Cunningham v. Thomas et al

Filing 15

ORDER ADOPTING REPORT 14 of Magistrate Judge Mehalchick, DISMISSING pltf's complaint 1 & prop'd amended pleadings 4 10 13 , granting pltf leave to amend pleading w/in 30 days of date of this order, setting forth instructions re: f iling, form & content of amended pleading (see Para 4 for specifics), & noting if pltf files timely amended pleading... matter shall be remanded to MJ Mehalchick for further proceedings - if pltf fails to file timely amended pleading Clrk of Ct shall close case. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 3/29/19. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HAROLD CUNNINGHAM,
Plaintiff
v.
J.T. THOMAS, et al.,
Defendants

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CIVIL ACTION NO. 1:17-CV-2069
(Chief Judge Conner)

ORDER
AND NOW, this 29th day of March, 2019, upon consideration of the
report (Doc. 14) of Magistrate Judge Karoline Mehalchick, recommending that
the court dismiss the complaint (Doc. 1) and various proposed amended pleadings
(Docs. 4, 10, 13) of pro se plaintiff Harold Cunningham (“Cunningham”) for failure
to state a claim for which relief may be granted pursuant to 28 U.S.C. § 1915A(b)(1),
and further recommending that the court grant Cunningham an opportunity to
amend his complaint in response to the report, and it appearing that Cunningham
has not 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 “reasoned
consideration” to the uncontested portions of the report, E.E.O.C. v. City of Long
Branch, 866 F.3d 93, 100 (3d Cir. 2017) (quoting Henderson, 812 F.2d at 879), 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 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. 14) of Magistrate Judge Mehalchick is ADOPTED.

2.

Cunningham’s complaint (Doc. 1) and proposed amended pleadings
(Docs. 4, 10, 13) are DISMISSED without prejudice.

3.

Cunningham is granted leave to amend his pleading within 30 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) or proposed amended pleadings (Docs. 4, 10, 13)
hereinabove dismissed.

5.

If Cunningham files a timely amended pleading in accordance with
paragraphs 3 and 4 above, this matter shall be remanded to Judge
Mehalchick for further proceedings. If Cunningham fails to file a
timely amended pleading, the Clerk of Court shall close this case.

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