United States District Court, M.D. Pennsylvania
November 4, 2005.
ROBERT L. NELSON, Plaintiff,
MARTIN F. HORN, et al., Defendants.
The opinion of the court was delivered by: MALCOLM MUIR, Senior District Judge
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On April 30, 2002, Plaintiff Robert L. Nelson initiated this
matter by filing a civil rights complaint. The Clerk of Court
assigned responsibility for this case to us but referred it to
United States Magistrate Judge Thomas M. Blewitt for preliminary
consideration. On January 29, 2003, we issued an order in which
we adopted the Magistrate Judge's recommendation that the case be
dismissed. Nelson successfully appealed that order and the case
was remanded to us on June 29, 2005. We received the mandate on
July 21, 2005. On July 27, 2005, we issued an order remanding the
matter to Magistrate Judge Blewitt.
On July 29, 2005, the Magistrate Judge issued an order
requiring Nelson to file an amended complaint within 15 days
after the date of the order. The order specifically advised
Nelson that the Magistrate would recommend the dismissal of this case for failure to prosecute it if an amended complaint was not
filed within the time allowed.
On August 30, 2005, the Magistrate Judge issued a report
recommending that this case be dismissed because Nelson failed to
file an amended complaint. Magistrate Judge Blewitt notes that
the substance of Nelson's claims pertained to his incarceration
and after the filing of this case Nelson was released from
The time allowed for the parties to file objections to the
Report and Recommendation expired on September 19, 2005, and to
this date no objections have been filed.*fn1 When no
objections are filed to the report of a Magistrate Judge, we need
only review that report as we in our discretion deem appropriate.
Thomas v. Arn, 474 U.S. 145, 151-52 (1985).
Federal Rule of Civil Procedure 41(b) provides as follows:
For failure of the plaintiff to prosecute or to
comply with these rules or any order of court, a
defendant may move for dismissal of an action or any
claim against the defendant. Unless the court in its
order for dismissal otherwise specifies, a dismissal
under this subdivision and any dismissal not provided
for in this rule, other than a dismissal for lack of
jurisdiction, for improper venue, or for failure to
join a party under Rule 19, operates as an
adjudication on the merits.
Nelson has failed to: 1) respond to the court's order of July 29, 2005; and 2) respond to the Magistrate Judge's Report
and Recommendation. Nelson has not filed any document in this
case in over two years.
Based on the circumstances of this case, we agree with
Magistrate Judge Blewitt's determination that Nelson has
abandoned this case. Dismissal pursuant to Rule 41(b) is
We will adopt the Magistrate Judge's recommendation as our own
and dismiss this case for Nelson's failure to prosecute it.
NOW, THEREFORE, IT IS ORDERED THAT:
1. Magistrate Judge Blewitt's Report and
Recommendation issued on August 30, 2005, is adopted
2. This case is dismissed for Nelson's failure to
3. The Clerk of Court shall close this case.
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