Kistler v. Lackawanna County Tax Claim Bureau et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS adopting 10 Report and Recommendations.The plaintiffs motion for a temporary restraining order, (Doc. 3) 3 , is DENIED. The plaintiffs complaint, (Doc. 1), is DISMISSED for lack of subject matter jurisdiction. The Clerk is directed to CLOSE this case.Signed by Honorable Malachy E Mannion on 10/19/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JOHN MICHAEL KISTLER,

:
CIVIL ACTION NO. 3:17-1672

Plaintiff
v.
LACKAWANNA COUNTY TAX
CLAIM BUREAU, et al.,

:
:

(Mannion, D.J.)
(Saporito, M.J.)

:
:

Defendants
ORDER
Pending before the court is the report of United States Magistrate Judge
Joseph Saporito, (Doc. 10), which recommends that the court deny the motion
for a temporary restraining order, (Doc. 3), filed by the pro se plaintiff John
Michael Kistler1 and dismiss sua sponte plaintiff’s civil rights complaint, (Doc.
1), pursuant to 42 U.S.C. §1983, for lack of subject matter jurisdiction. Judge
Saporito also recommends that the court close this case. No objections to
Judge Saporito’s report have been filed and the time within which to object
has expired.
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.”
Fed.R.Civ.P. 72(b), advisory committee notes; see also Univac Dental Co. v.

1

The court notes that Kistler has filed other actions with this court. See
Civil No. 10-466; M.D.Pa., Civil No. 15-044, M.D.Pa.

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.
The court will adopt Judge Saporito’s report in its entirety. The court has
reviewed the recommended grounds for dismissal of the plaintiff’s complaint
presented by Judge Saporito. The court agrees with Judge Saporito and finds
that it lacks subject matter jurisdiction over plaintiff’s case. It is well-settled
that the court can raise, sua sponte, subject matter jurisdiction issues. See
Nesbit v. Gears Unlimited, Inc. 347 F.3d 72, 77 (3d Cir. 2003). As Judge
Saporito explains in his report, plaintiff’s claims relate to the real estate taxes
assessed on his property located in Scranton, Lackawanna County,
Pennsylvania, and to the September 25, 2017 tax sale of his South Webster
Avenue property. To the extent plaintiff is challenging the Lackawanna County
Tax Claim Bureau’s assessment and collection of real estate taxes on his
property and alleges that it is unconstitutional based on the fact that his
property is “owned for purely private purposes”,this court lacks subject matter
jurisdiction over his claims. The Tax Injunction Act, 28 U.S.C. §1341, provides
that “[t]he district courts shall not enjoin, suspend or restrain the assessment,

2

levy or collection of any tax under State law where a plain, speedy and
efficient remedy may be had in the courts of such State.” Gass v. County of
Allegheny, PA, 371 F.3d 134, 136 (3d Cir. 2004).
As such, the Tax Injunction Act deprives this federal court of subject
matter jurisdiction in this case. See Dommel Properties, LLC v. Jonestown
Bank and Trust Co., 2013 WL 1149265, *7 (M.D.Pa. March 19, 2013);
Agarwal v. Schuykill County Tax Claim Bureau, 2010 WL 5175021, *13–*14
(M.D.Pa. July 27, 2010), adopted by 2010 WL 5175003 (M.D.Pa. Dec.15,
2010), affirmed by 442 Fed.Appx. 733 (3d Cir. 2011).
Moreover, as Judge Saporito states, since the court lacks subject matter
jurisdiction over plaintiff’s claims, it also lacks jurisdiction to grant his motion
for temporary restraining order. See Greene v. Phila. Hous. Auth., 789
F.Supp.2d 582, 585 (E.D.Pa. 2011) (“In the absence of a complaint ... setting
out the basis for jurisdiction, the Court lacks the jurisdiction to grant either a
temporary restraining order (‘TRO’) or a preliminary injunction.” (citations
omitted).
Because the court agrees with the sound reasoning that led Judge
Saporito to the conclusions in his report and finds no clear error on the face
of the record, the court will ADOPT the report in its entirety. The plaintiff’s
motion for a temporary restraining order will be denied and his complaint will
be dismissed.

3

IT IS HEREBY ORDERED THAT the report of Judge Saporito, (Doc.
10), is ADOPTED. The plaintiff’s motion for a temporary restraining order,
(Doc. 3), is DENIED. The plaintiff’s complaint, (Doc. 1), is DISMISSED for
lack of subject matter jurisdiction. The Clerk is directed to CLOSE this case.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge

Dated: October 19, 2017
O:\Mannion\shared\ORDERS - DJ\CIVIL ORDERS\2017 ORDERS\17-1672-01.wpd

4