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dismissing plaintiff's complaint in part because GTL "is not a state actor for Section 1983 purposes" based on the mere fact that it provided telephone services to prisoners under a contract with the DOC
Summary of this case from Rindahl v. NoemOpinion
No. 3:15-CV-01243
11-13-2017
TERRY MCNEIL, Plaintiff, v. GLOBAL TEL-LINK, et al., Defendant.
() (Magistrate Judge Saporito) ORDER
Before the Court for disposition is a Report and Recommendation filed by Magistrate Judge Joseph F. Saporito, Jr. In this Report, Magistrate Judge Saporito recommended that (1) the complaint (Doc. 1) be DISMISSED as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), § 1915(e)(2)(B)(ii), § 1915A(b)(1), and 42 U.S.C. § 1997e(c)(1), and (2) the Clerk be directed to close this case. Plaintiff has since filed numerous "motions" which this Court will loosely construe as objections.
ECF No. 1.
Id.
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013)(recognizing that courts must be flexible when construing pro se pleadings).
Upon designation, a magistrate judge may "conduct hearings, including evidentiary hearings, and . . . submit to a judge of the court proposed findings of fact and recommendations." Once filed, this Report and Recommendation is disseminated to the parties in the case who then have the opportunity to file written objections. Where no objection is made to a report and recommendation, the court should, as a matter of good practice, "satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Nevertheless, whether timely objections are made or not, the district court may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge.
Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
28 U.S.C. § 636(b)(1); Local Rule 72.31.
Following de novo review of the record, I am satisfied that the Report and Recommendation is sound in its legal reasoning and conclusions. Plaintiff's Complaint should be dismissed because (1) Defendant Global Tel-Link is not a state actor for Section 1983 purposes, and (2) Plaintiff has nevertheless failed to state a claim upon which relief can be granted. I will, however, reject the Report insofar as it dismisses Plaintiff's Complaint with prejudice. In his "Objections," Plaintiff asks for leave to amend his Complaint. Therefore, because pro se litigants are to be granted leave to file a curative amended complaint even when a plaintiff does not seek leave to amend, Plaintiff will be granted limited leave to file an Amended Complaint within twenty-one (21) days.
See, e.g., Williams v. Securus Correctional Billing, Civil Action No. 14-CV-42, 2014 WL 7338715, at *5 (W.D. Pa. Dec. 22, 2014).
See, e.g., Almahdi v. Ashcroft, 310 F. App'x. 519, 521 (3d Cir. 2009) ("[P]risoners 'ha[ve] no right to unlimited telephone use,' and reasonable restrictions on telephone privileges do not violate their First Amendment rights.")(quoting Washington v. Reno, 35 F.3d 1093, 1099-1100 (6th Cir. 1994)).
ECF No. 43.
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245-46 (3d Cir. 2008). --------
AND NOW, therefore, IT IS HEREBY ORDERED that:
1. Magistrate Judge Joseph F. Saporito, Jr.'s Report and Recommendation (ECF No. 37) is ADOPTED IN PART AND REJECTED IN PART;
2. Plaintiff's Complaint is DISMISSED as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), § 1915(e)(2)(B)(ii), § 1915A(b)(1), and 42 U.S.C. § 1997e(c)(1); and
3. Plaintiff Terry McNeil is granted leave to file an Amended Complaint within twenty one (21) days of this Order. If no amended complaint is filed within that timeframe, the action will be summarily dismissed pursuant to Fed. R. Civ. P. 41(b).
4. This case is remanded to Magistrate Judge Saporito to conduct judicial screening of this Amended Complaint.
5. Plaintiff's pro se filings (ECF Nos. 44, 45, & 49), seeking the Court to expedite a ruling on his case are denied as moot.
BY THE COURT:
s/ Matthew W . Brann
Matthew W. Brann
United States District Judge