Nieves v. Thorne et al

Filing 35

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 4/5/17. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LUIS NIEVES,

:
No. 3:16cv1912
Plaintiff
:
:
(Judge Munley)
v.
:
: (Magistrate Judge Carlson)
OFFICER PAUL TOMCZYK, et al.,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court for disposition is Magistrate Judge Martin C.
Carlson’s report and recommendation (hereinafter “R&R”). (Doc. 31). The
R&R proposes granting Defendant Officer Paul Tomczyk’s (hereinafter
“Officer Tomczyk”) motion to dismiss. (Doc. 20). For the following reasons,
the court will adopt the R&R.
Background
Plaintiff Luis Nieves (hereinafter “plaintiff”), a state prisoner, avers
that on August 4, 2015, Officer Tomczyk and several paramedics found him
bleeding from lacerations on his arm. (Doc. 1, Compl. (hereinafter
“Compl.”), at 2-3). According to plaintiff, Officer Tomczyk and the
paramedics briefly restrained him to provide medical treatment, including
an injection and stitches. (Id.)

On September 19, 2016, plaintiff sued Officer Tomczyk and the
paramedics for medical malpractice and a violation of his civil rights,
alleging that his medical treatment was involuntary. (See Compl.). On
January 23, 2017, Officer Tomczyk filed a motion to dismiss. (Doc. 20).
On March 2, 2017, Magistrate Judge Carlson recommended granting the
motion to dismiss. (Doc. 31). Plaintiff has not responded to the R&R in
any meaningful way,1 and the time for filing a response has passed. Thus,
we find that plaintiff has not filed objections to the R&R.
Legal Standard
When deciding whether to adopt a report and recommendation when
no objections have been filed, the court must determine if a review of the
record evidences plain error or manifest injustice. FED. R. CIV. P. 72(b)
1983 Advisory Committee Notes (“When no timely objection is filed, the
court need only satisfy itself that there is no clear error on the face of the
record to accept the recommendation.”); see also 28 U.S.C. § 636(b)(1);
Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir. 1983).

1

Plaintiff has filed three letters with the court. (Docs. 32, 33, and 34).
Plaintiff’s letters, however, do not object to, respond to, or even reference
the R&R, nor do they discuss the claims made in this lawsuit.
2

Discussion
After a careful review, we find neither a clear error on the face of the
record nor a manifest injustice for three reasons. First, plaintiff failed to
timely oppose Officer Tomczyk’s motion to dismiss under Local Rule 7.6,
and therefore, the motion is deemed unopposed.2 Second, the record
reflects that plaintiff has repeatedly failed to prosecute or to comply with
court rules and orders under FED. R. CIV. P. 41(b), and therefore, pursuant
to the factors articulated in Poulis v. State Farm Fire and Cas. Co., 747
F.2d 863 (3d Cir. 1984), his claims against Officer Tomczyk must be
dismissed. Finally, Officer Tomczyk is not a medical professional, and
therefore, is not subject to plaintiff’s medical malpractice claim.
Furthermore, even viewing plaintiff’s allegations as true, Officer Tomczyk is
entitled to qualified immunity for the reasons set forth in the R&R. Thus,
we will adopt the R&R and dismiss Officer Tomczyk.

2

Specifically, Officer Tomczyk filed a motion to dismiss on January 23,
2017. (Doc. 20). On February 1, 2017, he filed a brief in support of the
motion. (Doc. 24). Plaintiff failed to respond to the motion, and the time for
filing a response passed. Consequently, on February 17, 2017, Magistrate
Judge Carlson directed plaintiff to respond to Officer Tomczyk’s motion to
dismiss on or before March 1, 2017. (Doc. 27). Plaintiff failed to do so.
Instead, plaintiff filed, on February 22, 2017, March 1, 2017, and March 2,
2017, respectively, three letters that failed to address the motion to dismiss
in any meaningful way. (Docs. 28, 29, and 30).
3

Conclusion
For the foregoing reasons, the court will adopt Magistrate Judge
Carlson’s R&R granting Officer Tomczyk’s motion to dismiss. An
appropriate Order follows.

Date: April 5, 2017

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

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