Howard v. Schwenk

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATIONS - IT IS ORDERED THAT Magistrate Judge Carlsons Report and Recommendation 5 , is ADOPTED. Plaintiff Douglass E. Howard, Jr.s motion 2 seeking leave to proceed in forma pauperis is conditionally GRANTED. Pl aintiff Douglass E. Howard, Jr.s complaint 1 is DISMISSED WITHOUT PREJUDICE to Plaintiff filing within 30 days of the date of this Order an amended complaint that addresses the defects cited in Magistrate Judge Carlsons Report and Recommendation. The above-captioned action is referred back to Magistrate Judge Carlson for further pre-trial management. Signed by Honorable Yvette Kane on 7/18/17. (rw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DOUGLASS E. HOWARD, JR.,
Plaintiff
v.
ANITA B. SCHWENK,
Defendant

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No. 1:17-cv-01044
(Judge Kane)

ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On June 14, 2017, Plaintiff Douglass E. Howard, Jr. filed a pro se complaint under 42
U.S.C. § 1983 against Defendant Anita B. Schwenk, the former executrix of an estate, seeking to
“upset or otherwise declare void” an adverse state-court order. (Doc. No. 1.) On June 15, 2017,
Magistrate Judge Carlson issued a Report and Recommendation (Doc. No. 5), recommending
that this Court conditionally grant Plaintiff’s motion for leave to proceed in forma pauperis (Doc.
No. 2), and dismiss Plaintiff’s complaint without prejudice to Plaintiff “endeavoring to correct
the defects cited” in the Report and Recommendation (Doc. No. 1). In his Report and
Recommendation, Magistrate Judge Carlson determined that Plaintiff’s complaint fails to state a
claim given that it runs afoul of both the Rooker-Feldman and Younger abstention doctrines.
(Doc. No. 5.)
On July 12, 2017, Plaintiff filed a “response pleading” clarifying that the “state courts
were improper in their rulings,” asserting that an appellate court “abdicated any pretense of
giving fair and impartial consideration,” and requesting, inter alia, that this Court “grant
[Plaintiff] time to file an amended complaint with any instructions the court deems proper and a
specific deadline of not less than thirty calendars from [the] date of the order.” (Doc. No. 6.)
Here, the Court finds that Magistrate Judge Carlson correctly and comprehensively addressed the
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substance of Plaintiff’s “response pleading” in the Report and Recommendation. (Doc. Nos. 5,
6.) ACCORDINGLY, upon independent review of the record and applicable law, on this 18th
day of July 2017, IT IS ORDERED THAT:
1. Magistrate Judge Carlson’s Report and Recommendation (Doc. No. 5), is
ADOPTED;
2. Plaintiff Douglass E. Howard, Jr.’s motion seeking leave to proceed in forma
pauperis (Doc. No. 2), is conditionally GRANTED;
3. Plaintiff Douglass E. Howard, Jr.’s complaint (Doc. No. 1), is DISMISSED
WITHOUT PREJUDICE to Plaintiff filing — within 30 days of the date of this
Order – an amended complaint that addresses the defects cited in Magistrate Judge
Carlson’s Report and Recommendation;
4. The above-captioned action is referred back to Magistrate Judge Carlson for further
pre-trial management.

s/ Yvette Kane
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania

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