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Leonard v. McVey

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


November 24, 2009

MICHAEL LEONARD, PLAINTIFF
v.
CATHERINE C. MCVEY, ET AL., DEFENDANTS

The opinion of the court was delivered by: Judge Conner

ORDER

AND NOW, this 24th day of November, 2009, upon consideration of the report (Doc. 17) of the magistrate judge, recommending that plaintiff's complaint (Doc. 1) be dismissed for failure to state a claim upon which relief may be granted, and, following an independent review of the record, it appearing that plaintiff is a prisoner incarcerated by the Pennsylvania Department of Corrections, that his complaint seeks relief under 42 U.S.C. § 1983 because "the 1968 Constitution of Pennsylvania does not contain a criminal code or a savings clause and, therefore, the trial court did not have jurisdiction to sentence him and the DOC and Board defendants do not have jurisdiction to hold him in custody," (Doc. 17 at 2), and alleges that the Department of Corrections retaliated against him for pursuing federal-court relief, (id.), and it further appearing that plaintiff has not objected to the magistrate judge's recommendation that the complaint be dismissed, and that there is no clear error on the face of the record,*fn1 see Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007) (explaining that "failing to timely object to [a report and recommendation] in a civil proceeding may result in forfeiture of de novo review at the district court level"), it is hereby ORDERED that:

1. The report and recommendation (Doc. 17) of the magistrate judge is ADOPTED. All claims against defendants are DISMISSED. Leave to amend is denied as futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

2. The Clerk of Court is instructed to CLOSE this case.

CHRISTOPHER C. CONNER United States District Judge


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