Kennedy v. Dutcavage et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; adopting 27 Report and Recommendations.(1)Judge Schwabs Report (Doc. 27) is ADOPTED IN ITS ENTIRETY;(2) Kennedys objections to Judge Schwabs Report (Doc. 30) are OVERRULED;(3) Kennedys second amended complaint (Doc. 12) is DISMISSED; and(4) The Clerk of Court is directed to CLOSE this case. Signed by Honorable Malachy E Mannion on 6/27/19. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
EDWARD THOMAS KENNEDY
Plaintiff

:
CIVIL ACTION NO. 3:18-767

:

v.

:

(JUDGE MANNION)

DAVID JOHN DUTCAVAGE, et al. :
Defendants

:
ORDER

Presently before the court is the report and recommendation of
Magistrate Judge Susan E. Schwab (“Report”), which recommends that the
plaintiff Edward Thomas Kennedy’s (“Kennedy”) second amended complaint
(Doc. 12) be dismissed. (Doc. 27). Kennedy filed a notice of objection, which
this court construes as an objection to the Report. (Doc. 30).
When objections are timely filed to the report and recommendation of
a magistrate judge, the district court must review de novo those portions of
the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,
the extent of review is committed to the sound discretion of the district judge
and the court may rely on the recommendations of the magistrate judge to
the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.
2000) (citing U.S. v. Raddatz, 447 U.S. 667, 676 (1980)). The de novo

standard of review is not applicable here because it applies only to objections
which are specific. See Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984) (“To
obtain de novo determination of a [magistrate judge’s] findings by a district
court, 28 U.S.C. §636(b)(1) requires both timely and specific objections to
the report . . . We are satisfied that providing a complete de novo
determination where only a general objection to the report is offered would
undermine the efficiency the magistrate [judge] system was meant to
contribute to the judicial process.”) (internal citations omitted). Kennedy’s
document titled “NOTICE OF OBJECTION” does not contain a specific
objection to a proposed finding or recommendation. (Doc. 30). Therefore,
Kennedy’s objections (Doc. 30) are overruled.
For those sections of the report and recommendation to which no
objection is made, 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
(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

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findings or recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); M.D.Pa. L.R. 72.31.
The court finds that Judge Schwab used proper reasoning and
evidence to support her Report and arrived at a legally sound conclusion. As
such, Judge Schwab’s Report is adopted in its entirety as the opinion of this
court. Furthermore, the court finds that granting Kennedy additional leave to
amend his complaint would be futile.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
(1) Judge Schwab’s Report (Doc. 27) is ADOPTED IN ITS ENTIRETY;
(2) Kennedy’s objections to Judge Schwab’s Report (Doc. 30) are
OVERRULED;
(3) Kennedy’s second amended complaint (Doc. 12) is DISMISSED; and
(4) The Clerk of Court is directed to CLOSE this case.
s/

Malachy E. Mannion

MALACHY E. MANNION
United States District Judge
DATE: June 27, 2019
18-767-01

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