SPENCE v. CAPUTO et al

Filing 14

MEMORANDUM ORDER dismissing with prejudice plaintiff's claims as both frivolous and for failure to state a claim upon which relief can be granted; further dismissing without prejudice plaintiff's state law claims; further denying as moot p laintiff's 11 Motion for Service by U.S. Marshal; and further adopting 12 Report and Recommendation of Magistrate Judge Lenihan as the opinion of the Court. The Clerk shall mark this case CLOSED. Signed by Judge David S. Cercone on 2/12/15. (njt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ROBERT RUSSELL SPENCE,
Plaintiff,
v.

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2:12cv1077
Electronic Filing

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LOUIS CAPUTO, ESQ., eta/.,
Defendants.

Judge David Stewart Cercone
Magistrate Judge Lisa Pupa Lenihan

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ECF Nos. 11 & 12

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MEMORANDUM ORDER

This civil rights action was received by the Clerk of Court on July 31, 2012,
without the filing fee or a request for leave to proceed in forma pauperis. Subsequently,
Plaintiff filed a motion for leave to proceed in forma pauperis and after submitting the
required supporting documentation, said motion was granted. Thereafter, the
Complaint (ECF No. 9) was filed on September 20, 2012. The case was referred to
United States Magistrate Judge Lisa Pupa Lenihan for pretrial proceedings in
accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1 ), and Local Rules of
Court 72.C and 72.D.
Prior to service of the Complaint, the magistrate judge conducted a review of the
allegations contained therein, in accordance with the directives in 28 U.S. C. §1915(e).
While this review was ongoing, Plaintiff filed a Motion for Service by U.S. Marshal of his
Complaint (ECF No. 11 ). Thereafter, the magistrate judge issued her Report and

Recommendation (ECF No. 12) on December 11, 2014, recommending that the
Complaint (ECF No. 9) be dismissed with prejudice under 28 U.S.C. § 1915(e)(2)(B), as
both frivolous and for failure to state a claim upon which relief may be granted.
Specifically, the magistrate judge recommended that Plaintiff's claims under 42 U.S.C.

§§ 1981, 1982, 1983, 1985, and 2000c-5, and the constitutional claims for alleged
violations of the First, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments
be dismissed with prejudice. The magistrate judge further recommended that Plaintiff's
state law claims be dismissed without prejudice so that he may pursue those claims in
the appropriate court of common pleas if he so desires. Finally, in light of the above
recommendations, the magistrate judge recommended that Plaintiff's Motion for Service
by U.S. Marshal of the Complaint (ECF No. 11) be denied as moot.
Service of the Report and Recommendation was made on Plaintiff at the
Northeast Ohio Correctional Center, 2240 Hubbard Road, Youngstown, OH 44505.
Plaintiff was informed that in accordance with the Magistrate Judges Act, 28 U.S.C. §
636(b)(1 )(B) and (C), and Rule 72.0.2 of the Local Rules of Court, that he had fourteen
(14) days to file any objections. Plaintiff timely requested an extension of time to file
objections to the Report and Recommendation, which the Court granted and extended
the deadline for filing objections to February 10, 2015. As of the date of this
Memorandum Order, Plaintiff has not filed any objections to the Report and
Recommendation.
After review of the pleadings and documents in the case, together with the
Report and Recommendation, the following Order is entered:

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AND NOW,

this~ day of February, 2015,

IT IS HEREBY ORDERED that the Plaintiffs claims under 42 U.S.C. §§1981,
1982, 1983, 1985, and 2000c-5, and the constitutional claims for alleged violations of
the First, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments are
DISMISSED WITH PREJUDICE under 28 U.S.C. §1915(e)(2)(B), as both frivolous and
for failure to state a claim upon which relief can be granted.
IT IS FURTHER ORDERED Plaintiffs state law claims are DISMISSED
WITHOUT PREJUDICE so that he may pursue those claims in the appropriate court of
common pleas if he so desires.
IT IS FURTHER ORDERED that Plaintiff's Motion for Service by U.S. Marshal of
the Complaint (ECF No. 11) is DENIED AS MOOT.
IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 12)
of Magistrate Judge Lenihan, dated December 11, 2014, is adopted as the opinion of
the Court.

DAVID STEWART CERCONE
United States District Judge
cc:

Robert Russell Spence, Jr.
#31366068
Northeast Ohio Correctional Center
2240 Hubbard Road
Youngstown, OH 44505
Via First Class, U.S. Mail

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