Drumgo, Sr. v. Reese et al
MEMORANDUM OPINION AND ORDER: IT IS HEREBY ORDERED that 43 Magistrate Judge Mehalchick's Report and Recommendation is adopted; 26 Defendants' Motion for Summary Judgment is granted; final judgment is entered in favor of Defendants and against Drumgo; 49 Drumgo's Motion for Leave to Amend is denied; Clerk directed to close this case. Signed by Chief Judge Matthew W. Brann on 8/2/2022. (lg)
Case 3:20-cv-02434-MWB Document 50 Filed 08/02/22 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DESHAWN D. DRUMGO, SR.,
(Chief Judge Brann)
(Chief Magistrate Judge Mehalchick)
CAPTAIN REESE, et al.,
MEMORANDUM OPINION AND ORDER
AUGUST 2, 2022
REPORT AND RECOMMENDATION
Plaintiff DeShawn D. Drumgo, Sr., filed the instant action on December 30,
2020, and it was jointly assigned to the undersigned and to a magistrate judge. Upon
designation, a magistrate judge may “conduct hearings, including evidentiary
hearings, and . . . submit to a judge of the court proposed findings of fact and
recommendations.”1 Once filed, this report and recommendation is disseminated to
the parties in the case who then have the opportunity to file written objections.2
On May 20, 2022, Chief Magistrate Judge Karoline Mehalchick, to whom this
matter is jointly assigned, issued a thorough report and recommendation
recommending that Defendants’ motion for summary judgment be granted and that
judgment be in entered in favor of Defendants and against Drumgo.
28 U.S.C. § 636(b)(1)(B).
28 U.S.C. § 636(b)(1).
Case 3:20-cv-02434-MWB Document 50 Filed 08/02/22 Page 2 of 4
Drumgo filed objections to the report and recommendation on June 2, 2022.
“If a party objects timely to a magistrate judge’s report and recommendation, the
district court must ‘make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.’”3
Portions of a report and recommendation to which no objections are filed are
reviewed only for clear error.4 Regardless of whether timely objections are made,
district courts may accept, reject, or modify—in whole or in part—the findings or
recommendations made by the magistrate judge.5
Because the Court writes solely for the parties, it will not restate the facts, but
will instead adopt the recitation of facts as set forth by the magistrate judge. The
Court has conducted a de novo review here and found no error. Accordingly, the
Court adopts Chief Magistrate Judge Mehalchick’s report and recommendation.
LEAVE TO AMEND
Drumgo also moves for leave to amend.6 The law in the Third Circuit is clear
that leave to amend should be “freely given” regardless of whether leave is
specifically requested.7 “Among the grounds that could justify a denial of leave to
Equal Emp’t Opportunity Comm’n v. City of Long Branch, 866 F.3d 93, 99 (3d Cir. 2017)
(quoting 28 U.S.C. § 636(b)(1)).
Fed. R. Civ. P. 72(b), advisory committee notes; see Henderson v. Carlson, 812 F.2d 874, 878
(3d Cir. 1987) (explaining that court should in some manner review recommendations
regardless of whether objections were filed); see also Snyder v. Bender, 548 F. App’x 767, 771
(3d Cir. 2013) (noting that district courts need not conduct de novo review of portions of
recommendation to which no party files specific objections).
28 U.S.C. § 636(b)(1); Local Rule 72.31.
Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000) (quoting Fed. R. Civ. P. 15(a)).
Case 3:20-cv-02434-MWB Document 50 Filed 08/02/22 Page 3 of 4
amend are undue delay, bad faith, dilatory motive, prejudice, and futility.”8
“However, where plaintiff files a motion to amend after defendant has moved for
summary judgment[,] the motion to amend will not be granted unless the party
seeking amendment can show . . . that the proposed amendment has ‘substantial
merit’ . . . .”9
Here, Drumgo moves to amend his Complaint to add a sentence swearing that
his Complaint is true under the penalty of perjury.10 But this one sentence does not
cure the factual and evidentiary defects that Chief Magistrate Judge Mehalchick’s
report and recommendation identified.
Accordingly, Drumgo’s proposed
amendment would be futile.11
Moreover, Drumgo moved for leave to amend more than eighteen months
after he filed his original Complaint. By this point, discovery had finished, the
partied had briefed Defendants’ motion for summary judgment, Judge Mehalchick
had issued her report and recommendation, and Drumgo had already objected to the
report and recommendation. Such delay further counsels against leave to amend.12
Id. (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)).
Carey v. Beans, 500 F. Supp. 580, 582 (E.D. Pa. 1980) (citation omitted), aff’d, 659 F.2d 1065
(3d Cir. 1981).
Doc. 49 at 1–2.
See Brown v. Friel, No. CV 16-1819, 2019 WL 4034684, at *14 (E.D. Pa. Aug. 26, 2019),
aff’d, 842 F. App’x 792 (3d Cir. 2021) (“Plaintiff’s proposed amendment . . . would have been
futile because such an amendment would not have cured the fatal defect discussed in greater
detail above—namely, the absence of any evidence suggesting that the evidence of her contacts
with James and Richelle Solomon supporting Friel’s citations was fabricated in the first
See Chestnut v. Finck, 722 F. App’x 115, 118 (3d Cir. 2018) (“Here, Chestnut’s motion to
amend his complaint—filed fourteen months after his original complaint—did not assert any
facts that were unavailable when he filed his original complaint. The proposed amendment did
Case 3:20-cv-02434-MWB Document 50 Filed 08/02/22 Page 4 of 4
Drumgo counters that he “has many exhibits as evidence . . . .”13 But Drumgo
does not explain if he adduced this evidence to his brief in opposition to Defendants’
motion for summary judgment or if this evidence was available to him then.14 And
if the evidence was not available to Drumgo then, Drumgo does not explain why.15
Because Drumgo does not adequately justify the need to amend, his motion for leave
to amend is denied.
For the foregoing reasons, IT IS HEREBY ORDERED that:
Recommendation (Doc. 43) is ADOPTED.
Defendants’ motion for summary judgment (Doc. 26) is GRANTED.
Final Judgment is entered in favor of Defendants and against Drumgo.
Drumgo’s motion for leave to amend (Doc. 49) is DENIED.
The Clerk of Court is directed to CLOSE this case.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge
little more than repeat the allegations in the complaint, despite the fact that the District Court
had permitted Chestnut several extensions of time to oppose the defendants’ dispositive
motion. Under the circumstances, the District Court acted within its discretion when it found
Chestnut’s delay unreasonable and denied his motion as untimely.”).
Doc. 49 at 1.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?