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Robert Benchoff v. Warden John Wetzel

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


September 14, 2012

ROBERT BENCHOFF, PLAINTIFF,
v.
WARDEN JOHN WETZEL, ET AL., DEFENDANTS.

The opinion of the court was delivered by: (judge Caputo)

(MAGISTRATE JUDGE BLEWITT)

MEMORANDUM ORDER

Presently before the Court is Magistrate Judge Blewitt's Report and Recommendation (Doc. 105) to Plaintiff's second Amended Complaint (Doc. 102) and Plaintiff's Motion to Dismiss Defendant John Doe 1. (Doc. 103). Magistrate Judge Blewitt recommends that Plaintiff's second Amended Complaint be dismissed without prejudice for failure to comply with Federal Rule of Civil Procedure 15(a). Magistrate Judge Blewitt also recommends that Defendant John Doe 1 be dismissed with prejudice, as he has been identified as Michael Green, who has already been added as a defendant to the suit.

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)). However, this only applies to the extent that a party's objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6--7 (3d Cir. 1984). In conducting a 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 law 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, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (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, 106 S. Ct. 466, 88 L. Ed. 2d 435 (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).

Defendants did not file objections to the Magistrate Judge's Report and Recommendation. On August 20, 2012, Plaintiff filed a document entitled "Petitioner's Answer to Report and Recommendation." (Doc. 106.) In this document, Plaintiff "agrees with the determinations of the Court regarding the requirement to seek Leave of Court to Amend the Pleading." (Doc. 106, 1.) He further notes that he will seek leave of court to remove Defendant John Doe 1 from the suit and substitute Defendant John Doe 2 with Pat McCrone, who has been identified as the hearing examiner for the Pennsylvania Board of Probation and Parole who participated in Plaintiff's 2010 parole decision. (Doc. 106, 1.)

Based on the foregoing, Plaintiff has not objected to Magistrate Judge Blewitt's suggestion that Plaintiff's second Amended Complaint be dismissed without prejudice for failure to obtain leave of court to file an amended complaint.*fn1 And, finding no clear error or manifest injustice in the Report and Recommendation, Magistrate Judge Blewitt's recommendations will be adopted.

ORDER

NOW this 14th day of September, 2012, upon review of the Report and Recommendation of Magistrate Judge Blewitt (Doc. 105) for clear error or manifest injustice, IT IS HEREBY ORDERED that:

(1) The Report and Recommendation (Doc. 105) is ADOPTED.

(2) Plaintiff's second Amended Complaint (Doc. 102) is DISMISSED WITHOUT PREJUDICE.

(3) Plaintiff's Motion to Dismiss Defendant John Doe 1 (Doc. 103) is GRANTED.

(4) The matter is RECOMMITTED to Magistrate Judge Blewitt for further proceedings.

A. Richard Caputo United States District Judge


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