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Maynard v. ENT Surgical Associates

January 26, 2010

CHARMAINE MAYNARD, PLAINTIFF,
v.
ENT SURGICAL ASSOCIATES, ET AL., DEFENDANTS



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

(JUDGE CAPUTO)

(MAGISTRATE JUDGE BLEWITT)

MEMORANDUM

Presently before the Court is Magistrate Judge Blewitt's Report and Recommendation ("R & R") of December 9, 2009 (Doc. 8) and Plaintiff's Objections to the Magistrate Judge's R & R (Doc. 9). Magistrate Judge Blewitt recommended that Plaintiff be granted in forma pauperis ("IFP") status and that the case be dismissed. (Doc. 3.) This Court will modify Magistrate Judge Blewitt's R & R, deny Plaintiff IFP status and dismiss the case for the reasons discussed below.

BACKGROUND

On October 9, 2009, Plaintiff Charmaine Klatch-Maynard filed an Amended Complaint and Motion for Leave to Proceed In Forma Pauperis. (Docs. 2-3.) Magistrate Judge Blewitt issued an Order on October 15, 2009, requiring Plaintiff to supplement her IFP application because the information provided did not allow the court to make a proper determination as to her financial status; Plaintiff complied and submitted a supplement to her IFP application on November 22, 2009.

Defendants are various corporate medical entities and individual doctors. (Compl. ¶¶ 5-7.) Plaintiff's Amended Complaint alleges that, on October 2 and 8, 2007, while accompanying her friend to a doctor's appointment, Plaintiff was barred from the premises because of her guide dog. (Id. at ¶¶ 2-3.) On October 10, 2007, Plaintiff was notified in a letter sent by Defendants that she was not to attempt to access their premises. (Id. at ¶ 10.)

Plaintiff's Amended Complaint claims "Denial of Procedural Due Process Under the U.S. Federal Constitution" (Count I), "Denial of Equal Protection Under the U.S. Federal Constitution" (Count II), "Denial of Substantive Due Process Under the U.S. Federal Constitution" (Count III), "Denial of Federal, Constitutionally and Statutorily Protected Rights Under the American with Disabilities Act and Pennsylvania Human Relations Act" (Count IV), "Denial of Pennsylvania Constitutional Rights According to Article I § 1" (Count V), "Denial of Pennsylvania Constitutional Rights According to Article I § 2" (Count VI), and "Retaliation" (Count VII).

On December 9, 2009, Magistrate Judge Blewitt issued an R & R that granted Plaintiff IFP status because of her financial circumstances, but recommended the case be dismissed after screening Plaintiff's claims. Plaintiff filed an objection to the R & R on December 23, 2009. (Doc. 9.) No response was filed.

STANDARD OF REVIEW

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).

DISCUSSION

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).When the plaintiff clearly fails the second step of the IFP inquiry, the Court need not consider the plaintiff's financial status. See Oduche v. Donale, No. 3:08-cv-2010, 2008 WL 5378279, at *1 (M.D. Pa. December 22, 2008).

In the instant case, the Court need not consider Petitioner's financial status because her Petition fails the second step of IFP review. Because Plaintiff's Objections to the R & R center around Magistrate Judge Blewitt's failure to consider all of the statutory and constitutional causes of action listed in the Amended Complaint, this Court ...


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