Palencar v. Raijski et al
Filing
65
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 2/15/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
HILARY PALENCAR,
:
Plaintiff
:
CIVIL ACTION NO. 3:15-1189
v.
:
(MANNION, D.J.)
STANLEY RAIJSKI,
Defendant
:
:
MEMORANDUM
Pending before the court is the report of Magistrate Judge Martin C.
Carlson, which recommends that the instant action be dismissed. (Doc. 63).
Specifically, Judge Carlson references correspondence from the plaintiff in
which she indicates that she no longer wishes to proceed with the instant
action. (Doc. 62). On January 25, 2017, the plaintiff filed “objections” to Judge
Carlson’s report. (Doc. 64). Upon review, the plaintiff does not substantively
object to the report and, in fact, confirms her intent to discontinue the instant
action. (Doc. 64).
Where no objections are made to a report and recommendation, 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, not accept or
modify, in whole or in part, the findings or recommendations made by the
magistrate judge. 28 U.S.C. §636(b)(1); Local Rule 72.31.
By way of background, the plaintiff, a pro se litigant, originally filed this
action on June 17, 2015. Judge Carlson gave the plaintiff’s complaint
preliminary consideration and recommended that a majority of the plaintiff’s
claims be transferred to the United States District Court for the District of
Maine, as venue in this District was improper as to those claims. As to the
claims presented against the one defendant for whom venue was proper,
defendant Raijski, Judge Carlson recommended that the plaintiff be directed
to file an amended complaint. (Doc. 3). By memorandum and order dated
September 8, 2015, the undersigned adopted Judge Carlson’s report in its
entirety and remanded the action to Judge Carlson for further proceedings.1
(Doc. 8, Doc. 9).
The plaintiff filed an amended complaint against defendant Raijski on
September 18, 2015, (Doc. 10), followed by a motion to correct the amended
complaint on December 29, 2015, (Doc. 16). On the following day, the
defendant filed a motion to dismiss the plaintiff’s amended complaint. (Doc.
17). Judge Carlson granted the plaintiff’s motion to correct her amended
complaint on January 25, 2016. (Doc. 23). Rather than filing a corrected
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In the memorandum, the court also ruled upon the plaintiff’s request for
the recusal of Judge Carlson, denying the request as having no basis.
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amended complaint, on February 26, 2016, the plaintiff filed a motion for leave
to file a second amended complaint. (Doc. 31). Judge Carlson denied the
plaintiff’s motion for leave to file a second amended complaint and directed
that, if the plaintiff was seeking leave to further amend her pleadings, she was
to prepare a comprehensive proposed amended complaint and submit it along
with a motion to amend in accordance with L.R. 15.1. (Doc. 33, Doc. 34).
On April 6, 2016, the plaintiff filed a second motion for leave to file a
second amended complaint, along with the proposed second amended
complaint. (Doc. 35). A supporting brief was filed on April 8, 2016. (Doc. 36).
By report dated, June 16, 2016, Judge Carlson recommended that the
defendant’s motion to dismiss the plaintiff’s amended complaint be granted
and that the plaintiff’s second motion for leave to amend be denied. (Doc. 37).
Noting the legal obstacles that prevent the court from assisting the plaintiff
with her claims, Judge Carlson further recommended, however, that the
plaintiff be permitted to lodge yet another amended complaint which would
cure the deficiencies outlined in his report.
On June 20, 2016, prior to this court considering Judge Carlson’s report
and recommendation, the plaintiff filed her third amended complaint. (Doc.
38). Following this, on July 11, 2016, the undersigned issued a memorandum
and order adopting the June 16, 2016, report of Judge Carlson in its entirety
and accepting for filing the plaintiff’s third amended complaint. (Doc. 41). The
matter was remanded to Judge Carlson for further proceedings.
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On August 1, 2016, defendant Raijski filed a motion to dismiss the
plaintiff’s third amended complaint. (Doc. 44). After having been granted an
extension of time to do so, (Doc. 48), defendant Raijski filed a brief in support
of his motion to dismiss, (Doc. 49). In the meantime, the plaintiff had filed a
premature brief in opposition to the motion to dismiss on August 2, 2016.
(Doc. 46). Upon request, (Doc. 50), the plaintiff was granted permission to file
a second opposing brief, (Doc. 51), which she proceeded to do on September
21, 2016, (Doc. 52).
By report dated November 9, 2016, Judge Carlson recommended that
the defendant’s motion to dismiss the plaintiff’s third amended complaint be
granted, in part, in that all of the plaintiff’s claims, except her §3617 claim, be
dismissed. As to the §3617 claim, Judge Carlson recommended that the
plaintiff be directed to file a more definite statement of her claim, asserting
facts which would allow for an informed evaluation of the claim. (Doc. 54). The
plaintiff filed objections to Judge Carlson’s report. (Doc. 55). By memorandum
and order dated November 23, 2016, the court adopted Judge Carlson’s
report in its entirety, (Doc. 56, Doc. 57), and the plaintiff was directed to file
a more definite statement on or before December 9, 2016.
On November 29, 2016, the plaintiff filed her more definite statement,
(Doc. 58), which was followed on December 13, 2016, by yet another motion
to dismiss by the defendant. (Doc. 59). A brief in support of the defendant’s
motion to dismiss was filed on December 27, 2016. (Doc. 60). When no
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opposing brief was received from the plaintiff, Judge Carlson issued an order
on January 24, 2017, advising the plaintiff to file a response by February 3,
2017, or risk having her action dismissed. (Doc. 61). On the same day, the
plaintiff filed the correspondence referenced by Judge Carlson in the pending
report, in which she indicates that she is no longer able to proceed with the
instant action. (Doc. 62). In his report, Judge Carlson has reviewed each of
the factors set forth in Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863,
868 (3d Cir. 1984), to determine whether dismissal is appropriate in this case.
Judge Carlson concluded that an analysis of the Poulis factors, in fact, calls
for dismissal of this case.
The court has reviewed both Judge Carlson’s report, as well as the
plaintiff’s response thereto. Given the plaintiff’s indication that she is no longer
willing or able to pursue the instant action, the court will adopt Judge
Carlson’s recommendation and direct that the instant action be dismissed.
On the basis of the foregoing, an appropriate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: February 15, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2015 MEMORANDA\15-1189-04.wpd
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