Concert v. Northeast Foster Care Inc. et al

Filing 21

MEMORANDUM re 15 REPORT AND RECOMMENDATIONS re 4 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. (order to follow)Signed by Honorable Malachy E Mannion on 2/22/13. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS CONCERT,

:

Plaintiff

:

v.

CIVIL ACTION NO. 3:12-1457

:

(MANNION, D.J.)1
(CARLSON, M.J.)

:
NORTHEAST FOSTER CARE
INC.; LOU PALMERI; JUANITA
KREIGER,

:
:

Defendants
:
MEMORANDUM2
Presently before the court is a report and recommendation issued by
Judge Martin C. Carlson, (Doc. No. 15). Judge Carlson recommends that the
defendants’ motion to dismiss, (Doc. No. 4), be granted. Also before the court
are the plaintiff’s objections to the report and recommendation, (Doc. No. 16).
Though the objection’s were not timely filed, the court has considered them
and will nevertheless adopt the report and recommendation and dismiss all
claims.
1

This case was originally assigned to the Honorable A. Richard Caputo.
Pursuant to the verbal order dated January 7, 2013, the case has been
reassigned to the undersigned.
2

For the convenience of the reader of this document in electronic
format, hyperlinks to the court’s record and to authority cited have been
inserted. No endorsement of any provider of electronic resources is intended
by the court’s practice of using hyperlinks.

I.

BACKGROUND
The court finds Judge Carlson’s statement of the facts of the case to be

as coherent and complete as possible given the lack of structure and clarity
in the underlying complaint. Therefore, the court will adopt the facts as stated
in the report and recommendation. As Judge Carlson describes in his report
and recommendation, the plaintiff has brought numerous legal challenges in
both state and federal court related to his children’s experience in Luzerne
County foster care system. The plaintiff’s two children, born in 1984 and 1987
respectively, entered the care of Defendant Northeast Foster Care in 1990.
The plaintiff’s complaint, (Doc. No. 1, Ex. A), states his generalized
dissatisfaction with child custody decisions regarding his children, which were
made in the 1990s, as well as the level of supervision his children received
while in foster care. The defendants filed a motion to dismiss, (Doc. No. 4),
citing the lapse of the statute of limitations and the plaintiff’s failure to state a
claim.

II.

STANDARD OF REVIEW
When objections are timely filed to the report and recommendation of

a Magistrate Judge, the district court must review de novo those portions of
the report to which objections are made. See 28 U.S.C. §636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (2011). Although the standard is de novo, the
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extent of review is committed to the sound discretion of the district judge, and
the court may rely on the recommendations of the magistrate judge to the
extent it deems proper. See Rieder v. Apfel, 115 F.Supp.2d 496, 499 (2000)
(citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good practice, “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
Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (2010)
(citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining
judges should give some review to every report and recommendation)).
Nevertheless, whether timely objections are made or not, the district court
may accept, reject or modify, in whole or in part, the findings or
recommendations made by the Magistrate Judge. See 28 U.S.C. §636(b)(1);
Local Rule 72.31.

III.

DISCUSSION
Judge Carlson recommends dismissal on three alternative grounds:

first, that the defendants’ pending motion to dismiss is unopposed; second,
that the plaintiff’s claims should be dismissed for failure to prosecute under
Federal Rule of Civil Procedure 41, and; third, that the plaintiff’s claims should
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be dismissed on the merits.
The plaintiff’s objections, which were not timely filed, fail to controvert
any of the grounds on which Judge Carlson recommends dismissal. The
plaintiff moved for a 90 day extension of time to respond to the defendants’
motion to dismiss, however, the judge in his discretion directed the plaintiff to
file any opposition by September 12, 2013. The plaintiff did not file a brief in
opposition to the motion to dismiss and to this date the motion remains
unopposed. (Doc. No. 11). Moreover, the plaintiff’s failure to comply with the
court’s order to file a response, in addition to other evidence which was
properly considered as part a Poulis3 evaluation, led Judge Carlson to the
correct determination that the plaintiff has failed to prosecute his claim.
Therefore, either granting the unopposed motion to dismiss or dismissing the
complaint for failure to prosecute would be appropriate.
Turning briefly to the merits of the plaintiff’s complaint, the plaintiff’s
objections purport to further explain the grounds on which his claims rest;
however, they do little to rectify the key failures of the plaintiff’s pleading. In
particular, Judge Carlson found that any claims related to custody or the
foster care his two children received would have ended when the children
reached the age of majority in 2002 and 2005 respectively. Before the case

3

Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d
Cir.1994).
4

was removed to this court, the plaintiff’s complaint was filed in the Luzerne
County Court of Common Pleas in May 2010, well beyond the two year statue
of limitations for §1983 claims. Like the plaintiff’s complaint, the plaintiff’s
objections offer extended discussion of principals of law and sporadic factual
narratives, however, they do not address the statute of limitations issue nor
do they properly plead any claim on which relief can be granted. Therefore,
the court will adopt Judge Carlson’s report and recommendation.

IV.

CONCLUSION
Having considered the plaintiff’s objections, though they were not timely

filed, the court will adopt Judge Carlson’s report and recommendation. The
defendants’ motion to dismiss will be granted. An appropriate order will follow.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATED: February 22, 2013
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