Griggs v. Federal Bureau of Prisons et al
Filing
8
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 10/3/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
DAVID M. GRIGGS,
:
CIVIL ACTION NO. 3:17-0208
Plaintiff
:
(JUDGE MANNION)
v.
:
FEDERAL BUREAU OF
PRISONS, et al.,
:
:
Defendants
:
MEMORANDUM
Pending before the court is the report of Chief Magistrate Judge Susan
E. Schwab, which recommends that the plaintiff’s complaint be dismissed for
failure to state a claim upon which relief can be granted, as well as for the
plaintiff’s failure to prosecute this action. (Doc. 6). There are no objections to
Judge Schwab’s report.
By way of relevant background, on February 3, 2017, the plaintiff filed
the instant action alleging inadequate medical care for various conditions.
(Doc. 1). By order dated May 23, 2017, Judge Schwab noted the deficiencies
of the plaintiff’s filing and granted the plaintiff time to file an amended
complaint to cure those deficiencies. (Doc. 3). The plaintiff subsequently
requested, and was granted, additional time to file an amended complaint;
however, no amended complaint was filed.
On September 15, 2017, Judge Schwab issued the instant report in
which she considered the plaintiff’s filing both pursuant to the Federal Tort
Claims Act, (“FTCA”), 28 U.S.C. §2671, et seq., as well as pursuant to Bivens
v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971). Judge Schwab determined that the plaintiff had failed to state a claim
under either consideration and, as such, recommends dismissal of the
plaintiff’s action on this basis. Moreover, Judge Schwab notes the plaintiff’s
failure to file an amended complaint despite having been given the opportunity
to do so, and recommends dismissal of the plaintiff’s action on the alternative
basis of failure to prosecute.
Judge Schwab’s report was mailed to the plaintiff at the address
provided by the plaintiff in his complaint. On September 27, 2017, the docket
reflects that the plaintiff’s mail was returned as undeliverable. (Doc. 7). Upon
review of the Bureau of Prisons’ (“BOP”) Inmate Locator, the court has
learned that the plaintiff was released on August 1, 2017. Contrary to the
provisions of the Local Rules of Court for the Middle District of Pennsylvania,
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and specifically Local Rule 83.181, the plaintiff failed to notify the court of his
current whereabouts.
For those sections of a report and recommendation to which no
objection is made, the court should, as a matter of good practice, Asatisfy 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 (M.D.Pa.
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.
In this case, the court has reviewed the report of Judge Schwab and
agrees with the sound reasoning which forms the basis of her
1
Local Rule 83.18 provides, in relevant part, that “[w]henever a party by
whom or on whose behalf an initial paper is offered for filing is not represented
in the action, such party shall maintain on file with the clerk a current address
at which all notices and copies of pleadings, motions or papers in the action
may be served upon such party.”
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recommendation. The court finds no clear error on the face of the record and,
as such, will adopt Judge Schwab’s report in its entirety. The court notes that
Judge Schwab has recommended that the plaintiff’s complaint be dismissed
for his failure to prosecute in that he failed to file an amended complaint as
directed. An added basis for dismissing the plaintiff’s complaint for failure to
prosecute is his failure to keep the court apprised of his current address as
required by Local Rule 83.18.
An appropriate order shall issue.
s/Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: October 3, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2017 MEMORANDA\17-0208-01.docx
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