Fairweather v. McDonald

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATION of Chief Magistrate Judge Mehalchick; DISMISSING complaint and the "amended complaint #9 ; The Clerk of Court is directed to CLOSE this case. Signed by Honorable Julia K Munley on 2/6/24. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
No. 3:24cv54

SEAN FAIRWEATHER,
Plaintiff

(Judge Munley)
V.

THOMAS MCDONALD,
Defendant

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ORDER

Before the court for disposition is the report and recommendation of United
States Chief Magistrate Judge Karoline Mehalchick (Doc. 7) in this action filed

prose by Plaintiff Sean Fairweather, an individual incarcerated at SCI-Dallas.
On January 12, 2024, plaintiff filed the instant action under 42 U.S.C. § 1983
alleging that defendant arrested him on May 12, 2017 under false pretenses.
(Doc. 1). Because more than six years have passed since the incident,
Magistrate Judge Mehalchick recommends that the court dismiss plaintiff's
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) as time-barred.
No objections to the report and recommendation were filed and the time for
such filing has passed. On January 5, 2024, the deadline for objections, the
Clerk of Court received from plaintiff the following: 1) a civil complaint form used
by prose prisoners; 2) an application to proceed in forma pauperis (IFP); 3) a
letter from plaintiff regarding previous his previous IFP submissions; and 4) forms

related to notice of the lawsuit and a request for waiver of service of a summons,
which that office docketed as an "amended complaint. " (Docs. 9, 9-1 , 9-2).
Plaintiff's subsequent submission alleges substantially the same operative facts
as the complaint and cannot be construed as either an objection or as including
superseding allegations. (Compare Doc. 1 and Doc. 9). Rather, since most of
the complaint was originally handwritten on loose-leaf paper, it appears that
plaintiff simply restated his original allegations on a form provided to prisoners
with slightly different wording. (kl) Critically, the date of the defendant's alleged
wrongdoing, May 12, 2017, is the same in both filings. (kl). Magistrate Judge
Mehalchick's recommendations thus apply to both iterations of plaintiff's
complaint.
In deciding whether to adopt the report and recommendation when no
timely objection is filed , we must determine if a review of the record evidences
plain error or manifest injustice. FED. R. CIv. P. 72(b ), 1983 Advisory Committee
Notes ("When no timely objection is filed, the court need only satisfy itself that
there is no clear error on the face of the record to accept the recommendation");
see also 28 U.S.C. § 636(b)(1); Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir.
1983).

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After a careful review, the court finds neither a clear error on the face of the
record nor a manifest injustice. Therefore, the court shall accept the report and
recommendation and adopt it in its entirety. It is hereby ORDERED as follows:
1) The report and recommendation (Doc. 7) is ADOPTED.
2) Plaintiff's complaint (Doc. 1) is DISMISSED pursuant to 28 U.S.C. §
1915(e)(2)(8)(ii) as barred by the statute of limitations applicable to Section
1983 claims.
3) To the extent that documents filed on February 5, 2024 were docketed as
an "amended complaint," (Doc. 9), the claims raised in those documents
are also be time-barred . This filing is likewise DISMISSED.
4) The Clerk of Court is directed to CLOSE this case.

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