrate Judge Karoline Mehalchick, issued following comprehensive review
of the complaint (Doc. 1) of pro se plaintiff Thomas J. Carricato, Jr. (“Carricato”)
pursuant to 28 U.S.C. § 1915(e)(2)(B), wherein Judge Mehalchick recommends that
the court dismiss Carricato’s complaint for failure to state a claim for which relief
may be granted and for failure to comply with the pleading requirements of Federal
Rule of Civil Procedure 8(a), see FED. R. CIV. P. 8(a), and further recommends that
the court grant Carricato an opportunity to amend his complaint, (see Doc. 5 at 6),
and it appearing that no party has objected 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 t 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
independent review of the record, the court being in full agreement with Judge
Mehalchick’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. 5) of Magistrate Judge Mehalchick is ADOPTED.

2.

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

3.

Carricato is granted leave to amend his pleading within twenty (20)
days of the date of this order.

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 under
the Federal Rules of Civil Procedure, without reference to the
complaint (Doc. 1) hereinabove dismissed.

5.

In the absence of a timely-filed amended complaint, the Clerk of Court
shall close the above-captioned action.

6.

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