United States District Court, W.D. Pennsylvania
December 20, 2005.
RICHARD C. SCHMEER, Plaintiff,
DEPARTMENT OF CORRECTIONS, MEDICAL STAFF S.C.I. HOUTZDALE, Defendants.
The opinion of the court was delivered by: KIM GIBSON, District Judge
This matter was referred to Magistrate Judge Keith A. Pesto for
pretrial proceedings in accordance with the Magistrates Act,
28 U.S.C. § 636 (b) (1), and subsections 3 and 4 of Local Rule 72.1
for Magistrate Judges.
The Magistrate Judge filed a Report and Recommendation on
November 29, 2005, docket no. 2, recommending that the complaint
be dismissed for failure to state a federal claim,
28 U.S.C. § 1915 (e) (2) (B), without prejudice to plaintiff pursuing state
law claims in state court.
The plaintiff was notified that, pursuant to 28 U.S.C. § 636
(b) (1), he had ten days to serve and file written objections to
the Report and Recommendation. Plaintiff filed a motion to extend
time to file an amended complaint, docket no. 4, which was
denied, and which proposed amendments that would not have cured
the defect described by the Report and Recommendation: plaintiff
is attempting to bring a medical malpractice claim as a civil
rights action. After de novo review of the record, the Report and
Recommendation, and noting the absence of objections thereto, the
following order is entered:
AND NOW, this 20th day of December, 2005, it is
ORDERED that plaintiff's complaint is dismissed for failure to
state a federal claim, without prejudice to bringing any state
law claims in the appropriate state court. The Report and
Recommendation is adopted as the opinion of the Court. The Clerk
shall mark this matter closed.
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