Hummel et al v. Shamokin Manor Care et al

Filing 5

ORDER: IT IS HEREBY ORDERED that Magistrate Judge Martin C. Carlson's 4 Report and Recommendation is ADOPTED in part and REJECTED in part. Plaintiffs are granted leave to proceed in forma pauperis, but; The Court will dismiss the Complaint without prejudice to the Plaintiff Fred Hummel either retaining an attorney to bring the action on his behalf or pleading and conducting his own case personally. Plaintiff Fred Hummel is granted leave to file an Amended Complaint within twenty one (2 1) days of this Order in which he avers either pro se or counseled representation. If no amended complaint is filed within that timeframe, the action will be summarily dismissed pursuant to Fed. R. Civ. P. 41(b). Signed by Honorable Matthew W. Brann on 10/10/2017. (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FRED HUMMEL and WALTER
HYDE,

:
:
:
Plaintiff,
:
:
v.
:
:
SHAMOKIN MANOR CARE, et al., :
:
Defendants.
:

No. 4:17-CV-1613

(Judge Brann)
(Magistrate Judge Carlson)

ORDER
OCTOBER 10, 2017
Before the Court for disposition is a Report and Recommendation filed by
Magistrate Judge Martin C. Carlson on September 12, 2017.1 In this Report,
Magistrate Judge Carlson recommended that (1) Plaintiffs be granted leave to
proceed in forma pauperis, but (2) the Court dismiss the Complaint without
prejudice to Plaintiff Walter Hyde either retaining an attorney or pleading and
conducting his own case personally.2 No objections to this Report and
Recommendation have since been filed.
Upon designation, a magistrate judge may “conduct hearings, including
evidentiary hearings, and ... submit to a judge of the court proposed findings of fact

1

ECF No. 4.

2

ECF No. 4.

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and recommendations.”3 Once filed, this Report and Recommendation is
disseminated to the parties in the case who then have the opportunity to file written
objections.4 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.”5 Nevertheless,
whether timely objections are made or not, the district court may accept, reject or
modify, in whole or in part, the findings or recommendations made by the
magistrate judge.6
Following independent review of the record, I am satisfied that the Report
and Recommendation contains no outcome determinative legal error. I note,
however, that throughout his Report, Magistrate Judge Carlson transposes the
names of Plaintiffs Fred Hummel and Walter Hyde. Based on the Court’s review
of the Complaint, it is in fact Walter Hyde, a non-lawyer, who is bringing a claim
on behalf of his friend, Fred Hummel. Fred Hummel is therefore the proper
Plaintiff and party to institute this action. Magistrate Judge Carlson’s reasoning,
however, is equally applicable to this scenario as one uncounseled party may not

3

28 U.S.C. § 636(b)(1)(B).

4

28 U.S.C. § 636(b)(1).

5

Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D. Pa. 2000) (citing United States v. Raddatz,
447 U.S. 667, 676 (1980)).

6

28 U.S.C. § 636(b)(1); Local Rule 72.31.

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file claims on behalf of another uncounseled party.7 Therefore, to the extent that
Report and Recommendation erroneously grants Walter Hyde leave to amend, that
portion is rejected. Because the factual allegations of the Complaint concern
actions taken against Fred Hummel, it is Mr. Hummel who is granted leave to
amend the Complaint either pro se, or with a retained attorney.

AND NOW, therefore, IT IS HEREBY ORDERED that:
1. Magistrate Judge Martin C. Carlson’s Report and Recommendation
(ECF No. 4) is ADOPTED in part and REJECTED in part in
accordance with the above reasoning;
2. Plaintiffs are granted leave to proceed in forma pauperis, but;
3. The Court will dismiss the Complaint without prejudice to the
Plaintiff Fred Hummel either retaining an attorney to bring the action
on his behalf or pleading and conducting his own case personally.
4. Plaintiff Fred Hummel is granted leave to file an Amended Complaint
within twenty one (21) days of this Order in which he avers either
pro se or counseled representation. If no amended complaint is filed

7

Osei-Afriyie by Osei-Afriye v. Med. Coll. of Pennsylvania, 937 F.2d 876, 882 (3d Cir. 1991);
Lutz v. Lavelle, 809 F.Supp. 323, 325 (M.D.Pa. 1991)(“It is a well established principle that
while a layman may represent himself with respect to his individual claims, he is not entitled
to act as an attorney for others in a federal court.”).

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within that timeframe, the action will be summarily dismissed
pursuant to Fed. R. Civ. P. 41(b).

BY THE COURT

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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