Gera v. Borough of Frackville et al

Filing 49

ORDER ADOPTING 45 REPORT AND RECOMMENDATIONS. Defendants' Motion to Dismiss Plaintiff's Amended Complaint (Doc. 35) is GRANTED to the extent that Plaintiff's Amended Complaint for Violation of Civil Rights (Doc. 34) is dismissed with out prejudice. Plaintiff's Amended Complaint for Violation of Civil Rights (Doc. 34) is DISMISSED WITHOUT PREJUDICE. Plaintiff shall file an amended complaint within 30 days. Plaintiff's Third Motion for Entry of Default with Affidavit (Doc . 32) is DENIED. Plaintiff's Motion for Summary Judgment (Doc. 39) is DENIED WITHOUT PREJUDICE as premature. This case is remanded to Chief Magistrate Judge Mehalchick for further proceedings consistent with this Order. Signed by Honorable Robert D Mariani on 3/31/23. (jam)

THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN M. GERA,
: CIVIL ACTION NO. 3:20-CV-469
Plaintiff,
: (JUDGE MARIANI)
: (Magistrate Judge Mehalchick)

V.

BOROUGH OF FRACKVILLE, et al.,
Defendants.

ORDER
AND NOW, THIS

·J/ <oAY OF MARCH 2023, upon de novo review of Chief

Magistrate Judge Karoline Mehalchick's Report and Recommendation (''R&R") (Doc. 45),
Plaintiffs objections thereto (Doc. 46) and all relevant documents, IT IS HEREBY

ORDERED THAT:
1. Plaintiffs Objections are OVERRULED. 1

1 The

Court clarifies two matters raised in Plaintiff's objections. First, regarding Plaintiff's Third
Motion for Entry of Default with Affidavit (Doc. 32) the R&R notes that it is "difficult .. . to construe the
specific arguments Gera makes in his motion for entry of default." (Doc. 45 at 3-4.) The Court agrees with
this assessment. In analyzing Plaintiff's motion, the R&R looks at the timing of the filing of the Amended
Complaint filed on May 3, 2022, (Doc. 34) and the motion for entry of default filed on April 21, 2022, which
is titled "Third Motion for Entry of Default" (Doc. 32) but referred to in the R&R as Gera's "second motion for
entry of default" (Doc. 45 at 4) . To the extent that Gera's supporting Affidavit relates to Defendant's failure
to answer his March 20, 2020, Complaint (Doc. 1) and asserts that default judgment is warranted on this
basis (see Doc. 33 at 1-3), his Third Motion for Entry of Default with Affidavit (Doc. 32) is properly denied
on the basis that, at the time Plaintiff filed his Third Motion for Entry of Default with Affidavit (Doc. 32),
Plaintiff's March 20, 2020, Complaint had been dismissed (see Doc. 31 ~ 4).
Second, Plaintiff corrects the Magistrate Judge's statement that an appeal is pending in his state
court proceedings, asserting that his Right to Know Law case is no longer pending because his appeal was
denied by the Supreme Court of Pennsylvania on May 11, 2022. (See Doc. 46 at 16.) Issues related to the

2. The R&R is ADOPTED for the reasons set forth therein as clarified by this Order.

See supra p. 1 n.1.
3. Defendants' Motion to Dismiss Plaintiffs Amended Complaint (Doc. 35) is

GRANTED to the extent that Plaintiffs Amended Complaint for Violation of Civil
Rights (Doc. 34) is dismissed without prejudice.
4. Plaintiffs Amended Complaint for Violation of Civil Rights (Doc. 34) is DISMISSED

WITHOUT PREJUDICE.
5. Plaintiff shall file an amended complaint within thirty (30) days of the date of this
Order. Failure to do so may result in dismissal of this action.
6. Plaintiffs Third Motion for Entry of Default with Affidavit (Doc. 32) is DENIED.
7. Plaintiffs Motion for Summary Judgment (Doc. 39) is DENIED WITHOUT

PREJUDICE as premature; and
8. The above-captioned action is remanded to Chief Magistrate Judge Mehalchick for
further proceedings consistent with this Order.
JO

Ro ert D. Mariani
United States District Judge

pendency of state court proceedings did not play a role in the Magistrate Judge's recommendation that
Defendants' motion to dismiss be granted (see Doc. 45 at 5 n.2). Therefore, the resolution of those
proceedings does not alter the recommended disposition .