McNeil v. Global Tel-Link et al

Filing 51

ORDER - IT IS HEREBY ORDERED that Magistrate Judge Joseph F. Saporito, Jr.'s 37 Report and Recommendation is ADOPTED IN PART AND REJECTED IN PART; Plaintiff's Complaints is DISMISSED as frivolous and for failure to state a claim; Plainti ff is granted leave to file an Amended Complaint within 21 days of this Order; Plaintiff's pro se filings 44 Motion, 45 Motion to Expedite, and 49 Motion for Summary Judgment are DENIED as moot. Signed by Honorable Matthew W. Brann on 11/13/2017. (jn)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA TERRY MCNEIL, Plaintiff, v. GLOBAL TEL-LINK, et al., Defendant. : : : : : : : : : No. 3:15-CV-01243 (Judge Brann) (Magistrate Judge Saporito) ORDER NOVEMBER 13, 2017 Before the Court for disposition is a Report and Recommendation filed by Magistrate Judge Joseph F. Saporito, Jr.1 In this Report, Magistrate Judge Saporito recommended that (1) the complaint (Doc. 1) be DISMISSED as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), § 1915(e)(2)(B)(ii), § 1915A(b)(1), and 42 U.S.C. § 1997e(c)(1), and (2) the Clerk be directed to close this case.2 Plaintiff has since filed numerous “motions” which this Court will loosely construe as objections.3 1 ECF No. 1. 2 Id. 3 Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013)(recognizing that courts must be flexible when construing pro se pleadings). 1 Upon designation, a magistrate judge may “conduct hearings, including evidentiary hearings, and . . . submit to a judge of the court proposed findings of fact and recommendations.”4 Once filed, this Report and Recommendation is disseminated to the parties in the case who then have the opportunity to file written objections.5 Where no objection is 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.”6 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.7 Following de novo review of the record, I am satisfied that the Report and Recommendation is sound in its legal reasoning and conclusions. Plaintiff’s Complaint should be dismissed because (1) Defendant Global Tel-Link is not a state actor for Section 1983 purposes,8 and (2) Plaintiff has nevertheless failed to 4 28 U.S.C. 636(b)(1)(B). 5 28 U.S.C. 636(b)(1). 6 Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)). 7 28 U.S.C. § 636(b)(1); Local Rule 72.31. 8 See, e.g., Williams v. Securus Correctional Billing, Civil Action No. 14-CV-42, 2014 WL 7338715, at *5 (W.D. Pa. Dec. 22, 2014). 2 state a claim upon which relief can be granted.9 I will, however, reject the Report insofar as it dismisses Plaintiff’s Complaint with prejudice. In his “Objections,” Plaintiff asks for leave to amend his Complaint.10 Therefore, because pro se litigants are to be granted leave to file a curative amended complaint even when a plaintiff does not seek leave to amend, Plaintiff will be granted limited leave to file an Amended Complaint within twenty-one (21) days.11 AND NOW, therefore, IT IS HEREBY ORDERED that: 1. Magistrate Judge Joseph F. Saporito, Jr.’s Report and Recommendation (ECF No. 37) is ADOPTED IN PART AND REJECTED IN PART; 2. Plaintiff’s Complaint is DISMISSED as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), § 1915(e)(2)(B)(ii), § 1915A(b)(1), and 42 U.S.C. § 1997e(c)(1); and 3. Plaintiff Terry McNeil is granted leave to file an Amended Complaint within twenty one (21) days of this Order. If no amended complaint is filed within that timeframe, the action will be summarily dismissed pursuant to Fed. R. Civ. P. 41(b). 9 See, e.g., Almahdi v. Ashcroft, 310 F. App’x. 519, 521 (3d Cir. 2009) (“[P]risoners ‘ha[ve] no right to unlimited telephone use,’ and reasonable restrictions on telephone privileges do not violate their First Amendment rights.”)(quoting Washington v. Reno, 35 F.3d 1093, 1099-1100 (6th Cir. 1994)). 10 ECF No. 43. 11 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245-46 (3d Cir. 2008). 3 4. This case is remanded to Magistrate Judge Saporito to conduct judicial screening of this Amended Complaint. 5. Plaintiff’s pro se filings (ECF Nos. 44, 45, & 49), seeking the Court to expedite a ruling on his case are denied as moot. BY THE COURT: s/ Matthew W. Brann Matthew W. Brann United States District Judge 4

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