Opinion
3:23-cv-278-KAP
11-08-2023
KEITH CHRISTIAN, Plaintiff v. GREG STALLMAN, Chief, Altoona Polic Department, et al., Defendants
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
I recommend that the complaint be dismissed without leave to amend.
Report
This is filed as a Report and Recommendation because in Burton v. Schamp, 25 F.4th 198 (3d Cir. 2022), the Court of Appeals held that in cases where judgment may be appropriate as to parties that have not consented before judgment to Magistrate Judge jurisdiction under 28 U.S.C.§ 636(b)(1)(C), the Magistrate Judge should proceed by Report and Recommendation to the District Court, which has Article III authority to dismiss parties and enter final judgment in the matter in favor of parties who have not filed a consent. Ordering service of a complaint to determine whether parties in whose favor judgment would be entered would consent to Magistrate Judge jurisdiction under 28 U.S.C.§ 636(b)(1)(C) would waste scarce resources. Accordingly, regardless of any consent or lack thereof by the plaintiff, this format is used because review indicates that this matter should be dismissed.
Plaintiff Christian filed a civil complaint subject to the Prison Litigation Reform Act in June 2023 in the Middle District of Pennsylvania, together with a motion to proceed in forma pauperis. The Prison Litigation Reform Act's screening requirements for litigants proceeding in forma pauperis are set out at 28 U.S.C.§ 1915(e)(2):
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that -
(A) the allegation of poverty is untrue; or
(B) the action or appeal -
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.See also 28 U.S.C.§ 1915A. That court referred the matter to Magistrate Judge Saporito, who screened the complaint and found that it fails to state a claim. On July 12, 2023 he recommended that it be dismissed without leave to amend. ECF no. 9. No objections were filed. On review, District Judge Malachy Mannion agreed on November 7, 2023 that the complaint was meritless, but decided as a discretionary matter to transfer the matter here because venue is proper in this district. ECF no. 10.
I am the third judge to screen this complaint and for the reasons well-stated by Judge Saporito -which need no supplement- the complaint fails to state a claim and amendment is futile. Plaintiff has already had and waived any opportunity to object, but out of an abundance of caution I am sending plaintiff a copy of Judge Saporito's Report and Recommendation, and repeat the notice of the period for filing objections:
Pursuant to 28 U.S.C.§ 636(b)(1), the plaintiff can within fourteen days file written objections to this recommendation. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).