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Bronson v. Kerestes

January 25, 2010

PURCELL BRONSON PLAINTIFF,
v.
JOHN W. KERESTES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: A. Richard Caputo United States District Judge

(JUDGE CAPUTO)

(MAGISTRATE JUDGE SMYSER)

MEMORANDUM

Presently before the Court is Magistrate Judge Smyser's Report and Recommendation ("R & R") of December 15, 2009 (Doc. 102) and Plaintiff's Objections and Brief in Support to the Magistrate Judge's R&R (Docs. 103-104). Also before the Court is Plaintiff's Appeal of the Magistrate Judge's Order of November 10, 2009. (Doc. 101.) Magistrate Judge Smyser recommended that Plaintiff's case be dismissed for failure to pay the filing fee, and that all other pending motions be denied as moot. This Court will adopt Judge Smyser's R & R because the Plaintiff has failed to comply with Magistrate Judge Smyser's Order of November 10, 2009, requiring Plaintiff to pay the $350.00 filing fee within thirty (30) days.

BACKGROUND

On February 10, 2009, Plaintiff filed a Complaint and Motion for Leave to Proceed in Forma Pauperis ("IFP Motion"). (Docs. 1-2.) Magistrate Judge Smyser granted the IFP Motion on February 18, 2009. (Doc. 8.) The Plaintiff filed his Amended Complaint on July 17, 2009. (Doc. 30.)

On August 10, 2009, Defendants filed a Joint Motion to Revoke Plaintiff's IFP Status. (Doc. 44.) On November 10, 2009, Magistrate Judge Smyser issued an Order 1) granting Defendants' Motion to Revoke Plaintiff's IFP Status, 2) vacating the February 18, 2009 Order granting IFP status to Plaintiff, 3) ordering Plaintiff to pay the full $350.00 filing fee within thirty (30) days, lest his case be recommended for dismissal, 4) staying proceedings until Plaintiff paid the filing fee, and 5) denying Plaintiff's motion to strike the statement of Defendant Arias. (Doc. 100.) On November 20, 2009, Plaintiff filed an appeal of this judgment. (Doc. 101.)

On December 15, 2009, Magistrate Judge Smyser recommended that Plaintiff's case be dismissed for failing to pay the requisite filing fee and that all other pending motions be denied as moot. (Doc. 102.) On December 23, 2009, Plaintiff filed Objections and a Brief in Support. (Docs. 103-104.) Plaintiff's Objections raise the following issues: 1) Defendant Arias' Declaration is self-serving and that the Magistrate Judge improperly made a credibility determination in revoking IFP status, 2) that Plaintiff is being denied access to his medical records that would show he is imminent danger, 3) that the record produced by Arias and relied upon by Magistrate Judge Smyser are not authentic, and 4) that various medical examinations and appointments have yet to occur or did not occur until dates that apparently prove imminent danger. Notably absent is any objection to the actual recommendation made by Magistrate Judge Smyer, namely that the case be dismissed for failure to pay the filing fee; instead, Plaintiff seemingly attacks the November 10, 2009 Order revoking his IFP status. No response to these Objections was filed.

STANDARD OF REVIEW

I. Report and Recommendation

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).

II. Appeal From Magistrate Judge's Order

Under Local Rule 72.2, a party may appeal from a magistrate judge's non-dispositive pre-trial motion within ten (10) days of the order. At the time the appeal is filed, the appellant must also file a brief in support that addresses the specific issue raised on appeal. A judge of the court must consider the appeal and set aside any portion of the magistrate judge's order that is "clearly erroneous or contrary to law." ...


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