Ally v. Myers et al

Filing 44

ORDER - IT IS HEREBY ORDERED THAT: 1. The Report and Recommendation (Doc. 41) of Magistrate Judge Mehalchick is ADOPTED in its entirety. 2. Judicial Defendants Motion to Dismiss (Doc. 19) is GRANTED. 3. Attorney Hollingers Motion to Dismiss (Doc. 24) is GRANTED. 4. Alden Myers Motion to Dismiss (Doc. 33) is GRANTED. 5. Karen Myers Motion to Dismiss (Doc. 35) is GRANTED. 6. Detective Hottensteins Motion to Dismiss (Doc. 38) is GRANTED. 7. The state law claims pursuant to 28 U.S.C. § 1367(c)(3) within Plaintiffs complaint (Doc. 1) are DISMISSED WITHOUT PREJUDICE. 8. The Clerk of the Court is directed to CLOSE the file on this case.Signed by Honorable John E. Jones, III on 7/24/19. (dmn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JONATHAN ALLY,
Plaintiff,
v.
KAREN FELICA DEUTEAVICH
MYERS, et al.,
Defendants.

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1:18-cv-00725
Hon. John E. Jones III

Hon. Karoline Mehalchick

ORDER
July 24, 2019
AND NOW, upon consideration of the Report and Recommendation (Doc.
41) of United States Magistrate Judge Karoline Mehalchick recommending that the
complaint (Doc. 1) in this matter be dismissed1, and noting that neither party has
1

The claims set forth within Plaintiff’s complaint pertaining to his arrest, bail, and state criminal
case must be dismissed for a variety of reasons. First, Plaintiff’s claims that involve his state
criminal case are barred by the Younger abstention doctrine. See Younger v. Harris, 401 U.S. 37
(1971). Second, Plaintiff’s § 1983 claims against Karen Myers and Attorney Hollinger must fail
because Plaintiff failed to allege either defendant acted under the color of state law. See
Simonson v. Hemlock Farms Cmty. Ass’n., No. 3:06cv2084, 2007 WL 136753, at *2 (M.D. Pa.
January 16, 2007); see Polk County v. Dodson, 454 U.S. 312, 325 (1981). Additionally, any
claims against Alden Myers fail because Plaintiff did not include any allegations against Mr.
Myers in the body of the complaint. See Robinson v. Wheary, No. 1:16-CV-02222, 2017 WL
2152365, at *1-2 (M.D. Pa. May 17, 2017). Third, the Judicial Defendants, acting in
performance of their duties, have absolute immunity from suit, and as a result of the allegations
being centered on judicial acts, they are immunized from Plaintiff’s claims. See Azubuko v.
Royal, 443 F.3d 302, 303 (3d Cir. 2006). Fourth, Plaintiff failed to provide service to Shane
Kope within the requisite 90 days, and, as such, the claims against Mr. Kope must fail. See Fed.
R. Civ. P. 4(m). Fifth, Plaintiff’s third-party claims for rape, murder, and sex trafficking fail
because he lacks standing to assert a cause of action for the prosecution or nonprosecution of a
third party. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); see Gessner v. Dept. of
Corr., No. 3:14-CV-111, 2014 WL 972290, at *6 (M.D. Pa. March 12, 2014). Finally, since all

filed objections2 to the report and that there is no clear error on the record, see
Nara v. 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
Mehalchick’s analysis to be thorough, well-reasoned, and fully supported by the
record IT IS HEREBY ORDERED THAT:
1.

The Report and Recommendation (Doc. 41) of Magistrate Judge
Mehalchick is ADOPTED in its entirety.

2.

Judicial Defendants Motion to Dismiss (Doc. 19) is GRANTED.

3.

Attorney Hollinger’s Motion to Dismiss (Doc. 24) is
GRANTED.

of Plaintiff’s federal claims will be dismissed, we shall decline to exercise jurisdiction over the
remaining state law claims pursuant to 28 U.S.C. § 1367(c)(3). See Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 (1988).
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
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

4.

Alden Myers’ Motion to Dismiss (Doc. 33) is GRANTED.

5.

Karen Myers’ Motion to Dismiss (Doc. 35) is GRANTED.

6.

Detective Hottenstein’s Motion to Dismiss (Doc. 38) is GRANTED.

7.

The state law claims pursuant to 28 U.S.C. § 1367(c)(3) within
Plaintiff’s complaint (Doc. 1) are DISMISSED WITHOUT
PREJUDICE.

8.

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

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