PEARSON v. BUREAU OF CORRECTIONS INDUSTRY et al

Filing 16

MEMORANDUM ORDER - it is ORDERED that plaintiff's motion for leave to proceed informa pauperis, docket no. 4 , is denied. The motion to dismiss of defendants Viewsonic Corporation and Sung Yi, docket no. 6 , is granted. This court lacks subjec t matter jurisdiction over the breach of warranty claim that plausibly could be stated against these defendants. Plaintiff cannot create diversity jurisdiction by asking for damages clearly not recoverable, nor create federal question jurisdiction by conclusory allegations that the Viewsonic defendants participated in a conspiracy to violate his civil rights. The plaintiff is not given leave to amend his complaint. Plaintiff's motions for extension of time to serve defendants, docket no. [ 11], docket no. 13 , are denied. If plaintiff has not filed proper returns of service by October 31, 2012, the matter is ordered dismissed for lack of prosecution as to any unserved defendant. The matter remains with the Magistrate Judge for pretrial proceedings, and as more fully stated in said Memorandum Order. Signed by Judge Kim R. Gibson on 10/1/2012. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANTONIO PEARSON,
Plaintiff
v.
BUREAU OF CORRECTIONS INDUSTRY,

:Case No. 3:12-cv-110-KRG-KAP

Defendants
MEMORANDUM ORDER
This matter is before Magistrate Judge Keith A. Pesto for
pretrial proceedings in accordance with the Magistrates Act,

28

U.S.C.§ 636(b) (1), and Local Rule 72 for Magistrate Judges.
The Magistrate Judge filed a Report and Recommendation
on September 9, 2012, docket no. 9, recommending that plaintiff's
motion

for

plaintiff

in
to

forma

pauperis

respond

to

status

defendant

be

denied,

Viewsonic

and

advising

Corporation

and

defendant Sung Yi's motion to dismiss at docket no. 6.
The parties were notified that, pursuant to 28 U.S.C.§
636 (b) ( 1), they had fourteen days to file written objections to the
Report and Recommendation.
as "refused by inmate."

The notice to plaintiff was returned

docket no. 15.

Also, plaintiff filed two

motions for extension of time to serve the defendants, docket no.
11,

docket

no.

13,

based on the

assumption that his

in

forma

pauperis motion would be granted.
After
Recommendation,

de

novo

review

Report

and

and noting the lack of objections thereto,

the

following order is entered:

of

the

record,

the

AND NOW, this

Jd

day of October, 2012, it is

ORDERED that plaintiff's motion for leave to proceed in
forma pauperis, docket no. 4, is denied.

The motion to dismiss of

defendants Viewsonic Corporation and Sung Yi,
granted.

This court lacks subject matter

docket no.

6,

is

jurisdiction over the

breach of warranty claim that plausibly could be stated against
these defendants.

Plaintiff cannot create diversity jurisdiction

by asking for damages clearly not recoverable, nor create federal
question jurisdiction by conclusory allegations that the Viewsonic
defendants
rights.

participated

in

a

conspiracy

to

violate

his

civil

The plaintiff is not given leave to amend his complaint.
Plaintiff's

motions

for

extension

of

time

defendants, docket no. 11, docket no. 13, are denied.

to

serve

If plaintiff

has not filed proper returns of service by October 31, 2012, the
matter is ordered dismissed for
unserved defendant.

lack of prosecution as to any

The matter remains with the Magistrate Judge

for pretrial proceedings.

B~~
KIM R. GIBSON,
UNITED STATES DISTRICT JUDGE
Notice to counsel of record by ECF and by U.S. Mail to:
Antonio Pearson BL-0521
S.C.I. Coal Township
1 Kelley Drive
Coal Township, PA 17866-1021
2