Smith v. Commonwealth of Pennsylvania et al

Filing 17

ORDER ADOPTING REPORT 14 of Magistrate Judge Saporito, DISMISSING pltf's complaint 1 w/ prejudice to extent it purports to assert claim pursuant to Universal Declaration of Human Rights & claim against Comm of PA for monetary damages - com plaint otherwised DISMISSED w/out prejudict, permitting pltf to amend pleading w/in 20 days of date of this order, seting forth instructions re: form/content of amended pleading, noting in absence of timely filed amended complaint Clrk of Ct shall cl ose action - if timely amended complaint filed matter shall be remanded to Judge Saporito for further proceedings, & noting any appeal from this order deemed frivolous & not taken in good faith. (See order for complete details.) Amended Pleadings due by 11/27/2018.Signed by Chief Judge Christopher C. Conner on 11/6/18. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHARLES E. SMITH,
Plaintiff
v.
COMMONWEALTH OF
PENNSYLVANIA, et al.,
Defendants

:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO. 1:18-CV-1241
(Chief Judge Conner)

ORDER
AND NOW, this 6th day of November, 2018, upon consideration of the
report (Doc. 14) of Magistrate Judge Joseph F. Saporito, Jr., issued following review
of the complaint (Doc. 1) of pro se plaintiff Charles E. Smith (“Smith”) pursuant to
28 U.S.C. § 1915(e)(2)(B), wherein Judge Saporito recommends the court dismiss
Smith’s complaint for failure to state a claim for which relief may be granted, and
it appearing that Smith has not objected to the report, see FED. R. CIV. P. 72(b)(2),
and the court noting that failure 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 at 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 agreement with Judge Saporito’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 Saporito is ADOPTED.

2.

Smith’s complaint (Doc. 1) is DISMISSED with prejudice to the extent
the complaint purports to asserts a claim pursuant to the Universal
Declaration of Human Rights and a claim against the Commonwealth
of Pennsylvania for monetary damages. The complaint (Doc. 1) is
otherwise DISMISSED without prejudice.

3.

Smith 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. In the event a timely amended
complaint is filed, this matter shall be remanded to Judge Saporito for
further proceedings.

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