Opinion
CIVIL ACTION NO. 1:12-CV-1707
01-28-2014
CORLIVEETHO MCMILLIAN, Plaintiff, v. WARDEN JEROME WALSH, et al., Defendants.
(Chief Judge Conner)
ORDER
AND NOW, this 28th day of January, 2014, upon consideration of the report and recommendation of Chief Magistrate Judge Martin C. Carlson (Doc. 83), recommending the court grant the defendants' motion (Doc. 58) for summary judgment and dismiss the pro se plaintiff's complaint (Doc. 1) for failure to prosecute pursuant to Federal Rule of Civil Procedure 41, see FED. R. CIV. P. 41(b) (permitting court to dismiss lawsuit if "the plaintiff fails to prosecute or to comply with these rules or a court order") and failure to oppose the motion, see LOCAL RULE OF COURT 7.6 ("Any party who fails [to timely file a brief in opposition] shall be deemed not to oppose such motion."), and also on the merits, and, following an independent review of the record, the court being in agreement with the magistrate judge that the pro se plaintiff's claims against nineteen of his jailers are subject to dismissal for failure to exhaust administrative remedies, a result compelled by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), and it further appearing that the plaintiff has also failed to object to the report despite a generous extension of time in which to do so, (see Doc. 85), and that there is no clear error on the face of the record, see Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007) (explaining that "failing to timely object to [a report and recommendation] in a civil proceeding may result in forfeiture of de novo review at the district court level"), it is hereby ORDERED that:
When parties fail to file timely objections to a magistrate judge's report and recommendation, the Federal Magistrates Act does not require a district court to review the report before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). As a matter of good practice, however, the Third Circuit expects courts to "afford some level of review to dispositive legal issues raised by the report." Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987). The advisory committee notes to Rule 72(b) of the Federal Rules of Civil Procedure indicate that "[w]hen no timely objection is filed, the court need only satisfy 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 Henderson, 812 F.2d at 878-79 (stating that "the failure of a party to object to a magistrate's legal conclusions may result in the loss of the right to de novo review in the district court"); Tice v. Wilson, 425 F. Supp. 2d 676, 680 (W.D. Pa. 2006) (holding that the court's review is conducted under the "plain error" standard); Cruz v. Chater, 990 F. Supp. 375-78 (M.D. Pa. 1998) (holding that the court's review is limited to ascertaining whether there is "clear error on the face of the record"); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998) (holding that the court will review the report and recommendation for "clear error"). The court has reviewed the magistrate judge's report and recommendation in accordance with this Third Circuit directive.
1. The report of the magistrate judge (Doc. 83) is ADOPTED in its entirety.
2. The defendants' motion (Doc. 58) for summary judgment is GRANTED in its entirety.
3. Judgment is ENTERED in favor of the defendants and plaintiff's complaint (Doc. 1) is DISMISSED.
4. Plaintiff's motion (Doc. 88) for a preliminary injunction filed January 27, 2014, is DENIED as moot.
5. The Clerk of Court is directed to CLOSE this case.
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Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania