Powell v. Havens et al

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; adopting 7 Report and Recommendations; complaint dismissed; clerk to close case. Signed by Honorable Malachy E Mannion on 11/18/21. (bs)

Case 4:21-cv-01565-MEM Document 8 Filed 11/18/21 Page 1 of 3

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
THERIN POWELL,
Plaintiff

:

DETECTIVE TYSON
HAVENS, et al.,

CIVIL ACTION NO. 4:21-1565

:

v.

:

(JUDGE MANNION)

:
:

Defendants
:
ORDER
Pending before the court is the report of Magistrate Judge Karoline
Mehalchick, which recommends that the instant action be dismissed without
leave to amend. (Doc. 7). The plaintiff has failed to file objections to the report
and recommendation.
Where no objection is made to a report and recommendation, the court
should, as a matter of good practice, Asatisfy 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

Case 4:21-cv-01565-MEM Document 8 Filed 11/18/21 Page 2 of 3

may accept, not accept, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. 28 U.S.C. '636(b)(1);
Local Rule 72.31.
Upon initial screening of the plaintiff’s complaint filed pursuant to 42
U.S.C. §1983, Judge Mehalchick determined that, although the plaintiff is
raising a number of constitutional claims, he is, in fact, challenging the fact
or duration of his confinement and, as such, the matter is properly brought
through a habeas corpus petition as opposed to a civil rights complaint.
Judge Mehalchick has recommended that the plaintiff’s complaint be
dismissed without leave to amend as §1983 is not the appropriate avenue
for the relief the plaintiff seeks. The plaintiff has not filed any objections to
Judge Mehalchick’s report.
Upon review of Judge Mehalchick’s report and recommendation, the
court finds no clear error of record. Moreover, the court agrees with the
sound reasoning which led Judge Mehalchick to her conclusions. As such,
the court will adopt the report and recommendation in its entirety.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
(1) The report and recommendation of Judge Mehalchick (Doc.
7) is ADOPTED IN ITS ENTIRETY as the decision of the court.

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Case 4:21-cv-01565-MEM Document 8 Filed 11/18/21 Page 3 of 3

(2) The plaintiff’s complaint (Doc. 1) is DISMISSED WITHOUT
LEAVE TO AMEND.
(3) The Clerk of Court is directed to CLOSE THIS CASE.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATE: November 18, 2021
21-1565-01

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