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holding the later-filed case involved improper claim-splitting under Walton even though it added an additional individual defendant because the added defendant's alleged individual liability hinged on his role within the Bureau of Prisons and involved "the same operative facts and legal theories" applied to other defendants within the Bureau of Prisons
Summary of this case from Acosta v. GaudinOpinion
Civil Action No. 2:13-cv-1152
11-18-2013
FREDERICK BANKS, Plaintiff, v. STATE FARM, et al., Defendants.
Judge Nora Barry Fischer
Chief Magistrate Judge Lisa Pupo
Lenihan
MEMORANDUM ORDER
Plaintiff commenced this civil action on July 26, 2013 by filing a Complaint (ECF No. 1) and Motion for Leave to Proceed in forma pauperis (ECF No. 2) in the United States District Court for the Middle District of Pennsylvania at Case No. 1:13-cv-02016. The Middle District transferred the case to this District on August 8, 2013, the case was referred to Chief United States Magistrate Judge Lisa Pupo 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. Judge Lenihan entered an order on October 17, 2013 granting the Motion for Leave to Proceed In Forma Pauperis.
On October 28, 2013, the Magistrate Judge filed her Report and Recommendation (ECF No. 7) in which she recommended that the Complaint be dismissed without prejudice as to Defendants State Farm, Nikole Sullivan, Dan Lnu, Congressman Doyle, Four Unknown Named BOP agents at FCC Forrest City, AK, Warden Anthony Haynes, Captain Wise, and Charles Samuels. The Magistrate Judge further recommended that the Complaint as to Judge Brian S. Miller be dismissed with prejudice pursuant to 28 U.S.C. §1915(e)(2)(B)(i) and (iii). Service of the Report and Recommendation was made on Plaintiff at his address of record, P.O. Box 42303, Pittsburgh, PA 15203, as well as at #057-11068, North East 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.D.2 of the Local Rules of Court, that he had fourteen (14) days to file any objections. No Objections have been filed to the Report and Recommendation.
After a review of the pleadings and documents in the case, together with the Report and Recommendation, the following Order is entered:
AND NOW, this 18th day of November, 2013,
IT IS HEREBY ORDERED that the Complaint filed by Plaintiff Frederick Banks (ECF No. 1) is DISMISSED WITHOUT PREJUDICE as to Defendants State Farm, Nikole Sullivan, Dan Lnu, Congressman Doyle, Four Unknown Named BOP agents at FCC Forrest City, AK, Warden Anthony Haynes, Captain Wise, and Charles Samuels.
IT IS FURTHER ORDERED that the Complaint filed by Plaintiff Frederick Banks (ECF No. 1) is DISMISSED WITH PREJUDICE as to Defendant Judge Brian S. Miller pursuant to 28 U.S.C. §1915(e)(2)(B)(i) and (iii).
IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 7) of Chief Magistrate Judge Lenihan, dated October 28, 2013, is adopted as the opinion of the Court.
The Clerk of Court is directed to mark this case closed.
BY THE COURT:
____________
NORA BARRY FISCHER
United States District Judge
cc: Frederick Banks
P.O. Box 42303
Pittsburgh, PA 15203
Via First Class Mail
Frederick Banks
USMS # 057-11068
North East Ohio Correctional Center
2240 Hubbard Road
Youngstown, OH 44505
Via U.S. First Class Mail