United States District Court, M.D. Pennsylvania
November 21, 2005.
SUNDAY EGBULONU, Plaintiff
COUNSEL THOMPSON, et al., Defendants.
The opinion of the court was delivered by: JOHN JONES III, District Judge
MEMORANDUM AND ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
The plaintiff, Sunday Egbulonu ("Plaintiff" or "Egbulonu"), a
federal prisoner incarcerated at the Federal Correctional
Institute, Allenwood, Pennsylvania ("FCI-Allenwood"), proceeding
pro se, initiated this Bivens action*fn1 by filing a
complaint in the United States District Court for the Middle
District of Pennsylvania on July 28, 2005. (Rec. Doc. 1).
This case was referred to Magistrate Judge J. Andrew Smyser for
preliminary review. On October 24, 2005, Magistrate Judge Smyser
issued a Report and Recommendation within which he concludes that
the complaint should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and that
the case be closed. (Rep. & Rec. at 7).
Objections to the Magistrate's Report were due on November 9,
2005 and to date none have been filed. This matter is now ripe
STANDARD OF REVIEW:
When no objections are made to a magistrate's report, the
district court is not statutorily required to review a magistrate
judge's report before accepting it. See Thomas v. Arn,
474 U.S. 140, 149-50 (1985). According to the Third Circuit, however,
"the better practice is 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). When a district court
accepts a magistrate judge's report, the report becomes the
judgment of the court. Id.
We initially note that the docket reflects that on October 27,
2005 and on November 3, 2005 the Magistrate Judge's report was
returned as undeliverable to Plaintiff. (Rec. Docs. 12-13).
Further inspection into the Federal Bureau of Prisons revealed
that Plaintiff was released on August 5, 2005. In addition, the
Clerks office informed the Court that Clinton County prison
records indicate that on August 29, 2005, Plaintiff was released
to Homeland Security. Therefore, as of at least August 29, 2005, Plaintiff's address changed, yet he
never advised the Court of his new address.
The Standing Practice Order in pro se cases states, in
pertinent part, that:
A pro se plaintiff has the affirmative obligation
to keep the court informed of his or her address.
Should such address change in the course of this
litigation, the plaintiff shall immediately inform
the court of such change, in writing. If the court
is unable to communicate with the plaintiff because
the plaintiff has failed to notify the court of his
or her address, the plaintiff will be deemed to have
abandoned the lawsuit.
Rec. Doc. 4 at 3-4 (emphasis added). In accordance with our
Standing Practice Order, as Plaintiff has failed to inform the
Court of his updated address, Plaintiff is deemed to have
abandoned this lawsuit.
In addition, it is notable that our review of this case
confirms Magistrate Judge Smyser's determinations and
well-reasoned analysis, and while we have not been presented with
any reason to revisit them, we do reiterate the salient aspects
of the Magistrate Judge's report.
We are in agreement with the Magistrate Judge's determination
that Plaintiff's complaint fails to state a claim upon which
relief can be granted, for the reasons that follow. As the
Magistrate Judge explains, to the extent that Plaintiff's claim
is that Defendant Thompson negligently lost or destroyed his box
of documents, there has been no deprivation of property under the
due process clause. (Rep. & Rec. at 4-6). Moreover, to the extent that Plaintiff's
claim is that Defendant Thompson intentionally failed to mail or
destroyed his box, the issue becomes whether Plaintiff had an
adequate post-deprivation remedy available for the loss of his
box. As Plaintiff had adequate post-deprivation remedies
available to him, Plaintiff fails to state a due process claim
upon which relief can be granted. See
28 C.F.R. §§ 542.10-542.19, 28 C.F.R. §§ 543.30-543.32; Rep. & Rec. at 6.
Finally, as the Magistrate Judge notes, any amendment would be
futile since any due process claim, whether based upon negligent
or intentional conduct, would fail to state a claim upon which
relief can be granted because Plaintiff had an adequate
Our review of this case confirms Magistrate Judge Smyser's
determinations and we have not been presented with any reason to
revisit them. Because we find no error in Magistrate Judge
Smyser's report and recommendation and because no objections have
been filed, we will adopt it as our own.
NOW, THEREFORE, IT IS ORDERED THAT:
1. Magistrate Judge Smyser's Report and
Recommendation (doc. 11) is adopted in its entirety.
2. In accordance with our Standing Practice Order, as
Plaintiff has failed to inform the Court of his
updated address, Plaintiff is deemed to have abandoned this lawsuit. Moreover, Plaintiff's
complaint is dismissed pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii).
3. The Clerk shall close the file on this case.
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