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Hoffman v. Superintendent Mardi Vencent

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


September 28, 2006

RICHARD HOFFMAN, PLAINTIFF,
v.
SUPERINTENDENT MARDI VENCENT, LT. N.R. HOFFMAN, LPN BALDWIN AND HEARING EXAMINER, DEFENDANTS.

The opinion of the court was delivered by: Judge Kosik

MEMORANDUM AND ORDER

AND NOW, THIS 28th DAY OF SEPTEMBER, 2006, IT APPEARING TO THE COURT THAT:

[1] On August 23, 2006, plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 1983, against the above defendants;

[2] plaintiff is presently incarcerated at State Correctional Institution at Laurel Highlands, Pennsylvania ("SCI Laurel Highlands"), and all of the defendants are employed there;

[3] the matter was assigned to United States Magistrate Judge J. Andrew Smyser;

[4] the plaintiff's complaint asserts that: (1) defendant, LPN Baldwin withheld necessary medical care and verbally abused the plaintiff; (2) defendant, Lt. Hoffman, issued a false misconduct report in retaliation for the plaintiff's filing a complaint against defendant, LPN Baldwin; (3) defendant, Superintendent Vincent, approved the staff members' conduct; and, (4) the defendant identified only as a hearing examiner, upheld "the policy that witnesses are not necessary to prove innonce or guilt where charges are brought against officers and of staff;" and "conducted a KANGROO COURT" (Doc. 1);

[5] the complaint requests various sums in damages against each defendant;

[6] the plaintiff did not submit the filling fee or properly complete the forms required to proceed in forma pauperis;

[7] on September 1, 2006, the Clerk of Court forwarded the plaintiff the correct in forma pauperis form and authorization form and entered an administrative order informing the plaintiff that the case would be dismissed without prejudice unless he paid the $350.00 filing fee or filed a properly completed application to proceed in forma pauperis (Doc. 4);

[8] by letter of September 13, 2006, the plaintiff indicated that he would not assent to payment and requested his complaint to be returned (Doc. 5);

[9] Magistrate Judge Smyser filed a Report and Recommendation on September 19, 2006, suggesting that the plaintiff's complaint be dismissed without prejudice due to the fact that plaintiff had requested the return of his complaint (Doc. 6);

[10] on September 27, 2006, the Plaintiff filed objections to the Report and Recommendation;

[11] the plaintiff's objections contained no argument and the brief in support stated only, "Petitioner file this motion pursuant to Rule 55(a) Fed.R.Civ.P. to further seek some assistance to address said case matter, for reason thatfor of future and / or searious concequences. Petitioner pray that this Honorable Court will consider this motion and grant him theurangent and necessary time to seek further assistance" (Doc. 7);

[12] to date, the plaintiff has neither filed a properly completed application to proceed in forma pauperis, nor paid the $350.00 filing fee;

IT FURTHER APPEARING THAT:

[13] when objections are filed to a Report and Recommendation of a Magistrate Judge, we must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. §636(b)(1); see Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). In doing so we may accept, reject or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. §636(b)(1); Local Rule 72.3. Although our review is de novo, we are permitted to rely upon the Magistrate Judge's proposed recommendations to the extent we, in the exercise of sound discretion, deem proper. United States v. Raddatz, 447 U.S. 667, 676 (1980);

[14] having examined the Magistrate Judge's Report and Recommendation and the plaintiff's objections, we agree with the Magistrate Judge's recommendations;

[15] plaintiff requested that his complaint be returned, failed to pay the appropriate filing fee or file a properly completed application to proceed in forma pauperis, and provided no evidence of his intention to pay the filing fee or complete the appropriate forms in his objections to the Report and Recommendation;

[16] we agree with the Magistrate Judge's conclusion that the plaintiff's complaint should be dismissed without prejudice.

ACCORDINGLY, IT IS HEREBY ORDERED THAT:

[1] the Report and Recommendation of Magistrate Judge J. Andrew Smyser dated September 19, 2006, (Doc. 6) is adopted;

[2] the plaintiff'scomplaint is dismissed without prejudice; [3] plaintiff may re-file the complaint with the appropriate filing fee or a properly completed application to proceed in forma pauperis;

[4] the Clerk of Court is directed to close this case, and forward a copy of this Memorandum and Order to the Magistrate Judge.

Edwin M. Kosik United States District Judge

20060928

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