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Wright v. Loftus

November 20, 2009


The opinion of the court was delivered by: Judge Caputo



Presently before the Court is Magistrate Judge Blewitt's Report and Recommendation ("R & R") of July 22, 2009 (Doc. 3) and Plaintiff's Objections to the Magistrate Judge's R & R (Doc. 4). Magistrate Judge Blewitt recommended that Plaintiff's case be dismissed. (Doc. 3.) This Court will adopt Magistrate Judge Blewitt's R & R for the reasons discussed below.


Plaintiff Kerry A. Wright filed her pro se Complaint on July 8, 2009. (Doc. 1.) The opening paragraph of the Complaint, which does not contain numbered paragraphs, states that the action is based on "civil rights violations" under 42 U.S.C. §§ 1983, 1985, the Americans with Disabilities Act ("ADA"), the Pennsylvania Human Relations Act ("PHRA"), and the tort of intentional infliction of emotional distress ("IIED"). (Doc. 1.) The Complaint also contains four numbered counts, "Omitting and Concealing Evidence in [Plaintiff's prior civil action]" (Count I), "Fraud by way of Deception" (Count II), "Newly Discovered evidence to support Corruption on the United States Federal Courts by Hands of Council (sic)" (Count III), and "Contempt of Middle District of Pennsylvania Federal District Court and United States Third Circuit Court of Appeals & Obstruction of Justice" (Count IV).

The Defendants are Peter J. Loftus, who represented Plaintiff in a previous case against the Dallas School District, the Loftus Law Firm, P.C., and Robin B. Snyder, Cynthia E. Banks, Angela Januski, and Michael J. Parichelli, all attorneys with Marshall, Dennehey, Warner, Coleman & Goggin ("Marshall Dennehey"). (Doc. 1.) Marshall Denehey was retained as counsel for the Dallas School District in Plaintiff's previous case in the United States District Court for the Middle District of Pennsylvania, Wright v. The Dallas School District, et al., Civil Action No. 3:05-cv-01197. In that case, this Court granted summary judgment to the Defendants on Plaintiff's claims seeking relief under 42 U.S.C. §§ 1983, 1985, the ADA, the PHRA, and IIED. Plaintiff's ADA, PHRA and § 1985 claims in her previous case were based primarily on the fact that she has cerebral palsy.

The Complaint in Plaintiff's current action alleges that Loftus concealed evidence from her and omitted evidence in the previous trial, and that his "deceptive tactics" caused her to be disadvantaged. (Docs. 1, 3.) Plaintiff further alleges that Loftus sabotaged her case deliberately and that he failed to sanction the defendants in her previous case. (Docs. 1, 3.) Plaintiff also avers that Snyder improperly subpoenaed psychiatric records and that these records were supplied without her consent. (Docs. 1, 3.) She alleges that at her deposition in the previous case, Loftus and the Marshall Denehey attorneys shared confidential medical information, which constituted professional misconduct, and that they conspired in a manner that "manipulated the justice system" and caused the entry of summary judgment against Plaintiff on her claims. (Docs. 1, 3.) The vast majority of Plaintiff's Complaint is a reprise of her previous law suit and allegations that amount to negligence or malpractice on the part of Loftus and conspiratorial action between Loftus and the Marshall Denehey attorneys to "conjure a plot to harm" Plaintiff. (Docs. 1, 3.)

On July 8, 2009, Plaintiff also filed an application for leave to proceed in forma pauperis ("IFP Application"). (Doc. 2.) As obligated by law, Magistrate Judge Blewitt screened Plaintiff's Compaint and recommended that the case should be dismissed. Magistrate Judge Blewitt recommended that the § 1983 claims be dismissed because none of the Defendants were alleged to be state actors, that the § 1985 claims be dismissed because Plaintiff had failed to make out a cognizable conspiracy claim beyond mere conclusory allegations, the ADA and PHRA because the Defendants were not "covered entities" under either of these acts, and that this Court should decline to exercise supplemental jurisdiction over the remaining IIED claim. Plaintiff filed an objection to the R & R on July 31, 2009, in which she failed to directly address or refute any of the dispositive points in Magistrate Judge Blewitt's R & R. (Doc. 4.) No response was filed.


Where objections to the magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the Court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).


28 U.S.C. § 1915 provides a two-step process for reviewing IFP applications. The U.S. Court of Appeals for the Third Circuit has made it clear that this Court should consider a litigant's financial status and determine whether he is eligible to proceed IFP, then assess the complaint to determine whether it is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks relief from a defendant immune from suit. See Roman v. Jeffes, 904 F.2d 192, 194 n. 1 (3d Cir. 1990) (court assesses complaint for frivolousness under § 1915(d)); Prison Litigation Reform Act, Pub. L. No. 104-134, § 804(a), (c)-(e), 110 Stat. 1321, 1321-74 (1996) (replacing 1915(d) with 1915(e), adding bases of review). The Court shall dismiss the case if it determines that the action is frivolous, malicious, or fails to state a claim on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). The decision whether to grant or deny IFP status rests within the sound discretion of the district courts. United States v. Holiday, 436 F.2d 1079, 1079-80 (3d Cir. 1971) (citing decisions from other circuits).

Plaintiff's IFP application states that she has not been employed since May 31, 2008 and has no cash in her checking account. Assuming that this is true, Plaintiff is eligible to proceed IFP. This Court must then determine whether the Complaint is frivolous, ...

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