The opinion of the court was delivered by: Judge James M. Munley United States District Court
Before the court are plaintiff's objections to Magistrate Judge Thomas M. Blewitt's March 5, 2008 order (Doc. 96) granting, in pertinent part, the United States of America's motion for extension of time to respond to plaintiff's second amended complaint.
This case involves complaints by the plaintiff about the medical care provided him as a prisoner at the Federal Correctional Institute in Allenwood, Pennsylvania. The case is currently before Magistrate Judge Blewitt, who is supervising discovery. The matter in question here involves an order issued by Magistrate Judge Blewitt on March 5, 2008. In that order, the magistrate judge directed the Clerk of Court to add a party to the case and to serve the complaint on that party. (Order (Doc. 96) at ¶¶ 1-2). The order also requested that the new defendant waive service. (Id. at ¶ 4). The order granted the United States's motion for an extension of time to answer the amended complaint and the plaintiff's "request for disclosure." (Id. at ¶ 4). The court gave defendants thirty days to respond to the amended complaint after service on the new defendant. (Id. at ¶ 5).
On March 17, 2008, plaintiff filed objections to this non-dispositive order (Doc. 102). The plaintiff contends that the magistrate judge ruled on the defendants' motion for an extension of time before he had an opportunity to object, which denied him due process. (Id. at 2). He also complains that the magistrate judge failed to state a date on which the additional defendant had to be served, making the date upon which default would be appropriate uncertain. (Id.). Finally, plaintiff insists that the magistrate judge erred in failing to take into account that the Federal Tort Claims Act portion of his complaint "is ripe for the Defendants' responce [sic] and disclosure." (Id.).
This Court has jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.") and 28 U.S.C. § 1346(b)(1) ("The district courts. . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.").
The plaintiff in this action resides at the FCI-Allenwood, Pennsylvania, which is located in the Middle District of Pennsylvania. The United States is a party to this action, and the action concerns the Eighth Amendment of the United States Constitution.
Here, the plaintiff appeals the magistrate judge's non-dispositive order. The standard of review for a non-dispositive order by a magistrate judge is to determine if the magistrate judge's ruling was clearly erroneous or contrary to law. 28 U.S.C. 636(b)(1)(A).
Plaintiff objects to three parts of the magistrate judge's order. We will address each in turn.
First, plaintiff contends that the magistrate judge erred by ruling on the motion for an extension of time before he had an opportunity to file a brief in opposition to such motion. No clear error of law exists here. A court "for cause shown may at any time in its discretion (1) with or without motion or notice order the period [to respond] enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order." FED. R. CIV. P. 6(b). Thus "[t]he court has considerable discretion in granting or denying any motion for enlargement of time." Hoffman v. Kennedy, 30 F.R.D. 50, 51 (E.D. Pa. 1962). ...